Rosita Shaw & Others on behalf of Boorroola Moorrool Moorrool v Rand Mining Limited & Another
[2020] NNTTA 51
•2 July 2020
NATIONAL NATIVE TITLE TRIBUNAL
Rosita Shaw & Others on behalf of Boorroola Moorrool Moorrool v Rand Mining Limited & Another [2020] NNTTA 51 (2 July 2020)
Application No: | WO2019/1085 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Rosita Shaw & Others on behalf of Boorroola Moorrool Moorrool (WC2016/005)
(native title party)
- and -
Rand Mining Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 2 July 2020 |
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 – the act is an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 26(3), 29, 31, 32(4), 151(2), 237 Native Title Amendment Act 1998 (Cth) |
Cases: | Andrews v Northern Territory [2002] NNTTA 170 (‘Andrews v Northern Territory’) Jack Dann v Western Australia & GPA Distributors (1997) 74 FCR 391; [1997] FCA 332 (‘Dann v Western Australia’) Kevin Allen & Others on behalf of Nyamal #1 v John William Young & Another [2019] NNTTA 85 (‘Nyamal v Young’) Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’) Nyamal Aboriginal Corporation v Abeh Pty Ltd & Another [2019] NNTTA 90 (‘Nyamal v Abeh’) Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’) 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’) The Miriuwung Gajerrong #1 & #4 (Native Title Prescribed Body Corporate) Aboriginal Corporation/Western Australia/Stansmore Resources Pty Ltd [2013] NNTTA 73 (‘Miriuwung Gajerrong v Stansmore Resources’) Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, [2007] NNTTA 82 (‘Dambimangari People v FMG Resources’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representatives of the native title party: | John Edwards and Hema Hariharan, Arma Legal |
| Representative of the grantee party: | Tony Ly, Tenement Administration Services Pty Ltd |
| Representatives of the Government party: | Keahn Sardinha, State Solicitor’s Office Matthew Smith, Department of Mines, Industry Regulations and Safety |
REASONS FOR DETERMINATION
Introduction
This is a determination about whether the expedited procedure under the Native Title Act1993 (Cth) (NTA) applies to the proposed grant of exploration licence E04/2548 (licence) to Rand Mining Limited (Rand).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licence, with a notification day of 31 July 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure under the NTA, which would enable the licence to be granted without first requiring good faith negotiation under s 31 NTA.
The majority of the licence area is located on the seaward side of the mean high-water mark (MHWM). However, as explained below, for the purposes of this determination, the licence extends only to places on the landward side of the MHWM. I refer to this as the inquiry area.
The inquiry area is located in the Kimberley region in Western Australia, and is subject to the Boorroola Moorrool Moorrool native title determination application (WAD598/2016). On 25 November 2019, the registered native title claimant for the Boorroola Moorrool Moorrool claim (BMM), lodged an objection to the State’s inclusion of the expedited procedure statement.
As a result of BMM’s objection, the Tribunal is required to determine whether the grant of the licence is an act attracting the expedited procedure (s 32(4) NTA) and the President of the Tribunal has directed me to constitute the Tribunal for that purpose.
For the reasons outlined below, my determination is that the grant of the licence in the inquiry area is an act attracting the expedited procedure
The issues for determination
Under s 237 of the NTA, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a) NTA);
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b) NTA); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c) NTA).
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. In deciding whether the expedited procedure applies, 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 the licence. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.
In this case BMM argues that the grant of the licence will cause interference within the scope of ss 237(a) and (b) and involve major disturbance as contemplated by s 237(c).
Determination on the papers
All parties have provided contentions and evidence in accordance with the Tribunal’s directions and BMM also provided a reply.
The State’s evidence includes mapping, a Tengraph Quick Appraisal, a report from the Department of Planning, Lands and Heritage’s Aboriginal Heritage Inquiry System (AHIS report), the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and details of proposed endorsements and conditions to be imposed on the grant of the licence. The State also intends to include a condition requiring entry into a Regional Standard Heritage Agreement (RSHA) if requested by the native title party within a specified period.
BMM’s evidence consists of a statement of Anne Poelina, dated 15 January 2020, which attaches a copy of the Fitzroy River Declaration made by traditional owners of the Fitzroy River Catchment in 2016. Ms Poelina states that she is a member of the Applicant for the Boorroola Moorrool Moorrool claim and is endorsed to speak for the licence area. I accept her evidence.
Rand provided two attachments with its contentions, being its s 58 statement and a copy of an email with a representative of BMM.
As discussed further below, the Tribunal also produced and circulated a map showing the licence area in relation to the MHWM (Tribunal Map). No party raised any objection to my having regard to the Tribunal Map in deciding this matter.
BMM and the State agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA and Rand did not express a view on the issue. Having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
The inquiry area
The licence is located in King Sound and, as already noted, the majority of the licence area is located below the MHWM. This is clearly shown on the Tribunal Map and also reflected in BMM’s evidence. At paragraph 10 of her statement Ms Poelina states that the “area of the exploration permit is mostly over an area of the intertidal zone, which is inundated by water in the high tides”.
From the Tribunal Map it appears that only the whole or part of a number of islands in King Sound, including Mary Island and Mary Island South, together with part of an area near Derby labelled ‘Causeway’ are on the landward side of the MHWM and in the licence area.
The significance of this is that right to negotiate provisions contained in Part 2, Division 3, Subdivision P of the NTA, including the expedited procedure process, apply to the licence only to the extent it relates to the landward side of the MHWM
(s 26(3) NTA).
None of the parties mentioned s 26(3) in their contentions, but when circulating the Tribunal Map on 6 May 2020, the Tribunal invited the parties to comment on the application of the section to this case.
No response was received from Rand. The State contended simply that s 26(3) means what it says, such that subdivision P does not apply to an act to the extent the act relates to places not on the landward side of the MHWM.
BMM did not wish to make any specific contentions relevant to the application of
s 26(3) to this matter. It stated that the Tribunal should apply the section as intended by the NTA but also noted it “holds native title rights over the land and waters subject to the exploration licence and that appropriate future act protections should apply”. It is beyond the scope of this inquiry to consider the extent of any procedural rights, apart from Subdivision P, which may apply to the grant of the licence.
Section 26(3) was inserted into the NTA by the Native Title Amendment Act 1998 (Cth). The relevant explanatory memorandum (to the Native Title Amendment Bill 1997) explains the section as follows:
Future acts relating to the sea or intertidal zone
19.4 A future act is only covered by Subdivision P to the extent that it relates to a place on the landward side of the mean highwater mark of the sea [subsection 26(3)]. In essence, this means that an act will be subject to the right to negotiate provisions only to the extent that it relates to an onshore place that is not the intertidal zone. These areas are excluded from the right to negotiate because native title holders will not have the equivalent of exclusive possession over them.
The Tribunal has considered s 26(3) on a number of occasions. In Miriuwung Gajerrong v Stansmore Resources at [14], the Tribunal made the following comments regarding s 26(3):
…This means that the Tribunal has no jurisdiction to consider whether the proposed exploration is likely to cause the s 237 interference or disturbance in areas covered by the proposed licence which are to the seaward side of the mean high water mark. However the Tribunal has previously found that evidence relating to community or social activities, or sites or areas of particular significance beyond the mean high water mark may be relevant to assessing the frequency and nature of community or social activities or existence of areas or sites of significance on the land areas (Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, [2007] NNTTA 82 at [18]).
Both Miriuwung Gajerrong v Stansmore Resources and Dambimangari People v FMG Resources mistakenly referred to s 26(3) as s 26(2), but there is no question as to the provision concerned.
In Dambimangari People v FMG Resources at [18], the Tribunal also commented that:
… From the perspective of assessing the evidence presented drawing a hard and fast line along the high water mark and ignoring evidence of community or social activities or special areas or sites on the seaward side would create an artificial situation. The facts when considered in their overall context may mean that evidence relating to areas which cover both the landward and seaward side of the mean high water mark and which adjoin or are related to each other are relevant to determining the s 237 issues on the landward side.
The effect of s 26(3) is that, for the purposes of this inquiry, the licence extends only to those areas on the landward side of the MWHM. For convenience, I refer to this as the inquiry area. The areas on the seaward side of the MHWM (being the vast majority of the licence area) do not form part of the inquiry area.
The parties do not appear to have taken account of the application of s 26(3) in providing their evidence and contentions, nor did they seek to clarify its application to the evidence when given the opportunity to do so. As a result, the parties’ material does not focus on the inquiry area. However, consistent with the Tribunal’s previous decisions, I have considered the overall context of the evidence when assessing the likelihood of interference or disturbance for s 237 in relation to the inquiry area.
The licence and Rand’s proposed exploration activities
The nature of the licence and Rand’s proposed activities are relevant to my consideration of each limb of s 237.
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act 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).
According to the Tengraph Quick Appraisal provided by the State, the whole of the licence area is 32,982.35 hectares in size and comprises the land tenure set out in the following table. No specific details have been provided for the inquiry area.
Tenure
Extent of overlap
C Class Reserve 51146 – Harbour Purposes
95.36%
C Class Reserve 26818– Harbour Purposes
0.3%
Pastoral Lease – Mowanjum Aboriginal Corporation
0.73%
Pastoral Lease - Meda
0.21%
Unallocated Crown Land
3.4%
Road Reserves
>0.1%
The AHIS report reveals there are no Aboriginal sites registered under the Aboriginal Heritage Act 1972 (WA) (AHA) or ‘other heritage places’ in the licence area.
Rand’s s 58 statement states that it believes the licence area to be prospective for gold. The work program for year 1 of the term is outlined with estimated expenditure of $121,000. Rand’s contentions include brief additional comments about the nature of the activities proposed, although I note this is by reference to the s 58 statement and therefore limited to the first year of the term. There is no evidence as to how much or which of these activities may occur in the inquiry area.
Given the limited evidence regarding Rand’s proposed activities, it is reasonable to proceed on the basis that Rand may exercise all of the rights available to it under the licence.
Predictive assessment
Section 237(a): is the grant of the licence likely to interfere directly with BMM’s community or social activities?
As noted, Ms Poelina acknowledges that the licence area is “mostly” in the intertidal zone. She states at 11 that BMM has for “time immemorial used the King Sound to fish and gather resources” and that many of them continue to do so today. Ms Poelina refers, at 20, to continuing practices of fishing and collecting “bush tucker (bush honey and medicines along the way)” when visiting King Sound for seafood.
Ms Poelina also refers to carrying out cultural activities and visiting sacred areas along the Fitzroy River. At 19, Ms Poelina says that “[g]oing out to the tenement area is important for our people and communities as it helps teach young people and old people the opportunity to share stories, to share our heritage and keep our culture and customs alive.”
The majority of Ms Poelina’s evidence relates to hunting, gathering, fishing and intergenerational teaching, particularly in the context of the significance of King Sound and its relationship with the Fitzroy River (Martuwarra). Reference is also made at 25 to an initiation ceremony which is still practiced today, although the location of this activity is not specified.
In relation to community and social activities relevant to s 237(a), BMM’s contentions and reply also focus on hunting, fishing and gathering (see contentions at 7 and reply at 11, 24).
The State argues that there is insufficient evidence of the location, intensity and frequency of these activities to conclude that interference is likely. In its reply at 11-12, BMM highlights the difficulty in specifying the location of fishing and hunting activities when the “vast majority of the tenement area is underwater”. It further contends that given the size of the licence and the absence of any specific details of where the exploration activities will take place, specifying the activities to that degree would be an exhaustive and expensive task. It says it has “necessarily summarised that a great deal of hunting and gathering takes place over this 32982.35 hectares by many hundreds of the native title holders and their families”.
The accepted approach to the application of s 237(a) is summarised in Yindjibarndi v FMG, at [16]. The interference contemplated by s 237(a) must be direct. This requires an evaluative judgement that the grant of the licence is likely to be the proximate cause of the interference. The interference must also be substantial, rather than trivial and the Tribunal is entitled to take into account contextual factors (see also Smith v Western Australia at [26]).
A key aspect to the context of this case is that, while the licence area may be large, as noted by BMM, the inquiry area is a very small part of that whole. Further, BMM’s primary focus is on activities which occur in the areas below the MHWM which are not the areas in issue. There is no specific evidence given in relation to any of the areas on the landward side of the MHWM.
Also, while it is certainly not necessary for BMM to exhaustively catalogue the activities undertaken in the licence area, additional evidence regarding the scale and frequency of the activities undertaken would have been helpful. The evidence does not reflect BMM’s contention that “a great deal of hunting and gathering” takes place by “many hundreds of native title holders and their families.”
I agree with BMM that there is limited evidence of Rand’s proposed activities, which is why I have proceeded on the basis that it may exercise all of the rights available under the licence.
However, even if I infer from the evidence that the hunting and gathering activities described by BMM also occur in the inquiry area, the evidence is insufficient to support a conclusion that the grant of the licence in those areas is likely to cause direct and substantial interference as required for s 237(a).
Accordingly, I conclude that the grant of the licence is not likely to interfere directly with BMM’s community and social activities.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance?
Relevance of proposed alternative heritage agreement
Rand contends that entry into a mutually agreeable heritage agreement will adequately protect any sites, a position with which it notes BMM agrees. Rand argues that by acknowledging the protection afforded by a mutually agreeable heritage agreement, BMM thereby admits that the grant attracts the expedited procedure. (Rand contentions at 2). At 7, Rand goes on to contend that the draft agreement supplied by BMM on 1 November 2019 would adequately protect BMM’s interests but says its consideration of the agreement was delayed by the objection application.
That argument is rejected by BMM which says that its objection reflects its view that entry into an RSHA provides inadequate protection, whereas its proposed agreement would satisfy its concerns.
I do not accept Rand’s contentions on this issue. The fact that BMM may be willing to refrain from lodging or to withdraw an objection if it reaches agreement with Rand about the protection of heritage, says nothing about whether the expedited procedure otherwise applies to the grant of the licence.
Rand’s contentions at 7 also suggest that it may misapprehend the relevance of the parties’ negotiations to the conduct of the Tribunal’s inquiry. The NTA requires any objection to be lodged within 4 months of the notification day and, in the event of an objection, the Tribunal is required to determine whether the grant of the licence is an act attracting the expedited procedure. The parties’ negotiations are not directly relevant to the Tribunal’s inquiry but equally, the conduct of the inquiry does not prevent the parties from continuing or concluding negotiations for a mutually agreeable heritage agreement. It is open to the parties to reach agreement regarding heritage protection at any time, whether before or after the conclusion of the inquiry.
Areas or sites identified by BMM
As discussed in Yindjibarndi v FMG at [17]-[18], an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders.
BMM’s contentions at 31 assert that the grant of the licence is likely to interfere with the following sites of particular significance:
(a)the Fitzroy River;
(b)sites relating to Woonyoomboo; and
(c)the Warloongarriy songline.
In its reply at 24, BMM asserts, by way of conclusion, the likelihood of interference only to the registered site of the Fitzroy River and the Warloongarriy songline. No further mention is made of sites relating to Woonyoomboo. Nonetheless, I have taken account of the whole of the evidence in relation to sites identified as significant to BMM.
At paragraphs 4-6 of her statement, Ms Poelina explains Warloongarriy Law (the Law of the River) which sets out the obligations for all those who belong to the Fitzroy River or Martuwarra. Later at paragraphs 22-34, Ms Poelina addresses the issue of interference with areas or sites of particular significance. In the present context, it is helpful to include that evidence in its entirety:
22. I know the exploration application area and the country alongside of it. There are places in the tenement area that are important to the BMM claimants. Over the years I have continued to visit this area by accessing the road that runs along the west side of the King Sound, past the Fraser River and up to the coast opposite Valentine Island and visiting the special soak areas to share and keep the stories alive.
23. Most significantly this exploration permit is very close to the Fitzroy River, Martuwarra. The Fitzroy River Martuwarra is of great significance to the native title holders. Martuwarra is National Heritage listed in 2011 Australia for its cultural values, and holds great value for the traditional owners, I attach a copy of the Fitzroy Declaration, made by Traditional Owner Groups in 2016.
24. The King Sound is situated between areas of land that are either determined or being claimed by the Nyikina people. King Sound has the largest tides in Australia, of up to 11 metres, and most of the Sound is shallow. In low tide vast areas of the Sound are not covered with water. The majority of the King Sound is in the inter-tidal zone. The Nyikina people have a long association with the King Sound, Petri recorded that the Nyikina country including 'the Fitzroy River, as well as the tidal waters of where it flows into King's sound'. This area of the Fitzroy is sacred to the Nyikina people.
25. Woonyoomboo/ Wunyambu was the ancestral creator and law giver of the Nyikina, he is also associated with Warloongarriy/Walungarri ceremony which is an initiation ceremony still practiced today. Woonyoomboo is associated with many traditional foods, with a method of fishing, and he is the creator of one of the most significant topical features of the landscape, the Fitzroy River Martuwarra.
26. Woonyoomboo was the Nyikina law-giver who created the natural landscape including the Fitzroy River Martuwarra, there are stories of Woonyoomboo all along Martuwarra including the mouth of the River Woonyoomboo also mapped the area to the West coast of the King Sound when he went to Ladgera Bay.
27. The Nyikina language is still spoken fluently by many Nyikina people, stories are still told and sung in language, including by transmission to young children. The story of Woonyoomboo and the sites associated with him are known by Nyikina people, including sites in the tenement area.
28. The Fitzroy flooding into the King Sound is associated with the origin myth of the Nyikina, it is an aspect of a significant seasonal event and as the origin of one of our most significant ancestors, it is unsurprising that Nykina people exert such a strong connection and feel and express such strong rights to the lower King Sound and the mouth of the Fitzroy River. During the wet season for example there can be an enormous plume of freshwater flooding into the King Sound.
29. There is the Warloongarriy Songline that run through the tenement area, from one side of King Sound to the other the songline maps the journey of Woonyoomboo and shares and teaches us about how the River was made and the names given by him in which these names for the plants, the birds, the fish, and animals. These names remain the same today. The song line and the creation story of how the river country was made and the animals names. These story lines share the rules for our values, ethics, relationships, history of how to live in harmony with the lands, waters, animals and people as important traditional ways of protecting country. We have to look after song lines and keep them strong.
30. Under our traditional law, law men have a responsibility to sing those songs. I do not know the details of these songs as in our law and culture this is men's business.
31. There are also important story places in the tenement area, on the coastal areas and we don't want explorers going there without talking to us first
32. These areas are not marked but we know where they are. When we have an agreement with an explorer we can inform them where these sites are and how they must behave in that area.
33. If those sites get damaged the native title holders will be responsible under traditional law.
34. There are many other special places. Companies need to talk to us to find out where these places are.
Fitzroy River and King Sound
The majority of BMM’s contentions and evidence focus on the Fitzroy River or Martuwarra, which is located outside the inquiry area and the licence area as a whole.
In its contentions at 15, BMM identifies the Fitzroy River as a registered Aboriginal site under the AHA (site ID 12687). In relation to the location of the registered site, BMM argues at 16, that the “… fixed immutable boundary near the mouth of the Fitzroy River, approximately 10 kilometres from the tenement area is not consistent with the Indigenous world view of land and sea and areas of significance, which identifies the significance of the wider landscape and whole catchment of the Fitzroy River …” BMM also expresses concern about impacts on the river flow, dredging and drilling at the mouth of the River and says this will have an impact on the registered site. I note that Rand contends that dredging is not permitted under the licence.
The point about the boundary of the registered site is repeated by BMM in its reply at 15, which states that “the significance of the Fitzroy River and river mouth to the native title holders is not accurately reflected in the registered site boundary but extends far beyond to include the mouth of the river and parts of King Sound.” BMM does not specify which parts of King Sound are considered part of the Fitzroy River, although I note Ms Poelina’s evidence at 28 refers to the Nyikina People’s strong connection to the lower King Sound and the mouth of the Fitzroy River.
Both Rand and the State refer to the fact that the Fitzroy River is some distance from the licence area and rely on Silver v Northern Territory (at [88]) to argue that proximity alone is insufficient to conclude that interference is likely. BMM seeks to distinguish Silver v Northern Territory which concerned land, compared to the licence which largely concerns water that moves with the tides, and therefore raises the risk of impacts on the Fitzroy River water flow and quality (reply at 14). Of course, for the reasons already stated, the licence area for this inquiry (the inquiry area) does not include the tidal areas. Further, BMM’s contentions are speculative as there is no evidence to indicate that any activities on the licence area would impact the Fitzroy River, even assuming it extends to the mouth of the River and lower King Sound.
Nothing in BMM’s evidence or contentions suggests that the whole of King Sound (including the inquiry area) is itself is a site of particular significance within the meaning of s 237(b). Aside from the specific references to the mouth of the River and the lower King Sound as already mentioned in association with the Fitzroy River and the songline discussed below, the evidence regarding King Sound focusses on its connection with the Fitzroy River and the potential for impact on the River.
Accordingly, while I am satisfied that the Fitzroy River is a site of particular significance to BMM, there is no basis to conclude that the grant of the licence in the inquiry area is likely to interfere with the River. Similarly, I can accept the general significance of King Sound to BMM due to its connection and association with the Fitzroy River, but the evidence does not support a conclusion that the whole of King Sound, including the inquiry area, is itself a site of particular, or more than ordinary, significance to BMM.
Warloongarriy Songline
Ms Poelina’s evidence in relation to the Warloongarriy Songline is brief and contained in paragraphs 29-30 of her statement as extracted above.
She says that the songline runs through the licence, from one side of King Sound to the other but she does not indicate where. In particular, it is not clear from the description provided whether the songline traverses the inquiry area.
The Tribunal has previously found that areas or sites relating to songlines or dreaming tracks are sites of particular significance for s 237(b). However, as the Tribunal observed in Andrews v Northern Territory at [124], the “particular sacredness of the site in the scheme of things needs to be explained”.
In this case, Ms Poelina has explained the general significance of the songline, but, other than saying it runs through the licence, she does not identify any specific areas or sites of particular significance in the licence area or, more particularly, in the inquiry area. (see also Yindjibarndi v FMG at [130])
On the basis of this evidence, I am unable to conclude that the Warloongarriy Songline is an area or site of particular significance in the inquiry area.
Important story places
Ms Poelina refers at 31 to “important story places in the tenement area, on the coastal areas”. These may be the sites relating to Woonyoomboo mentioned in BMM’s contentions, although that is not entirely clear (reference is also made at 26 to “stories of Woonyoomboo all along Martuwarra including the mouth of the River”).
As to the location of these sites, Ms Poelina says that the areas are not marked but BMM know where they are and that BMM do not want explorers going to these areas without speaking to them first. However, there is nothing in the evidence to indicate that these places are located in the inquiry area. Further, no explanation is given of why these places are of more than ordinary significance to BMM as required for s 237(b).
Accordingly, the evidence regarding these places or any sites relating to Woonyoomboo is insufficient to find there are sites of particular significance in the licence area on the landward side of the MHWM.
It follows from all of the above that I am satisfied that the grant of the licence in the inquiry area is not likely to interfere with sites of particular significance within the meaning of s 237(b).
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Considering whether major disturbance under s 237(c) is likely, requires an evaluative judgment as to whether there is a real risk of major disturbance from the grant of the licence. In this context ‘major disturbance’ is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. There is also nothing to preclude BMM raising here matters already considered in relation to
s 237(a) and (b) (see Little v Oriole Resources at [39]-[54]; Dann v Western Australia at 395, 401 and 413).
BMM makes very limited contentions in relation to s 237(c). It states that any disturbance is too much disturbance within the meaning of s 237(c) and needs to be managed and discussed with BMM (Contentions at 29). Somewhat inconsistently, it also submits in conclusion (at 31) that it has “not been provided with sufficient information to determine if the exploration will involve major disturbance to land or waters, however, some forms of exploration activity are likely to do so”.
Rand relies on recent Tribunal decisions which confirmed that ‘any disturbance’ is not the same as ‘major disturbance’ for s 237(c) (see Nyamal v Abeh: Nyamal v Young). Both Rand and the State also rely on the limited activities outlined in Rand’s s 58 statement, although as stated by BMM, these relate to year 1 only.
However, even on the basis that Rand may exercise all of the rights available to it under the licence, there is no evidence before me to support a conclusion that the grant of the licence is likely to involve major disturbance within the meaning of s 237(c), particularly having regard to the very small part of the licence area subject to this inquiry.
Accordingly, I am not satisfied that the grant of the licence is likely to involve major disturbance to the inquiry area.
Determination
I determine that the grant of exploration licence E04/2548 in the inquiry area to Rand Mining Limited is an act attracting the expedited procedure.
Nerida Cooley
Member
2 July 2020
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