Walalakoo Aboriginal Corporation RNTBC v 142 East Pty Ltd - [2015] NNTTA 64

NATIONAL NATIVE TITLE TRIBUNAL

Walalakoo Aboriginal Corporation RNTBC v 142 East Pty Ltd and Another [2015] NNTTA 64 (24 December 2015)

Application No: WO2014/0828

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Walalakoo Aboriginal Corporation RNTBC (WCD2014/003) (native title party)

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The State of Western Australia (Government party)

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142 East Pty Ltd (grantee party)

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

Tribunal:  Ms H Shurven, Member
Place:  Perth
Date:  24 December 2015

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – excision – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure is not attracted

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 32, 44H, 75, 76, 77, 237
Mining Act 1978 (WA)

Cases:Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’)
Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd [2013] NNTTA 86 (‘Cosmos v Croydon Gold’)
Little and others v Oriole Resources Pty Ltd [2005] FCAFC 243 (‘Little v Oriole Resources’)
Monadee & Ors v Western Australia & Anor (2003) 174 FLR 381 (‘Monadee & Ors v Western Australia’)
Silver and Others v Northern Territory and Others (2002) 169 FLR 1 (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Walley v Western Australia (2002) 169 FLR 437 (‘Walley v Western Australia’)
Watson on behalf of the Nyikina Mangala People v State of Western Australia(No 6) [2014] FCA 545 (‘Nyikina Mangala v Western Australia’)
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd[2014] NNTTA 56 (‘Western Desert v Teck’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representatives of the Ms Julia Smith and Ms Angela Booth,
native title party: Kimberley Land Council

Representatives of the Ms Sarah Power, State Solicitor’s Office

Government party: Mr Michael McMahon, Department of Mines and Petroleum

Representatives of the Ms Stephanie Lee and Mr Yaroslav Legeyda,

Grantee party: McMahon Mining Title Services Ltd

REASONS FOR DETERMINATION

In August 2014, the State Government of Western Australia notified their intent to grant exploration licence E04/2355 to 142 East Pty Ltd and included a statement to the effect they consider the expedited procedure applies to the grant. The licence area comprises 17,583 hectares, located 67 kilometres south of Derby in the Derby-West Kimberly Shire. Walalakoo Aboriginal Corporation Registered Native Title Body Corporate lodged an objection to the inclusion of that statement with the National Native Title Tribunal.
The right of the Walalakoo Aboriginal Corporation to object to the inclusion of the expedited procedure statement arises because they are the registered native title body corporate over the land and waters of the licence.[1] Walalakoo Aboriginal Corporation holds native title in trust for the Nyikina Mangala People, as a result of a Federal Court native title consent determination made in May 2014 (Nyikina Mangala v Western Australia). The native title rights and interests held over the area of the licence are outlined at [11]-[12] below.
[1] Walalakoo Aboriginal Corporation was on the National Native Title Register on 13 August 2014, the notification day stipulated by the State, and so received notification of the State’s intention to grant the exploration licence (see 29(2)(a)). Walalakoo Aboriginal Corporation remains on the Register.
Walalakoo Aboriginal Corporation and 142 East were unable to reach an agreement to resolve the objection. I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry to determine whether or not the expedited procedure applies (see ss 31, 32 and 75-77 of the Native Title Act 1993 (Cth)).
A decision that the expedited procedure applies means the State can grant the licence and 142 East can proceed to explore without negotiating with Walalakoo Aboriginal Corporation (see s 32(4)). A decision that the expedited procedure does not apply means the normal negotiation procedure is required: the State and 142 East must negotiate in good faith with Walalakoo Aboriginal Corporation, with a view to reaching an agreement about the grant. Those negotiations may be done with or without mediation assistance from the Tribunal (see s 31).
By including the expedited procedure statement in its notice, the State deems the activities permitted under licence are not likely to interfere with the Nyikina Mangala’s community or social activities, any sites or areas of particular significance, or involve major disturbance to the relevant land and waters (s 237). In objecting to the expedited procedure statement, Walalakoo Aboriginal Corporation argues such interference or disturbance is likely.
Each party provided contentions and Walalakoo Aboriginal Corporation also provided a reply to the State and the 142 East contentions. In addition, the Corporation provided three affidavits of Robert Watson, chairperson of Balginjirr Lower Liveringa Community (the affidavits described in this decision as RW1, RW2 and RW3). I provided the parties with mapping prepared by the Tribunal’s Geospatial Unit for use in the inquiry. No party objected to use of that mapping. The Balginjirr Community is noted in the evidence as being an Aboriginal community, and is in the south west portion of the licence.
In his affidavits, Mr Watson states he is one of the senior people for the Nyikina Mangala native title determination, was identified by the Nyikina Mangala Applicant as the right person to speak for the area, and the area is in his buru or country. I accept Mr Watson has authority to speak on behalf of the Nyikina Mangala native title holders for the area of the licence.
I will address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant:
a)Is it likely the grant will interfere directly with the carrying on of the Nyikina Mangala’s community or social activities?
i.Are there any other interests that might have already interfered with any community or social activities?
ii.What are the social or community activities and where do they take place?
iii.What are 142 East’s proposed activities?
iv.Is the grant likely to directly or substantially interfere with community or social activities?
b)Is it likely the grant will interfere with areas or sites of particular significance to the Nyikina Mangala?
i.What areas or sites are identified?
ii.Are any of these areas or sites of particular significance?
iii.What are 142 East’s proposed activities in relation to these areas or sites?
iv.Will the regulatory regime be sufficient to protect these areas or sites?
c)Is it likely the grant, or the exercise of any rights created by the grant, will involve major disturbance to any land or waters?
i.Is there any evidence that the land and waters have any special characteristics?
ii.Will the regulatory regime be sufficient to protect these land and waters?

Is it likely the grant will interfere directly with the carrying on of the Nyikina Mangala’s community or social activities?

In considering this issue, I note the following principles (Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [15]-[16]):
·The inquiry into interference with community or social activities is contextual, and I may have regard to other factors that might constrain the community or social activities.
·I must determine whether 142 East’s activities are likely to be the proximate cause of interference.
·The level of interference with community or social activities must be substantial and not trivial.
i.Are there any other interests that might have already interfered with community and social activities?
I must take into account how other activities might have already interfered with community or social activities in the area. In particular, the extent of pastoral activity is important to consider because the Native Title Act specifies a pastoralist’s activities will prevail over any native title rights and interests, although do not extinguish them (s 44H).
I have reviewed Tribunal and State geospatial information provided in this inquiry, and note the Indigenous held Mt Anderson Pastoral lease overlaps approximately 86 percent of the licence. The Tribunal has previously held a native title party may have greater ongoing access to an area which is covered by an Indigenous held pastoral lease. For this type of lease, the Tribunal cannot automatically assess that the ongoing activities of pastoralists have prevailed over native title rights (Monadee & Ors v Western Australia at [28]). Furthermore, the Nyikina Mangala hold exclusive native title over the lease via a consent determination: ‘the right to possession, occupation, use and enjoyment...to the exclusion of all others’ (with the exception of flowing and underground waters) (Nyikina Mangala v Western Australia at [5]). Nyikina Mangala native title holders currently reside on the lease, and they have lived on and managed the lease for the last thirty years. Mr Watson says he and other families live all year round at Balginjirr Lower Liveringa Community, which is situated on the lease (RW1 at 20-22). He identifies the community as Nyikina Mangala (RW2 at 40) and says he has lived there since 1986 (RW1 at 17). He says ‘Uncle Harry and my Dad started everything up on Liveringa, the way it is now, after they got possession of Mt Anderson station in 1984 ... Dad, Uncle Harry and Uncle John worked hard to build up the station’ (RW1 at 16).
As for the remainder of the licence, native title is extinguished over approximately 1 percent of the licence, and non-exclusive native title is held over the remaining 13 percent of the licence, which is mainly comprised of the Fitzroy Crossing to Nobby’s Well stock route and a water and stopping place. The determined non-exclusive native title rights are the rights to: access and move freely; live, enter and remain on, camp and erect shelters; hunt, gather, fish, take and use flora and fauna, take, use, share and exchange the natural resources for personal, domestic, cultural and non-commercial communal purposes; engage in cultural activities in the area, including the transmission of cultural heritage knowledge; conduct and participate in ceremonies; hold meetings; and visit, maintain and protect from physical harm, areas, places and sites of importance (Nyikina Mangala v Western Australia at [6]).
Both the State and 142 East observe the area has prior mineral exploration activity, as well as historical and current pastoral activity. 142 East contends (at 62) the Nyikina Mangala’s rights and interests ‘have been, and continue to be able to, co-exist with the rights granted under an Exploration Licence.’
ii.What are the social or community activities and where do they take place?
As stated previously, Walalakoo Aboriginal Corporation has provided three affidavits by Mr Watson (RW1, RW2 and RW3). Affidavit RW3 was deposed for this objection. Affidavits RW1 and RW2 were deposed for two previous expedited procedure objections lodged for the Nyikina Mangala, and which involved two other exploration licences applied for by 142 East.[2] The licence applications for those two objections completely overlap the licence in this matter, with the exception of a small area to the north west along the Fitzroy River catchment area. The Tribunal did not make a determination about those objections because 142 East withdrew the licence applications before the matters were determined. Affidavit RW1 was affirmed in October 2013, RW2 in May 2014 and RW3 in June 2015. Together, the three affidavits provide a continuity of evidence which has been very useful for me in this inquiry.
[2] WO2013/0558 for E04/2238 and WO2013/0782 for E04/2300
Mr Watson says his and other families live on Balginjirr Community all year (RW1 at 20). He says those who live there ‘go out onto the exploration licence area daily’ (RW1 at 29). Mapping shows Balginjirr Community is located in the western portion of the licence. In his affidavits, Mr Watson provides extensive examples to support his statement that ‘we rely on the area to provide us many of our main meals every week’ (RW2 at 32). During the wet season in particular, he says ‘we can become completely isolated from everyone because the roads become flooded. We stock up for the wet season and can become very dependent on the food we can catch around us’ (RW1 at 22).
Mr Watson says we ‘use everything in the bush’ including; nyambal or bush orange; magabala or bush banana vines; nyaliwany which has fruit similar to grapes; boonook or bush tomato; karriwal which bears white fruit similar to plums; ngamal jarra or bush cucumber; dadakoon or bush coconut; galaga or bush honey; bidal bidal used in ointment; bush lemongrass for tea and soap; and nyili nyili or bush chewing gum (RW1 at 32-33, 36).
In 2013, Mr Watson stated goanna ‘is absolutely the main source of food for us outside of the fish we catch’ (RW2 at 27). He states the group ‘hunt goanna right through the year unless, they hibernate’ (RW1 at 34). In 2014 he also refers to goanna hunting ‘all year round’, as well as a number of specific goanna hunting trips in that year (RW2 at 14 and 25-27).
Mr Watson says bush turkey is hunted ‘out on the flat near the billabong [Lower Liveringa Pool]’ (RW1 at 35). Annexed to his third affidavit is a map upon which he has shaded the flats directly south of Lower Liveringa Pool where ‘we find bush turkey and duck, this is where they live and breed’ (RW3 at 14). This area is in the south west of the licence.
In his affidavits, Mr Watson refers to fishing for jarimba or fresh prawns, walja or barramundi, black brim, catfish, flathead and sword fish along the Fitzroy river and in the various waterholes and pools (RW1 at 38, RW2 at 20-24, 31). He says some nights ‘we go down to the river, catch dinner and cook and eat down there on the river instead of the house’ (RW1 at 38).
Mr Watson’s evidence strongly links both hunting and fishing activities to the western side of the licence around the Fitzroy River, its tributaries, floodplains and permanent pools. The Fitzroy River flows through the northwest and the southwest portion of the licence. He says the river ‘is about 200 m away’ from the community (RW1 at 38) and we use ‘the catchment area around the Fitzroy River as our main food source’ (RW2 at 20). He explains that all ‘the animals lives are wound up in the river area as it offers the aquatic animals a home and enables us to catch them and it also offers you a better chance to hunt other animals on a hot day when the animals come into river’ (RW2 at 14).
The hunting area for bush turkey and duck is located along the floodplain south of Lower Liveringa Pool (RW3 at 14). He refers to a ‘colony of flying foxes’ near Lower Liveringa Pool (RW2 at 25). He says that ‘even though the goanna are territorial and may live further away they will access/come into the river during the day, all year round, where we can catch them’ (RW2 at 14). He describes ‘rich waterholes’ that ‘are wet for most of the year and draw in animals we catch and use as food’ (RW2 at 19). He talks of hunting crocodiles and their eggs, and catching turtles along the Fitzroy River and in the permanent water holes as the water recedes (RW1 at 38, RW2 at 20, 28-30).
He says intergenerational ‘teaching on the river’ occurs with his ‘boys’ and others whilst hunting ‘as the animals behave differently as the seasons change and their access to water changes’ (RW2 at 9). There is some evidence about caring for country in general terms, although this is mostly linked to the Fitzroy River and its waterways (see RW2 at 38 and the Walalakoo Aboriginal Corporation contentions at 15j-k)).
Mr Watson outlines information about the area encompassing the Balginjirr Community, the Balginjirr ridge and its surrounds. He describes the area as ‘very special Nyikina Mangala country’ (RW1 at 24 and RW2 at 13). It is apparent there is a long history of use of the area by the Nyikina Mangala. ‘For the old mob, they know this country. Lower Liveringa used to be the main camp back in the days when people could move around at will; and then it became an outcamp for the stations’ (RW1 at 23).
Mr Watson says the ‘pristine beauty of this country is still the same as it was when my father and Grand-father was here’ (RW3 at 10). He says ‘since I was a child this area and Mt Anderson [pastoral lease] was always talked about as our country’ (RW1 at 15). He explains that ‘we use the area to sustain our community life’ (RW2 at 32):
For as far back as we have been made to appreciate in terms of our ancestral occupation we remember this area ... as what has kept my bloodline alive, our connection to this area is very precious. It gives us a sense of place and belonging ... [RW2 at 10]
Mr Watson describes the Balginjirr community ‘and the surrounding area...to be a sanctuary, a safe place where people in need can come and get in touch with their Nyikina Mangala history’ (RW1 at 24).
He describes in depth the mental health camps, youth camps and other workshops they run from the Balginjirr community saying ‘the residents at Lower Liveringa, Nyikina Mangala people, join the organisations who provide services with their traditional owner constituents... If you have workshops in town then people can leave when everything gets too confronting.’ He says ‘we are the only place in the Kimberley that provides the bridge between the essential mental health services and programs which are on offer and “country”, which means we can provide a unique service, which is only as powerful as our continued access to country enables it to be’ (RW1 at 45).
He refers to ‘My river’ camps aimed at local youth to ‘grow their understanding of how disconnected they may have come from the traditional Nyikina Mangala ways of 1000s of their ancestors who would have walked and camped in the exact same area that we have camped and learnt life skills’ (RW2 at 45). Mr Watson has drawn the location of the camps and the walk trail undertaken by participants on a map (annexed to RW2). The walk begins from a point along the stock route road near No. 5 Bore, about four kilometres south of the licence area. The walk trail runs for about five kilometres in a northwest direction and enters into the licence area, travelling to a point at or near Lower Liveringa Pool, before turning southward to base camp located within the Fitzroy River catchment area. Mr Watson describes this area as where ‘most of the activities ... will take place’ (RW2 at 44).
iii.What are 142 East’s proposed activities?
In their contentions, 142 East state (at 5) they reviewed the Walalakoo Aboriginal Corporation contentions and Mr Watson’s affidavits ‘and as a result of the concerns raised intend to lodge an application to exclude part of its application from grant.’ The State has since confirmed (at 2) the application to excise has been accepted. The State has provided a map to the Tribunal and parties showing the area to be excised is to the west of, and including, the majority of the stock route. The area to be excised includes Balginjirr community, Lower Liveringa Pool, the Fitzroy River catchment area, and the area where the camps are undertaken, as described by Mr Watson (RW2 at 44 and map annexed to RW2).

In the remaining area of the licence, 142 East proposes to undertake ‘the usual activities associated with exploration licences including conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling, and surveys. The work that is ground disturbing will be broad based’ (142 East contentions at 52). They draw attention to the conditions and endorsements the State proposes to apply to the licence and their intent to abide by these (at 17-49). Those conditions and endorsements are outlined at Appendix A of this decision. 142 East also confirm a ‘willingness to enter into an agreement in the same terms’ as any of the Regional Standard Heritage Agreements (RSHAs) which exist in Western Australia, and the State indicates they will impose an RSHA condition on grant of the licence. The condition will require 142 East to execute an RSHA in favour of the Nyikina Mangala People, should they request it, within ninety days after the grant of the licence (at 12A). Each RSHA contains varying provisions for notice, heritage surveys or clearances, reports and dispute resolution. The aim is to provide grantees and native title parties with a mechanism for consultation over heritage protection and site identification. The Nyikina Mangala would be able to choose which of the RSHAs would best suit their needs.
I do note in the statement of works 142 East provided to the State, which was provided to Walalakoo Aboriginal Corporation in this objection, they indicated they were ‘the holder or applicant for tenure in the vicinity of this application and it is the intention of the Applicant to systematically explore the entire area applied for’, which I conclude would mean systematically explore all the licence apart from that which will be excised on grant. The State have also provided the first year work program of 142 East, which indicates about four days of sampling will be undertaken by a field technician, taking around 200 samples, with 600 metres of RAB (rotary air blasting) drilling also scheduled. It is not clear how many holes the 600 metres of drilling will include. No information is provided for years 2-5.
iv.Is the grant of the licence likely to directly or substantially interfere with community or social activities?
In answering this question, I must consider the social and community activities currently being undertaken by the Nyikina Mangala and weigh these against the activities 142 East are likely to undertake on the licence if granted.
That there is an Aboriginal community on the licence suggests the area around the community is likely to be used intensively by the Nyikina Mangala native title holders. In addition, the Nyikina Mangala have exclusive rights to access and move freely through the majority of the licence area and its surrounds, and to live, remain and camp there, engage in cultural activities, and so on as outlined in Nyikina Mangala v Western Australia.
In its submissions, 142 East have taken into account the community and social activities described by Mr Watson and Walalakoo Aboriginal Corporation. 142 East have indicated that to reduce their impact on these activities, they have requested part of the licence be excised on grant. This excised portion will include the Balginjirr community and areas to the north west and south west of the community, portions of the Fitzroy River catchment area, and a portion of some sites recorded on the Department of Aboriginal Affairs (DAA) Sites Database. I refer to these sites in more detail at [38]-[43] when describing sites of particular significance to the Nyikina Mangala. 142 East argue that the majority of activities undertaken by the Nyikina Mangala occur mainly within the area they propose to excise, and any activities which might occur within the remaining licence area are likely to be able to co-exist with their exploration activities which they describe as ‘occasional and temporary’ (142 East Contentions 72-123).
Overall, evidence suggests the majority of the community and social activities described are undertaken within the area to be excised. These include hunting, fishing, intergenerational teaching and camping. The excised area also includes the part of the Balginjirr ridge which is enjoyed during the camps. There is simply not enough evidence about the exercise of social and community activities outside the area to be excised for me to conclude that the activities conducted within the remainder of the licence are likely to be interfered with in a real or substantial way by 142 East. However, I have no doubt that the remainder of the licence, which still contains the major portion of Balginjirr ridge, is an area of particular significance to the Nyikina Mangala. Mr Watson describes the Balginjirr area as ‘very special Nyikina Mangala country’ which spiritually and physically ‘sustains my wife and family’ and ‘our community life’ (RW1 at 24 and RW2 at 10, 13, and 32). The significance of the Balginjirr ridge will be explored further below.

Is it likely the grant will interfere with areas or sites of particular significance to the Nyikina Mangala?

In considering this issue, I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at 34-35).
·To be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91]).
·If I am satisfied the site or area is of particular significance, I must analyse carefully the potential interference, because of the importance it has to the native title holders. The nature of the site or area, the nature of the potential interference and the laws and traditions of the native title holders are relevant considerations (Silverv Northern Territory at [88]).
·There must be a real chance or risk of interference with the site or area, not just a possible chance (Smith v Western Australia at [23]).
·I will give weight to the State’s heritage and regulatory regime (Walley v Western Australia at [11]).
i.What areas or sites are identified?
As noted above, Mr Watson describes the Balginjirr area as ‘very special Nyikina Mangala country’ to which the Nyikina Mangala native title holders have a long history of connection and attachment (RW1 at 15, 23-24 and RW2 at 10 and 13). Mr Watson describes the spiritual and physical connection to the area as ‘very precious.’ He states the area: ‘has kept my bloodline alive’; ‘gives us a sense of place and belonging’; ‘sustains my wife and family’; and ‘sustain[s] our community life’ (RW2 at 10, RW2 at 32). The importance of the area is geographically linked to the Balginjirr ridge, which is identified in all three of Mr Watson’s affidavits.
The State contentions argue that RW1 provides limited information regarding the ridge, and ‘the other affidavits make no reference to the area’ (at 62). However, I find there is reference to the ridge in each of the affidavits.
RW1 contains evidence such as: ‘The actual ridge of Balginjirr is a special place for Nyikina Mangala people. There is a song about that ridge line, that the old people know, it is a creation song and is part of corroboree’ (RW1 at 55); it ‘is a special spiritual balanggan country, balanggan spiritual beings live on the ridge. They are big spirits and the country up there is very peaceful’ (RW1 at 54). While the men’s site associated with the ridge story is within the excised portion of grant (as noted by 142 East's contentions at 138), the bulk of the ridge itself is within the area for grant.
The evidence in RW1 is consistent with that in RW2, such as the ridge ‘travels under the ground and then surfaces at different locations... It has a powerful story...a very significant story which only the older men can talk to you about’ (RW2 at 51). In RW3, the ridge is also referred to as being in the southern portion of the licence, as follows: ‘I have drawn a line at the bottom of the tenement area that identifies that location, the ridge runs alongside No.6 bore... In terms of its geographical significance it is very powerful and significant... The ridge runs down to a point at our billabong [Lower Liveringa Pool], right here where I have marked it with an “X”. These are areas that have significant sites, there are registered sites here that the Department of Aboriginal Affairs has acknowledged’ (RW3 at 7-8).
As such, I cannot agree with the State that RW2 and RW3 do not refer to the ridge or its significance.
Searches of the DAA Sites Database show a rectangular boundary over the Balginjirr ridge area described by Mr Watson. The area is listed as an ‘other heritage place 13199’ of ceremonial/mythological importance with a restricted boundary location. It is named ‘Parlkanjirl’, which is phonetically similar to Balginjirr. From the description provided, I conclude the ridge is the same general area as Parlkanjirl. I note from Tribunal mapping that No. 6 Bore is within the boundary of Parlkanjirl in the southeast portion of the licence. In addition, the Balginjirr community lies approximately one kilometre inside the western boundary line of Parlkanjirl, and the proposed excise takes in Balginjirr community and part of the west portion of Parlkanjirl.
There are two more ‘other heritage places’ within the licence which have been lodged with the DAA: ‘Mapurrkurrnyutarn’ (ID 13206) located at No. 6 Bore and ‘Nulukurkurl’ (ID 13204) located approximately four kilometres north west of Balginjirr community. Nulukurlkurl is within the portion of the licence 142 East intend to have excised. Parts of the Fitzroy River also overlap along parts of the western licence boundary, and the river is registered as a mythological heritage site (ID 12687) on the DAA Sites Database. Mapurrkurrnyutarn is within Parlkanjirl.
Mr Watson also notes the following places:
·‘There are burial places all along the ridge, our descendents were always buried up in the high country, not in the ground and that ridge is the only high country around these parts this was to protect their spirits from drowning if a big wet came along ... Number 10, number 6 and number 2 bores are on the high ground. When I went for a trip around the bores with Uncle Johnny he told me that there were old people buried around the bores’ (RW1 at 57 and 59). ‘All along the ridge line there are burial sites all along here. The way they dealt with our dead back then, was that they put their bodies on a platform in a tree. When their bodies became skeletal, it is then that the funeral took place and then the rightful family members would pick up their bones with paperbark and place them in the cracks of the ridge line’ (RW3 at 15). I note that No. 10 Bore and No. 2 Bore are to the north of the ‘Parlkanjirl’ other heritage place marked on Tribunal mapping, and No. 6 Bore is within it.
·‘I have been told there is a painting and artefacts along the ridge too, and I have seen evidence on the ridge of signs of past human habitation. Everything needs to stay where it is so our children can visit the area as if it is a museum, the artefacts should not be disturbed’ (RW1 at 58).
·‘My father was born here at the billabong and is buried here at Balginjirr... Lower Liveringa Outcamp. This is the location of our community. My mother and daughter are also buried here’ (RW3 at 9).
·‘There is another significant area straight down from the W in “Lower” on the map in the exploration license [sic] area which I cannot tell you about because I am not the right person to speak for that place. It is a special men’s story I am not allowed to talk about’ (RW2 at 52). I note this area appears to be part of the area which 142 East have applied to excise from the grant.
ii.Are any of these areas or sites of particular significance?
I must be satisfied that: each area or site of particular significance has been sufficiently identified as existing on the licence; its significance has been explained and distinguished from other areas; and it is of more than ordinary significance to the Nyikina Mangala in accordance with their traditions. These questions are a precondition for inquiring whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). In other words, if there is insufficient evidence to answer these questions, I will go no further and will not address the question of interference.
The State contends the evidence is not sufficient to establish any sites or areas of particular significance in the licence area (at 59). I do not accept the State’s contention.
Mr Watson has drawn the location of Balginjirr ridge on a map, described it as ‘the only high country around these parts’ (RW1 at 57) and says it ‘runs down to a point at our billabong [Lower Liveringa Pool], right here where I have marked it with an “X”’ (RW3 at 7-8). The area also corresponds with a restricted ‘other heritage place’ on the DAA sites database (Parlkanjirl). Whilst the area extends beyond the licence, it is clear that a substantial portion is located within the licence. Mr Watson has described its significance to the extent he is authorised under Nyikina Mangala law and I am satisfied Balginjirr ridge is an area of more than ordinary significance to the Nyikina Mangala. Only a small portion of the area of the ridge within the licence will be subject to excision. The remainder of the ridge lies within the south portion of the licence, and extends outside the east boundary of the licence.
I am also satisfied the area marked by Mr Watson below Lower Liveringa Pool is a site of particular significance to the Nyikina Mangala, however, that area will be excised from grant.
With regard to the burial places in cracks ‘all along the ridge’, the State contends there is no evidence explaining the significance of the burial sites and so I should not conclude they are significant sites (at 61). 142 East say they are not likely to disturb burial sites around bores No. 2, No. 6 and No. 10 as these bores are distinct and identifiable. They also state the evidence of burial places along the ridge ‘appears to coincide with, and fall within the (wider) boundaries of the recorded heritage place Nulukurkurl’ and that disturbance ‘is not likely as the existence, boundaries and importance of this place has been recognised by both the DAA Register and in the native title party’s contentions’ (at 140).
In fact, Nulukurkurl is within the area to be excised and it is Parlkanjirl which is the heritage place overlapping the ridge area. The fact it has a restricted boundary suggests the relevant area could not readily be identified by persons other than the native title holders. Applying the principles outlined in Western Desert v Teck (at [131]), I conclude the burial sites stand out as being of particular significance due to the Nyikina Mangala’s special connection to the area and in particular to the ridge, and the connection to the Aboriginal community nearby (while the community area will be excised from the grant, a large part of the ridge itself will remain within the grant).
In relation to the paintings and artefacts, whilst I believe these are important to the Nyikina Mangala, Mr Watson’s description is too general to locate them with any certainty. Without such evidence, I cannot conclude they are of particular significance for the purposes of this inquiry.
iii.What are 142 East’s proposed activities in relation to these areas or sites?
As noted previously, 142 East proposes to undertake the usual activities permitted under an exploration licence. It is willing to enter into an agreement on the same terms as an RSHA with the Nyikina Mangala, and signifies its intent to abide by all relevant regulatory regimes. As noted earlier, 142 East intend to systematically explore the entire area of the licence, apart from the area which will be excised on grant.
iv.Will the regulatory regime be sufficient to protect these areas or sites?
The State contentions (at 12A) make an offer to include a condition enabling the Nyikina Mangala to request that 142 East execute an RSHA of the kind elected by the Nyikina Mangala. The State contends 142 East has expressed a willingness to enter into an RSHA and that interference with any sites of particular significance would be unlikely (at 72).
The part of the Fitzroy River which overlaps the licence and Nulukurkurl (DAA ID 13204) does form part of the excised area. Mapurrkurrnyutarn (DAA ID 13206) is not in the area to be excised; however, its boundary is not restricted and I am satisfied 142 East could avoid that area. As such, the activities of 142 East are unlikely to interfere with those areas.
The boundary of Parlkanjirl (DAA ID 13199) is recorded as being restricted and is classified as ceremonial and mythological. I am satisfied this area is the same as that described by Mr Watson as the Balginjirr ridge area. Evidence has been provided by Mr Watson that the ridge area is very important for the Nyikina Mangala, for a number of reasons. It is also associated with burial sites. It is clear that the ridge area extends outside the Parlkanjirl buffer zone currently mapped by DAA. The ridge area also includes the ‘high ground’ including around No. 10 Bore and No. 2 Bore where burial sites are located (RW1 at 57 and 59).
Only the easternmost part of the ridge area will be excised from the grant of the licence. A large portion of the ridge area, including that around No. 10 and No. 2 bores will not be excised. With the boundary of Parlkanjirl being restricted and evidence that the buffer zone currently mapped around it does not include some of the ridge area, it will be difficult for 142 East to navigate the ridge area and burial grounds within that area without guidance from the native title holders.
I conclude that given the sensitivity of the Balginjirr ridge area and the difficulty in locating its boundaries and the burial sites within it, there is a real risk 142 East activities across the areas available for grant within the licence would pose a real chance of physical interference with sites and areas of particular significance to the Nyikina Mangala.

Will the grant, or the exercise of any rights created by the grant, involve major disturbance to any land or waters concerned?

In considering this issue, I note the following principles:
·I must determine whether there is a real chance or risk of major disturbance to land and waters. The term ‘major disturbance’ is to be given its ordinary English meaning as understood by the whole Australian community, including the Aboriginal community (Little v Oriole Resources at [52]-[54]).
·The concerns of the Aboriginal community are relevant to evaluating the degree of disturbance. However, the concerns must relate to direct, physical disturbance arising from the grant or any rights created by it (Cosmos v Croydon Gold at [29]).
i.Is there any evidence that the land and waters have any special characteristics?
Walalakoo Aboriginal Corporation contends the Fitzroy River, and its tributaries and floodplains is an area of unique importance. They draw attention to the fact it is mentioned in the West Kimberley National Heritage Listing as being of ‘outstanding heritage value to the nation’ given it ‘demonstrates four distinct expressions of the Rainbow Serpent tradition within a single freshwater hydrological system’ (Contentions at 46-47). Mr Watson’s affidavit (RW3) refers to the south west side of the licence and outlines its importance as part of the water catchment system (at 16). This forms part of the area which the State intends to excise from the grant.
ii.Will the regulatory regime be sufficient to protect these land and waters?

I note the State and 142 East propose to excise the Fitzroy River catchment area from the grant of the licence. The State proposes to include a series of endorsements and conditions on the grant of the licence which relate to waste disposal, land rehabilitation, and the protection of water and native vegetation. There is no evidence that 142 East will not abide by the regulatory regime.
I conclude the regulatory regime is sufficient in respect of such disturbance to land or waters. The grant of the licence, or the exercise of any rights created by the grant, is not likely to involve major disturbance to the land or waters related to the grant of this licence.

Conclusion

The community or social activities carried on within the licence area have been described, and I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. Sites and areas of particular significance exist on the licence, and I am satisfied the grant of the licence is likely to interfere with some of these as explained above. There is no evidence the grant of the licence, or the exercise of any rights created by the grant, is likely to involve major disturbance to the land or waters concerned.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2355 to 142 East Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member
24 December 2015

Appendix A: Draft Tenement Endorsement and Conditions

The grant of the E04/2355 will be subject to the following conditions:

All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Water & Stopping Place Reserve 1307 & Stock Route Fitzroy Crossing To Nobby’s Well Reserve 23226.

The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:

The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

The Licensee [sic] attention is drawn to the provisions of the:
·Waterways Conservation Act, 1976
·Rights in Water and Irrigation Act, 1976
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoW relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:

Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependant vegetation of any perennial waterway, and
·30 metres from the outer-most water dependant vegetation of any seasonal waterway.

In respect to Proclaimed Surface Water Areas the following endorsement applies:

The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
All activities to be undertaken with minimal disturbance to riparian vegetation.
No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

In respect to Proclaimed Ground Water Areas the following endorsement applies:

The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
The grant of this Licence does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 metres from the natural surface of the land.