Yinggarda Aboriginal Corporation RNTBC v Vandeleur Superannuation Pty Ltd - [2024] NNTTA 81

NATIONAL NATIVE TITLE TRIBUNAL

Yinggarda Aboriginal Corporation RNTBC v Vandeleur Superannuation Pty Ltd and Another [2024] NNTTA 81 (31 October 2024)

Application No:

WO2022/0509

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

- and -

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

Yinggarda Aboriginal Corporation RNTBC (WCD2019/016)

(native title party)

- and -

Vandeleur Superannuation Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

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

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	31 October 2024

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere with the carrying on of community and social activities – whether act is likely to interfere with areas or sites of particular significance – Gascoyne River and Rocky Pool associated with Jiggabiddy Yaminga as areas or sites of particular significance – interference with Gascoyne River and Rocky Pool is likely – act is not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) ss 17, 18, 38 Mining Act 1978 (WA) s 58 Native Title Act 1993 (Cth) ss 31, 151, 237
Cases:	Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (‘Bunuba v Oladipo’) Cheinmora v Striker Resources NL and Others; Dann v State of Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21 (‘Dann 1996’) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (‘Marputu v Gianni’) Peck on behalf of the Gnulli Native Title Claim Group v State of Western Australia [2019] FCA 2090 (‘Gnulli Determination’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Border Exploration Pty Ltd and Another [2024] NNTTA 28 (‘Border Exploration’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)
Representative of the native title party:	Fabian Ponton, Cross Country Native Title Services Pty Ltd

Representative of the grantee party:

Shota Hitomi, Lawton Macmaster Legal

Representatives of the Government party:

Domhnall McCloskey, State Solicitors Office; Jake Lincoln, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Vandeleur Superannuation Pty Ltd has applied for the grant of an exploration licence (E 09/2281) along the Gascoyne River, about 46 kilometres easterly of Carnarvon in Western Australia.
Yinggarda Aboriginal Corporation RNTBC holds non-exclusive native title rights in trust for the Yinggarda native title holders (Yinggarda People) in relation to over 96% of the licence area (see Gnulli Determination). The remainder comprises areas where native title has been determined not to exist.
The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth), which would mean that the licence may be granted without first requiring Vandeleur, Yinggarda and the State to negotiate in good faith about the grant of the licence.
Yinggarda objects to the application of the expedited procedure to the grant of the licence because of likely interference with community and social activities and with areas or sites of particular significance to the common law holders, including the Gascoyne River itself, which is a place recorded on the Register maintained under s 38 of the Aboriginal Heritage Act 1972 (WA) (AHA Register).
I am satisfied this matter can be adequately determined without a hearing: s 151(2) Native Title Act. For the reasons outlined below, I have determined that the grant of the licence is not an act attracting the expedited procedure.

When does the expedited procedure apply?

Under the Native Title Act, the expedited procedure will only apply if the grant of the licence is not likely to:
(a)interfere directly with the carrying on of the native title holders’ community or social activities: s 237(a);
(b)interfere with areas or sites of particular significance to the native title holders, in accordance with their traditions: s 237(b); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters located in the licence area: s 237(c).
To determine whether the expedited procedure applies, I must undertake a predictive assessment by considering the likely consequences from the grant of the licence (in the sense of a real, not remote, chance).
In this case, Yinggarda argues the grant of the licence is likely to cause interference within the meaning of ss 237(a) and (b). The Tribunal takes a commonsense approach to the evidence and, because Yinggarda does not make any arguments in relation to s 237(c), I will not further consider the likelihood of major disturbance.
Because of the central importance of the Gascoyne River to the evidence in this matter, I propose to deal with s 237(b) first.

Is the grant of the licence likely to interfere with areas or sites of particular significance to Yinggarda People, in accordance with their traditions?

What areas or sites does Yinggarda identify?

An area or site of particular significance for s 237(b) is one of special, or more than ordinary, significance to the native title holders in accordance with their traditions: Dann 1996 at page 35. Such an area or site must also be known and be able to be located, and the nature of its significance explained: Yindjibarndi v FMG at [17].
Yinggarda relies on the evidence of Mr Ashley Penny, a Yinggarda man with the right to speak for the licence area. Mr Penny says there are several dreaming stories and significant cultural places within the licence area.
Yinggarda has identified three specific areas which it says are of particular significance to Yinggarda People – the Gascoyne River, Rocky Pool and Fishy Pool. It also contends the Jiggabiddy Yaminga (Dreaming) is of particular significance, however the point of listing the Dreaming separately is not clear as the only areas or sites identified in or near the licence area are those listed above. I understand that the Dreaming may hold broader spiritual significance for Yinggarda People but, for present purposes, it is the identified areas or sites associated with the Dreaming which are relevant.
Mr Penny says that Jiggabiddy is the main creation being for the Gascoyne River and lives in Chinaman’s Pool in Carnarvon. He explains the story of Jiggabiddy and how the path he took on his journey became the river. He also says that “Jiggabiddy has heaps of babies which live in the waterways along the River”. Therefore, Mr Penny says the river, including that part within the licence area, is a very important Dreaming for Yinggarda People.
As already mentioned, the Gascoyne River, along which the licence is situated, is recorded on the AHA Register. The State’s Aboriginal Cultural Heritage Inquiry System search describes this place as “Gascoyne and Lyons River” (ID 39200), being of the type “Ritual / Ceremonial; Creation / Dreaming Narrative; Water Source”. Yinggarda says that it understands the river was entered on the AHA Register in June 2023, after the commencement of this inquiry, and that this is further evidence of its significance. The ACHIS mapping shows the registered place covering the majority of the licence area. I note that the Tribunal’s online mapping tool, Native Title Vision, now shows the registered place as a more organic shape aligned with the river, such that it covers less of the licence area, but nothing turns on this distinction.
Rocky Pool is shown on the mapping within the licence area and appears to be within the Gascoyne River. Mr Penny says Rocky Pool is an important area created by Jiggabiddy, who dug out the hard ground and cut it up on either side of the banks. It is home to a child of Jiggabiddy who was given permission to live in the pool, with the duty to keep it full of water.
Mr Penny says that Fishy Pool is located just outside of the licence and is home to the wife snake of Jiggabiddy, whom he names. He describes Fishy Pool as a women’s business and fertility area. I am unable to identify Fishy Pool on the mapping and Mr Penny does not describe its location, other than saying it is just outside of the licence.
The State accepts that both the Gascoyne River and Rocky Pool are areas or sites of particular significance to Yinggarda People. The State does not take that position for Fishy Pool, which it says is outside the licence area.
Vandeleur contends that Yinggarda does not specifically state why the Gascoyne River is of particular significance, other than its association with the Jiggabiddy Dreaming. It elaborates to say that, while Yinggarda provides some explanation of the Dreaming associated with the Gascoyne River, it does not particularise the special or more than ordinary significance of the Gascoyne River to Yinggarda People.
I find this to be a rather odd stance given the significance explained is exactly because of the river’s association with the Jiggabiddy Dreaming as a place created by Jiggabiddy, the path of which represents Jiggabiddy’s journey. Mr Penny also describes Jiggabiddy as the “main creation being for the River”. It is not clear to me what more Vandeleur thinks is needed by way of an explanation of particular significance.
As observed in Yindjibarndi v FMG at [130], s 237(b) reflects the distinction that may be drawn between specific areas or sites of particular or more than ordinary significance to the native title holders and the significance or importance of their country generally. There is no doubt on the evidence that the Gascoyne River holds particular significance to Yinggarda People as a place central to the Jiggabiddy Dreaming, all of which is explained by Mr Penny. Its entry on the AHA Register further supports that view.
Vandeleur similarly contends that the evidence does not explicitly state why Rocky Pool or Fishy Pool are significant, although it says it may be inferred that the significance arises because of the association of each area with Jiggabiddy. I do agree that the significance of these areas is explained in less detail than for the Gascoyne River, but Mr Penny does refer to the importance of Rocky Pool by reference to its association with Jiggabiddy and, as noted, Rocky Pool appears to be located within the Gascoyne River. The importance of Fishy Pool appears to arise from its association with a Dreaming relating to Jiggabiddy’s wife and as an area for women’s business and fertility.
I am satisfied that the Gascoyne River and Rocky Pool are areas of particular significance to Yinggarda People in accordance with their traditions. I am not clear on the location of Fishy Pool, which is not sufficiently described in the evidence, and therefore cannot make any finding with respect to that area.

Is the grant of the licence likely to interfere with the Gascoyne River or Rocky Pool?

Vandeleur’s statement under s 58 of the Mining Act 1978 (WA), which accompanied its licence application, says that it considers the area has potential for industrial minerals, gravel and sand mineralisation.
There is no other evidence of Vandeleur’s proposed activities, but it has sought to elaborate on its proposals in its contentions. Consistent with the s 58 statement, Vandeleur says it intends to take a staged approach to its exploration activities, which is not unusual. From its contentions, I understand Vandeleur intends to undertake exploration in the Gascoyne River.
Vandeleur states that river sand mining in Western Australia is conducted in a sustainable and low impact way. It says that the volume of sand removed ensures that some sand remains which is then replenished over time with the flow of water. It also says that, due to the nature of sand mining, there will be no clearing of vegetation, no permanent infrastructure that requires building and no drilling or blasting required at the exploration or mining stage. Vandeleur contends further that any ground disturbing activities will be done on a targeted and small portion of the licence.
However, as pointed out by Yinggarda, there is no evidence provided to support any of these statements by Vandeleur so, while a useful summary of what it might intend, they carry little weight for my predictive assessment.
Yinggarda contends that under Yinggarda traditional law and culture unauthorised persons are prohibited from accessing the areas of particular significance identified. It says there is a high risk that ground disturbing work would irrevocably damage those areas.
Mr Penny’s evidence is that the whole of the Gascoyne River is an important area for Yinggarda People, which is why it has been registered. He says exploration activities in the river would cause serious consequences as the spirits and the Old People would be watching. He also refers to serious consequences for Yinggarda People, the environment and the company’s workers if this occurs. Mr Penny concludes that Vandeleur should not be allowed to do any activity in the river because it is “the most important Dreaming story for Yinggarda [P]eople” and further that activities should only occur in those parts of the licence which do not cover the river.
I accept from the way Mr Penny has expressed his concerns about any exploration in the river and the potential consequences for Yinggarda People, that any exploration activities in the river will constitute interference in accordance with Yinggarda traditions.
The likelihood of interference from the grant of the licence seems especially stark in this case because of the nature of the areas of particular significance, being a river that is the path of a Dreaming and a related place, and because Vandeleur wishes to undertake sand mining in the river.
Vandeleur says that, because a significant portion of the licence area is covered by the registered place, it cannot undertake activities in the area of that registered place without offending s 17 of the Aboriginal Heritage Act. It argues that, without consent under s 18 of the Aboriginal Heritage Act, it will only be able to undertake activities outside of the area of the registered place and will “actively and carefully avoid the registered Aboriginal [c]ultural [h]eritage until a [s] 18 consent [is] given by the Minister”. Vandeleur explains in some detail the processes for obtaining consent under s 18, including the role of the Aboriginal Cultural Heritage Committee and the requirements for consultation.
Vandeleur contends further that, in the absence of evidence to the contrary, I should assume that it will comply with the Aboriginal Heritage Act, including the relevant guidelines and consultation policy. It also points out that if Yinggarda is aggrieved by the Minister’s decision to give consent under s 18, it may seek a review of that decision.
As a result, Vandeleur says that the s 18 process provides a rigorous consent regime which makes interference unlikely and should be a significant consideration in my predictive assessment.
On the basis of what is before me, there is no reason to conclude that Vandeleur will not comply with the requirements of the Aboriginal Heritage Act and related policies and procedures. However, that is not the issue. The issue is whether the operation and application of the s 18 consent process means the grant of the licence is not likely to interfere with the Gascoyne River or Rocky Pool.
The State agrees with Vandeleur that I can give weight to what it refers to as the heritage protection regime, although it accepts that the application of that regime will not render interference unlikely in all cases.
As the Tribunal has discussed on a number of occasions, there is a difference in focus between the application of s 237 of the Native Title Act and ss 17 and 18 of the Aboriginal Heritage Act (see, for example, Border Exploration at [44]–[56] and Marputu v Gianni at [44]). For instance, there may be particular exploration activities which amount to interference within the meaning of s 237 of the Native Title Act but which do not offend s 17 of the Aboriginal Heritage Act and therefore do not require consent under s 18. Additionally, under s 18, the relevant Minister is required to have regard to the general interest of the community, which may well give rise to different considerations to those for s 237(b), which is concerned with likely interference in accordance with the native title holders’ traditions.
So, while I agree that the application of the State’s regulatory regime is relevant to my predictive assessment, neither the State nor Vandeleur has undertaken any detailed analysis of how ss 17 and 18 of the Aboriginal Heritage Act apply to the specific facts of this case, including why or how complying with s 18 and obtaining consent will mean that interference is unlikely, particularly in circumstances where any exploration activities in the river would amount to interference in accordance with Yinggarda traditions.
Vandeleur’s contentions appear to presuppose that it will receive consent under s 18, yet it maintains that interference within the scope of s 237(b) is unlikely. The difficulty with this argument is that, as discussed in Bunuba v Oladipo at [53], activities undertaken with a s 18 consent may yet amount to interference for s 237(b). Therefore, to the extent that Vandeleur is arguing that conducting activities under the authority of s 18 consent means that those activities would not amount to interference within the meaning of s 237(b), that is plainly incorrect on the facts of this case.
Alternatively, if, as seems more to the point, the argument is that compliance with the processes for obtaining consent under s 18, including the Aboriginal Cultural Heritage Committee and consultation processes, together with a right of review, means that interference is unlikely, that would need to be explained, particularly when any exploration activities in the river would amount to interference. Vandeleur does not appear to have contemplated that acting in accordance with consent given under s 18 would constitute interference for s 237(b).
The import of Vandeleur’s contentions on this issue is that whatever comes of the s 18 process will render interference unlikely. It is as if to say that the s 18 process is inherently sufficient, without any analysis based on the facts. However, the s 18 process is not an alternative to negotiation in good faith. Its relevance is limited to its effect on likely interference.
I note for completeness that Yinggarda argues in reply that “the vast majority of consent applications are granted with conditions”, relying on a list of prior Ministerial decisions under s 18 as at December 2023, said to be available on a website containing Aboriginal Cultural Heritage Committee documents. The list of decisions available on that website appears to be regularly updated but, in any event, I have not given any weight to the available documents as the other parties have not had the opportunity to comment on them and no doubt each matter is decided on its facts.
On the evidence in this case, any exploration activities undertaken by Vandeleur in the Gascoyne River would amount to interference with areas of particular significance to Yinggarda People in accordance with their traditions. Based on its contentions, Vandeleur expects to undertake activities in the river in order to pursue its objectives. There has been no analysis of which activities may require consent under s 18 but, as already explained, activities undertaken in accordance with a s 18 consent would still amount to interference for s 237(b). In such a case, the Commonwealth Parliament intends that the parties must negotiate in good faith about the grant of the licence in accordance with s 31(1)(b) of the Native Title Act. Neither the State nor Vandeleur have sufficiently explained why such interference is not likely in the circumstances of this case and the processes under the Aboriginal Heritage Act are not a substitute for good faith negotiations.

It follows that I am satisfied that the grant of the licence is likely to interfere with the Gascoyne River, which includes Rocky Pool, being areas of particular significance to Yinggarda People.

Is the grant of the licence likely to directly interfere with Yinggarda People’s community or social activities?

In Smith v Western Australia at [26], the Federal Court explained that direct interference involves an evaluative judgment that the act, in this case the licence, “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.
Yinggarda contends that Yinggarda People from the Carnarvon area carry out regular community and social activities in the licence area. Relying on Mr Penny’s evidence, it contends that Yinggarda families regularly visit the area to camp, collect bush medicines, visit places of significance and teach younger generations.
Mr Penny speaks of visiting the licence area every couple of months and that he camps in the area three or four times a year. He says he goes camping with his children and other relations, particularly for bush medicine, which is abundant in the licence area, and identifies Rocky Pool as having the best of a particular kind of medicine. Mr Penny says he knows other families also go to the licence area as it is not too far from Carnarvon.
Vandeleur says that the lack of detail regarding the frequency or length of activities undertaken, and the number of people involved, prevents a meaningful assessment of the likelihood of interference. It also contends that the requirement and process for obtaining a s 18 consent make interference unlikely but nonetheless argues the two sets of activities can co-exist.
The State makes similar arguments in its contentions, pointing to Vandeleur’s contentions about its proposed activities and a lack of evidence from Yinggarda about the manner in which interference is said to occur. There is of course also a lack of evidence about Vandeleur’s activities, other than the s 58 statement.
Nonetheless, while Mr Penny does provide some examples of the frequency with which he undertakes certain activities in the licence area, most of his evidence is broad and general, particularly with respect to activities undertaken by other Yinggarda People. Overall, on the basis of the evidence provided, and notwithstanding the lack of evidence of Vandeleur’s proposed exploration activities, I am not satisfied that the grant of the licence is likely to cause direct and substantial interference with community or social activities as required for s 237(a).

Determination

I determine that the grant of exploration licence E 09/2281 is not an act attracting the expedited procedure.

Ms Nerida Cooley
Member
31 October 2024