Yurriyangem Taam Aboriginal Corporation RNTBC v Luke Alexander Forti
[2025] NNTTA 22
•15 August 2025
NATIONAL NATIVE TITLE TRIBUNAL
Yurriyangem Taam Aboriginal Corporation RNTBC v Luke Alexander Forti and others [2025] NNTTA 22
Application No: | WO2022/1420 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yurriyangem Taam Aboriginal Corporation RNTBC (WCD2019/006)
(native title party)
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Luke Alexander Forti
(grantee party)
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Clinton Stash Moxham
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr S Grant, Member |
Place: | Brisbane |
Date: | 15 August 2025 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with areas or sites of particular significance – whether act is likely to involve major disturbance to land or waters – act is an act attracting the expedited procedure. |
Legislation: | Aboriginal Cultural Heritage Act 2021 (WA) Aboriginal Heritage Act 1972 (WA) Biodiversity Conservation Act 2016 (WA) Environment Protection and Biodiversity Conservation Act 1999 (Cth) Mining Act 1978 (WA) ss 24, 24A, 25, 57, 58, 61, 66 Mining Regulations 1981 (WA) Native Title Act 1993(Cth) ss 29, 31, 32, 151, 237 Rights in Water and Irrigation Act1914(WA) |
Cases: | Andy Andrews, Jeffrey Waller & Anita Camfoo (on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu, Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal groups); Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto (on behalf of the Ngalakan group); Peter Woods, Tex Camfoo and Sammy Bulabul (on behalf of the Ngalakan and Rembarrnga Groups)/Exploration & Resource Development Pty Ltd/Northern Territory, [2002] NNTTA 170 (Andrews v Northern Territory) Dolores Cheinmora, Kenny Morgan & Ors/Western Australia/Striker Resources [1997] NNTTA 34 (Cheinmora v Striker Resources) Ipima Ikaya Aboriginal Corporation RNTBC v Latsod Pty Ltd and Another [2023] NNTTA 24 (Ipima Ikaya v Latsod) Ipima Ikaya Aboriginal Corporation RNTBC v Silica Australia Pty Ltd and Another [2023] NNTTA 38 (Ipima Ikaya v Silica) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People (WC01/179); Robin Boddington and Others on behalf of the Wajarri Elders (Wo01/180)/Western Australia/Giralia Resources NL [2002] NNTTA 24 (Walley v Western Australia) Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (Little v Oriole Resources) Shirley Purdie on behalf of the Yurriyangem Taam Native Title Group v State of Western Australia & Others [2019] FCA 696 (Yurriyangem Taam determination) Shirley Wonyabong & Ors on behald of the Tjupan People/Western Australia/Western Mining Corporation Ltd; Great Central Mines Nl; Heron Resources Nl; Wiluna Gold Pty Ltd; Mining Corporation of Australia Ltd [1996] NNTTA 40 (Re Tjupan Peoples) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) The Nyungah People/Western Australia/Empire Oil Company (Wa) Nl; Amity Oil Nl; Geopetro Co; Ensign Operating Co; Seven Seas Petroleum Inc [1996] NNTTA 18 (Nyungah People) Western Australia/Glen Derrick Councillor and Others on behalf of the Naagaju Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41 (Western Australia v Naagaju Peoples and the Mullewa Wadjari Community) Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Western Australia/Holocene Pty Ltd [2009] NNTTA 49 (Western Desert Lands Aboriginal Corporation v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives(s) of the native title party: | Scott Howieson, Kimberly Land Council Aboriginal Corporation |
| Representative(s) of the grantee party: | Clinton Moxham |
| Representatives(s) of the Government party: | Lauren Italiano, States Solicitors Office |
REASONS FOR DETERMINATION
Background
This decision is about whether the proposed grant of exploration licence E80/5832 (the proposed licence) in the Kimberly Region of Western Australia to Luke Alexander Forti and Clinton Stash Moxham (the Grantee Parties) is an act attracting the expedited procedure as described in s 237 of the Native Title Act 1993 (Cth) (NTA).
On 2 December 2022, the State of Western Australia gave notice under s 29 of the NTA of its intention to grant the proposed licence to the Grantee Parties. The ‘notification date’ identified in the notice was 9 December 2022 (see s 29(4) NTA). The notice included a statement that the State considers that the grant is an act attracting the expedited procedure (see s 32 NTA and s 237 NTA). By including this statement, the State asserts that the grant is not likely to, in summary:
· interfere directly with the native title holders’ community or social activities (see s 237(a) NTA);
· interfere with areas or sites of particular significance, in accordance with the native title holders’ traditions (see s 237(b) NTA); or
· involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (see 237(c) NTA).
The proposed licence covers an area of approximately 13.08 km² and sits wholly within the external boundary of the Yurriyangem Taam determination. 80.94% of the area of the proposed licence is subject to a determination of exclusive native title rights and interests in favour of the Yurriyangem Taam native title holders, being the Aboriginal people identified in Schedule 6 to the Yurriyangem Taam determination, with the remaining 19.06% of the licence area is subject to a determination of non-exclusive native title rights and interests in favour of the Yurriyangem Taam native title holders.[1] Both the exclusive native title rights and interests and the non-exclusive native title rights and interests coexist with, and are subject to, ‘other interests’, that is, non-native title interests. The portion of the proposed licence subject to a determination of exclusive native title rights and interests is overlapped by the Tableland pastoral lease, which is held by an Aboriginal corporation.[2] The portion of the proposed licence subject to a determination of non-exclusive native title rights and interests is overlapped by the Bedford Downs pastoral lease.[3]
[1] See NNTT overlap analysis produced on 13 September 2024.
[2] See Quick Appraisal and NNTT overlap analysis produced on 13 September 2024.
[3] See Quick Appraisal and NNTT overlap analysis produced on 13 September 2024.
On 14 December 2022, the Yurriyangem Taam (Aboriginal Corporation) RNTBC, which holds the native title on trust for the Yurriyangem Taam native title holders[4], lodged an objection application with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the proposed licence. YTAC objects to the State’s assertions concerning s 237(a), s 237(b) and s 237(c) of the NTA respectively. As the objection application was not able to be resolved by the agreement of the parties, it falls to the Tribunal to determine whether the expedited procedure applies (see s 32(4) NTA).
[4] By order of the Federal Court of Australia dated 23 May 2019.
Following the lodgement of the objection, under a delegation from the President of the Tribunal, Member Eaton was appointed to constitute the Tribunal for the purposes of the inquiry into this matter. Member Eaton case managed the matter during its programming phase. On 21 March 2025, I was appointed to constitute the Tribunal for the matter, in place of Member Eaton, to determine the matter.
In determining whether or not the grant of the proposed licence is an act attracting the expedited procedure, I must make a predictive assessment of what is likely to occur as a result of the grant and decide whether there is a real chance or risk of interference: as to s 237 of the NTA generally, see the applicable legal principles identified in Yindjibarndi v FMG at [15], which I adopt for the purpose of this determination. In making this assessment I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant, evidence of the grantee party’s intentions and the operation of the applicable regulatory regime: see Walley v Western Australia at [8] – [9] and the cases cited therein.
If I determine the grant is an act attracting the expedited procedure, the proposed licence can be granted by the State without the parties being required to negotiate with each other (see s 32(4) NTA). If, however, I determine the grant is not an act to which the expedited procedure applies, s 31(1) of the NTA applies as if the notice did not include the statement and the Grantee Parties and the State must negotiate in good faith with a view to reaching agreement with YTAC about the grant (see s 32(5) NTA).
For the reasons provided below, I have determined the grant of the proposed licence is an act attracting the expedited procedure.
The conduct of the inquiry
On 22 December 2022, the first directions in the matter were set for the provision of evidence and contentions by the parties and for the conduct of the inquiry.
On 19 April 2023, the State lodged the Department of Mines, Industry, Regulation and Safety[5] initial material comprising mapping; a Quick Appraisal for the licence containing key tenement information; an Aboriginal Heritage Inquiry System search (AHIS Search); a copy of the licence application under the Mining Act 1978 (WA), including an accompanying statement from the Grantee Parties titled Supporting Information for Tenement Application; a copy of the draft Tenement Endorsement and Conditions Extract; and a list of previous determinations made by the Tribunal under s 32(4) of the NTA which overlap the proposed tenement (showing there are no such previous determinations).
[5] For completeness, it is noted that the Department of Mines, Industry, Regulation and Safety subsequently became the Department of Energy, Mines, Industry, Regulation and Safety and that, since 30 June 2025, the responsible department is the Department of Mines, Petroleum and Exploration.
On 1 December 2023, following a period of ultimately unsuccessful negotiations between the parties, YTAC lodged its primary contentions (YTAC primary contentions), the affidavit of Pauline Thomas dated 28 November 2023 (Thomas affidavit) and a copy of DMIRS Excess Tonnage Guideline dated May 2021.
According to YTAC’S primary contentions, YTAC also rely on the following documents:
·the Yurriyangem Taam determination;
·Supporting Information for Tenement Application;
·Department of Climate Change, Energy and the Environment and Water, Species Profile and Threats Database: Gouldian Finch dated 16 July 2000;
·Appendix to National Recovery Plan for the Gouldian Finch (Erythrura gouldiae) – Background Information (Appendix to the National Recovery Plan);
·Conservation Codes for Western Australian Flora and Fauna;
·Department of Biodiversity, Conservation and Attractions, List of threatened and priority fauna;
·Australian Wildlife Conservancy, Eco Health Report 2021; and
·“Cross-cultural collaboration leads to greater understanding of the rare Spectacled Hare-wallaby in the west-Kimberly, Western Australia”, by Michael L. Wysong, Pius Gregory, Alexander W. T. Watson, Leigh-Ann Woolley, Christopher W. Parker, Yawuru Country managers, Karajarri Rangers and Nyikina Mangala Rangers, dated January 2022 (Wysong et al study).
On 14 December 2023, the Grantee Parties provided their contentions (GP contentions).
On 21 December 2023, the State provided its contentions (State contentions).
On 12 January 2024, YTAC provided its reply contentions (YTAC reply contentions).
On or by 16 January 2024, each of the parties confirmed that, pursuant to s 151 of the NTA, they were content for the matter to be determined on the papers.
Information about the proposed licence and the area of the proposed licence
The proposed licence is an exploration licence to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, the proposed licence is granted for a period of five years and may be extended. Section 66 of the Mining Act and regulation 20 of the Mining Regulations 1981 (WA) set out the rights conferred by an exploration licence.
If the proposed licence is granted, the Grantee Parties will be permitted to undertake the following activities within the area of the proposed licence: to enter the land with personnel and machinery to explore for minerals; to carry out operations and works to explore for minerals, including digging pits, trenches, holes, sinking bores and tunnels to the extent necessary (subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act); to excavate, extract or remove earth, soil, stone, fluid or mineral bearing substances not exceeding the prescribed limit of 1000 tonnes, unless approved by the Minister and subject to any conditions imposed; and subject to the Rights in Water and Irrigation Act1914 (WA), to take and divert water from any natural spring, lake, pool or stream in or flowing through the licence area or from excavations made and sink a well or bore from which to take water for domestic or mineral exploration purposes. The proposed licence is proposed to be subject to the endorsements and conditions set out in the draft Tenement Endorsement and Conditions Extract.
In their Supporting Information for Tenement Application statement, the Grantee Parties provide various information, including in relation to their target minerals (iron ore mineralisation including hematite, goethite, martite and limonite), and, the activities they propose to conduct on the area of the proposed licence during the term of the proposed licence including geological field mapping, rock chip sampling, RAB drilling and RC drilling. The Grantee Parties state they intend to explore the whole area of the proposed licence. They indicate that they intend to conduct four annual field trips during the term of the proposed licence: in year 1 for soil and rock chip sampling; in year 2 to conduct geophysical investigations; in year 3 for RAB drilling; and in year 4 for RAB and RC drilling. The Grantee Parties state that Aboriginal heritage clearances will be sought before ground disturbing activities are undertaken; that rehabilitation of work areas will be undertaken on an ongoing basis or as required by DMIRS; and that they will comply with all other relevant statutory requirements in conjunction with exploration activities including tenement conditions.
In their contentions, the Grantee Parties provide further information in relation to the activities they propose to conduct on the area of the proposed licence, including: initially, traversing the area of the proposed licence overland by foot or by two or four wheeled motorbikes to sample, map geology and conduct ground geophysics; based upon results, some non-ground disturbing geophysical techniques may be used ‘either in the air and supported by ground personnel’; if shallow drilling is warranted, then a rubber tyred offroad vehicle mounted drilling rig would attempt shallow 20 to 200 metre deep drill holes, with no soil disturbance intended to take place other than within the 80 to 140 millimetre drill hole locations; and, based upon results, a narrow single line track and drilling pads may be established for deeper drilling or further ground geophysical investigations.
The DMIRS initial material does not identify any Aboriginal communities within or in the vicinity of the area of the proposed licence. However, the map attached to Ms Thomas’ affidavit shows two Aboriginal communities in the vicinity of the area of the proposed licence, namely, Yulmbu, approximately 54 kilometres southwest of the area of the proposed licence, and Janterriji, approximately 30 kilometres southeast of the area of the proposed licence. These communities are not otherwise referred to in the material before the Tribunal and no issue in this inquiry turns on their location relative to the area of the proposed licence.
The Quick Appraisal identified the State has previously granted mining tenements, including exploration licences, which overlap the area of the proposed licence. None of these historical tenements are live.
The AHIS search, also included as part of the DMIRS initial material, identifies there are no ‘Registered Aboriginal Sites’ registered under the Aboriginal Heritage Act 1972 (WA) or ‘Other Heritage Places’, within the area of the proposed licence.
Section 237(a): Is the grant of the proposed licence likely to directly interfere with the Yurriyangem Taam native title holders’ community or social activities?
Relevant principles
In Smith v Western Australia at [26], the Federal Court of Australia explained that direct interference involves an evaluative judgement that the act, in this case the grant of the proposed licence, “is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.
What are the community or social activities undertaken?
YTAC’s evidence in relation to community and social activities is to be found in the Thomas affidavit.
In her affidavit, Ms Thomas identifies that she is a Yurriyangem Taam determined native title holder in relation to the area of the proposed licence. Ms Thomas also states:
I'm connected to this area through my mother's father. My grandfather's name was Babjin. That's my grandfather’s country. He lived out there. He came from there and worked at Bedford Downs. He came from the bush and they gave him a gardiya name, Tommy Springfield. He was a tribal law man.
That area, including the Tenement Area, is called Lakuwang. The gardiya name is Chamberlain. My family has a block near the Tenement Area. I have marked our block on the map at Annexure PT-1.
Ms Thomas’ evidence is not disputed by the Grantee Parties or the State, and I accept Ms Thomas has authority to speak for the area Ms Thomas calls Lakuwang. In this determination I refer to this area as the Lakuwang area.
There is nothing in the material before me which identifies the geographic extent of the Lakuwang area, or a locality called Chamberlain. However, for completeness, I note the Chamberlian River is clearly shown on both the topographical map contained in the DMIRS initial material and on the map attached to Ms Thomas’ affidavit and marked PT-1. This river is located to the northwest of the area of the proposed licence, on the western side of the Durack Range.
It can be seen from the map attached to Ms Thomas’ affidavit and marked PT-1 that Ms Thomas’ family block is located approximately 17 km southwest of the area of the proposed licence.
Ms Thomas identifies a number of community and social activities conducted by Ms Thomas and her family which Ms Thomas is concerned will be directly affected if the proposed licence is granted, including hunting, fishing, collecting and eating bush tucker and the intergenerational teaching of these activities. More particularly, Ms Thomas provides evidence that:
· Ms Thomas’ grandfather told her mother before he died that she was connected to the Lakuwang area, and that her sister mainly has knowledge for the area including the area of the proposed licence;
· Ms Thomas would take her kids out to the family block every school holidays while Ms Thomas’ mother was alive;
· Ms Thomas’ children would play, swim and go fishing on the family block, and that Ms Thomas’ children now take Ms Thomas’ grandchildren to the family block, which is important so that knowledge can be passed on;
· the last time Ms Thomas was out near the area of the proposed licence was maybe four years ago, but that her son went out over that country recently in a helicopter with Ms Thomas’ uncles for a heritage survey;
· Ms Thomas and her family use the waterways running down from the area of the proposed licence into the Bow River and Pentecost River for fishing;
· Ms Thomas and her family go hunting for kangaroo, turtle, porcupine, bush turkey, emu and wallabies near the area of the proposed licence;
· Ms Thomas and her family collect and eat bush tucker including black and green plums known as darlu, brown sugar bag, tree sugar bag, conkerberry, yams, boab nuts, bush banana and bush orange ‘out there’, and bush gum ‘from the trees near the river’;
· Ms Thomas and her family ‘[g]et wallabies out there and see lots of birds like finches and cockatoos’;
· that there are crocodiles near the area of the proposed licence, and that Ms Thomas and her family ‘want to protect the animals that live in the wild’; and
· that Ms Thomas thinks there are burials along the Durack Range but that this area would need to be checked.
Contentions of the parties
YTAC contends there is a high likelihood the grant of the proposed licence will interfere directly with the community and social activities identified by Ms Thomas for essentially three reasons. First, YTAC argues that any drilling or excavation ‘in and around’ the area of the proposed licence is likely to detrimentally affect the ability of the native title holders to access and use the area for community and social activities. Secondly, YTAC argues that if the Grantee Parties use the area, including through the use of machinery or vehicles when they are exploring, without the knowledge of the native title holders, it may disrupt the movement habits of the wildlife moving through the area of the proposed licence and that this disruption is likely to interfere with the willingness of the native title holders to access the area and undertake the community activities identified in Ms Thomas’ evidence. And thirdly, YTAC argues any associated environmental impacts on the interconnected river systems of the area as a result of the exploration activities will reduce the availability of, and discourage the use of, resources in the waterways flowing through the area of the proposed licence.
The Grantee Parties contend the proposed licence will not interfere with the community and social activities identified by Ms Thomas. They argue it is ‘extremely unlikely’ they and the native title holders will be present on the area of the proposed licence at the same time as the Grantee Parties due to the seasonal nature of exploration activities and the infrequency of Ms Thomas’ family’s visits to the family block and, in any event, because the evidence does not indicate that the community and social activities are conducted on the area of the proposed licence. The Grantee Parties further argue their proposed ground-based exploration activities, including advanced activities including drilling, will not hinder access to area of the proposed licence, and, that the endorsements and conditions to be imposed on the proposed licence and the legislative and regulatory requirements applicable to the proposed licence are sufficient to address Ms Thomas’ concerns about impacts on wildlife and the environment.
Like the Grantee Parties, the State contends the proposed licence will not interfere with the community and social activities identified by Ms Thomas. The State argues YTAC’s concerns fall into two categories, namely: concerns about the ability of the native title holders to access the area of the proposed licence to carry out the community and social activities identified by Ms Thomas; and concerns about the impact of the activities which will be permitted under the proposed licence on wildlife and waterways and, in turn, the impact of these activities on the native title parties’ community and social activities in relation to wildlife and waterways.
Regarding the first category of concern, the State contends that while there is evidence that community and social activities are conducted on Ms Thomas’ family’s block and near the area of the proposed tenement, these activities are conducted sporadically and, in any event, there is no evidence these activities are conducted within the area of the proposed licence. On these bases, the State argues that the native title holders’ ‘ability to continue using the general area in the way that it currently does will not be interfered with by the grant of the [proposed licence]’.
Regarding the second category of concern, the State contends there is no evidence the exploration activities which will be permitted if the proposed licence is granted will impact upon wildlife and waterways in the way YTAC contends and, in any event, the proposed licence will be ‘subject to endorsements in relation to the protection of native vegetation, and minimisation of damage, disturbance or contamination of waterways…’
Consideration – is interference with the community and social activities likely?
I have considered Ms Thomas’ evidence and the contentions of the parties in relation to community and social activities identified by Ms Thomas. While I accept Ms Thomas’ evidence and acknowledge YTAC’s concerns about the potential for interference, on the evidence provided I am unable to find that the grant of the proposed licence is likely to directly interfere with the community and social activities.
I accept the community and social activities Ms Thomas has identified take place from time to time in and around the area of Ms Thomas’ family’s block and, in some instances, take place ‘near’ the area of the proposed licence. However, the evidence is not sufficiently specific for me to be satisfied that the community and social activities identified by Ms Thomas take place within the area of the proposed licence, which is the only area where the Grantee Parties will be permitted to conduct exploration activities if the licence is granted. It follows that I am unable to agree with YTAC’s first contention that any drilling or excavation ‘in and around’ the area of the proposed licence is likely to detrimentally affect the ability of the native title holders to access and use the area for community and social activities.
Moreover, I am unable to agree with YTAC’s second contention, essentially that the Grantee Party’s exploration activities may disrupt the movement habits of the wildlife moving through the area of the proposed licence and that, were this disruption to occur, it would likely interfere with the willingness of the native title holders to access the area and undertake the community and social activities identified by Ms Thomas, nor with YTAC’s third contention, essentially that any associated environmental impacts on the interconnected river systems of the area as a result of the exploration activities will reduce the availability of, and discourage the use of, resources in the waterways flowing through the area of the proposed licence, as I consider these contentions to be speculative on the evidence provided.
Accordingly, on the evidence provided, I consider the grant of the proposed licence is unlikely to cause interference within the scope of s 237(a).
Section 237(b): Is the grant of the proposed licence likely to interfere with areas or sites of particular significance according to the Yurriyangem Taam native title holders’ traditions?
Relevant principles
An area or site of particular significance is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at page 35). It must be known, able to be located and its significance able to be explained to the Tribunal (see Yindjibarndi v FMG at [17]).
Areas identified by YTAC
The areas or sites which YTAC expressly contend are of particular significance within the scope of s 237(b) are:
· the Lakuwang area; and
· a dingo dreaming near the area of the proposed licence.
YTAC also advert to Ms Thomas’ evidence about possible burials along the Durack Range.
Contentions of the Grantee Parties
The Grantee Parties argue YTAC has not identified any sites of particular significance.
The Grantee Parties accept Ms Thomas has identified in the Lakuwang area an area of significance which is much wider than the area of the proposed licence but argues that this area ‘covers many hundreds of kilometres in description, with no specific description provided of anything that might relate to the area that the tenement covers’. Relatedly, the Grantee Parties contend:
With no specific landmarks mentioned by the Native Title Party it is difficult for the Grantee Party to ascertain whereabouts the sites of significance occur within the bounds of the tenure which is very small by comparison to the bounds of the determination. It could be any place, in any direction from the description provided.
The Grantee Parties also accept that Ms Thomas has identified a dingo dreaming near the area of the proposed licence but argue that they have no interest in any area outside the area of the proposed licence.
Contentions of the State
Like the Grantee Parties, the State also argues that YTAC has not identified any sites of particular significance.
The State makes no contentions with respect to the Lakuwang area. However, the State accepts that there may be a dingo dreaming near the area of the proposed licence, but argues that YTAC has not sufficiently identified its location.
The State also accepts that if there are burial sites within the Durack Range, then these could be sites of significance for YTAC but says there is no evidence as to where within the Durack Range these burial sites are located.
YTAC’s evidence and contentions - Lakuwang area
With respect to the Lakuwang area, YTAC contends that the labelling of this area by Ms Thomas as ‘my grandfather’s country’ identifies this area as Ms Thomas’ local estate area or taam, to which ‘serious cultural responsibility attaches’. YTAC contends that:
In this sense, Lakuwang, including the Tenement Area, is an area of particular significance to the deponent and her family, in the sense contemplated by s 237(b).
Relatedly, YTAC contends that Yurriyangem Taam native title holders derive rights and interests within their broader determination area under their system of traditional laws and customs through descent to local estate areas or taam countries, and that looking after and protecting these local estate areas is one of the main responsibilities for Yurriyangem Taam native title holders and a very serious responsibility.
Consideration – Lakuwang area
While I accept Ms Thomas’ evidence in relation to the Lakuwang area, in my view the evidence does not support a finding that this area is an area of particular significance within the scope of s 237(b) for two reasons. First, the geographic extent of the Lakuwang area is unclear on the evidence provided, save that I understand it to be a large area relative to the area of the proposed licence and one which includes the area of the proposed licence.
Secondly, it is not apparent from the evidence provided why this area has special or more than ordinary significance to the Yurriyangem Taam native title holders in accordance with their traditions, over and above other areas of their country. As was recognised in the Yurriyangem Taam determination, the Yurriyangem Taam native title holders derive rights and interests within their broader determination area under their system of traditional laws and customs through descent to local estate areas or taam countries, and, looking after and protecting these local estate areas is one of the responsibilities of the Yurriyangem Taam native title holders under their laws and customs. However, on the evidence provided, I am unable to find that the derivation of rights and interests in this way, and the responsibilities which ensue from this (as important as they are), elevate the local estate area or taam country of Ms Thomas and her family to the status of an area of particular significance within in the meaning of s 237(b). In my view, additional information would be required before such a finding could be made.
In the result, more information in relation to both the location of the Lakuwang area and its particular significance in accordance with the traditions of the Yurriyangem Taam native title holders would be required for me to be able to find this area is an area of particular significance for the purpose of s 237(b).
That I could not be satisfied of either the location or particular significance of the Lakuwang area for the purpose of s 237(b) does not detract from the significance of this area to Ms Thomas and her family, which I accept without reservation.
YTAC’s evidence and contentions - Dingo dreaming
With respect to the dingo dreaming Ms Thomas provides the following direct evidence:
There is a dingo dreaming near the Tenement Area where they want to dig. The Explorer shouldn’t go near that dreaming. If you go there you get sores all over your body. That dreaming should not be close to people.
My Aunty told me that some people out there drilling were mobbed by flies. That might happen if the Explorer tries to do that.
Consideration – Dingo dreaming
While I accept Ms Thomas’ evidence in relation to the dingo dreaming, I am of the view that this evidence is insufficiently detailed for me to make any findings in relation to this area within the scope of s 237(b). The location of this dreaming has not been described beyond that it is ‘near’ the area of the proposed licence. Furthermore, while Ms Thomas has identified certain spiritual dangers she and her family associate with the dreaming, Ms Thomas has not explained why this dreaming is of more than ordinary significance to the Yurriyangem Taam native title holders in accordance with their traditions.
In the result, more information in relation to both the location of this dreaming and its particular significance in accordance with the traditions of the Yurriyangem Taam native title holders would be required for me to be able to find an area or site associated with the dreaming is of particular significance for the purpose of s 237(b) (see Andrews v Northern Territory at [124] and [125]).
YTAC’s evidence and contentions – possible burials along the Durack Range
In her affidavit Ms Thomas states:
The old people are gone now, but I think there are burials along the Durack Range. We have to check that area.
In its primary contentions YTAC states:
The NTP’s evidence states that there may be “burials along the Durack Range”.
I infer that YTAC refers to this evidence on the basis that any area or areas where a burial has occurred would be a site of particular significance to the Yurriyangem Taam native title holders.
Consideration – possible burials along the Durack Range
The Tribunal has previously accepted that burial sites may be sites of particular significance notwithstanding a lack of evidence describing the specific connection between the site and the laws and customs of the native title holders: see Western Australia v Naagaju Peoples and the Mullewa Wadjari Community at [43].
However, because Ms Thomas’ evidence only speaks to the possibility of ‘burials along the Durack Range’ and that this is something which would need to be checked, and, it necessarily follows, there is no evidence of any such site being located in, or materially close to, the area of the proposed licence, I am unable to make any finding for the purpose of s 237(b).
Question of likelihood of interference does not arise
As no area or site of particular significance has been identified within the scope of s 237(b), the question of likely interference as a result of the grant of the proposed licence does not arise.
Section 237(c): is the grant of the licence likely to involve major disturbance to the land or waters of the area of the proposed licence?
Relevant principles
The principles to be considered when determining whether the proposed licence is likely to involve major disturbance within the context of s 237(c), following the decision of Little v Oriole Resources, were summarised in Yindjibarndi v FMG at [21], namely:
· section 237(c) requires consideration of the effect of the relevant future act and also consideration of the effect of any rights created by the future act;
· the assessment, in respect of both granted and contingent rights, is in relation to what is likely to be done, rather than what could be done;
· the term ‘major disturbance’ is to be given its ordinary English meaning as understood by the whole Australian community, including Aboriginal people. The concerns of the Aboriginal community including matters such as community life, customs, traditions and cultural concerns are relevant matters for consideration in evaluating the disturbance; and
· the Tribunal is entitled to have regard to the context of the proposed grant, including the history of mining and exploration in the area, the characteristics of the relevant land and waters, as well as the remedial regulatory regime in place.
Evidence and contentions of the parties
In the face of the Grantee Parties’ proposed exploration activities, YTAC contends in its primary contentions that these activities are likely to constitute a major disturbance within the meaning of s 237(c) due to ‘the serious risk of interference with the habitat and movements of finches including the Gouldian Finch, which is known to inhabit the Kimberley Region, and wallabies including the Spectacled Hare-wallaby, which are known to inhabit Tableland Station (in which the Tenement Area) lies’.
In so contending, YTAC relies on Ms Thomas’ evidence in relation to the presence of wallabies and finches ‘in and around the Tenement Area’, as well as the material listed at [12] above to the extent this material concerns the Gouldian Finch and Spectacled Hare-wallaby.
It is convenient to record at this point that I do not consider Ms Thomas’ evidence goes so far as to establish the presence of finches and wallabies in the area of the proposed tenement. Rather, I consider Ms Thomas’ evidence, on its face, establishes the presence of these species near the area of the proposed licence. However, I am willing to infer from Ms Thomas’ evidence that it is possible that species such as finches and wallabies are present in and around the area of the proposed licence.
With respect to the Gouldian Finch, YTAC contends in its primary contentions:
· that the Gouldian Finch is listed as endangered under the Environment Protection and Biodiversity Conservation Act 1999 (Cth);
· that, according to the Department of Climate Change, Energy, the Environment and Water’s species profile and threats database, the Gouldian Finch is sparsely distributed across northern Australia between the Kimberley and north-central Queensland, and was historically observed in flocks of thousands but its total population is now estimated at less than 2500, with threats to the species including frequent and extensive fire, heavy cattle grazing and aviculture; and
· that the appendix to the national recovery plan for the Gouldian Finch states that infrastructure developments including transport corridors and mining activity may play a role in regional Gouldian Finch population declines.
With respect to the Spectacled Hare-wallaby, YTAC contends in its primary contentions:
· that according to the Wysong et al study, small, isolated and declining populations of the Spectacled Hare-wallabies now occur in the Pilbara and Kimberly regions of Western Australia; and
· that the Spectacled Hare-wallaby is listed as a priority four species under the Biodiversity and Conservation Act 2016 (WA) and that a native species is listed as a priority four species if it is rare, or near threatened or in need of monitoring.
YTAC also contends in its primary contentions that the Grantee Parties’ proposed exploration activities will involve a major disturbance to the habitat, behaviour and population of birds and wallabies in and around the area of the proposed licence, making it difficult to monitor and protect finches and wallabies and interfering with YTAC’s desire to ‘protect animals that live in the wild’.
In its reply contentions, YTAC summarises its position in the following terms:
In relation to the tenement area, the NTP contends that the evidence establishes the presence of two species which are listed as rare or endangered, and, in the case of Gouldian Finches, that mining activities can have impacts on their population. In this sense, the NTP contends that there is a likelihood of major disturbance to the populations of Gouldian Finches and Spectacled Hare-wallabies, in the sense contemplated by section 237(c).
In their contentions, the Grantee Parties argue that to cause major disturbance would involve moving significant amounts of earth and vegetation; that the cost of this would be significant with respect to the aggregate spend undertaken to reach this stage of exploration; that the probability of discovering minable minerals is low, and, therefore, that the probability of resource scale earthworks and/or vegetation clearing is low.
In its contentions, the State argues that the evidence before the Tribunal in relation to the risk posed by mining to wildlife habitats is limited to general statements in the appendix to the national recovery plan for the Gouldian Finch; that these statements indicate it is possible that local Gouldian Finch populations may be affected by mining activity or infrastructure development but that this evidence does not articulate the nature or extent of this risk or the kind of mining activities and infrastructure development that could create it, nor does it demonstrate how the grant of the proposed licence is likely to result in major disturbance to land or waters which in turn would affect the wildlife habitats as contended by YTAC. The State also argues that, in any event, the Grantee Parties’ proposed exploration activities would not constitute ‘major disturbance’ in the ordinary English meaning of the term.
Consideration – major disturbance
I accept Ms Thomas’ evidence that she and her family ‘get wallabies out there and see lots of birds like finches and cockatoos’, and, as noted, I am willing to infer that these species may be present in and around the area of the proposed licence.
However, I consider there is insufficient evidence for me to be satisfied of each of the findings YTAC essentially contends for: first, that Gouldian Finches and Spectacled Hare-wallabies, in particular, are present within the area of the proposed licence; secondly, that the particular exploration activities the Grantee Parties propose to undertake in the area of the proposed licence will likely involve major disturbance to the land or waters of the area of the proposed licence; and thirdly, that this major disturbance will, in turn, involve major disturbance to the habitat, behaviour and population of these two particular species.
Even if I were to infer the presence of Gouldian Finches and Spectacled Hare-wallabies in the area of the proposed licence on the basis of the general information provided confirming the presence of these species in the Kimberley region and, in the case of the Spectacled Hare-wallaby, on Tableland Station, I do not consider, in the circumstances of this matter, that the exploration activities which the Grantee Parties propose to undertake amount to activities which are likely to involve ‘major disturbance’ to the land or waters within the area of proposed licence.
Moreover, and in any event, there is insufficient evidence for me to be satisfied of a causal connection between the exploration activities that the Grantee Parties propose to undertake, on the one hand, and likely major disturbance to the habitat, behaviour and populations of wallabies and finches but particularly the two species of concern, on the other. While I am not satisfied the exploration activities of the kind the Grantee Parties propose to carry out are likely to affect either of the species of concern so as to cause major disturbance in the manner contended, I accept the general information provided identifies that ‘infrastructure developments including transport corridors and mining activity may play a role in regional Gouldian Finch population declines’ (emphasis added).
In light of these particular matters, and having regard to the circumstances of this matter more broadly, including -
· the nature and extent of the exploration activities the Grantee Parties will be permitted to undertake in the area of the proposed licence, if the licence is granted;
· the nature and extent of the exploration activities the Grantee Parties propose to undertake in the area of the proposed licence, if the licence is granted (cf, for example, the nature and extent of the more impactful exploration activities considered by, respectively, Member O’Neill in Re Tjupan Peoples, and Deputy President Seaman in Re Nyungah People, which in each case founded a finding of likely major disturbance);
· the characteristics of the land and waters of the area of the proposed licence (cf, for example, the special characteristics, including the cultural significance, of the land and waters considered by Member Cooley in, Ipima Ikaya vLatsod and Ipima Ikaya vSilica, which in each case founded a finding of likely major disturbance); and
· the conditions and endorsements proposed by the State and the applicable regulatory controls such as those under the Mining Act and the Aboriginal Heritage Act,
I find that the exploration activities the Grantee Parties propose to undertake in the area of the proposed licence are not likely to involve major disturbance to the land or waters within the area of the proposed licence within the scope of s 237(c).
Significance of exclusive native title rights within the area of the proposed tenement
In its reply submissions, YTAC contend, on the basis of Deputy President Sumner’s observations in Western Desert Lands Aboriginal Corporation v Western Australia at [163], that ‘increased weight should be given in analysis to the native title holders’ interests, proposals, opinions or wishes in relation to the management, use or control of the land where native title is determined and the native title holders have the right to possessor use the land to the exclusion of all others’.
I understand that YTAC makes this contention within the context of each limb of s 237.
While Deputy President Sumner’s observations were made in the context of the Deputy President’s consideration of the criterion in s 39(1)(b) of the NTA in the course of determining, pursuant to s 38, a future act determination application made under s 35, rather than in the context of s 237, the Tribunal has previously taken into account the holding of exclusive native title, among other factors, in finding likely major disturbance within the scope of s 237(c) NTA: see Ipima Ikaya vLatsod at [150] and Ipima Ikaya vSilica at [115]).
In this case, the fact that the Yurriyangem Taam native title holders hold exclusive native title over the majority of the area of the proposed licence is a consideration I have taken into account, among others, when determining whether the grant of the proposed licence is an act to which the expedited procedure applies. In the final result however, having regard to the evidence which has been provided and the broader circumstances of this matter, this consideration has not caused me to change my view that, for the reasons variously provided above, the grant of the proposed licence is an act which is unlikely to cause interference within the scope of s 237(a) and s 237(b), nor major disturbance within the scope of s 237(c).
Determination
I determine the grant of exploration licence E80/5832 to Luke Alexander Forti and Clinton Stash Moxham is an act attracting the expedited procedure.
Mr S Grant
Member
15 August 2025
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