Wakka Wakka Native Title Aboriginal Corporation RNTBC v Group 11 Minerals Pty Ltd
[2023] NNTTA 10
•31 March 2023
NATIONAL NATIVE TITLE TRIBUNAL
Wakka Wakka Native Title Aboriginal Corporation RNTBC v Group 11 Minerals Pty Ltd and Another [2023] NNTTA 10 (31 March 2023)
Application No: | QO2021/0056 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wakka Wakka Native Title Aboriginal Corporation RNTBC (QCD2022/003)
(native title party)
- and -
Group 11 Minerals Pty Ltd
(grantee party)
- and -
State of Queensland
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 31 March 2023 |
Catchwords: | Native title – future act – proposed grant of exploration permit for minerals – expedited procedure objection application – whether act likely to interfere with the carrying on of community and social activities – whether act likely to interfere with sites or areas of particular significance – Barambah Creek as an area or site of particular significance – whether act likely to involve major disturbance to land or waters – act is an act attracting the expedited procedure |
Legislation: | Aboriginal Cultural Heritage Act 2003 (Qld) s 23 Environmental Protection Act 1994 (Qld) Mineral Resources Act 1989 (Qld) ss 129, 139, 146 Native Title Act 1993 (Cth) ss 29, 30, 141, 151, 237 |
Cases: | Bell on behalf of the Wakka Wakka People #3 v State of Queensland (No 2) [2022] FCA 370 (‘Wakka Wakka Determination’) Cape York United Number 1 Claim v Big Bull Resources Pty Ltd and Another [2022] NNTTA 65 (‘Cape York United Number 1 v Big Bull’) Little and Others on behalf of the Badimia People v Oriole Resources Pty Ltd [2005] FCAFC 243 (‘Little v Oriole Resources’) Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’) Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Gamboola Resources Pty Ltd and Another [2018] NNTTA 10 (‘Ross v Gamboola’) Ngarlawangga Aboriginal Corporation and FMG Pilbara Pty Ltd [2020] NNTTA 56 (‘Ngarlawangga and FMG’) Ngarluma Aboriginal Corporation RNTBC v Sageland Pty Ltd & Another [2021] NNTTA 4 (‘Ngarluma v Sageland’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) |
| Representatives of the native title party: | Craig Reiach and Coby Foster, Queensland South Native Title Services |
| Representative of the grantee party: | Garth Hay, FLSmidth Pty Ltd |
| Representatives of the Government party: | Emma Brunello, Crown Law; Chris Rawlings, Department of Resources |
REASONS FOR DETERMINATION
Group 11 Minerals Pty Ltd has applied for the grant of an exploration permit for minerals in an area about 40 kilometres south-westerly of Gympie in South-East Queensland. Wakka Wakka Native Title Aboriginal Corporation RNTBC holds native title in trust on behalf of the Wakka Wakka People in relation to part of the permit area.
The State of Queensland considers the grant of the permit is an act attracting the expedited procedure under the Native Title Act 1993 (Cth), which would mean the permit could be granted without first requiring Group 11, Wakka Wakka and the State to negotiate in good faith about the grant.
Wakka Wakka became a native title party with respect to the permit and a party to this matter when the Wakka Wakka Determination, made on 12 April 2022, was entered on the National Native Title Register: ss 30(1)(b) and 141(2A) Native Title Act. The registered native title claimant for the Wakka Wakka #3 native title determination application, which originally lodged the objection to the application of the expedited procedure, is no longer a registered native title claimant for the area of the permit, and has ceased to be a native title party for this matter: s 30(2) Native Title Act.
Wakka Wakka objects to the application of the expedited procedure to the grant of the permit on the basis that it will directly interfere with community and social activities undertaken in the area and cause interference with sites or areas of particular significance to Wakka Wakka People. It also asserts the grant of the permit will cause major disturbance to the land or waters. If the grant of the permit is likely to cause any such interference or disturbance, the expedited procedure does not apply.
I am satisfied this matter can be adequately determined without a hearing: s 151(2) Native Title Act. For the reasons outlined below, I have determined that the grant of the permit is an act attracting the expedited procedure.
When does the expedited procedure apply?
Under the Native Title Act, the expedited procedure will only apply if the grant of the permit is not likely to:
(a)interfere directly with the Wakka Wakka People’s community or social activities: s 237(a);
(b)interfere with areas or sites of particular significance to Wakka Wakka People, in accordance with their traditions: s 237(b); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the permit area: s 237(c).
In order to make that determination, I must undertake a predictive assessment by considering the likely consequences from the grant of the permit (in the sense of a real, not remote, chance).
What does the grant of the permit involve and what are Group 11’s proposed activities?
The permit covers 17 sub-blocks and, according to the Tribunal’s overlap analysis, is approximately 52 square kilometres in size.
The copy of the permit application provided by the State lists the initial term of the permit as four years, although I note both the State’s Resource authority public report and Group 11’s submissions refer to the term sought as five years. The five year term is also reflected in Group 11’s proposed work program. It may be that the reference to four years is a typographical error. In any event, I will proceed on the basis that the permit may be granted for five years as permitted by s 146 of the Mineral Resources Act 1989 (Qld). The permit may also be renewed although, as noted in Group 11’s work program, there is a requirement, subject to exceptions, for a 50% reduction in blocks at the end of year 5: s 139 Mineral Resources Act.
Section 129 of the Mineral Resources Act sets out the entitlements of the holder of an exploration permit. Those rights are subject to other regulatory requirements including environmental constraints or approvals. The State’s contentions outline the environmental requirements for the permit. Group 11 would be bound by general environmental duties under the Environmental Protection Act1994 (Qld) and must comply with prescribed standard conditions, a copy of which the State has provided. A separate environmental authority may be required for high impact activities.
The permit would also be granted subject to native title protection conditions (NTPCs). The NTPCs are standard conditions about ways of minimising the impact of the permit on native title in relation to the land affected by the permit. They include a requirement for the explorer to give a native title party notice of proposed exploration activities, meet with the native title party and, for certain activities, undertake field inspections and monitoring. Activities defined as “Agreed Exploration Activities” are not subject to requirements for a field inspection or monitoring. These include activities such as aerial surveys, sampling by hand methods, drilling on land previously the subject of clearing and certain other activities that do not involve clearing. For Aboriginal cultural heritage the subject of the NTPCs, Group 11 will be taken to have met its cultural heritage duty of care if it conducts its exploration activities in accordance with the NTPCs: s 23(3)(a)(v) Aboriginal Cultural Heritage Act 2003 (Qld).
Group 11’s proposed work program for the permit includes a range of desktop and field studies. The plan for year 2 includes diamond drilling five holes for 2,000 metres and rock chip sampling (about 60 samples).
In addition, Group 11 says that it is currently proving satellite technology with the aim of minimising the drilling required for exploration. Wakka Wakka says this is speculative and, in any event, does not address its concerns about intangible heritage. It argues there is no evidence to support a view that Group 11 will not avail itself of all of the rights available under the permit. I agree there is little I can draw from Group 11’s contentions about this unproven technology. Group 11 itself states that it will continue with its current work program and use the technology if it is able to do so.
Is the grant of the permit likely to interfere directly with the Wakka Wakka People’s community or social activities?
Section 237(a) is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that this involves “an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference”. The Court also observed at [26]–[27] that the interference must be substantial in its impact on community or social activities and noted the evaluation is contextual. I have also had regard to the discussion of the authorities regarding s 237(a) in Ngarlawangga and FMG at [72]–[77].
Wakka Wakka contends that Group 11’s activities will interfere with the ability of native title holders to conduct community and social activities. It says the permit area is readily accessible and regularly accessed by native title holders from the proximate communities of Murgon, Cherbourg and Wondai.
Wakka Wakka relies on statutory declarations provided by Cyril Bligh, Elgan Leedie and Cynthia Button and raises a number of specific concerns about the likely impact on community and social activities, as outlined below.
What community or social activities do Wakka Wakka People carry on in the permit area?
The evidence of both Mr Leedie and Mr Bligh focusses on activities associated with Barambah Creek, located in the south-westerly corner of the permit close to the western and southern boundaries. Ms Button’s concerns centre around access via Kinbombi Road, which transects the south-westerly corner of the permit. Wakka Wakka also raises concerns regarding Lot 85 on Plan FY2319, being an area in relation to which Wakka Wakka holds exclusive native title rights.
The State has provided title searches and mapping showing the underlying land tenure for the permit. The map of the permit, being item 46 in the State’s supplementary material, usefully labels the underlying tenure and highlights those areas over which Wakka Wakka holds native title. I have included this map as Annexure A as it assists in identifying the locations mentioned by Wakka Wakka.
The State’s material shows that, for the majority of the permit, the underlying tenure is freehold land. There is no evidence to suggest that Wakka Wakka People undertake any activities in areas subject to freehold. There are also a number of parcels of State forest, national park and State land.
Wakka Wakka holds non-exclusive native title over four parcels of land and waters including parts of Kabunga State Forest and Jimmy’s Scrub State Forest, as well as Barambah Creek (to the extent the creek does not form part of a lot on plan). As mentioned, Wakka Wakka also holds exclusive native title over Lot 85, which is a parcel of State land.
A native title determination application by the Kabi Kabi First Nation Traditional Owners Native Title Claim Group (QUD20/2019) also covers about 23% of the northern part of the permit area.
The map of the permit included in the State’s notice under s 29 of the Native Title Act shows a small section of Barambah Creek crossing the south-westerly corner of the permit, with the creek extending well beyond the permit in both north-westerly and south-easterly directions. It is also of note that, of the section of the creek which traverses the permit area, Wakka Wakka holds native title only in relation to an extremely small part of the creek which crosses into the southern boundary. I understand this is because the balance of Barambah Creek within the permit forms part of a freehold lot and is therefore not subject to the Wakka Wakka Determination. This is clearly shown on the map at Annexure A where the marked portion of the creek subject to the Wakka Wakka Determination stops at the boundary of freehold parcel Lot 92 on Plan FTZ3712.
The evidence of the community and social activities undertaken by Wakka Wakka People in the permit area is limited.
Mr Bligh speaks of his old people going fishing and swimming in Barambah Creek and remembers doing so himself many times when he was growing up. He says that Wakka Wakka People continue to access and use Barambah Creek to “fish, gather, pass down knowledge, and undertake other cultural and social activities in accordance with [their] traditional laws and customs”. However, given that Barambah Creek extends well beyond the permit, the degree to which these activities occur within the permit area is not clear.
Mr Leedie’s evidence in relation to s 237(a) similarly focusses on Barambah Creek. He speaks of the Wakka Wakka People’s right to fish and swim in the creek and recounts stories of fishing for dew fish, turtles and eels and hunting kangaroo along the creek with his family when visiting Cherbourg for Christmas. He also says he has taught his boys about the importance of Barambah Creek. Again, there is no detail about the extent to which these activities currently occur in Barambah Creek, or whether they specifically occur in the permit area. In the context of his evidence regarding s 237(c), Mr Leedie says that blackboy shrubs are found in the permit area and that he was taught how to make spears using a shaft from this shrub. Wakka Wakka contends interference for s 237(a) is likely where access to this plant is hampered by damage or destruction by Group 11 but there is no evidence from Mr Leedie to indicate those intergenerational teaching activities are presently conducted in the permit area.
Ms Button’s primary concern is continued access to Kinbombi Falls, a women’s business place, via Kinbombi Road. She says she uses the Kinbombi area often, goes camping at Kinbombi many times throughout the year, and undertakes cultural activities there with other women. Ms Button says the grant of the permit would directly interfere with Wakka Wakka women being able to access their sacred women’s site to protect it and undertake cultural activities there. She also raises the risk of consequential harm or damage to the women’s site because of the interconnected nature of Wakka Wakka country.
Wakka Wakka also contends that, due to the existence of exclusive native title rights over Lot 85, the grant of the permit will directly interfere with its activities. This contention is repeated in the reply without further explanation. The evidence does not specifically refer to this area so it is not clear what community and social activities may occur there. The fact that Wakka Wakka holds exclusive native title in relation to Lot 85 does not of itself mean that the grant of the permit will cause interference within the meaning of s 237(a); it depends on the activities undertaken in the area of Lot 85.
Is the grant of the permit likely to interfere with any of the community or social activities identified?
The concerns expressed by Wakka Wakka about the risk of interference with community and social activities associated with Barambah Creek arise from a perceived risk of harm or damage to the creek. Mr Bligh states that if exploration is allowed to go ahead it will destroy the waterways and wildlife in and around Wakka Wakka country which will then interfere with how Wakka Wakka People carry out community and social activities. Mr Leedie states that “[i]f the exploration is allowed to go ahead and Barambah Creek is harmed or disturbed, the passing down of knowledge about this sacred site will be significantly interfered with”. He says further that the granting of the permit would have a negative impact on the carrying on of community activities because Wakka Wakka would have failed in its obligation to protect the area.
Wakka Wakka argues that it is fearful that exploration activities will physically contaminate and cause harm to natural resources including animals and water sources. The consequence of this, it argues, is that this fear or apprehension will prevent the exercise of community and social activities including hunting and camping in the permit area.
However, there is no evidence to support these contentions or concerns. Only a small section of Barambah Creek is located within the permit area and there is no evidence of activities conducted elsewhere in the permit area, save for Kinbombi Road, which I will address shortly. Further, the permit would be granted subject to a range of environmental and regulatory controls and Wakka Wakka has not explained why the grant of the permit subject to those regulatory controls, would cause or would be likely to cause harm to Barambah Creek. What is required for s 237(a) is a real, not remote, chance of direct interference having a substantial impact on the activities. While I acknowledge that Wakka Wakka People may hold fears for Barambah Creek, as outlined, there is no evidentiary basis to support them and they do not give rise to interference for s 237(a), particularly in light of the lack of evidence of the activities undertaken in that part of the creek in the permit area.
In relation to the risk of interference with access to Kinbombi Falls, neither Ms Button nor Wakka Wakka specifically explain why such direct interference would occur. Kinbombi Road is listed on the State’s list of underlying tenure for the permit and there is nothing to suggest that public access to this road would be restricted by the grant of the permit. From the mapping, there also appear to be a range of other routes to Kinbombi, other than travelling through the permit area.
On the strength of what has been provided, I am unable to make any findings regarding the current community and social activities undertaken by Wakka Wakka People in the permit area in or near Barambah Creek or in the area of Lot 85. Moreover, as I have explained, the concerns raised by Wakka Wakka regarding harm or damage to the creek and a consequential effect on the conduct of community and social activities are speculative.
I am satisfied that Ms Button uses Kinbombi Road periodically to access Kinbombi Falls. However, there is no evidence upon which to conclude that substantial interference with such access is likely.
For the reasons outlined above, I am not satisfied that the grant of the permit is likely to interfere in a direct and substantial way with community and social activities undertaken by Wakka Wakka People in the permit area.
Is the grant of the permit likely to interfere with areas or sites of particular significance to Wakka Wakka People, in accordance with their traditions?
As Wakka Wakka submits (at paragraph 6.15), an area or site of particular significance for s 237(b) is one of special, or more than ordinary, significance to the native title holders in accordance with their traditions. Such an area or site must also be known and able to be located, and the nature of its significance explained.
Are there areas or sites of particular significance to Wakka Wakka in the permit area?
Wakka Wakka has identified a number of sites or areas in or near the permit area, which it says are of particular significance to Wakka Wakka People. I will consider each of these in turn.
Barambah Creek and adjoining waterways
Wakka Wakka contends that the evidence establishes Barambah Creek and adjoining waterways within the permit area are of particular significance as they form part of the Dreamtime story of the Mundugutta or rainbow serpent (also spelt Mundugatta by Mr Leedie).
Mr Bligh explains that Barambah Creek is a very sacred place for Wakka Wakka People who have a responsibility to look after the creek and make sure it is not harmed. He says he was taught that the rainbow serpent lives in Barambah Creek and travels all through the country. Mr Bligh also says that as a child he was allowed to swim in Barambah Creek but had to be home before dark and had to be careful not to damage the creek or disturb the rainbow serpent.
Mr Leedie similarly refers to Barambah Creek being sacred because of the Mundugatta. He says any exploration or mining near Barambah Creek will poison the water and have terrible effects throughout Wakka Wakka country. Mr Leedie further explains the dangers of disturbing or interfering with the Mundugatta and the consequences which will arise under traditional law and custom. He expresses concern about activities which upset the ecological system.
Ms Button explains (at paragraph 6) the permit area “is of particular importance because the Mundugutta (or rainbow serpent) travels through Barambah Creek and protects all of the creeks and the rivers, all over Wakka Wakka country”. Ms Button says further that:
The Mundugutta is a really big animal and if something bad is happening to the creek or the bank around it, it would come out and when it hits the land, it would turn into a big scary giant person and harm anyone doing the wrong thing in any sacred area. Any mining company with white fellas messing with the area will get sick. Their family will get sick. Bad things will happen to their workplace and their families. Out of fear of harm and protecting our country, sites and story lines, the Wakka Wakka People must protect the EPM area, as well as the people who plan on travelling through or using the area. The Mundugutta is our story line and our song line, and in accordance with our traditional laws and customs, the Wakka Wakka People have an obligation to protect it otherwise all of our country and our ability to use it in accordance with our traditional laws and customs will be interfered with.
While Ms Button refers to the Mundugutta protecting all creeks and rivers, and more generally the need to protect the permit area, the only specific area or site identified in the permit area as being of particular significance, due to its association with the Mundugutta, is Barambah Creek. That is consistent with the evidence of Mr Bligh and Mr Leedie. Similar to Mr Bligh, Ms Button says “Wakka Wakka People are allowed to swim and fish and use Barambah Creek, but [they] have to look after it and not cause any damage to it or the creek beds”.
Neither the State nor Group 11 make any contentions regarding the particular significance of Barambah Creek. I am satisfied from the evidence that Barambah Creek is an area or site of particular significance to Wakka Wakka People due to its association with the Mundugutta. However, the evidence does not support such a finding with respect to any other creeks or rivers, or other areas or sites in the permit area which may be associated with the Mundugutta. No such areas or sites are identified.
For completeness, I note that Mr Leedie (at paragraph 12), mentions there are other spirits in the permit area, apart from the Mundugatta, and he raises risks arising from interference with those spirits. However, Wakka Wakka does not make any specific submissions about areas or sites of particular significance associated with those spirits, and none are identified by Mr Leedie. His evidence in this regard appears to go to the significance of the permit area as part of Wakka Wakka country generally, rather than any area or site of special, or more than ordinary, significance.
Jimmy’s Scrub State Forest
Jimmy’s Scrub State Forest overlaps the western edge of the permit. Wakka Wakka contends it is an area of significance to Wakka Wakka People which requires protection by the avoidance of this site.
Both Ms Button and Mr Bligh give evidence in relation to this forest, although their evidence differs.
Mr Bligh says the forest is named because a Wakka Wakka man was caught by police in the forest and chained to a tree there. He says the forest is a site of significance for Wakka Wakka People and should not be interfered with. However, while Mr Bligh tells a story involving the forest and its name, he does not explain why it holds particular significance to Wakka Wakka People in accordance with their traditions. As the Tribunal observed in Ngarluma v Sageland at [131] citing Little v Western Australia, the absence of such evidence affects the Tribunal’s ability to reach a conclusion regarding the likelihood of interference.
The story told by Ms Button concerns a man who was punished for wrongdoing and thrown in a creek where he sank to the bottom. Ms Button says that years later, the man’s body was found in Cherbourg and his dog was seen in Jimmy’s Scrub State Forest. She says the forest is a significant cultural site for Wakka Wakka People, saying “[w]e have been told not to go to this forest as it is a sacred and scary place that must be avoided”. Ms Button also speaks of potential negative impacts for her and her immediate family if the area is interfered with or harmed.
It is not clear whether the stories told by Mr Bligh and Ms Button relate to the same event as the details are quite different. Wakka Wakka contends that Ms Button’s evidence establishes that Jimmy’s Scrub State Forest is an area of significance which requires protection by avoidance of the site, but I cannot accept that contention. Ms Button tells a story which refers to the forest and she identifies the forest as an area which should be avoided. However, similar to Mr Bligh’s evidence, she does not explain why the events described make the forest a place of particular significance in accordance with Wakka Wakka traditions, nor why Wakka Wakka traditions dictate it must be avoided.
I can accept Jimmy’s Scrub State Forest may hold importance for Wakka Wakka People, possibly for a range of reasons. However, on the evidence provided, I am not able to reach a conclusion about its particular significance in accordance with Wakka Wakka traditions as required for s 237(b).
Kabunga State Forest
Kabunga State Forest is located in the central northern section of the permit.
Wakka Wakka contends, relying on Ms Button’s evidence, that it is an area of significance to Wakka Wakka People where they continue to exercise their rights to collect natural resources and camp in the area.
The evidence about the significance of Kabunga State Forest is brief and there is also no evidence of current activities undertaken in the forest as asserted by Wakka Wakka. Ms Button says that there are “tribal burials near the [permit] area and [her] old people used to gather resources from and go camping in the Kabunga State Forest”. She refers to it as a sacred area which is protected by a law man, as are all sacred sites across Wakka Wakka country. Ms Button says further that the law man will “protect the area for the rest of eternity” and that if someone comes close to the area and ignores the warnings they will get hurt.
Similar to Jimmy’s Scrub State Forest, I can accept that Kabunga State Forest may hold significance for Wakka Wakka People, but there is insufficient detail provided about why this area is of more than ordinary significance to Wakka Wakka People in accordance with their traditions. No explanation is given as to why this particular place is of such significance that it is protected by the law man and requires avoidance.
On the evidence provided, I am also unable to make a finding about the particular significance of Kabunga State Forest for s 237(b).
Kinbombi Falls
Ms Button identifies Kinbombi Falls as a women’s business place where only women are permitted to go and that it is a very important place that must be protected. In its contentions, Wakka Wakka includes Kinbombi Falls in its list of sacred areas within the permit. However, it then goes on to acknowledge that the falls are located outside of the permit area, approximately 10 kilometres to the north-west.
As noted, Ms Button addresses Kinbombi Falls in the context of s 237(a) and her concerns about continued access to the site, which I have already addressed. Other than the consequences of interference with access to the Falls which I have concluded is not likely, there is no suggestion in the material that the grant of the permit would interfere with Kinbombi Falls itself, which is located well away from the permit.
Is the grant of the permit likely to interfere with Barambah Creek?
In its contentions, Wakka Wakka raises a range of concerns, not all of which relate specifically to Barambah Creek. Many of its concerns speak to the Wakka Wakka People’s cultural obligations to protect their land and waters and reflect the risk of unidentified sites being harmed, including by what might be activities within the definition of Agreed Exploration Activities under the NTPCs. In particular, Wakka Wakka points out that sites associated with the Mundugutta Dreaming might not be readily identifiable.
I take no issue with, and acknowledge, those matters of principle and their importance to Wakka Wakka. However, they do not aid my predictive assessment for s 237(b). As Wakka Wakka acknowledges, what is relevant for s 237(b) is whether there is a known area or site of particular significance in accordance with traditions, and whether there is a real, not remote, chance of the apprehended interference occurring on the evidence. The risk of interference with unidentified sites is not within the scope of s 237(b).
In this case, I have found Barambah Creek to be an area or site of particular significance for s 237(b) due to its association with the Mundugutta. The question which must then be considered is whether the grant of the permit is likely to interfere with Barambah Creek.
Both the State and Group 11 contend that interference is not likely due to the operation of the State’s regulatory regime, particularly the NTPCs. Wakka Wakka argues that the State’s regulatory regime, including the Aboriginal Cultural Heritage Act, and the NTPCs do not provide sufficient protection against the impact of the proposed exploration on its cultural heritage.
The NTPCs are clearly an important part of the State’s regulatory framework, but they are not a panacea. They contain mechanisms and measures designed to minimise the likelihood of interference within the meaning of s 237(b), but there are cases where a real risk of interference remains. The Tribunal has determined on a number of occasions that the grant of a tenement subject to the NTPCs is nonetheless likely to interfere with an area or site of particular significance (see for example Ross v Gamboola and Cape York United Number 1 v Big Bull). As in all cases, it depends on the facts, including the nature of the particular area or site and the risk of interference with that area or site.
As observed in Ross v Gamboola at [84], the Tribunal’s evaluation of the risk of interference requires identifying the apprehended interference and determining, having regard to all the circumstances, whether there is a real risk of interference. The State’s regulatory regime may form part of that assessment, but each case must be considered on its own merits. Importantly, as Wakka Wakka contends, the interference must be considered in the context of the native title party’s traditions.
The apprehended interference with Barambah Creek includes the risk of sickness or physical injury to Wakka Wakka People in the event of harm to that part of the Mundugutta Dreaming and consequential harm to other parts of the Dreaming.
The concerns articulated by each of Ms Button, Mr Bligh and Mr Leedie relate to the risk of harm or damage to the creek (and its banks). Mr Leedie also speculates that any exploration activities will poison the water, with terrible consequential effects. Mr Bligh raises a similar concern about the risk of poisoning waterways in the context of 237(c).
I do understand and acknowledge the deeply held concerns of Wakka Wakka regarding the suffering and repercussions for failing to protect sites of significance and their fear and apprehension about harm to such sites.
However, the difficulty with Wakka Wakka’s arguments and the assertions of the witnesses in this case is that they are both unexplained and unsupported by any evidence. Wakka Wakka has not addressed in any meaningful way why it says that exploration activities conducted in accordance with the conditions of the permit and the regulatory regime are likely to cause the apprehended interference. The material conveys Wakka Wakka’s fear of harm rather than a real risk of that harm. On the evidence before me I could not conclude there is a real risk of interference as required for s 237(b). Further, the types of interference of concern to Wakka Wakka are perhaps more likely to arise in the context of exploration activities for which field inspections and monitoring is required. Particularly in light of the lack of evidence to support Wakka Wakka’s claims, this appears to be a case where the processes under the NTPCs will work to mitigate risk.
On the evidence provided, I am not satisfied that the grant of the permit is likely to cause interference within the scope of s 237(b).
Is the grant of the permit likely to involve major disturbance to any part of the permit area?
The issue of whether the grant of the permit is likely to involve, or create rights whose exercise is likely to involve, major disturbance requires the Tribunal to make an evaluative judgment by reference to the expectations of the whole Australian community, including Aboriginal people (see Little v Oriole Resources at [52]−[54]).
As Wakka Wakka submits, citing Ross v Gamboola, I can also have regard to the context of the proposed grant, including previous land use, the characteristics of the relevant land and waters and the relevant regulatory regime (see Ross v Gamboola at [121]).
Wakka Wakka cites the concerns of Wakka Wakka People particularly in relation to any damage to the waterways, including Barambah Creek. For example, Mr Leedie says he does not want to see seepage or environmental damage which would affect Barambah Creek and adjoining waterways. Mr Bligh similarly says he is concerned that if the permit is granted “it will poison our waterways, our lifeblood, our sites and our ability to undertake our traditional laws and customs”. I have already addressed the speculative nature of those concerns. Mr Leedie also expresses concerns about interference or impacts on a range of plants and animals found in the permit area and the consequences for Wakka Wakka People. Again, apart from the general concerns raised, there is no basis for me to reach any conclusion about those matters.
As to context, Wakka Wakka holds native title in relation to a relatively small part of the permit area and much of the balance of the permit area is freehold. The State’s material shows a range of mining tenements, including mining leases, have previously been granted in the permit area; and the exploration activities to be undertaken by Group 11 are subject to a range of conditions and regulatory controls as outlined above.
Having regard to the evidence and all of the circumstances, I am not satisfied that major disturbance is likely to arise from the grant of the permit.
Determination
I determine that the grant of exploration permit for minerals EPM27880 is an act attracting the expedited procedure.
Nerida Cooley
Member
31 March 2023
Annexure A
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