Walalakoo Aboriginal Corporation RNTBC v Central Pilbara North Iron Ore Pty Ltd - [2022] NNTTA 38

NATIONAL NATIVE TITLE TRIBUNAL

Walalakoo Aboriginal Corporation RNTBC and Another v Central Pilbara North Iron Ore Pty Ltd and Another [2022] NNTTA 38 (25 May 2022)

Application Nos:

WO2021/1133; WO2021/1235; WO2021/1244

IN THE MATTER of the Native Title Act 1993 (Cth)

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

Walalakoo Aboriginal Corporation RNTBC (WCD2014/003)

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Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2015/009)

(native title parties)

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Central Pilbara North Iron Ore Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	25 May 2022

Catchwords:	Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere with the carrying on of community and social activities – whether acts likely to interfere with sites or areas of particular significance – acts are not acts attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 140, 141, 151, 237 Native Title Legislation Amendment Act (No. 6) 2021 (Cth)
Cases:	Atkins and Others on behalf of Gingirana v Drillabit Pty Ltd and Another [2016] NNTTA 17 (‘Drillabit’) Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 (‘Bunuba Determination’) Daisy Lungunan & Others on behalf of the Nyikina & Mangala Native Title Claimant Group/Western Australia/Conquest Mining NL [2002] NNTTA 193 (‘Conquest Mining’) Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd, [2012] NNTTA 24 (‘Geotech International’) Dann v Western Australia & Another [1997] FCA 332; (1997) 74 FCR 391 (‘Dann v Western Australia’) Hale and Others v Western Australia and Another [2015] FCA 560; (2015) 233 FCR 96(‘Hale’) Jurruru #1 (Part B) claim & Another v Eastern Goldfields Mining Company Pty Ltd & Another [2022] NNTTA 10 (‘Jurruru v Eastern Goldfields’) Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (‘Little v Oriole Resources’) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (‘Marputu v Gianni’) Peggy Patrick & Others on behalf of Yurriyangem Taam & Another v Oladipo Minerals Pty Ltd & Another [2020] NNTTA 36 (‘Oladipo’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another [2016] NNTTA 16 (‘Tjurabalan v Rich Resources’) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (‘Boadicea’) Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 (‘Nyikina Mangala Determination’) Wintawari Guruma Aboriginal Corporation v Yandan Gold Mines Pty Ltd and Another [2020] NNTTA 52 (‘WGAC v Yandan’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)
Representative of the native title parties:	Miranda Clarke, Kimberly Land Council

Representative of the grantee party:

Joel Moss, Ashurst

Representatives of the Government party:

Jeff O’Halloran and Domhnall McCloskey, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licences E04/2687 and E04/2688 (licences) to Central Pilbara North Iron Ore Pty Ltd (Central Pilbara).
The State of Western Australia (acting through the Department of Mines, Industry Regulation and Safety) (State) considers the grant of each of the licences is an act attracting the expedited procedure under the NTA, and included a statement to that effect in notices given under s 29 of the NTA. If the expedited procedure applies, the licences may be granted without first requiring negotiation in good faith under

s 31(1)(b) of the NTA.
Walalakoo Aboriginal Corporation RNTBC (WAC) holds native title in trust on behalf of Nyikina Mangala People in relation to 81.31% of E04/2687 and 99.67% of E04/2688 (see Nyikina Mangala Determination). WAC has objected to the application of the expedited procedure with respect to the grant of both licences.
Bunuba Dawangarri Aboriginal Corporation RNTBC (Bunuba) holds native title in trust on behalf of Bunuba People in relation to 0.15% of E04/2688 (see Bunuba Determination) and also objects to the application of the expedited procedure.
For the reasons given below, I have concluded that the grant of each licence is not an act attracting the expedited procedure.

The Tribunal proceedings

As WAC lodged objection applications in relation to both licences, the Tribunal made combined directions requiring the parties to those applications to provide contentions and evidence for the inquiry. In accordance with s 141(2)(c) of the NTA (as amended by the Native Title Legislation Amendment Act 2021 (Cth)), the parties to WAC’s applications are WAC, Central Pilbara and the State.
Similarly, the parties to Bunuba’s objection application are Bunuba, Central Pilbara and the State. In accordance with the Tribunal’s usual procedures, separate directions were issued in relation to Bunuba’s objection.
During the early stages of the applications, I convened a number of case management conferences in each matter at which parties discussed their progress towards resolving the objections by agreement. I note that Central Pilbara’s contentions in each application restate its desire to reach agreement with the native title parties. I am not aware of the present status of any proposed agreements. Ultimately, agreement was not reached within a reasonable timeframe and the matters have proceeded to determination.
Section 140 of the NTA provides that an inquiry may deal with more than one issue, matter or application. At an appropriate juncture it may have been expeditious for the directions in all matters to be combined, although that issue was not raised by any party.
In any event, the Tribunal’s task as outlined in s 32(4) is to determine whether the grant of each licence is an act attracting the expedited procedure and, as the Federal Court confirmed in Hale at [119], the area in issue is the entire tenement area. That is the case for each objection to E04/2688 despite the extent of native title held by WAC and Bunuba.
Accordingly, given the common parties and/or scope of the inquiry for each objection, it is convenient to decide all of these matters together.
The material provided by each of the parties is outlined below.
The State provided contentions in each matter together with mapping, Quick Appraisals containing key tenement information for the licences, Aboriginal Heritage Inquiry System (AHIS) searches, a copy of the licence applications together with the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) and the proposed endorsements and conditions to be imposed upon the grant of the licences.
WAC provided contentions together with the affidavits of:
(a)Ms Annie Milgin, a Nyikina Mangala common law holder, affirmed 24 May 2021; and
(b)Mr Gareth Ogilvie, Legal Officer at Kimberley Land Council, affirmed 30 July 2021.
Bunuba provided contentions and the affidavit of Mr Kevin Oscar, a Bunuba common law holder, affirmed 30 September 2021.
Central Pilbara provided contentions addressing the two WAC objections together with the affidavits of:
(a)Mr Ben Lamb, Legal Counsel and Tenement Officer with Hancock Prospecting Pty Ltd (Hancock), affirmed 4 October 2021 (Central Pilbara being a wholly owned subsidiary of Hancock); and
(b)Mr Peter Collings, geologist at Hancock, affirmed 4 October 2021.
Central Pilbara provided separate contentions in relation to the Bunuba objection which were accompanied by further affidavits of Mr Lamb and Mr Collings, both affirmed on 18 October 2021.
Both WAC and Bunuba provided contentions in reply.
Each of the parties is agreeable to the matters being determined without the need for a hearing as is permitted under s 151(2) of the NTA. Having reviewed the material, I am satisfied that I can adequately determine these matters without a hearing.

What do I need to consider to determine whether the expedited procedure applies?

Under s 237 of the NTA, a licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
I am required to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of each licence (see overview of approach in Yindjibarndi v FMG at [15]).
I note that the State’s material lists two previous Tribunal determinations that relate to the area of the licences. The first is Conquest Mining, which relates to parts of both E04/2687 and E04/2688, where the Tribunal determined that the expedited procedure did not apply. The other is Geotech International, concerning part of E04/2688, where the Tribunal found the expedited procedure did apply. Where relevant, I have given consideration to these previous determinations, as outlined below.

Details about the licences, licence areas and the activities proposed by Central Pilbara

Exploration licences under the Mining Act are granted for an initial term of five years, and may be renewed (s 61 Mining Act). Section 66 outlines the rights conferred on the holder of an exploration licence, which include the right to “excavate, extract or remove ... earth, soil, rock, stone, fluid or mineral bearing substances” up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The State’s material provides the following information regarding the area of the licences:

Tenement

Size

Underlying tenure/Live tenements

AHIS search results

E04/2687

35481.61 ha

·   76.45% Pastoral Lease (Liveringa)

·   12.74% Freehold

·   5.11% General Leases

·   2.87% C Class Reserves

·   2.24% Unallocated Crown Land

·   Road Reserves

·   99.85% Petroleum Exploration Permit

·   14 registered sites (12 with file and boundary restrictions)

·   5 Other Heritage Places (5 with file and boundary restrictions)

E04/2688

32564.55 ha

·   99.21% Pastoral Leases (Liveringa and Blina)

·   0.45% C Class Reserves

·   0.16% Aboriginal Lease

·   Road Reserves

·   98.83% Petroleum Exploration Permits

·   2 registered sites (2 with file and boundary restrictions)

·   No Other Heritage Places

The licences share an east/west border and are located approximately 95 kilometres south east of Derby.
As reflected in the Tribunal’s Overlap Analysis provided to parties, the Nyikina Mangala Determination relates to the whole of the area of E04/2687. WAC holds native title rights to 81.31% of the licence area, including exclusive rights to two parcels of unallocated Crown land. The Federal Court determined that native title did not exist in relation to the balance area (being 18.69%). Viewing the determination together with the Quick Appraisal and the Overlap Analysis, the areas where native title does not exist appears to comprise the freehold parcels, the general purpose leases, two reserves (for an aerial landing ground and radio transmitter site) and certain roads as listed above.
Similarly, for E04/2688, WAC holds native title in relation to 99.67% of the licence area while the Federal Court determined that native title does not exist in relation to 0.18% of the licence area (being road reserves). Bunuba holds non-exclusive native title in relation to the remaining 0.15%.
According to Central Pilbara’s s 58 statements for the licences, they have potential to host coal, phosphate and diamonds. The programme of work proposed by Central Pilbara for the first year broadly involves: data review and compilation; aerial photography; aerial geophysical surveys; heritage review, and meetings. Proposed expenditure for the first year is $110,000 and $105,000 respectively.
Mr Collings’ affidavit states that, following the acquisition and interpretation of this data, geophysical targets may be identified for further evaluation. Future work programmes would potentially involve geological field surveys and exploration drilling. He also states that Central Pilbara’s drilling methods require the clearing of access tracks and drill pads but that existing roads and tracks would be utilised as far as possible. Mr Collings also states that he “cannot foresee a situation where a drilling programme would result in the extraction of anywhere near the 1000 tonnes of material from the ground that is permitted by the Tenements” (affidavit at paragraph 10).

Predictive assessment for s 237

In its evidence and contentions, WAC deals with the licences collectively. Accordingly, I will consider them together under each limb of s 237, highlighting any specific issues and Bunuba’s evidence, as relevant.
As already noted, Bunuba holds non-exclusive native title rights to 0.15% of the area of E04/2688. Central Pilbara says that this equates to 0.491 square kilometres of the total licence area of approximately 326 square kilometres. In its contentions, Central Pilbara refers to the area held by Bunuba as the Relevant Area and focusses its contentions only on that area.
As Bunuba points out in reply and noted above, the Tribunal’s inquiry concerns the whole of the licence area (see Hale at [119]). In that context I am not determining each objection, rather I am determining whether the expedited procedure applies to the grant of the licence as a whole.
The extent to which Bunuba’s evidence is relevant to those areas held by WAC will depend on the facts (Hale at [113]) and I have considered that question as necessary below in my consideration of ss 237(a) and (b).

Section 237(a) – is the grant of either licence likely to interfere directly with the native title holders’ 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 that trivial impacts are outside the scope of interference contemplated by the section.
Ms Milgin’s evidence refers to the “Tenement Area” but that term is defined in her affidavit as including the area of both licences. She says the area is “very well used” and refers to it as “our backyard”, noting it is black soil country and the main place for hunting and fishing.
At paragraphs 6–20 Ms Milgin deposes that:
(a)the Tenement Area is the main hunting area during the dry season, noting it is one of the closest hunting areas to the communities of Looma and Jarlmadangah and that people from those communities feed off the Tenement Area;
(b)access is seasonal because the area is a flood plain, but the wet season is a good time for fishing;
(c)Nyikina Mangala People go to the Tenement Area during the week and on the weekend, year in year out for hunting, camping and fishing;
(d)Le Lievre Swamp called Boolar is another food source referred to as “our supermarket, food doesn’t cost a thing”;
(e)Boolar is also a breeding place for birds and there are crocodiles due to the flood plain;
(f)a wide range of animals are hunted and Nyikina Mangala People camp in the Tenement Area and cook what is caught and eat it there as well as taking some back (to communities) for family;
(g)the Tenement Area is also used for gathering bush tucker (water lily) and bush medicine (Burral Burral or cockroach bush);
(h)children are taken to the Tenement Area to teach them how to “take food, cook it and eat it” and to tell stories and teach them about country; and
(i)the Nargoodah family live at the Jimbalundunj community located just outside the licences and also go hunting in the Tenement Area.
A number of the locations mentioned by Ms Milgin are shown on the State’s mapping. In particular:
(a)Looma appears to be located a short distance from the far western boundary of E04/2687, with Jarlmadangah shown about 15 kilometres or so further west from Looma;
(b)Le Lievre Swamp is located within the area of E04/2688 near to the boundary shared with E04/2687; and
(c)Jimbalundunj (spelt Jimbalakudunj) is visible on the mapping not far from the far north easterly corner of E04/2688.
WAC contends that there is a high probability the grant of the licences will interfere directly with Nyikina Mangala People’s hunting, fishing camping and intergenerational teaching activities as outlined by Ms Milgin. It notes there are four communities within one to five kilometres of the licences being Camballin, Looma, Jimbalakudunj and Paradise which allows for regular access. I have already noted the location of Looma and Jimbalakudunj. The State’s mapping shows Camballin located just outside the western border of E04/2687 (northerly of Looma). The mapping shows Paradise just south of E04/2688, however this place is marked as abandoned, so it is not clear whether this is the community mentioned by WAC.
In particular, WAC contend that Central Pilbara’s access to the Tenement Area without consultation with WAC is likely to lead to direct interference with Nyikina Mangala People’s activities, given they access the area regularly at all times of the day and year. It also says that Central Pilbara’s access may detrimentally affect flora and fauna, however no basis is given for that claim.
Also of interest is the Tribunal’s determination in Conquest Mining, which concerned the proposed grant of E04/1189. The Quick Appraisals for the licences indicate the application for E04/1189 overlapped E04/2687 by 58.29% and E04/2688 by 0.39%. When viewed in the Tribunal’s mapping tool, Native Title Vision, E04/1189 appears to be situated almost entirely within the area of the licences in issue here.
In that case the Tribunal found that the expedited procedure did not apply to the grant of the proposed tenement, including because of likely interference within the scope of s 237(a). The determination in that matter was made prior to the Nyikina Mangala Determination, however much of the evidence echoes Ms Milgin’s evidence in this case.
The Tribunal found at [18] that the “evidence establishes that members of the Nyikina & Mangala claim group frequently use the area of the tenement for traditional activities associated with their claimed native title rights. These constitute community and social activities and given the frequency and nature of their occurrence mean that there is a likelihood that they will be interfered with in more than a trivial way”.
The State argues in this case that WAC has not provided sufficient evidence of its community and social activities, especially with respect to the number of participants, intensity or duration of each to the activities. However, as the State itself points out in its contentions, s 237(a) requires an evaluative judgement rather than a precise cause and effect analysis (contentions at paragraph 29). In my view the evidence considered in the authorities relied on by the State (Boadicea and Drillabit) do not compare favourably to the evidence in this case.

The evidence in this case is arguably less specific than that considered in Conquest Mining, but there are clear similarities, which is telling given the age of that decision and the fact that it pre-dated the Nyikina Mangala Determination. Ms Milgin has outlined a broad range of activities undertaken in the area of the licences, including by reference to specific locations. The close proximity of the licences to a number of communities is also a relevant factor. I am satisfied that Nyikina Mangala People undertake a range of social and community activities in the area of the licences as outlined by Ms Milgin.
Central Pilbara argues that interference is not likely because it proposes to consult WAC and Bunuba before any on-ground exploration, noting that its consultation on the terms of a heritage protection agreement is ongoing. As I have said, agreement has not yet been reached and the current status of any agreement is not clear. Central Pilbara also says that in the event agreement is not reached it will still adopt measures to minimise interference and on-ground activities will be “confined to the dry season, localised and intermittent”. It says, therefore, that the interaction between the native title parties’ community and social activities and the activities of Central Pilbara cannot be assessed as substantial.
Certainly in Conquest Mining, the lack of any evidence from the grantee party was relevant to the Tribunal’s determination.
WAC contends in reply that the lack of an agreement to date gives rise to a real risk of interference as do any activities undertaken by Central Pilbara during the dry season as this is when Nyikina Mangala People have ready access to the area of the licences. WAC also contends that Central Pilbara cannot conduct consultation or any heritage survey “on its own terms”. I agree with that contention. The Tribunal has commented previously on the relevance of unenforceable good intentions on the part of a grantee party with respect to the likely risk of interference (see for example WGAC v Yandan at [37]).
The objective of an expedited procedure inquiry is to assess the likely interference arising from the grant of a tenement such that if the expedited procedure does not apply, the parties are required to negotiate about the doing of the grant in accordance with s 31(1)(b). It is not an answer to argue that consultation or negotiation about the impacts of exploration activities is required, but because of the attitude or approach of the grantee party, interference is not likely. There is no agreement as yet and my predictive assessment must be conducted on that basis. While Mr Collings has deposed that Central Pilbara is an experienced explorer with procedures aimed at minimising any impact, those procedures are not provided. Other than stating Central Pilbara’s procedures would include notifying and consulting the native title parties, before undertaking exploration activities, there is no detail. Further, there is no clarity with respect to Central Pilbara’s proposed activities beyond the initial phase of exploration.
On the basis of the evidence provided, I conclude (as did the Tribunal in Conquest Mining) that the grant of each licence is likely to interfere with the community and social activities of Nyikina Mangala People in the manner contemplated by s 237(a).
Similar to Ms Milgin’s evidence, Mr Oscar deposes for Bunuba that the licence (being E04/2688) is in Galaganyja (blacksoil) plains country. He says that Bunuba people hunt emu, turkey, goanna and kangaroo on the licence area. What is not clear from Mr Oscar’s evidence is whether any of Bunuba’s community and social activities extend into the area held by WAC. If they do not then Bunuba’s activities would be limited to a relatively small part of E04/2688. On that basis I could not conclude that the grant of the licence is likely to interfere with Bunuba’s community and social activities to the degree required for s 237(a).
Despite that conclusion, Bunuba remains, a negotiation party for s 31(1)(b) negotiations for E04/2688.

Section 237(b) – is the grant of the licences likely to interfere with areas or sites of particular significance to the native title holders?

Section 237(b) is concerned with areas or sites of special, or more than ordinary, significance to the native title holders. Such areas or sites must also be known and be able to be located (see discussion in Yindjibarndi v FMG at [17]).

What sites or areas of particular significance are identified by WAC?

WAC contends there are three dreaming stories associated with the area of the licences, namely the stories of:
(a)Woonyoomboo (the night heron);
(b)Emu (which also features in the Woonyoomboo story); and
(c)Blue Tongue and King Brown.
In addition to Ms Milgin’s affidavit, WAC relies on the interactive e-book entitled “Woonyoomboo The Night Heron”, which is available online. Extracts from the e-book are annexed to Mr Ogilvie’s affidavit.
None of the parties has addressed the determination in Conquest Mining where a number of the areas or sites identified by WAC here were found to be sites or areas of particular significance to Nyikina Mangala People. The reason for that is not clear as the decision was identified in the State’s initial material.
In Conquest Mining the Tribunal considered detailed evidence from Mr Darby Narngarin and Mr John Watson, whose affidavits are included in the Tribunal’s determination. The Tribunal concluded there was “overwhelming evidence of a large number of sites of the kind referred to in s 237(b) of the Act on and in the near vicinity of the tenement area” (see Conquest Mining at [22]–[25]). In addition, the Tribunal was satisfied that three of the areas or sites of particular significance were also registered sites.
Not all of the sites or areas found by the Tribunal in Conquest Mining to be of particular significance were separately identified in the Tribunal’s reasons. Accordingly, I have not, for present purposes, adopted those findings in full.
I note that similar concerns were expressed by the Tribunal in Geotech International, which was also listed in the State’s material. In that case, the Tribunal found that the expedited procedure did apply to the relevant tenement (E04/2015) because the evidence provided by Ms Milgin in that case was not sufficient to enable the Tribunal to make a finding with respect to the existence of areas or sites of particular significance. At [44] Member O’Dea noted the difficulty in identifying whether any of the sites or areas considered in Conquest Mining were within the area of E04/2015 and was not satisfied that the evidence in Conquest Mining could be linked to any of the registered sites common between the two areas.
I am in a different position here. Ms Milgin’s evidence is more detailed in this case and it is instructive to compare the evidence in Conquest Mining with both Ms Milgin’s evidence and the contents of the e-book. I have therefore had regard to the determination in my consideration of the areas or sites relied upon by WAC here.

Woonyoomboo

Ms Milgin explains that Woonyoomboo is the ancestral creation being for Nyikina people. His journey and the places he stopped hold particular significance for Nyikina people. She says (at paragraphs 27–32):
27.Woonyoomboo travelled along the Fitzroy River he passed through Liveringa and had ceremony there, he rested in the creek there called bidi-nyan. In English you call that Liveringa. There is big water there at Liveringa with the soak water on top.
28.He carried majula and left them in Larribirrin and then went walk about looking around.
29.Woonyoomboo left malaji we call out to those sacred trees when we are fishing for good luck.
30.There was a fresh water shark in Liveringa about 6 foot shark was shot in 1964 and then the next year the water dried up and those malaji trees died.
31.Woonyoomboo travelled along Uralla Creek up to Moulaman that is where that main one where that story is where he left the boys that went through law the windin-kooroo.
32.That last ceremony they had at Moulaman that waloo-ngari that is where that emu came along. And then Woonyoomboo travelled across to the area marked Wilumbah Outstation on the map, that was where that Boab tree with water in it used to be and where Woonyoomboo finished. That is the Malumbu tree where Woonyoomboo left something, he left the boys that went through law.
Based on Ms Milgin’s evidence (with support from the e-book), WAC identifies the following areas or sites within the area of the licences which it contends are of particular significance to Nyikina Mangala people due to their association with Woonyoomboo:
a.   the creation of the Mardoowarra (Fitzroy River) and associated water systems;
b.   Liveringa where Woonyoomboo had ceremony and rested in the creek;
c.   Travelling up the Uralla Creek up to Moulaman;
d.   Ceremony at Moulaman; and
e.   Wilumbah Outstation where Woonyoomboo finished where Woonyoomboo left something, he left the boys that went through law.
Of those, it seems clear, based on the mapping, that the Fitzroy River is not located within the area of the licences.
Ms Milgin says Woonyoomboo travelled along the Fitzroy River, passed through Liveringa and had ceremony there, resting in the creek called “bidi-nyan” (being Liveringa in English). I note the e-book spells this as “Bindinyan”. Ms Milgin also says there “is big water there at Liveringa with the soak water on top”.
The mapping shows the names Upper Liveringa and Liveringa Pool near the southern boundary of the E04/2687 (not far from the Fitzroy River). Ms Milgin appears to have circled around these locations on the map at Annexure 1 to her affidavit, but it is not clear whether those locations or bidi-nyan are within the licence area.
There are also three registered sites called Liveringa listed in the AHIS search for E04/2687:
(a)Site ID 13378 Liveringa North of a mythological type, subject to both file and boundary restrictions located in the western portion of E04/2687 to the north of Liveringa pool;
(b)Site ID 13183 Liveringa of a skeletal material/burial type subject to both file and boundary restrictions located easterly of the E04/2687 and slightly overlapping the eastern boundary of the licence in the vicinity of Site ID 13378;
(c)Site ID 13184 Liveringa of a skeletal material/burial type also subject to both file and boundary restrictions. The outer boundary of this site extends across a sizeable portion of the western part of E04/2687 and beyond and includes the areas marked Upper Liveringa and Liveringa Pool on the mapping.
However, given their location and/or type, it is not clear that any of these registered sites is relevant to bidi-nyan as described by Ms Milgin.
The evidence of both Mr Watson and Mr Narngarin in Conquest Mining also mention the Liveringa Station area called Libirrinbirriny said to be about five kilometres from the south-western boundary of the tenement considered in that case. This is similar to the reference to Libirrinbirrin in the e-book at page 55 and Ms Milgin’s reference to Larribirrin. The map in the e-book indicates that Libirrinbirrin is to the north of Bindinyan.
There is a lodged site ID 13377 called Libirrin-Birrin to the north of Liveringa Pool, which falls partly within the licence. This site is of a mythological type and subject to file and boundary restrictions.
Viewing the material as a whole, it seems likely that the area or site identified by

Ms Milgin as bidi-nyan or Liveringa is in the vicinity of Liveringa Pool as marked on the map at Annexure 1 to the affidavit. However, I am unable to conclude this area or site is located within the area of the E04/2687.
Moulaman is a place identified by Ms Milgin as a place to which Woonyoomboo travelled. She says he travelled “along Uralla Creek up to Moulaman”, referring to Moulaman as the place where Woonyoomboo “left the boys that went through law the windin-kooroo”. The e-book at page 58 refers to Windinykooroo as a place where Woonyoomboo took the initiated men. It also refers to Moolaman as a place where the men had a celebration while the women and children stayed at Libirrinbirrin. The map in the e-book places Windinykooroo north-easterly of Libirrinbirrin, with Moolaman further east again.
Annexure 1 of Ms Milgin’s affidavit shows Moulaman Tank and Moulaman Bore near to Rice Hill towards the middle of E04/2687. In Conquest Mining, Deputy President Sumner was satisfied at [23] that Site ID 13328 named Rice Hill was the site Moolooman mentioned in the evidence in that case. The Deputy President also thought that Site ID 13335 called Wiundjungurru (a ceremonial site) may be the same as the site identified in the evidence as Wirdingooroo.
I note that the location of Wiundjungurru (ID 13335) is north-easterly of Libirrin-Birrin (ID 13377) and north-westerly of Rice Hill (ID13328), which is consistent with the relative location of Windinykooroo, Libirrinbirrin and Moolaman shown on the map in the e-book.
Parts of Uralla Creek are clearly located within E04/2687. Uralla Creek also featured in the evidence considered in Conquest Mining. In this case I can accept Woonyoomboo travelled along the creek however the particular significance of the creek is not explained.
Another location identified by Ms Milgin in the area of E04/2687 and marked on Annexure 1 is the Wilumbah Outstation area where she says Woonyoomboo left the boys who went through the law.
The Tribunal in Conquest Mining was also satisfied that site ID 13332, being a ceremonial site called Nalmanangarra, was a site of particular significance to Nyikina Mangala People. This site is located near the centre of E04/2687. This site is not mentioned by Ms Milgin or in the e-book. However, given it was found to be a site of particular significance in Conquest Mining and the site remains registered and is clearly within the area of E04/2697, I consider it is appropriate for me to adopt the Tribunal’s earlier finding as I am able to do under s 146 of the NTA.
In addition, of the areas or sites of particular significance listed by WAC in its contentions here, I am satisfied that Moolaman and the Wilumbah Outstation area are located in the area of E04/2687 and are areas or sites of particular significance to Nyikina Mangala People due to their association with the story of Wooyoomboo. Neither licence includes the Fitzroy River nor am I satisfied that Bidi-nyan is located in the area of E04/2687.

Emu Story

Ms Milgin refers to a story about an Emu which travelled with makina plum and ran away to Bunuba country. She says the emu travelled the other side of Le Lievre Swamp towards Bunuba country. This story also features in the e-book at pages 59–61. Similarly, in Conquest Mining, both Mr Narngarin and Mr Watson spoke of the Bunuba emu-man who ran away back to Bunuba country after eating all the markina (Narngarin affidavit at paragraph 14 and Watson affidavit at paragraph 20).
There are certain similarities between this story and the Three Emus story in Bunuba’s evidence as outlined below, particularly with respect to the Emu travelling with the makina plum.
Ms Milgin does not identify any areas or sites in the area of the licences which are of particular significance due to their association with this story, nor does she explain the particular significance of the story in accordance with Nyikina Mangala tradition.

Mr Narngarin and Mr Watson associated the emu man dreaming with the Moolaman area which is also consistent with the e-book. I have already found Moolaman to be an area or site of particular significance to Nyikina Mangala People.

Blue Tongue and King Brown Story

Ms Milgin refers to a story which she says takes place around Mt Wynne, where the “blue tongue killed the king brown”.
References to this story and the significance of Mt Wynne similarly appear in the evidence in Conquest Mining (see for example Watson affidavit at paragraph 22).

Mt Wynne is shown on Annexure 1 to the south of E04/2688.
Ms Milgin also states that one of the men involved in the story waited at Liveringa and turned to stone. I have already observed that there are multiple locations called Liveringa in the area of E04/2687. The evidence is insufficient for me to be satisfied of the location mentioned by Ms Milgin or its particular significance.

What sites or areas of particular significance are identified by Bunuba?

Bunuba identifies six sites or areas of particular significance based on Mr Oscar’s evidence. These are:
(a)Gananganja (Emu dreaming)
(b)Pilot Camp Billabong;
(c)Blina Swamp;
(d)Erskine Ranges;
(e)Pilot Camp; and
(f)Erskine Swamp.
In his affidavit, Mr Oscar describes a Ngarranggani (Dreaming) story about three emus who travelled through Bunuba country and passed through the area of E04/2688. He explains the significance of the emu dreaming being due to its marking out the boundary around Bunuba country.
Annexure KO-1 is a map of the licence area on which Mr Oscar has drawn the path of the three emus starting at Pilot Camp Billabong east of the licence then passing through the north-easterly corner of the licence before separating and proceeding in different directions. Mr Oscar says that one emu went into the Blina Swamp (north of the licence), one went to “Nyikina country way to Looma” (near the western boundary of E04/2687) and one kept going to the Napier Range (the path of which appears to go through the Erskine Ranges north-easterly of the licence).
Mr Oscar also says that there are sacred sites at Pilot Camp and Erskine Swamp that are connected to the emu story as the places where the emus got water. He further identifies Erskine Ranges as a place where the emus dropped bush plum seeds which grow during the wet. Pilot Camp is shown on the map near Pilot Camp Billabong, both located outside the licence. Erskine Swamp does not appear to be marked on any of the mapping but Erskine Range and Erskine Bore, both shown on the map, are clearly outside the licence.
In any event, none of the specific areas or sites identified by Mr Oscar as being of significance due to their association with the dreaming are shown to be within the area of E04/2688. This point is made by both the State (contentions at paragraph 48) and Central Pilbara (contentions at paragraph 15(a)).
However, Bunuba also contends that the path of the dreaming through the licence is an area or site of particular significance to Bunuba with which Central Pilbara is likely to interfere.
The State (contentions at paragraph 49) argues that I should not accept Mr Oscar’s evidence because there is an inconsistency between the path drawn on the map which traverses the north-easterly corner of the licence and his affidavit (at paragraph 5) which says the “emus went right through the middle” of the licence. In reply, Bunuba argues this distinction is irrelevant for s 237(b) and the evidence clearly establishes the track goes through the licence. It says the exact location is not required, citing Oladipo, although I do not consider the facts in that decision are analogous.
I can accept the dreaming track traverses the licence and, despite the way Mr Oscar describes the path, I think it is more likely to align with the path as drawn on Annexure KO-1, which is broadly consistent with Mr Oscar’s description of the dreaming as marking the boundary around Bunuba country.
However, while I may be satisfied that the dreaming track passes through the licence, there is insufficient evidence to support a finding that there are areas or sites of particular significance to Bunuba along that path (see discussion in Tjurabalan v Rich Resources at [61]–[63]). Mr Oscar has himself distinguished between the paths the emus took and identified areas or sites which are of particular significance to Bunuba because of their association with the dreaming. None are in the licence area and I am unable to make a finding that there are areas or sites in the licence area of particular significance to Bunuba within the meaning of s 237(b).

Is the grant of E04/2687 likely to interfere with the areas or sites I have found to be of particular significance?

On the evidence provided in this matter, I am satisfied there are areas or sites of particular significance to Nyikina Mangala people in the area of E04/2687, as was also found in Conquest Mining. The evidence is insufficient for me to conclude there are such sites of particular significance to Nyikina Mangala People or Bunuba People in the area of E04/2688.
Ms Milgin deposes that many of the sites where Woonyoomboo and the Emu travelled are no go areas. WAC specifically identifies the Wilumbah Outstation area, being Woonyoomboo’s resting place, as such an area, although that is not singled out in that way by Ms Milgin in her affidavit. WAC also points to the fact that the boundaries of the sites are not known to Central Pilbara, therefore heightening the risk.
Central Pilbara again argues that interference is not likely because it is an experienced explorer and is aware of its obligations under the Aboriginal Heritage Act 1972 (WA) (AHA) (contentions at paragraph 14). It also says that it intends to consult with WAC before conducting any ground based activities and again refers to its ongoing negotiations. Further it points to the limited activities proposed in its initial work plan and says it does not “presently” intend to conduct ground based activities within the area of registered sites (contentions at paragraph 13(a)).
Mr Lamb deposes that Central Pilbara would take comments from WAC into account in planning its activities. Both Mr Collings and Mr Lamb depose that Central Pilbara would request WAC’s involvement in a work programme clearance survey so that it could proceed with confidence that it would not impact any sites (see Collings affidavit at paragraph 18 and Lamb affidavit at paragraph 15).
Mr Lamb says specifically (at paragraph 15) that Central Pilbara would “seek to engage” WAC to undertake a clearance survey with a view to having WAC identify those areas where it is comfortable for work to be undertaken without impacting Aboriginal sites.
The State similarly relies on Central Pilbara’s evidence with respect to its intention to consult and the regime under the AHA to argue interference is not likely.
I have already determined that interference within the meaning of s 237(a) is likely and so my conclusions as to the risk of interference for s 237(b) will not alter the need for the parties to negotiate in good faith with respect to the grant of the licences.
I can accept that Central Pilbara is an experienced explorer and may intend to consult with WAC to avoid interference with either registered sites or any areas or sites of particular significance. However, Central Pilbara’s evidence of how it would go about this consultation and how it would take WAC’s views into account is very general. The effectiveness of those procedures is also in part dependent on the involvement of WAC. As I indicated with respect to s 237(a), there is something wholly counter-intuitive about accepting that consultation or negotiation would be required to avoid interference and then relying on that acceptance to argue interference is not likely and thereby avoid the need for negotiation under s 31(1)(b).
There is also, as I have said, very little evidence of Central Pilbara’s proposed activities beyond the initial stage. Contrary to its argument at 13(b), the fact that its future activities are unknown does not work to its favour. In the absence of evidence of what is proposed, it is reasonable to proceed on the basis that Central Pilbara may exercise the full range of rights available to it under the licence, even though on Mr Collings’ evidence it may not extract the maximum amount of material (Yindjibarndi v FMG at 15 (b)).
In this case, there are clearly a number of sites of particular significance to Nyikina Mangala People within the area of E04/2687. In line with the decision in Conquest Mining, there may well be more. Not all of those areas or sites are registered under the AHA, and nor would the AHA necessarily prevent the damage of such sites, registered or not (see Marputu v Gianni at [44]–[45]). I am not satisfied Central Pilbara’s intended approach is a complete answer to the risk in this case and therefore it is appropriate for the parties to discuss those arrangements in accordance with

s 31(1)(b).
In all of the circumstances, I am satisfied that the grant of E04/2687 is likely to interfere with areas or sites of particular significance to Nyikina Mangala People.

Section 237(c) – is the grant of the licence likely to involve major disturbance to land or waters?

Considering whether major disturbance under s 237(c) is likely requires an evaluative judgment as to whether there is a real risk of major disturbance from the grant of the licence. In this context “major disturbance” is to be given its ordinary meaning as understood by the whole of the Australian community, including Aboriginal people. There is nothing to preclude a native title party repeating here matters already considered in relation to ss 237(a) and (b) (see Little v Oriole Resources at [39]-[54]; Dann v Western Australia at 395, 401 and 413).
Despite the scope of its objection application, Bunuba does not make any contentions in relation to the likelihood of major disturbance within the scope of

s 237(c).
WAC argues that major disturbance is likely, repeating a number of its arguments relevant to s 237(b). In its reply, WAC contends that the grant of the licences is likely to cause major disturbance to the dreamings outlined above and to the culture and traditions of WAC and the wider community (reply at paragraph 63).
Similar to Member Shurven’s recent consideration of s 237(c) in Jurruru v Eastern Goldfields at [60], the arguments put by WAC appear to relate more to the likelihood of interference within the meaning of s 237(b), rather than major disturbance for

s 237(c).
In this respect I accept the arguments put by Central Pilbara and the State. I am not satisfied major disturbance as contemplated by s 237(c) is likely.

Determination

I determine that the grant of each of the exploration licences E04/2687 and E042688 is not an act attracting the expedited procedure.

Nerida Cooley
Member
25 May 2022