Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Odette Two Pty Ltd
[2025] NNTTA 17
•26 June 2025
NATIONAL NATIVE TITLE TRIBUNAL
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Odette Two Pty Ltd & Anor [2025] NNTTA 17 (26 June 2025)
Application No: | WO2023/0330 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (WCD2013/004)
(native title party)
- and -
Odette Two Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr S Grant, Member |
Place: | Brisbane |
Date: | 26 June 2025 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – restricted evidence – whether act likely to interfere with sites or areas of particular significance – particular significance of Dreaming track – Aboriginal Heritage Act unlikely to prevent disturbance – the act is not an act attracting the expedited procedure. |
Legislation: | Aboriginal Cultural Heritage Act 2021 (WA) Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18 Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 (WA) Mining Act 1978 (WA) ss 24, 24A, 25, 57, 58, 61, 66 Mining Regulations 1981 (WA) Native Title Act 1993(Cth) ss 17, 29, 31, 32, 151, 237 Rights in Water and Irrigation Act1914(WA) |
Cases: | Andy Andrews, Jeffrey Waller & Anita Camfoo (on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu, Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal groups); Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto (on behalf of the Ngalakan group); Peter Woods, Tex Camfoo and Sammy Bulabul (on behalf of the Ngalakan and Rembarrnga Groups)/Exploration & Resource Development Pty Ltd/Northern Territory, [2002] NNTTA 170 (Andrews v Northern Territory) Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals [2012] NNTTA 48 (Campbell) Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd; Wag 6002 of 1996 Fed [1996] FCA 1452 (Ward v Western Australia) Dolores Cheinmora, Kenny Morgan & Ors/Western Australia/Striker Resources [1997] NNTTA 34 (Cheinmora v Striker Resources) Dolores Cheinmora & Others on behalf of the Balanggarra Native Title Claimants/Heron Resources Ltd/Western Australia [2005] NNTTA 99 Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People (WC01/179); Robin Boddington and Others on behalf of the Wajarri Elders (Wo01/180)/Western Australia/Giralia Resources NL [2002] NNTTA 24 (Walley v Western Australia) Maitland Parker and Others on behalf of the Martu Idja Banyjima People/Western Australia/Iron Duyfken, [2010] NNTTA 60 MarputuAboriginal Corporation RNTBC v Peter Romeo Gianni [2019] NNTTA 18 Nyamal Aboriginal Corporation v Red RockAustralasia Pty Ltd and Anor [2024] NNTTA 8 Tarlka Watuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40 Top End (Default PBC/CLA) Aboriginal Corporation v Northern Territory of Australia [2025] FCA 22 (Top End v Northern Territory) WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (Wiluna determination) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Yinggarda Aboriginal Corporation RNTBC v Vandeleur Superannuation Pty Ltd and Another [2024] NNTTA 81 |
| Representatives(s) of the native title party: | Sally Raine, Fremantle Law Pty Ltd |
| Representative(s) of the grantee party: | Shota Hitomi, Lawton MacMaster Legal |
| Representatives(s) of the Government party: | Mitchell Caubo, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
This decision is about whether the proposed grant of exploration licence E53/2239 (proposed licence) to Odette Two Pty Ltd is an act attracting the expedited procedure as described in s 237 of the Native Title Act 1993 (Cth).
On 16 December 2022, the State of Western Australia, acting through the Department of Mines, Industry Regulation and Safety (now the Department of Energy, Mines, Industry Regulation and Safety) gave notice under s 29 of the NTA of its intention to grant the proposed licence to Odette Two. The ‘notification date’ identified in the notice was 23 December 2022.[1] The notice included a statement that the State considers that the grant is an act attracting the expedited procedure.[2] By including this statement, the State asserts that the grant is not likely to, in summary:
(1)interfere directly with the native title holders’ community or social activities (s 237(a) NTA);
(2)interfere with areas or sites of particular significance, in accordance with the native title holders’ traditions (s 237(b) NTA); or
(3)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c) NTA).
[1] See s 29(4) NTA.
[2] See s 32 NTA.
The proposed licence is located approximately 51 km easterly of Wiluna in Western Australia and covers an area of approximately 15.33 km². The proposed licence sits wholly within the external boundary of the Wiluna determination. The entirety of the proposed licence lies within an area over which it has been determined that non-exclusive native title exists.
On 21 April 2022, the Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC, representing the Wiluna native title holders,[3] lodged an objection application with the National Native Title Tribunal in response to the State’s assertion that the expedited procedure applies to the grant of the proposed licence. In these circumstances, the Tribunal is required to determine whether the expedited procedure applies.[4]
[3] See TMPAC’s Form 4 Objection to Inclusion in an Expedited Procedure Application dated 21 April 2023, at [1].
[4] See s 32(4) NTA.
Following the lodgement of the objection, under a delegation from the President of the Tribunal, Member Kelly was appointed to constitute the Tribunal for the purposes of the inquiry into this matter. Member Kelly case managed the matter during its programming phase. On 21 March 2025, I was appointed to constitute the Tribunal for the matter, in place of Member Kelly, to determine the matter.
In determining whether or not the grant is an act attracting the expedited procedure, I must make a predictive assessment of what is likely to occur as a result of the grant and decide whether there is a real chance or risk of interference: as to s 237 NTA generally, see the applicable legal principles identified in Yindjibarndi v FMG at [15], which I adopt for the purpose of this determination. In making this assessment I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant, evidence of the grantee party’s intentions and the operation of the applicable regulatory regime: see Walley v Western Australia at [8] – [9] and the cases cited therein.
If I determine the grant is an act attracting the expedited procedure, the proposed licence can be granted by the State without the parties being required to negotiate with each other.[5] If however I determine the grant is not an act to which the expedited procedure applies, s 31(1) of the NTA applies as if the notice did not include the statement and Odette Two and the State must negotiate in good faith with a view to reaching agreement with TMPAC about the grant.[6]
[5] See s 32(4) NTA.
[6] See s 32(5) NTA.
For the reasons provided below, I have determined the grant of the proposed licence is not an act attracting the expedited procedure.
The conduct of the inquiry
A directions hearing was held on 31 May 2023 where directions were set by Member Kelly for the provision of evidence and contentions by the parties and for the conduct of the inquiry.
On 28 June 2023, the State lodged the DEMIRS initial material comprising mapping; a Quick Appraisal for the licence containing key tenement information; an Aboriginal Heritage Inquiry System search (AHIS Search); a copy of the licence application under the Mining Act 1978 (WA), including an accompanying statement provided under s 58 of the Mining Act detailing the proposed work plan, (s 58 statement); a copy of the draft Tenement Endorsement and Conditions Extract; and a list of previous determinations made by the Tribunal under s 32(4) of the NTA which overlap the proposed tenement (showing there are no such previous determinations).
On 6 July 2023, TMPAC requested that the directions be extended to allow further time for the collection of evidence. In this request TMPAC foreshadowed it would potentially provide gender restricted evidence. Both the State and Odette Two supported the request and, on 11 July 2023, the request was granted.
On 4 September 2023, following consultation with Odette Two and the State, Member Kelly made gender restricted non-disclosure directions at the request of TMPAC. The non-disclosure directions applied to paragraphs [4], [7]-[8], [10]-[12] and the map entitled ‘Jukurrpa Places in Odette Two Pty Ltd Tenement E 53/2239’ contained in the statement of Mr Paul Morgan dated 17 August 2023. Neither the State nor Odette Two objected to the making of the non-disclosure directions. Nothing in these directions prevents me from stating any findings of fact on which this determination is based, however I have refrained from disclosing the restricted evidence wherever possible and I have particularly avoided setting out specific details of cultural matters.
On 6 September 2023, TMPAC lodged:
(1)its contentions dated 6 September 2023 (TMPAC contentions);
(2)gender restricted statement of Mr Paul Morgan dated 17 August 2023 (Mr Morgan’s gender restricted statement); and
(3)supplementary statement of Mr Paul Morgan dated 5 September 2023 (Mr Morgan’s supplementary statement).
On 15 September 2023, the State requested the suspension of the directions in light of the Aboriginal Heritage Legislation Amendment and Repeal Bill 2023 (WA) which saw the repeal of the Aboriginal Cultural Heritage Act 2021 (WA) and the reinstatement of the Aboriginal Heritage Act 1972 (WA) but with some amendments (amended AHA). The State in turn requested the matter be adjourned to a directions hearing following the legislation Repeal Bill coming into effect. This request was ultimately granted and the matter was adjourned to a directions hearing on 1 November 2023, when the directions were reissued with extended compliance dates.
On 16 November 2023, Odette Two provided its contentions (Odette Two contentions).
On 22 November 2023, the State provided its contentions (State contentions).
On 2 February 2024, TMPAC provided its reply contentions (TMPAC reply contentions). These were accompanied by:
(1)Attachment A – Department of Planning, Land and Heritage, ‘Consultation policy for section 18 applications’, dated November 2023;
(2)Attachment B – Section 18 Application Form, undated; and
(3)Attachment C – Section 18 Application Form, prior to 8 September 2021.
On or by 9 February 2024, each of the parties confirmed that, pursuant to s 151 of the NTA, they were content for the matter to be determined on the papers.
The proposed licence
The proposed licence is an exploration licence to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, the proposed licence is granted for a period of five years and may be extended. Section 66 of the Mining Act and regulation 20 of the Mining Regulations 1981 (WA) set out the rights conferred by an exploration licence.
The proposed licence is overlapped by one other licence, L53/237, held by Northern Star Resources Ltd, granted on 11 July 2022 and described in DEMIRS Mineral Titles Online system as ‘search for groundwater’.[7] There are a further 21 dead tenements overlapping the proposed licence, 10 of which appear to have been granted.[8]
[7] DEMIRS initial material, 11.
[8] DEMIRS initial material, 11-12.
The proposed licence is also entirely within the area of PL N050102, Pastoral Lease (C) ‘Lake Violet’.
Registered Aboriginal site
There is one ‘Registered Aboriginal Site’ in the northern portion of the proposed licence, named Jundee 11 and described as ‘Artefacts / Scatter’ (the Jundee 11 RAS).[9] It is noted that a ‘Registered Aboriginal Site’ is one which has been assessed as meeting the requirements at s 5 of the amended AHA concerning places to which the amended AHA applies, and that the amended AHA applies to sites which meet the definition of s 5 regardless of whether they have been registered or not.
[9] DEMIRS initial material, 6-7.
Scope of TMPAC’s objection
Initially, TMPAC objected to the State’s assertions concerning s 237(a), s 237(b) and s 237(c).[10]
[10] See TMPAC’s Form 4 Objection to Inclusion in an Expedited Procedure Application dated 21 April 2023.
However, in the course of the inquiry, TMPAC did not press its objections to the State’s assertions concerning s 237(a) and s 237(c)[11] and solely directed its evidence and contentions to the State’s assertion concerning s 237(b).[12]
[11] See TMPAC contentions at [6].
[12] See TMPAC contentions at [7].
Accordingly, applying the common sense approach outlined at [26] of Ward v Western Australia, I find there is no evidence before me to support a conclusion that the grant of the proposed licence is likely to cause the interference contemplated in s 237(a) or involve the disturbance, or create rights likely to involve the disturbance, contemplated in s 237(c).
Section 237(b): Is the grant of the proposed licence likely to interfere with areas or sites of particular significance to TMPAC?
Has TMPAC identified areas or sites of particular significance according to the Wiluna native title holders’ traditions?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions.[13] It must be known, able to be located and its significance able to be explained to the Tribunal.[14] In the context of the evidence and contentions in this matter, I also note the Tribunal previously has found in Andrews v Northern Territory that the identification of a Dreaming track will not necessarily result in a finding of particular significance; the particular significance of the area or site associated with the Dreaming track needs to be adequately explained.[15]
[13] Cheinmora v Striker Resources at page 35.
[14] Yindjibarndi v FMG at [17].
[15] See Andrews v Northern Territory at [124].
TMPAC’s evidence is comprised in two statements, namely, Mr Morgan’s gender restricted statement and Mr Morgan’s supplementary statement.
Mr Morgan identifies as a senior Wiluna native title holder, Lawman, and Elder, who has traditional authority to talk about the licence area.[16] Mr Morgan’s status and authority in these regards is not disputed by Odette Two[17] or the State, and I accept Mr Morgan has authority according to the traditional laws and customs of the Wiluna People to speak for the area, the subject of the proposed licence.
[16] See Mr Morgan’s gender restricted statement at [2]-[3] and Mr Morgan’s supplementary statement at [2]-[3].
[17] Odette Two contentions at [15].
Through Mr Morgan’s gender restricted statement, TMPAC identifies two non-contiguous areas within the area of the proposed licence which, it contends, together comprise the area of particular significance. These areas are shaded pink on the TMPAC map annexed to Mr Morgan’s gender restricted statement and hereafter are collectively referred to as the identified area.
By area, the identified area covers, in my assessment, approximately one half to two thirds of the area of the proposed licence. It is apparent that the identified area contains well defined creeks and contiguous vegetation including - according to my reading of the evidence and contentions as a whole - trees following the path of the creeks.
In addition to identifying the identified area, in his statements Mr Morgan sets out the bases on which the identified area is held to be of particular significance in the sense of being special or of more than ordinary significance to Wiluna native title holders in accordance with their traditions, namely: as an area to obtain food, water and other resources and as a camping, hunting and teaching place; and as an area associated with Jukurrpa (Dreaming).
With respect to the second of these bases, in Mr Morgan’s gender restricted statement, Mr Morgan describes the Jukurrpa in a number of ways, including by reference to: its songlines; its path of travel both outside and inside the identified area; the mythological being which created it (which Mr Morgan names); and the relationship between the physical features of the identified area and the spiritual dimensions of the Jukurrpa.
In Mr Morgan’s supplementary statement, Mr Morgan further describes the relationship between the physical features of the identified area and the spiritual dimensions of the Jukurrpa and some of the cultural consequences if this relationship were to be disturbed.
Parts of Mr Morgan’s gender restricted statement including the TMPAC Map are subject to non-disclosure directions however TMPAC’s contentions are not intended to be similarly restricted.[18] For contextual purposes, it is therefore convenient to recite the paragraphs of TMPAC’s contentions directed to how the identified area is characterised in the evidence and why the identified area is an area of particular significance. At [12] of the TMPAC contentions, TMPAC contends -
[18] TMPAC contentions at [11].
The pink shaded area within proposed E53/2239 on the TMPAC Map is an
area of particular significance to the native title holders for two reasons.
Firstly, because it is an area where there is food, water and trees for making
tools. It is a camping, hunting and teaching place for the native title holders.
Secondly, it is an area associated with Jukurrpa. The shaded areas can be
described as the parts of the creek covered by the proposed tenement and the
vegetation growing in and adjacent to it.
At [14], [15] and [16] of the TMPAC contentions, TMPAC contends -
Paul Morgan explains how the creeks in the proposed tenement area are part
of a Jukurrpa that travels through them. He provides contextual information
about the Jukurrpa outside of the proposed tenement area. He explains how a
mythological being created the creeks. Mr Morgan also conveys the
significance of Jukurrpa according to a Martu worldview. He speaks about its
origins “when the world was soft”. He speaks to the interconnectedness of
Jukurrpa, describing it as “like a chain link”. And how “You’ve got to have
all the chain there to make it”.
Paul Morgan also explains how the creeks in the proposed tenement area are
important because of the resources available there. He mentions trees for
making tools, shade, water and food. He says it is a “main hunting place”. The
existence of these resources in an area within the Wiluna determination area is
itself more than ordinarily significant in the context of a desert environment.
Of course, both aspects of these creeks – the spiritual and the availability of
essential resources – are linked. In his supplementary statement Mr Morgan
speaks about the interconnectedness of these elements- Jukurrpa, parna,
karru and kapi. Mr Morgain describes an integrated physical and spiritual
world.
For both reasons, the association with Jukurrpa and its significance as a place
to obtain food, water and other resources, the creeks within proposed
E53/2239 are more than ordinarily significant to the native title holders in
accordance with their traditions.
While the State acknowledges the bases on which the identified area is held by TMPAC to be of particular significance, in the sense of being special or of more than ordinary significance to Wiluna native title holders in accordance with their traditions, the State essentially contends that TMPAC has provided insufficient evidence to explain why the identified area is ‘any different from the other areas or sites of significance that are associated with the dreaming stories’ or ‘of special, or more than ordinary, significance to the Martu traditional owners’.[19] The State also contends that the identified area is ‘too vague to be sufficiently identified as [an area] of particular significance’ and that TMPAC has provided no further evidence about the registered Aboriginal site within the proposed licence area.[20]
[19] State contentions at [26].
[20] State contentions at [27]-[28].
While Odette Two also acknowledges the bases on which this area is held by TMPAC to be of particular significance in the sense of being special or of more than ordinary significance to Wiluna native title holders in accordance with their traditions, Odette Two essentially contends that: Mr Morgan’s evidence in relation to camping hunting and teaching is ‘unsubstantiated on the evidence and not particularised in a way that allows the NNT (sic) to determine the likelihood of interference’;[21] ‘it is not explicitly stated or explained [in Mr Morgan’s evidence] what the significance of Jukurrpa is’[22] or ‘why it is particularly significant to the Wiluna People’;[23] ‘the description and discussions of the Jukurrpa are stated in ambiguous terms’ and ‘does not assist in assessing the particular significance of the [identified area];[24] ‘there is no explanation regarding the mythology of the Jukurrpa, in relation to its wider geographic context or its particular significance to the Wiluna People’;[25] ‘there is no explanation as to how the creeks, trees, ground and underground water make the area particularly significant’;[26] Mr Morgan’s evidence ‘lacks sufficient specificity to meet the criteria for the area or site to be an area or site of particular significance’;[27] and that TMPAC ‘has not provided sufficient evidence in relation to are (sic) or site to…establish the particular significance of the site in accordance with traditional law and custom…or…allow the NNTT to make a predictive assessment [as] required by section 237(b)’.[28]
[21] Odette Two contentions at [19].
[22] Odette Two contentions at [18].
[23] Odette Two contentions at [21].
[24] Odette Two contentions at [21].
[25] Odette Two contentions at [22].
[26] Odette Two contentions at [23].
[27] Odette Two contentions at [26]-[27].
[28] Odette Two contentions at [27].
Having considered the various contentions of the parties and Mr Morgan’s evidence as a whole, I am satisfied the identified area is an area of particular significance according to the Wiluna native title holders’ traditions.
I am not satisfied the evidence provided by Mr Morgan in relation to the significance of the identified area as a place to obtain food, water and other resources, and as a camping place, ‘main hunting place’ and teaching place, is sufficiently detailed to allow me to be satisfied that the identified area is an area of particular significance in the sense of being special or of more than ordinary significance to Wiluna native title holders in accordance with their traditions. While I accept this evidence, I consider it to be of a more generalised nature and, as such, I do not think this evidence sufficiently explains why the identified area is of particular or more than ordinary significance to Wiluna native title holders in accordance with their traditions.
However, I am satisfied that the evidence provided by Mr Morgan in relation to the significance of the identified area as an area associated with Jukurrpa is sufficiently specific to allow me to be satisfied that the identified area is an area of particular significance in the sense of being special or of more than ordinary significance to Wiluna native title holders in accordance with their traditions.
I am satisfied of this in light of Mr Morgan’s gender restricted evidence, of which I have had the benefit: locating the identified area, being the pink shaded area shown on the TMPAC map; specifying how the identified area is connected to, and part of the path of travel of, a Jukurrpa (named by Mr Morgan in his gender restricted statement), which is connected to a place of significance (named by Mr Morgan in his gender restricted statement) outside the area of the proposed licence but still within the Wiluna determination area[29] (relatedly, the Tribunal’s Native Title Vision system shows that this named place of significance is some distance north west of the licence area but still within the Wiluna determination area); identifying the mythological being (named by Mr Morgan in his gender restricted statement) for the Jukurrpa, which created the creeks within the identified area;[30] identifying the connectedness of, on the one hand, the songlines and path of the Jukurrpa falling outside of the identified area, and on the other hand, the songlines and path of the Jukurrpa falling inside the identified area;[31] and, Mr Morgan’s unrestricted evidence identifying the connectedness of the physical features of the identified area, namely the creeks, ground, water and trees of the identified area and the spiritual dimensions of the Jukurrpa.
[29] See Mr Morgan’s gender restricted statement at [10].
[30] See Mr Morgan’s gender restricted statement at [11].
[31] See Mr Morgan’s gender restricted statement at [9] to [12] and Mr Morgan’s supplementary statement at [4].
Regarding the significance of the identified area and the implications if it is disturbed, in his unrestricted supplementary statement Mr Morgan states:[32]
If they disturb the karru there they disturb the Jukurrpa. If they disturb the trees, the parna [ground] and the kapi on top and underground, they're disturbing the Jukurrpa. They all connected to the Jukurrpa. It's like a vein, you disturb the vein you mess it up. It wouldn't flow. The trees wouldn't grow up.
[32] See Mr Morgan’s supplementary statement at [4].
Moreover, in an unrestricted part of his gender restricted statement, Mr Morgan states:[33]
Jukurrpa is like a chain link. You’ve got to have all the chain there to make it. To make young generation to grow up and understand. That’s why we’re trying to teach ‘em when we’re doing surveys and things. We learn young generation to come to know that country.
[33] See Mr Morgan’s gender restricted statement at [9].
At this point it is convenient to address salient aspects of the parties’ respective contentions.
I do not agree with TMPAC’s characterisation that: ‘Of course, both aspects of [the] creeks – the spiritual and the availability of essential resources – are linked.’ Whilst it may be argued that this connection is implied in the evidence, I consider the better view of the evidence is that two separate bases are provided as to why the area is of particular significance, as I have explained above.
As noted at [26] above, in Andrews v Northern Territory, a decision which is referred to in the State contentions,[34] the Tribunal found that the identification of a Dreaming track will not necessarily result in a finding of particular significance; the particular significance of the area or site associated with the Dreaming track needs to be adequately explained.[35]
[34] See State Contentions at [24] and [25].
[35] See Andrews v Northern Territory at [124].
In Andrews v Northern Territory, the Tribunal was not satisfied that any of the four Dreaming sites identified by the native title party in that matter (Dup Dup Spring, Gunu.urra, Burrmala and Jarrmunu) were of particular significance for various reasons, including because two of the sites (Dup Dup Spring and Gunu.urra) were located quite some distance from the licence area[36] and the relevant deponent did not disclose either their authority to speak on behalf of the relevant sites or their particular knowledge of them;[37] the location of another of the sites (Burrmala) was unclear and it was a matter of conjecture whether the site was located within the boundaries of the licence area and there was a total absence of information about the site itself other it is a dreaming site;[38] and there was no information provided about the importance of the site or even its physical manifestation;[39] and the significance of the last of the sites (Jarrmunu) was not explained other than that it was a dreaming site.[40]
[36] See Andrews v Northern Territory at [117] and [125].
[37] See Andrews v Northern Territory at [119].
[38] See Andrews v Northern Territory at [129].
[39] See Andrews v Northern Territory at [130].
[40] See Andrews v Northern Territory at [137].
I accept that the location of the Jukurrpa identified in the present matter is described by reference to the identified area rather than by reference to sites within the identified area. However, as s 237(b) makes provision for ‘areas or sites’, I consider this to be a distinction without a difference. Moreover, I am of the view that the evidence provided in the present matter, including the evidence I have identified in [39] to [42] above, and the evidence considered in Andrews v Northern Territory, is distinguishable. In this matter, as explained above, I have found that: Mr Morgan has authority to speak for the area of the proposed licence and has located the area of particular significance namely the identified area; the identified area is within the area of the proposed licence; and Mr Morgan has explained why the area is of particular significance to Wiluna native title holders in accordance with their traditions and some of the cultural implications if the area is physically disturbed.
In its contentions,[41] Odette Two refers, relevantly, to three previous decisions of the Tribunal in support of its ultimate contention that TMPAC has not provided sufficient evidence in relation to an area or site to establish the particular significance of the [area or] site in accordance with particular law and custom,[42] and, to allow the Tribunal to make the predictive assessment required by s 237(b) of the NTA.[43] Odette Two refers to these decisions but does not say how the facts, findings and principles contained in these decisions are instructive in the circumstances of the present matter. Notwithstanding, I have considered these decisions and consider my findings in this matter are not at odds with the findings in these decisions for the reasons given above including in [47], and, furthermore, because the basis for the particular significance of the identified area has been explained by reference to the traditions of the Wiluna native title holders rather than by reference to individual or personal responsibility on the part of Mr Morgan.
[41] Odette Two contentions at [10].
[42] See Campbell at [64].
[43] See Parker at [39]; Cheinmora at [43].
Odette Two also contends, relevantly, that the contention that camping, hunting and teaching occurs within the identified area is ‘unsubstantiated on the evidence and not particularised in a way that allows the NNT (sic) to determine the likelihood of interference’[44] and that if this were to be accepted this does not alone mean the identified area is an area of ‘particular significance’.[45] I do not agree that the occurrence of these activities is entirely unsubstantiated on the evidence, particularly in light of Mr Morgan’s evidence that part of the identified area is a ‘main hunting place’,[46] however I otherwise agree with these contentions for the reasons given in [38] above.
[44] Odette Two contentions at [19].
[45] Odette Two contentions at [20].
[46] See Mr Morgan’s gender restricted statement at unrestricted paragraph [5].
I do not agree to any extent however with Odette Two’s contentions in relation to the Jukurrpa associated with the identified area, as summarised in [36] above, for the reasons given in [39] to [42] above.
Subject to one qualification, I do not agree with the State contentions, as summarised in [35] above, for the reasons given in [39] to [42] above. The qualification is that I do agree with the State’s contention that TMPAC has provided no further evidence about the registered Aboriginal site within the proposed licence area, namely the Jundee 11 RAS. This is so notwithstanding that, in my assessment, this site partially overlaps with a portion of the identified area. In any event however, there is no requirement that TMPAC provide further evidence about this site, and I do not consider that TMPAC’s election not to do so changes my overall assessment of TMPAC’s evidence.
Is there likely to be interference to the identified area?
Task of the Tribunal
Where an area or site of particular significance is known and able to be located, as I have found here with respect to the identified area, the Tribunal must proceed to determine whether there is likely to be (in the sense of a real risk of) interference with the area or site.[47] This involves a predictive assessment as to whether other factors, including the heritage regime operating in Western Australia, will be sufficient to ensure that it is unlikely the identified area will be interfered with by the activities Odette Two will be entitled to undertake should the licence be granted.
What is the nature of the interference apprehended by TMPAC?
[47] Yindjibarndi v FMG at [17]
When Mr Morgan’s evidence is considered as a whole, it is apparent Mr Morgan is concerned about the impact of any physical disturbance - for example, as a result of digging[48] - on the features of the identified area but particularly the creeks, ground, water and trees of the identified area, resulting in disturbance of the Jukurrpa inherent in those features.[49]
What are the activities that Odette Two will be entitled to undertake?
[48] See Mr Morgan’s gender restricted statement at [7] – [12].
[49] See Mr Morgan’s supplementary statement at [4].
The proposed licence is an exploration licence 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 with the opportunity for extension. Section 66 of the Mining Act and regulation 20 of the Mining Regulations prescribe the activities which may be undertaken by the holder of an exploration licence (these are set out below). The licence will also be subject to a number of endorsements and conditions.
Odette Two has provided no evidence in relation to its intended operations; rather, it has provided contentions in this regard. Relevantly, it contends its exploration activities will ‘take a staged approach, starting with desktop studies, progressing to low impact, inexpensive surveying and sampling and, if areas of interest are identified, gradually generating more targeted areas of interest through more advanced exploration techniques’.[50]
[50] Odette Two contentions at [11].
The s 58 statement which accompanied Odette Two’s initial licence application also provides some detail in relation to Odette Two’s intended operations. This program provides that the company is searching for copper, zinc, lead, silver, gold and nickel,[51] and that the company’s exploration program for year 1 has a total proposed expenditure of $20,000 and involves:[52]
(a)literature and previous explorers’ report search acquisition and data compilation, implementation and interpretation of remote sensing/GSWA/GIS data;
(b)field mapping and reconnaissance;
(c)rock chip and soil geochemical sampling and assaying;
(d)drill target generation and target ranking; and
(e)geophysics, admin.
[51] DEMIRS initial material, 18.
[52] DEMIRS initial material, 18.
During year two, Odette Two ‘intends to implement a drill campaign (AC, RAB or RC) to test geophysical and or structural targets together with soil/rock-chip geochemical anomalies identified in Year 1’.[53]
[53] DEMIRS initial material, 18.
The program of works contains no information in relation to Odette Two’s intended operations beyond year two. Accordingly, in the absence of this information, the issue of likelihood in this inquiry must be assessed by reference to the regulatory regime in force and assuming that all legal rights given to Odette Two under the proposed licence will be exercised to the maximum extent beyond year two.
Section 66 of the Mining Act and regulation 20 of the Mining Regulations set out the activities which may be undertaken by the holder of an exploration licence. If the proposed licence were granted, Odette Two would, in summary, be permitted to undertake the following activities with the area of the proposed licence and therefore within the identified area:
(a)to enter the land with personnel and machinery to explore for minerals;
(b)to 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, unless approved by the Minister and subject to any conditions imposed; and
(d)subject to the Rights in Water and Irrigation Act1914 (WA), 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.
Likelihood of interference including whether the heritage regime operating in Western Australia makes interference unlikely
While Odette Two’s contentions refer to general principles in connection with s 237(b) including the principle that there must be a real chance or risk of interference with the area or site, Odette Two’s contentions do not address the question of the likelihood of interference in the event the Tribunal were to find, as I have, that the identified area is an area of particular significance. Moreover, Odette Two’s contentions are silent as to Odette Two’s willingness to enter into a heritage protection agreement; Odette Two simply contends that it ‘is aware of its obligations under all applicable legislation’.[54]
[54] Odette Two contentions at [29].
On the other hand, in their contentions TMPAC and the State each address the question of the likelihood of interference, including whether the heritage regime operating in Western Australia makes interference unlikely.
TMPAC’s essential contention is that, depending on where Odette Two intends to carry out its exploration activities, the potential for physical interference with the creeks and spiritual interference with the Jukurrpa within the area of the proposed licence ‘is obvious’ and that that the heritage regime under the amended AHA is insufficient to ensure that s 237(b) interference is unlikely to occur.
On the question of the likelihood of interference, in the TMPAC contentions TMPAC in summary contends that -
(a)there ‘is little material before the Tribunal from which to infer what activities [Odette Two] will likely carry out’;[55]
(b)Odette Two’s program of work in year one appears to include accessing the area of the proposed licence to take rock chip and soil samples and in year two the intended implementation of a drilling campaign;[56]
(c)the Tribunal should ‘infer that [Odette Two] will carry out the full scope of activities permitted by s 66 of the Mining Act and regulation 20 of the Mining Regulations’, and that such activities include entry into the area with machinery, digging pits, trenches and holes, sinking bores and tunnels, excavating and extracting and/or removing earth, soil, stone, fluids or mineral-bearing substances;[57]
(d)‘in the circumstances, depending on where [Odette Two] intends to carry out its exploration activities, the potential for physical interference with the creeks and spiritual interference with the Jukurrpa within the area of the proposed licence is obvious’;[58]
(e)as in Marputu[59], the area of particular significance to the native title holders in this matter is particularised, and it is for the State and Odette Two to explain how the heritage regime in Western Australia operates to lessen the likelihood of interference with the area of the proposed licence.[60]
[55] TMPAC contentions at [18].
[56] TMPAC contentions at [19].
[57] TMPAC contentions at [19].
[58] TMPAC contentions at [20].
[59] [2019] NNTTA 18.
[60] TMPAC contentions at [24].
It is convenient to record at this point that I agree with these contentions. Leaving aside for a moment the question of whether the heritage regime operating in Western Australia makes interference unlikely, which I will address below, I find that, because there is no evidence before me in relation to where Odette Two will conduct its exploration activities within the area of the proposed licence, because it is open to me to infer that Odette Two will carry out the full scope of activities permitted by s 66 of the Mining Act and regulation 20 of the Mining Regulations, and because the identified area covers by area, in my assessment, one half to two thirds of the area of the proposed licence, there is a likelihood, in the sense of a real risk, of physical interference with the identified area.
The State’s essential contention is that s 237(b) interference is unlikely for two reasons. The first reason is because the grant of the proposed licence is not likely to cause any more interference than previous exploration licences granted in the area in the past. The second reason is because the heritage regime under the amended AHA is sufficient to ensure that s 237(b) interference is unlikely to occur.
In support of the first reason, at [31] of the State contentions, the State notes that the area of the proposed licence has been the subject of several other exploration licences in the past and contends that: first, the history of mining and exploration in the area is a relevant circumstance that the Tribunal can take into account; secondly, TMPAC has not pointed to any evidence showing that these previous tenements resulted in any interference within the meaning of s 237(b); and thirdly, the grant of the proposed licence is not likely to cause any more interference than those previous tenements.
I accept that the area of the proposed licence has been the subject of several other exploration licences in the past. This is apparent from the information contained in the Quick Appraisal. However, I am unable to accept the State’s contention that the grant of the proposed licence is not likely to cause any more interference than those previous tenements. This is because there is no evidence before me as to whether any of the previous tenements involved physical disturbance of the creeks, ground, water and trees of the identified area. If the previous tenements did not involve physical disturbance of this kind but such disturbance occurs pursuant to the proposed licence, then the proposed licence will have caused more interference than the previous tenements. Moreover, even if there were evidence of previous interference, it does not follow in my view that interference within the meaning of s 237(b) is, necessarily, less likely in the circumstances of this matter.
In support of the second reason, the State in summary contends that:
(a)the areas identified by TMPAC as being areas of particular significance are not registered sites under the amended AHA however these sites may still fall with the definition of ‘Aboriginal site’ under s 5(b) of the amended AHA, and that this definition has a much broader scope than that contemplated by s 237(b);[61]
(b)section 17 of the amended AHA makes it an offence to excavate, destroy, damage, conceal or in any way alter any ‘Aboriginal site’ within the area of the proposed licence without Ministerial consent under s 18 of the amended AHA;[62]
(c)the Western Australian DPLH has a policy titled ‘Consultation policy for section 18 applications (November 2023)’ (consultation policy) which sets out the State's expectations for consultation with the native title party prior to submitting a s 18 application;[63]
(d)the consultation policy sets out seven good practice standards for consultation;[64]
(e)if the relevant grantee party applied for consent under s 18 of the amended AHA, the consultation policy provides that supporting documentation demonstrating the level of consultation carried out should be submitted with the application and the Minister may defer making a decision until appropriate consultation is carried out with the relevant native title party;[65]
(f)Odette Two has confirmed it is aware of its obligations under the amended AHA;[66] and
(g)in these circumstances, the Tribunal should reach the conclusion that the protective regime under the amended AHA is sufficient to ensure that s 237(b) interference is unlikely to occur.[67]
[61] State contentions at [33].
[62] State contentions at [34].
[63] State contentions at [35].
[64] State contentions at [36].
[65] State contentions at [37].
[66] State contentions at [38].
[67] State contentions at [39].
At this point it is convenient to record that I accept these contentions with two exceptions. First, in my opinion, these contentions are of a general nature in the sense that they do not engage with the particular circumstances of this matter, and, in some instances, are provisional, noting the presence of the qualifier ‘may’ in (a) and the qualifiers ‘if’, ‘should’ and ‘may’ in (e). And secondly, for reasons explained below, I do not agree with the last of these contentions.
On the question of whether the heritage regime under the amended AHA is sufficient to ensure that s 237(b) interference is unlikely to occur, in its reply submissions TMPAC in summary contends that –
(a)for this inquiry the relevant amendments in the context of the amended AHA are to s 18 and relating to the establishment of an Aboriginal Cultural Heritage Committee;[68]
(b)while ‘the amendments to s 18 are numerous and substantial, they are best characterised as adding features to the s 18 process that existed before the commencement of the’ ACHA’;[69]
(c)with respect to the Aboriginal Cultural Heritage Committee, substantively, the difference between the previous and new committee is in its composition;[70]
(d)the contentions of the State are general in the sense that they do not directly engage with the scenario where the Tribunal finds that the area identified by Mr Morgan is a site of particular significance;[71] and
(e)TMPAC’s main reply contention is to repeat its reliance on Marputu.[72]
[68] TMPAC reply contentions at [12].
[69] TMPAC reply contentions at [13].
[70] TMPAC reply contentions at [14].
[71] TMPAC reply contentions at [18].
[72] TMPAC reply contentions at [19].
Additionally, in its reply submissions, TMPAC provides the following contentions, which, in my view, go to the heart of the engagement of s 237(b) and the operation of the amended AHA in the circumstances of this matter (emphasis added):[73]
20. The fact that an area of particular significance has been identified in this inquiry means that, in practice, the Grantee Party will have no option other than to make a s 18 application over this area if wants to do any kind of ground disturbing work on the area.
21. As explained above, s 18 remains a mechanism to obtain consent to use land for a purpose that will damage any “Aboriginal site”. Key provisions s 18(2) and (3) and s 39 are unchanged. When a s 18 application is made over a site or area of particular significance a statutory process is commenced that contemplates damage to the site or area. In terms of making a predictive assessment about the outcome of a s 18 process, the chance that a site or area will not be damaged can only be assessed as a possibility. That conclusion follows from the procedure itself and is not affected by the amendments to the Act or the publication of the “Consultation policy for section 18 applications”. It is the reason why the legislative scheme established by the Aboriginal Heritage Act does not sufficiently lessen the risk of interference to the area of particular significance identified by Mr Paul Morgan such that the grant of
E53/2239 attracts the expedited procedure.22. It is necessary to reply, in connection with this contention, to the Grantee Party’s contention about its proposed operations. Even on its description of planned activities it must be contemplated that ground disturbing activities will occur on identified areas of interest. In terms of a predictive assessment it must also be contemplated that areas of interest will be identified in the area of particular significance identified by Mr Paul Morgan. And it is in this scenario that the Grantee Party will have to make a s 18 application.
[73] TMPAC reply contentions at [20]-[22].
The contentions in extracted paragraphs 20 and 22 above are largely rhetorical however they provide context for the contentions in extracted paragraph 21 above, which I agree with. In Marputu, President Dowsett observed with respect to the operation of the pre-amendment AHA: [74]
It is possible that protection under the AH Act may not extend to areas or sites to which s 237(b) applies. It is also possible that s 237(b) may not apply to sites protected under the AH Act. Once this difference in focus is recognised, it becomes difficult to identify the extent to which the AH Act might protect sites of particular significance to traditional owners. In order to do so, it would be necessary that I identify a particular site, identify the various ways in which there might be an adverse impact of the kind contemplated by 237(b), and then consider the extent to which the AH Act might reduce the likelihood that there will be such impact. No party has made any attempt to demonstrate how the AH Act might operate in the present case.
[74] Marputu at [44].
While Present Dowsett’s observations were made in the context of the AHA before its repeal and subsequent reinstatement with amendments, in my opinion these comments are equally applicable to the operation of the amended AHA in the circumstances of this matter.
The Tribunal has recently examined the heritage regime under the amended AHA: see, for example, Member Eaton’s analysis in Nyamal from [53], and Member Cooley’s analysis in Yinggarda from [31].
I am of the view that the analysis contained in these matters is instructive in the present matter where, during the course of the inquiry: the heritage regime in Western Australia changed, first with the ACHA coming into effect in July 2023, and then with the commencement of the substantive provisions of the Repeal Act in November 2023 amending the AHA and repealing the ACHA; and, the parties were provided the opportunity to provide contentions addressing the impact of these changes on the heritage regime in Western Australia.
Relatedly, at [36] in Yinggarda, Member Cooley succinctly explained the different emphases of s 237 of the NTA and ss 17 and 18 of the amended AHA in the following terms:
As the Tribunal has discussed a number of occasions, there is a difference in focus between the application of section 237 of the Native Title Act and ss 17 and 18 of the Aboriginal Heritage Act (see, for example, Boarder Exploration at [44]–[56] Marpartu v Gianni at [44]). For instance, there may be particular exploration activities which amount to interference within the meaning of s 237 of the Native Title Act but which do not offend s 17 of the Aboriginal Heritage Act and therefore do not require consent under s 18. Additionally, under s 18, the relevant Minister is required to have regard to the general interest of the community, which may well give rise to different considerations to those 4 s 237(b), which is concerned with likely interference in accordance with the native title holders’ traditions.
Odette Two has provided no evidence or contentions directed to where it intends to carry out its activities within the area of the proposed licence nor how the amended AHA would apply in the circumstances of this matter to make s 237(b) interference unlikely in the event the proposed licence is granted. Moreover, there is no evidence before me that Odette Two proposes to engage with TMPAC to any extent with respect to heritage protection, for example, by conducting surveys under a heritage protection agreement, with a view to making s 237(b) interference unlikely in the event the proposed licence is granted.
If the grant is made, Odette Two will be entitled to conduct activities, including the planned rock chip and soil geochemical sampling and assaying in year one and the planned drilling campaign in year two, in the area of the proposed licence including in the identified area and could, under s 18 of the amended AHA, apply for and be granted consent to physically disturb the creeks, ground, water and trees of identified area.
While I accept the State’s generalised contentions regarding the operation of ss 5, 17 and 18 of the amended AHA and the consultation policy, in light of the absence of any evidence or contentions directed to the circumstances of this matter explaining how compliance with the provisions of the amended AHA would lessen the likelihood of s 237(b) interference, including the difficulty of predicting the outcome of any s 18 process under the amended AHA, I cannot be satisfied, for the purposes of s 237(b), the operation of the amended AHA will be sufficient to ensure the activities which will be permitted if the proposed licence is granted will be unlikely to physically interfere with the creeks, ground, water and trees of identified area.
In this matter, having considered the relevant evidence and contentions of the parties, and the relevant legislation, I am not satisfied that the operation of the heritage regime in Western Australia under the amended AHA will mean s 237(b) interference is unlikely in the circumstances of this matter.
Determination
I determine the grant of exploration licence E53/2239 to Odette Two Pty Ltd is not an act attracting the expedited procedure.
Mr S Grant
Member
26 June 2025
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