Yugunga-Nya Native Title Aboriginal Corporation RNTBC v Kelro Pty Ltd
[2024] NNTTA 63
•3 September 2024
NATIONAL NATIVE TITLE TRIBUNAL
Yugunga-Nya Native Title Aboriginal Corporation RNTBC v Kelro Pty Ltd and Another [2024] NNTTA 63 (3 September 2024)
Application No: | WO2022/1423 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yugunga-Nya Native Title Aboriginal Corporation RNTBC (WCD2021/008)
(native title party)
- and -
Kelro Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 3 September 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 – camping – hunting – gathering – teaching activities – whether act is likely to interfere with areas or sites of particular significance – Mt Yagahong – exclusion zone around Mt Yagahong – Kalaya (Emu) Dreaming story – whether act is likely to involve major disturbance to lands and waters – act is an act attracting the expedited procedure |
Legislation: | Aboriginal Cultural Heritage Act 2021 (WA) Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 58, 66 Native Title Act 1993 (Cth) ss 151, 237 |
Cases: | Cheinmora v Striker Resources NL and Others; Dann v State of Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21 (‘Dann 1996’) Dann v Western Australia and Another [1997] FCA 332; (1997) 74 FCR 391 (‘Dann 1997’) Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 v Jordan James Mitchell and Others [2024] NNTTA 46 (‘Yugunga-Nya v Mitchell’) Evelyn Gilla & Ors on behalf of the Yugunga-Nya People v Monument Murchison Pty Ltd and Another [2016] NNTTA 51 (‘Monument Murchison’) Evelyn Gilla & Ors on behalf of the Yugunga-Nya People/Western Australia/Allarrow Pty Ltd, [2010] NNTTA 36 (‘Allarrow’) Evelyn Gilla & Ors on behalf of the Yugunga-Nya People/Western Australia/Luigi Bondini; Alwyn Joan Bondini; Allarrow Pty Ltd, [2010] NNTTA 37 (‘Bondini/Allarrow No 1’) Evelyn Gilla & Ors on behalf of the Yugunga-Nya People/Western Australia/Luigi Bondini; Alwyn Joan Bondini; Allarrow Pty Ltd, [2010] NNTTA 38 (‘Bondini/Allarrow No 2’) Evelyn Gilla and Others on behalf of Yugunga-Nya v Pegasus Metals Limited and Another [2020] NNTTA 15 (‘Yugunga-Nya v Pegasus Metals’) Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd [2002] NNTTA 35 (‘Yugunga-Nya v Blackjack Resources’) Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 3) [2021] FCA 1338 (‘Yugunga-Nya Determination’) Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (‘Little v Oriole Resources’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) Yugunga-Nya Native Title Aboriginal Corporation RNTBC v M61 Holdings Pty Ltd and Anor [2024] NNTTA 51 (‘Yugunga-Nya v M61 Holdings’) |
| Representative of the native title party: | Vanessa Malu Cecchi, Umanity Legal |
| Representative of the grantee party: | Tim Kavenagh, Kavenagh Legal |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Paola O’Neill, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Kelro Pty Ltd has applied for the grant of an exploration licence (E 51/2111) about 48 kilometres southerly of Meekatharra in Western Australia. Yugunga-Nya Native Title Aboriginal Corporation RNTBC holds non-exclusive native title in trust for the common law holders (Yugunga-Nya People) in relation to over 99% of the licence area. The remainder is an area 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 Kelro, Yugunga-Nya and the State to negotiate in good faith about the grant.
Yugunga-Nya objects to the application of the expedited procedure on the basis that the grant of the licence is likely to directly interfere with community and social activities undertaken by Yugunga-Nya People, interfere with areas or sites of particular significance to Yugunga-Nya People and also cause major disturbance. Yugunga-Nya’s material highlights the importance of the area in and around the licence, particularly due to its proximity to Mt Yagahong (which has been described as the “most sacred and important” place for Yugunga-Nya People[1]) and other nearby sites such as Nowthanna Hill.
[1] Yugunga-Nya v Blackjack Resources at [10] and [19].
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 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).
In order 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).
The State’s regulatory regime, including the licence conditions and various legislative requirements, is relevant to my predictive assessment. Since the commencement of this inquiry, there have been a number of well publicised changes to Aboriginal cultural heritage laws in Western Australia. Those changes began with the commencement of the Aboriginal Cultural Heritage Act 2021 (WA) in July 2023, and were followed by the subsequent repeal of that Act and amendments to the Aboriginal Heritage Act 1972 (WA) (AHA), commencing on 15 November 2023.
The parties were afforded an opportunity to make submissions in relation to the application of the amended AHA. The State and Yugunga-Nya provided additional submissions on the most recent changes to the AHA. The State also provided updated reports from its Aboriginal Cultural Heritage Inquiry System (collectively ACHIS Report) showing no registered, lodged or historic sites in the licence area.
Yugunga-Nya initially submitted contentions, but no evidence, in support of its objection. Later, with its contentions in reply, Yugunga-Nya provided a number of statutory declarations from Yugunga-Nya People and one of its legal representatives. Some of that material is subject to non-disclosure directions. The other parties were afforded an opportunity to reply to this new material, which they did.
Some of the additional evidence appears to be similar to that considered by the Tribunal in Yugunga-Nya v M61 Holdings, where Yugunga-Nya also relied on evidence from Mr Andrew Gentle Snr and Mr Leonard (Jeff) Barnard in relation to an area said to be of particular significance.
Is the grant of the licence likely to directly interfere with the Yugunga-Nya People’s community or social activities?
What are the community or social activities undertaken?
Relying on the evidence of Ms Davina Lane, Yugunga-Nya argues there is evidence that over a quarter of the Yugunga-Nya People use the tenement area with such frequency, duration, intensity and freedom of access that interference within the meaning of s 237(a) is likely.
Ms Lane, a Yugunga-Nya common law holder, explains that she is from the Wilba family, which she says is one of the four Yugunga-Nya families listed in the Yugunga-Nya Determination. She outlines her relationship to a number of other members of the Wilba family, including Mr Gentle Snr. Ms Lane says that she and the other identified members of the Wilba family “all live in Meekatharra”.
The State disputes Yugunga-Nya’s assertion that “over a quarter” of the Yugunga-Nya People use the licence area and I agree that there is no evidence to support that contention. I suspect this reference comes from Ms Lane’s evidence that the Wilba family is one of four Yugunga-Nya families, but there are no specific numbers provided and nothing turns on that point. The State does accept however that Ms Lane identifies four generations of Yugunga-Nya People and more than 30 family members within those generations. By my calculation, Ms Lane identifies 37 individuals and also refers to other groups of relatives who participate in the identified activities.
Ms Lane says that her statement is about “the area in blue” on two maps attached to her statutory declaration, both of which are identified as having been prepared by the Tribunal’s Geospatial Services team on 27 March 2023.
Map 1 is labelled Yugunga-Nya People Active Future Act Objection Applications Overview Map. Map 2 is an enlargement of part of Map 1. These maps show, amongst other things:
(a)the external boundary of the Yugunga-Nya Determination, including the determined outcomes;
(b)future act objection applications (as at the date of the map) labelled by Tribunal ID and tenement number; and
(c)registered Aboriginal sites and other heritage places.
There are two separate areas shaded in blue on Map 1 as prepared by the Tribunal and one of these areas is also shown on Map 2. According to the legend, these blue shaded areas fell within the external boundary of the Yugunga-Nya Determination but were not subject to a determination of native title and are now subject to the Yugunga-Nya #2 native title determination application (WAD110/2022).
Because they fall outside the area where native title has been determined to exist, the blue shaded areas are not relevant for present purposes and therefore, while potentially confusing, they are not, to my understanding, “the area in blue” to which Ms Lane refers.
I understand Ms Lane to refer to an area which appears to have been hand drawn in blue ink on the Tribunal maps and which might very loosely be described as triangular in shape. Aside from it having been drawn on the maps in a similar manner to the circular area discussed below in relation to s 237(b), this area accords with the reasonably detailed written description given by Ms Lane and appears to cover close to half of the licence area. The licence is identifiable from its shape and general location, and because the licence number can be readily seen when zooming in on the electronic version of Ms Lane’s statutory declaration.
Meekatharra, where Ms Wilba says her family live, is located at or about the northernmost point of the westerly side of the triangle. According to the Tribunal’s overlap analysis, the licence is located 48.5 kilometres southerly of Meekatharra. The triangle therefore spans a sizeable area between Meekatharra and the licence.
I have outlined my views on the maps in some detail because, in its reply to Yugunga-Nya’s material, Kelro says that neither the maps nor Ms Lane’s statutory declaration identify the licence area and questions whether the licence falls within the blue area. They contend that Ms Lane’s evidence should therefore be disregarded. However, as I have noted, the shape and number of the licence, and the Tribunal’s objection number are shown on the maps and indicate that the licence falls partly within the hand drawn triangular area.
Ms Lane’s evidence is that four generations of the Wilba family, many of whom she either names or identifies by familial relationship, go to the blue area “every couple of days all year round”. In relation to the activities conducted in this area, Ms Lane says the pastoralists are “pretty good in that area and they don’t get in our way too much”. She describes the family’s activities as follows:
First we go to the town supermarket to get a little bit of fruit and vegies. Then we get in our cars and we just go. That’s all we need. The area gives us everything else. We go wherever we like in that area. Depending on the time of the year we get kangaroo, emu, goanna, emu eggs, bush turkeys, bush bananas, honey ants and bush lollies. We always have to get some for the old people too and bring it back to Meekatharra for them. They get big cravings for traditional foods and it’s really important for them. We build a fire wherever we want on the area and have a big feed. We camp a fair bit, but we can easily travel all over and through that area in one day. All the way through that area, we are teaching our kids and our grannies all about the land, singing them the songs as we go.
I am satisfied from Ms Lane’s evidence that a sizeable number of Yugunga-Nya People frequently conduct community and social activities in the hand drawn blue triangular area, which includes part of the licence area.
Is direct interference with these community and social activities likely?
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.
As outlined by the State in its initial contentions, the licence would be granted for five years and Kelro may undertake the range of activities set out in s 66 of the Mining Act 1978 (WA). The statement under s 58 of the Mining Act which accompanied the licence application sets out some details of Kelro’s proposed exploration activities, but these are largely confined to the first year of the term. The budget for year 1 is $20,360 and the proposed activities include soil and rock chip sampling and drilling of up to five holes.
The State argues that interference with community and social activities is not likely. It points to the fact that Yugunga-Nya holds non-exclusive rights and that there is continuing pastoral lease activity in the licence area as evidenced by Ms Lane’s statement that that the pastoralists “don’t get in our way too much”. Regardless of the extent of co-existence with pastoral activities, the issue before me is the grant of the licence.
The State also argues that traditional food collection activities are capable of co-existence with exploration activities. It contends that, at most, there is a small risk that in exercising its full suite of rights, Kelro might be physically in the way of a common law holder in a small area on a particular day but that this does not amount to substantial interference. There appear to be a number of assumptions underpinning that contention because there is very little evidence of the scale of activities that Kelro may undertake throughout the term of the licence or the size of the areas that may be impacted.
While I accept the general proposition that co-existence is possible, the issue is whether direct, non-trivial, interference is likely on the facts of this case.
Ms Lane’s evidence is reasonably detailed about the persons who frequent the triangular area for camping, hunting, gathering and teaching activities but is broad and general in relation to where these activities occur. Also, while there is evidence regarding the frequency of the activities, it is directed to the whole of the triangular area, not the licence.
Ms Lane mentions that the Yugunga-Nya People involved can easily travel all over and through the area in one day and refers to going “wherever we like in that area” but that does not necessarily mean the identified activities occur frequently in the licence area, particularly given its distance from Meekatharra. This is relevant because interference within the meaning of s 237(a) must be direct and substantial (or non-trivial).
Further, Ms Lane does not raise any particular concerns about how Kelro’s activities are likely to interfere with Yugunga-Nya’s community and social activities. Her concerns are directed at being surprised or unexpectedly finding Kelro while undertaking activities and are raised in the context of a need to know where explorers are in that area.
There are some similarities between the evidence in this case and the evidence of community and social activities considered in Yugunga-Nya v Blackjack Resources. In that case, despite reservations about the evidence, the Tribunal found that the grant of E 51/904 was likely to cause direct interference with the hunting of kangaroo. According to the State’s material, E 51/904 overlapped the licence to a small degree and was later withdrawn. The affidavit of Mr Cameron Hardie submitted by Kelro shows E 51/904 overlapping slightly with the licence to the east, north of Nowthanna Hill.
Yugunga-Nya has relied upon Yugunga-Nya v Blackjack Resources in relation to its contentions for s 237(b) and Kelro has also considered the decision in that context, but none of the parties referred to it in the context of s 237(a).
The Tribunal’s conclusion in that case was based on evidence regarding the effect of exploration activities on animals in the area of E 51/904. The evidence in this case is far more general and not specifically directed to the relevant part of the licence area. In fact, other than being shown on Maps 1 and 2, there is no specific mention of the licence in Ms Lane’s statutory declaration.
Therefore, while I accept Ms Lane’s evidence about activities regularly undertaken in the triangular area, I am not satisfied, on the evidence provided, that the grant of the licence is likely to cause direct and substantial interference with those activities.
Is the grant of the licence likely to interfere with areas or sites of particular significance to the Yugunga-Nya People, in accordance with their traditions?
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].
In its initial contentions, Yugunga-Nya relied upon the decisions in Yugunga-Nya v Blackjack Resources and Yugunga-Nya v Pegasus Metals to illustrate the particular significance of the area in and around the licence. As I have already discussed, the tenement considered in Yugunga-Nya v Blackjack Resources overlaps the licence to a very small extent. In that case, the Tribunal was satisfied that there was an area or site of particular significance located in the licence area with which the grant of the tenement was likely to interfere, and that the tenement area was “rich in sites”. The Tribunal also found that Nowthanna Hill was an area or site of particular significance but concluded interference was not likely on the facts of that case.
In Yugunga-Nya v PegasusMetals, the Tribunal adopted its earlier finding regarding the particular significance of Nowthanna Hill and found that interference was likely because the Nowthanna Hill registered site covered almost the entirety of the two tenements under consideration. However, according to Mr Hardie’s evidence, Nowthanna Hill is 5.3 kilometres from the licence.
With the provision of the evidence of Mr Barnard and Mr Gentle Snr, Yugunga-Nya now focusses on Mt Yagahong and the surrounding area as part of the Kalaya (Emu) Dreaming story. It argues that this wider area is the “sacred centre” of Yugunga-Nya country and is therefore an area or site of particular significance for s 237(b). I recently considered the path of the Kalaya Dreaming story in Yugunga-Nya v Mitchell.
Mr Hardie’s evidence places Mt Yagahong 9.6 kilometres from the nearest boundary of the licence. According to the Tribunal’s online mapping tool ‘Native Title Vision’, Mt Yagahong is a registered site (ID 11133) described as “Ritual / Ceremonial; Creation / Dreaming Narrative; Traditional Structure”. It is surrounded by a lodged site (ID 36323) described as “Yagahong Hill: includes Yakong, Mt Yagahong, Yakungu The two small hills to the east of Yagahong”. Yakong (ID 11139) described as “Ritual / Ceremonial; Creation / Dreaming Narrative; Other; Repository / Storage Place” is also a registered site, which partly overlaps the Mt Yagahong registered site.
All three of these sites are shown on Yugunga-Nya’s mapping, northerly of the licence area.[2] Therefore, the nub of the issue arising from Yugunga-Nya’s contentions and evidence is whether Yugunga-Nya has adequately explained the more than ordinary significance of an area surrounding Mt Yagahong and whether that surrounding area includes any part of the licence area.
[2] For completeness, I note that the lodged site now appears on Native Title Vision as an organic shape, rather than having straight sides as shown on Yugunga-Nya’s mapping.
Much of the evidence of Mr Barnard and Mr Gentle Snr is subject to non-disclosure directions. While those directions do not prevent me from stating any necessary findings of fact, I will refrain as much as possible from disclosing the restricted evidence. Conveniently, the evidence given by Mr Gentle Snr and Mr Barnard appears to be similar to that considered by the Tribunal in Yugunga-Nya v M61 Holdings as the description of the evidence outlined at [22]–[25] of that case reflects the evidence here.
Previous determinations regarding Mt Yagahong and the surrounding area
There is no doubt about the central importance of Mt Yagahong to the Yugunga-Nya People, whose deep spiritual connection to this place is noted in the Yugunga-Nya Determination at [19]. Yugunga-Nya has also repeatedly relied upon the sacred nature of Mt Yagahong in Tribunal proceedings and the Tribunal has found Mt Yagahong to be an area or site of particular significance for s 237(b).
Three such decisions were made in similar terms on the same day in 2010 in Allarrow, Bondini/Allarrow No 1 and Bondini/Allarrow No 2. In each of those cases, the tenement in issue overlapped or was near to the Mt Yagahong and Yakong registered sites. There was no mention of the lodged site at that time. The Tribunal found Mt Yagahong to be an area or site of particular significance for s 237(b). Also in issue was an “exclusion zone” around Mt Yagahong, which Yugunga-Nya argued should extend three kilometres from the hill due to the existence of sites within the area, while the grantee parties were willing to agree to a one-kilometre area.
The evidence in each of those cases identified sites such as water sources, artefacts and quarries near to Mt Yagahong. The Tribunal was ultimately satisfied that there may be other sites of particular significance in the area of the relevant tenements because of the importance of the two registered sites. Based on the evidence, the Tribunal considered it probable that there are “associated sites in the shadow of the hill”.[3]
[3] Allarrow at [56], Bondini/Allarrow No 1 at [59] and Bondini/Allarrow No 2 at [59].
This one- or three-kilometre exclusion zone issue arose again in 2016 in Monument Murchison. The Tribunal discussed the evidence of areas or sites of particular significance in the vicinity of Mt Yagahong at some length from [76] and was satisfied at [83] that there may be such areas or sites “at least within the immediate vicinity of the hill”. The Tribunal also discussed the proposed exclusion zone in some detail, including whether it was an arbitrary area. The evidence in that case indicated that the Yugunga-Nya People wanted the three-kilometre exclusion zone to become a registered site, although the Tribunal said it was not clear whether such an application had been made. It may be that the application in relation to the lodged site was made after the decision in Monument Murchison.
Ultimately, the Tribunal stated that the evidence suggested the significance of Mt Yagahong extends some distance from its base but was not satisfied the evidence supported a finding of particular significance encompassing the entire three-kilometre exclusion zone as put by the native title party.
How does the evidence differ in this case?
On the question of particular significance, both Mr Barnard and Mr Gentle Snr refer to the central importance of Mt Yagahong to the Yugunga-Nya People and its association with the Kalaya Dreaming. Mr Barnard’s account of the Kalaya Dreaming provides an explanation of why there is particular significance attaching to an area beyond Mt Yagahong itself and appears consistent with the description of the Kalaya (or Karlaya) Dreaming story in the Yugunga-Nya Determination. However, while he attaches a map, which I will discuss shortly, Mr Barnard does not describe the subject area in any detail by reference to the Dreaming story. Mr Barnard also outlines protocols regarding entry into this area by strangers in accordance with Yugunga-Nya Law and the risks of not complying with those protocols. Mr Gentle Snr makes similar points albeit in a more general way, referring to an “exclusion zone” around Mt Yagahong, as he did in Yugunga-Nya v M61 Holdings.
In my view, while it lacks detail and appears to differ from the evidence considered in the cases outlined above which considered an exclusion zone, the evidence does suggest the particular significance of an area, or perhaps areas, beyond Mt Yagahong. That proposition is also consistent with the lodged site surrounding the Mt Yagahong registered site.
What is far less clear is the extent of any such area or areas and whether they relate to the path of the Kalaya Dreaming story or radiate from Mt Yagahong as seems to be put by Mr Barnard and Mr Gentle Snr.
Similar to the approach taken with Ms Lane’s evidence, Mr Barnard’s statutory declaration attaches a copy of the enlargement which forms the basis of Map 2. However, instead of the triangular shape, Mr Barnard identifies a roughly circular area outlined in blue which includes part of the licence area. Based on the scale of the map, the circled area appears to be at least 50 kilometres in diameter.
Mr Gentle Snr also refers to an “Area” around Mt Yagahong, but it is not shown on a map or described in any detail. His evidence reflects that discussed in Yugunga-Nya v M61 Holdings at [22]. He says the current exclusion zone should be at least 10 kilometres bigger than it is now and expresses anger that Yugunga-Nya’s efforts to have this wider exclusion zone registered under the AHA were not successful, with only a smaller area being recorded as an “other heritage place”. I understand that Mr Gentle Snr is referring to the lodged site as the current exclusion zone.
Clearly there are inconsistencies in this evidence as to the description and extent of the area in issue. Mr Gentle Snr says the area should extend at least 10 kilometres from the current “exclusion zone”, while Mr Barnard refers to a roughly drawn circular area which appears to extend, at least in some directions, well beyond 20 kilometres from Mt Yagahong. The lodged site is a different area again.
Mr Barnard does not explain in any detail why it is the circled area, as opposed to any other area, that is of particular significance in accordance with Yugunga-Nya tradition. That is to say, there is nothing in Mr Barnard’s evidence which explains why the circled area is drawn as it is. For example, the area is not described by reference to landscape features having regard to the Dreaming story. This is in contrast to Ms Lane’s evidence which describes the boundaries of the triangular area used for community and social activities.
Kelro points out that the area shown on the map is not actually circular in shape and says it “conveniently” extends to include the licence. While there is no reason to think that is the case, it is problematic that the area is not described or explained other than by the very loosely drawn outline.
In Yugunga-Nya v M61 Holdings, the Tribunal acknowledged the evidence identifying the area as a cultural centre linked to a creation story. However, similar to my comments above, the Tribunal noted that the path or track of that story was not explained in an identifiable way by reference to landmarks, roads or sites, nor was there sufficient explanation of the special or more than ordinary significance of such a large area.
I agree with those observations. Mr Gentle Snr is clear that what he calls the “exclusion zone” surrounding the site should be wider than the “other heritage place” (being the lodged site). However, because there is no explanation of how that area is identified in accordance with Yugunga-Nya tradition and because it is so loosely drawn or described, I cannot make any finding in that respect. The inconsistencies in the descriptions given by Mr Barnard and Mr Gentle Snr, which are also highlighted by Kelro and the State, only serve to reinforce that ambiguity.
These are similar issues to those faced by the Tribunal in the earlier cases outlined above and there is also a substantial size difference between the exclusion zone sought in those matters and the areas described here.
Conclusion for s 237(b)
It seems clear from the Tribunal’s findings in a number of the decisions mentioned throughout these reasons, that there are areas or sites of particular significance to Yugunga-Nya People in the vicinity of Mt Yagahong. However, what is not explained by reference to Yugunga-Nya tradition is the extent to which any such areas or sites are individual places associated with the Kalaya Dreaming, or form part of a broad area of particular significance around the hill and if so, the size of that area. Accordingly, the evidence does not support a finding of particular significance in relation to either of the larger areas described by Mr Barnard and Mr Gentle Snr. As I have not made any finding regarding the existence of an area or site of particular significance in the licence area, I need not consider the question of likely interference arising from the grant of the licence.
Is the grant of the licence likely to cause major disturbance?
In the context of s 237(c), major disturbance is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people (see Littlev Oriole Resources at [52]–[54]). I can also have regard to the context of the relevant grant, including the history of mining and the characteristics of the land and waters to determine whether major disturbance is likely.
In Dann 1997 at page 395 the word “major” is described as an adjective of degree in respect of which the Tribunal must make a value judgement.
I have outlined the nature of the licence and the evidence regarding Kelro’s proposed activities at [24] above. The licence will be subject to a number of conditions and endorsements provided by the State, as well as regulatory controls, such as those under the Mining Act and AHA.
Yugunga-Nya has not provided any meaningful submissions nor any evidence relevant to s 237(c). In its initial contentions it simply argued, as it has on many occasions, that “any disturbance to land and waters is too much disturbance”. However, as the Tribunal has repeatedly observed, this type of bald argument does not assist its predictive assessment (see Yugunga-Nya v Mitchell at [34]). I note that Yugunga-Nya does not further address the question of major disturbance in its later contentions and so does not appear to press this point.
On the material before me, there is no basis on which to conclude that the grant of the licence is likely to cause major disturbance within the scope of s 237(c), particularly taking into account the endorsements and conditions to be imposed on the licence and the State’s regulatory regime.
Determination
I determine that the grant of exploration licence E 51/2111 is an act attracting the expedited procedure.
Ms Nerida Cooley
Member
3 September 2024
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