Australian Ilmenite Resources Pty Limited v Bradley Farrar & Ors (Kewulyi Polygon Claim) and Another [2026] NNTTA 2 (30 January 2026)

Australian Ilmenite Resources Pty Limited v Bradley Farrar & Ors (Kewulyi Polygon Claim) and Another [2026] NNTTA 2 (30 January 2026)

IN THE MATTER of an inquiry into a future act determination application

Bradley Farrar & Ors (Kewulyi Polygon Claim) (DC2023/008)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS

Native title - future act - s 35 application for determination - mineral lease application - s 39 criteria considered - effect of act on native title rights and interests - effect of act on development of social, cultural and economic structures of native title party - effect of act on way of life, culture and traditions - effect of act on freedom of access - effect of act on areas or sites of particular significance - interests, proposals, opinions or wishes of native title party - economic or other significance of act - public interest in doing of act - any other matter the Tribunal considers relevant - determination that the act may be done subject to conditions

Native Title Act 1993 (Cth) ss 3, 24MD, 31, 38, 39, 47, 52, 150, 237, div 3

Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 19F, 22, 33, 34, 35, 37

Petroleum (Environment) Regulations Act 2016 (NT)

Water Act 1992 (NT) s 45

Australian Manganese Pty Ltd v State of Western Australia and Others [2008] NNTTA 38; [2008] NNTTA 38; (2008) 218 FLR 387 ('Australian Manganese/Nyiyaparli')

Burragubba v State of Queensland [2016] FCA 984 ('Burragubba')

Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2011] FCAFC 100 ('Cheedy')

Cheinmora v Striker Resources NL and Others; Dann v Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21 ('Cheinmora')

Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3), Warrabinga-Wiradjuri People (NC11/4)/State of New South Wales, [2013] NNTTA 2 ('Coalpac')

Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland, [2012] NNTTA 31 ('Drake Coal')

Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 ('Gomeroi v Santos')

India Bore Diamond Holdings Pty Ltd and Another v Bunuba Dawangarri Aboriginal Corporation RNTBC [2021] NNTTA 5 ('India Bore')

Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85; (2014) 304 FLR 1 ('BTAC')

Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1 ('Griffiths')

Santos NSW Pty Ltd and Another v Gomeroi People and Another [2025] NNTTA 12 ('Santos v Gomeroi')

Seven Star Investments Group Pty Ltd v Western Australia and Others [2011] NNTTA 53; [2011] NNTTA 53; (2011) 257 FLR 175 ('Seven Star')

Top End (Default PBC/CLA) Aboriginal Corporation v Northern Territory of Australia [2025] FCA 22 ('Top End')

Weld Range Metals Ltd v Western Australia and Others [2011] NNTTA 172; [2011] NNTTA 172; (2011) 258 FLR 9 ('Weld Range')

Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124 ('Waljen')

Western Australia v Thomas and Others [1999] NNTTA 99; [1999] NNTTA 99; (1999) 164 FLR 120 ('Western Australia v Thomas')

Western Desert Lands Aboriginal Corporation v Western Australia and Another [2009] NNTTA 49; [2009] NNTTA 49; (2009) 232 FLR 169 ('WDLAC/Holocene')

Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2);Brendan Wyman & Ors (Bidjara People)/Queensland, [2012] NNTTA 101 ('Xstrata')

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 ('Yindjibarndi v FMG')

Christopher Young KC of Counsel; Olivia Freeman, Northern Land Council

Raelene Webb KC of Counsel; Lauren Shave & Marshall McKenna, Gilbert + Tobin

Tina Jowett SC of Counsel; Tony Denholder & Martin Doyle, Ashurst Australia

[1] Australian Ilmenite Resources Pty Limited (AIR) has applied to the National Native Title Tribunal for a determination that mineral lease application 33491 may be granted. The mineral lease application is located entirely within the area of the Kewulyi Polygon Claim (DC2023/008).

[2] Kewulyi opposes a determination by the Tribunal that the mineral lease application may be granted. It does not allege that AIR or the Government party did not negotiate in good faith in accordance with s 31(1)(b) of the Native Title Act 1993 (Cth).

[3] The mineral lease application comprises four non-contiguous areas totalling approximately 39.67 hectares (referred to in these reasons as Areas 1, 2, 3 and 4).[1] A description of Areas 1, 2, 3 and 4 taken from the material lodged with the Tribunal by the Northern Territory Government is included in this determination as Annexure 2. Native Title Vision shows the mineral lease application as situated approximately 200 kilometres east-southeast of Katherine in the Northern Territory of Australia. The mineral lease application area is entirely underlaid by perpetual pastoral lease 1161 held by Namul-Namul Aboriginal Corporation (Namul Namul pastoral lease).

[4] The mineral lease application is located in the vicinity of AIR's pre-existing ilmenite mining operations on mineral lease ML33956, known as the SILL 80 Project.[2] If granted, the mineral lease application will allow AIR to expand its current operations for relatively little mining cost[3] and it is expected to "add about 18 months in addition to [the] expected mine life of 15 years for ML33956".[4]

[5] ML33956 is a replacement of mineral leases ML27422 and ML29042, the first of which was originally granted in 2011, after an agreement was reached between AIR, Northern Land Council (NLC) and the then native title party.[5]

[6] The ilmenite concentrate produced by AIR is "used in the manufacture of Ti02 pigment products and can be used for the smelting to titanium metal".[6] Ti02 is a white pigment used primarily for paint or any other use which requires an inert pigment.[7] A major off-taker of the ilmenite produced in the SILL 80 Project is Tongling Chemical Industry Group based in Anhui Province in the People's Republic of China, which produces TiO2.[8]

[7] Ilmenite mining involves setting up 90 metre by 90 metre pits which are then bunded with natural soil to a height of 1.5 metres to prevent overflow of water or slurry.[9] Mining itself is conducted by an excavator to a depth of approximately 2 metres. Mined ore is then transported to be processed and to produce ilmenite sand concentrate, with waste clay and silica particles pumped as a slurry back to the mining cells. The processing plants for the SILL 80 Project are located on ML33956 and only water is used in this processing. After the ilmenite sand concentrate has been drained in a product shed, again presumably on site, it is trucked to Darwin for shipment.

[8] On 12 November 2024, AIR lodged a future act determination application with the Tribunal. Following consultation with the Tribunal, an amended future act determination application was lodged on 20 November 2024. I appointed myself to comprise the Tribunal on 22 November 2024 and the application was accepted on 26 November 2024.

[9] On 19 December 2024, I convened a preliminary conference in the matter. Following that conference I issued directions.

[10] On 8 January 2025, the Government party provided its initial material, being:

(a) a search certificate for Namul Namul pastoral lease dated 2 March 2023 (GVP Doc 1);

(b) a tenure map for the mineral lease application dated 23 December 2024 (GVP Doc 2);

(c) a map of nearby mineral titles dated 3 January 2025 (GVP Doc 3);

(d) an excel spreadsheet of nearby mineral titles (undated) (GVP Doc 4);

(e) a map of nearby petroleum titles dated 8 January 2025 (GVP Doc 5);

(f) an excel spreadsheet of nearby petroleum titles (undated) (GVP Doc 6);

(g) a map of nearby geothermal titles dated 8 January 2025 (GVP Doc 7);

(h) an excel spreadsheet of geothermal titles nearby and overlapping the mineral lease application (undated) (GVP Doc 8);

(i) the mineral lease application form dated 3 March 2023 (GVP Doc 9);

(j) notes to accompany the mineral lease application form (undated) (GVP Doc 10);

(k) a heritage branch map for the mineral lease application dated 6 January 2024 (GVP Doc 11);

(l) an Aboriginal Areas Protection Authority (AAPA) abstract of records for the mineral lease application dated 20 December 2024 (GVP Doc 12);

(m) a topographic map for the mineral lease application dated 23 December 2024 (GVP Doc 13);

(n) a template notice of intention to grant a mineral lease and conditions of grant (undated) (GVP Doc 14); and

(o) statutory conditions for mineral leases under the Mineral Titles Act 2010 (NT) (undated) (GVP Doc 15).

[11] On 22 January 2025, Kewulyi requested an extension of two weeks to 12 March 2025 for the submission of its materials. The extension request was made due to the fact that one of the witnesses was unwell and to accommodate weather conditions and road closures. The request was opposed by AIR and the Government party. I noted that the dates had been set following consultation with the parties and were already later than the Tribunal had initially proposed. Considering that the date for compliance was still some five weeks from the date of the request, I advised that any request for an extension was premature and the extension was not granted.

[12] On 26 February 2025, Kewulyi advised that, while it had served its material on AIR, certain confidentiality issues had arisen and, as such, it could not provide its material to the Government party or the Tribunal.

[13] On 3 March 2025, Kewulyi notified the Tribunal that AIR had not consented to the disclosure of two agreements AIR was party to and that, as a result, Kewulyi was considering its next steps. The next day, Kewulyi advised that it was seeking further reasons from AIR and foreshadowed it might seek a summons be issued by the Tribunal in relation to the agreements.

[14] On 6 March 2025, I vacated directions and listed the matter for a conference on 13 March 2025 to discuss the correspondence and the future conduct of the matter. In advance of that conference, on 7 March 2025, Kewulyi circulated a draft summons directing NLC to provide the relevant agreements and related correspondence.

[15] On 7 March 2025, Kewulyi lodged its contentions and evidence, being:

(a) a redacted statement of contentions;

(b) an anthropological statement of Gay English dated 26 February 2025 (English anthropological statement);

(c) a witness statement of Steven Sandy dated 19 February 2025 (Sandy statement);

(d) a witness statement of Adrian Doctor Snr dated 19 February 2025 (Doctor statement);

(e) a witness statement of Bradley Farrar dated 13 February 2025 (Farrar statement);

(f) a request for a summons; and

(g) a draft summons.

[16] In its request for a summons, Kewulyi advised that the redactions in its contentions related to agreements between AIR, NLC and two native title parties who previously had claims in the relevant area. The request for a summons related to these agreements, which AIR had not provided its consent to disclose.

[17] On 13 March 2025, I convened a conference to discuss the agreements, following which I issued amended directions with updated compliance dates.

[18] On 26 March 2025, AIR lodged its initial contentions and evidence, being:

(a) a statement of contentions (AIR contentions);

(b) an affidavit of Bradley Farrar dated 7 March 2025 (first Farrar affidavit);

(c) an affidavit of Gregg Hestelow dated 25 March 2025 (Hestelow affidavit);

(d) an affidavit of Ethel (Estelle) Sammy Farrar dated 13 March 2025 (first Sammy Farrar affidavit);

(e) an affidavit of Mandy Sammy dated 14 March 2025 (first Sammy affidavit); and

(f) an affidavit of Russell Phillips dated 26 March 2025 (first Phillips affidavit).

[19] Also on 26 March 2025, the Government party lodged a statement of contentions (Territory contentions).

[20] Shortly after the receipt of AIR's contentions and evidence, Kewulyi requested a two week extension to allow its representatives to confirm instructions and due to a personal situation involving one of the representatives. On 1 April 2025, Kewulyi provided further reasons in relation to the request, noting that Bradley Farrar was a senior member of the Kewulyi claim group and member of the registered native title claimant who had already provided a statement in the matter expressing his opposition to the mineral lease application (that being the Farrar statement) and now expressed a different opinion in the first Farrar affidavit. In light of the correspondence, I granted the extension and issued amended directions.

[21] On 11 April 2025, AIR requested the matter be set down for an urgent case management conference to address the first Farrar affidavit and its request to remove it from the record. This case management conference was set down for 17 April 2025.

[22] On 16 April 2025, Kewulyi lodged further material in advance of the case management conference, being:

(a) a statement of contentions (case management contentions); and

(b) an affidavit of Michael McArdle dated 16 April 2025 (first McArdle affidavit).

[23] At the case management conference on 17 April 2025, the representatives for AIR confirmed they were seeking to expunge the first Farrar affidavit from the record. The representatives for Kewulyi raised concerns that this would not adequately address the issue. Following the case management conference, I issued directions allowing for the provision of contentions concerning the first Farrar affidavit.

[24] On 29 April 2025, Gilbert + Tobin wrote to the Tribunal advising it had instructions to act for AIR. The following day, it confirmed that AIR did not seek to rely on the first Farrar affidavit in any way and provided a redacted statement of contentions removing references to that affidavit (GP redacted contentions).

[25] On 29 May 2025, following consultation with the parties, I directed the holding of a conference under s 150 of the Native Title Act to assist in resolving the matters between the parties.

[26] On 2 June 2025, Kewulyi provided further material concerning the first Farrar affidavit, being:

(a) a statement of contentions (Kewulyi Farrar contentions); and

(b) an affidavit of Michael McArdle dated 2 June 2025 (second McArdle affidavit).

[27] On 2 July 2025, Kewulyi provided draft non-disclosure directions and confirmed the other parties had agreed to their proposed form. The following day, I issued non-disclosure directions in relation to:

(a) the mining agreement for mineral lease application 27422 dated 21 September 2011;

(b) the deed of amendment of mining agreement for mineral lease 27422 and mineral lease application 29042 dated 25 June 2013; and

(c) the indigenous land use agreement (ILUA) for the SILL 80 Project - Water Resources and Camp dated 22 June 2018.

[28] On 18 July 2025, Kewulyi lodged further material, being:

(a) a further statement of contentions concerning the summons (NTP further contentions);

(b) an affidavit of Bradley Farrar dated 5 July 2025 (second Farrar affidavit);

(c) an affidavit of Estelle Sammy Farrar dated 11 July 2025 (second Sammy Farrar affidavit);

(d) an expert report of Dale Yeats (Yeats Report);

(e) an affidavit of Adam Thompson dated 18 July 2025 (Thompson affidavit);

(f) an unredacted statement of contentions (unredacted NTP contentions); and

(g) a number of draft summonses, addressed to:

the Proper Officer of AIR;

the Proper Officer of Gilbert + Tobin, legal representative of AIR;

the Proper Officer of Ward Keller, previous legal representative of AIR;

Russell Phillips of AIR; and

Ashley Health of Ward Keller.

[29] On 1 August 2025, AIR lodged a statement of contentions in response to the NTP further contentions.

[30] On 7 August 2025, Kewulyi lodged its reply contentions concerning the summonses.

[31] On 11 August 2025, I convened a case management conference to hear submissions concerning the question of whether summonses ought to be issued. Having heard from parties, I issued summonses directed to the Proper Officer of AIR and Mr Russell Phillips. Both summonses were returnable on 11 September 2025 at the Supreme Court in Darwin. The summons directed to the Proper Officer of AIR required it to produce the following documents:

(1) All documents evidencing communications in the period on and from 1 February 2025 to 27 March 2025 between any partner, employee or consultant of Ward Keller and any of:

(2) All documents evidencing communications in the period on and from 1 February 2025 to 27 March 2025 between Mr Russell Phillips or any other employee or agent of [AIR], and any of:

(3) All documents recording any payments made by [AIR] or Mr Phillips or Ward Keller on or after 1 February 2025 to any of:

(a) a statement of responsive contentions (AIR responsive contentions);

(b) an affidavit of Russell Phillips dated 22 August 2025 (second Phillips affidavit); and

(c) an affidavit of Adrian Hall dated 22 August 2025 (Hall affidavit).

[33] On 26 August 2025, the Government party lodged:

(a) a statement of responsive contentions (Territory responsive contentions);

(b) an affidavit of Nerida Beard dated 26 August 2025 (without annexures) (Beard affidavit);

(c) an affidavit of Ian Scrimgeour dated 26 August 2025 (first Scrimgeour affidavit); and

(d) an affidavit of Kathleen Davis dated 22 August 2025 (Davis affidavit).

[34] On 27 August 2025, the Government party lodged an amended version of the Beard affidavit to include annexures, dated 27 August 2025.

[35] Over 11 and 12 September 2025, I convened an in-person hearing in Darwin. During the course of that hearing, two witnesses were examined, Russell Phillips and Adrian Hall. Several documents were shown to Mr Phillips by Kewulyi, including:

(a) a letter from NLC to AIR dated 21 February 2024;

(b) a letter from NLC to AIR dated 2 March 2024; and

(c) an extract from the AIR website.

[36] The Government party also handed up the affidavit of Ian Scrimgeour dated 12 September 2025 (second Scrimgeour affidavit) and AIR handed up a document titled "Schedule of conditions sought by Grantee Party re ML(A)33491" (AIR Conditions Schedule). Following the hearing, a transcript of the proceedings was produced.

[37] There is a long history of engagement between the parties, along with Kewulyi's representative, NLC. It appears this background significantly shaped the course of this matter and the history has been the subject of much attention and a number of allegations in these proceedings. As such, it is apposite that before proceeding I provide a brief overview.

[38] On 21 September 2011, AIR, NLC and the relevant native title party reached an agreement concerning the grant of mineral lease ML27422 (Mining Agreement). The native party for the purposes of the Mining Agreement comprises the following two groups (collectively the earlier native title party):

(a) Sammy Bulabul and Moses Silver on behalf of the Kewulyi, Gunduburun and Barnubarnu peoples (Roper Valley North, NTD6062/2001); and

(b) Moses Silver, Ishmael Andres and Sammy Bulabul on behalf of the Kewulyi, Danggalaraba and Barnubarnu peoples (Chatterhoochee, NTD2019/2001).

[39] In 2015, AIR advised the earlier native title party that it intended to apply for an access authority for water extraction, transmission and storage facilities from the Roper River, and an access road (collectively the infrastructure facilities).[10] AIR advised that the infrastructure facilities "have been constructed and operated for a number of years".[11] Kewulyi submits the infrastructure facilities were constructed in around 2012.[12]

[40] In September 2016, AIR notified NLC of its intention to seek an access authority for the creation of a second pipeline.[13] In December 2016, the Northern Territory Government advised NLC, pursuant to s 24MD(6B), that it intended to grant an access authority in relation to the pipeline.[14] Production of ilmenite began on ML27422 in 2017.[15]

[41] In June 2018, NLC, AIR and the earlier native title party signed an ILUA (the SILL 80 Project ILUA).[16]

[42] On 14 February 2023, AIR wrote to NLC requesting that it certify the SILL 80 Project ILUA, entered into in 2018, so that AIR could then apply to have that ILUA registered.[17] On 21 March 2023, NLC sent correspondence requesting payment of security and information to calculate payments owed under the Mining Agreement.[18]

[43] There followed an exchange of information. On 20 June 2023, NLC issued a request for payment to NLC and the earlier native title party. In that same correspondence, NLC requested further information concerning environmental obligations, employment opportunities and project information.[19]

[44] On 12 September 2023, NLC issued a notice of serious default to AIR, requesting payment within 10 business days. NLC provided updated estimates of the amounts owing.[20]

[45] On 13 September 2023, Mr Phillips requested a meeting with Kip Frawley of NLC to discuss the matter.[21] On 14 September 2023, Mr Frawley advised he was unavailable to meet.[22]

[46] On 26 September 2023, AIR made a payment of monies, which was less than the request for payment, to NLC.[23]

[47] On 3 October 2023, NLC issued a demand for payment outstanding on notice of serious default within 10 business days. NLC also raised a number of other non-performance issues which it asked AIR to rectify forthwith.[24]

[48] AIR responded on 17 October 2023 and noted its returns were with its auditors, along with a difference in the interest calculated to be owing. AIR went on to respond point by point to the other non-performance issues raised by NLC.[25]

[49] On 24 October 2023, NLC again issued a demand for payment outstanding on notice of serious default. In light of the issues raised in the 17 October 2023 correspondence, NLC demanded that AIR pay the outstanding amount by 14 November 2023. To the extent that there was any dispute concerning the amount of interest payable, NLC required AIR to pay the amount which was not in dispute.[26]

[50] On 14 March 2024, NLC responded to AIR's letter of 14 February 2023, noting the correspondence between the parties over the course of 2023 and raising concerns that AIR was "in default for failing to perform its obligations" under the SILL 80 Project ILUA.[27]

[51] Between March and May 2024, NLC and AIR corresponded concerning the SILL 80 Project ILUA. Parties discussed the certification of that ILUA, the possible variation of the ILUA to provide for compensation rather than community works and the need for an AAPA certificate for certain works.[28]

[52] In a letter dated 16 April 2024, NLC wrote to representatives of the Department of Environment, Parks and Water Security (DEPWS) and the Department of Industry, Tourism and Trade (DITT) raising concerns about potential unauthorised mining activities and/or land clearing by AIR in connection with the SILL 80 Project.[29] On 7 August 2024, a representative for DEPWS advised NLC that it had "identified some potential unauthorised clearing" which would require a follow-up inspection. This follow-up inspection was set down for September 2024.[30] As at 27 August 2025, this investigation is ongoing.[31]

[53] On 9 July 2024, NLC wrote to Mr Phillips raising concerns about Licence No. 9031020 granted under s 45 of the Water Act 1992 (NT).[32]

[54] On 12 August 2024, NLC wrote to Andrew Johnson PSM, Controller of Water Resources "about the NLC's concerns in respect of [AIR's] licence to take or use surface water from the Roper River".[33] In particular, NLC was concerned with AIR's compliance with the conditions of its licence and DEPWS's monitoring and enforcement of those conditions, as well as "water extractions from, and impacts on, the Roper River and surrounding floodplains".[34]

[55] On 16 September 2024, Mr Johnson responded confirming that non-compliance with the terms and conditions of a licence is an offence, monitoring systems are in place and that when a suspected breach is identified, an investigation is undertaken.[35] Mr Johnson confirmed that DEPWS did not comment on specific investigations or compliance matters.

[56] The Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (NTSSA) is the primary site protection legislation in the Northern Territory of Australia and is intended to provide:

a procedure for the protection and registration of sacred sites, providing for entry onto sacred sites and the conditions to which such entry is subject, establishing a procedure for the avoidance of sacred sites in the development and use of land ...

[57] A "sacred site" under the NTSSA is given the same meaning as that under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA), namely:

a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.

[58] The NTSSA serves to protect sacred sites by making the following offences:

(a) section 33 provides that, except in the performance of a function under or otherwise in accordance with the NTSSA or ALRA, a person shall not enter or remain on a sacred site except in the performance of a function under or otherwise in accordance with the NTSSA or ALRA;

(b) section 34 provides that a person shall not carry out work on or use a sacred site;[36] and

(c) section 35 provides that a person shall not desecrate a sacred site.

[59] Section 69(1) of ALRA makes it an offence for a person to enter or remain on a sacred site.

[60] The Heritage Act 2011 (NT) includes protection of Aboriginal archaeological places, objects and relics by making it an offence to damage such a place or object and removing part of a heritage place or object.

[61] Authority Certificates are issued by the AAPA and allow the person to whom the certificate was issued to enter and remain on that part, or those parts, of the land the subject of the Certificate on which, under the Certificate, work may be carried out and do such things as are reasonably necessary for carrying out that work.[37]

[62] In effect, they provide a defence against offences committed under ss 33 and 34 of the NTSSA. Authority Certificates are, for the most part, an optional measure (although they are required as part of an environmental approvals process for certain regulated activities under the Petroleum (Environment) Regulations 2016 (NT)).

[63] An Authority Certificate will be issued where the AAPA is satisfied "the work ... could proceed ... without there being a substantive risk of damage to or interference with a sacred site on or in the vicinity of the land" or "agreement has been reached between the custodians and the applicant", and may include conditions, such as restricted work areas (RWAs), limiting the particular works which may be carried out under the Certificate.[38]

[64] Before an Authority Certificate can be issued, the AAPA "must consult with the custodians of sacred sites on or in the vicinity of the land to which the application relates that are likely to be affected by the proposed use or work".[39]

[65] Section 37 of the NTSSA provides that a "person who contravenes or fails to comply with a condition of an Authority Certificate or a Minister's Certificate relating to work which may be done on or use that may be made of land and by so doing causes damage to a sacred site or distress to a custodian of a sacred site, is guilty of an offence".

[66] The following section will provide a brief overview of the regional society, traditional decision-making structure, principal dreamings, obligations to protect and the consequences for non-compliance which arise from failure to follow these protocols.

[67] The Kewulyi group is an estate group belonging to the Ngalakgan language group which, in turn, is part of a wider regional society which existed, and continues to exist, in the Roper River region.[40]

[68] The Kewulyi group follow a traditional decision-making authority shared between senior mingirringi, junggayi, and darlnyin who have distinct but complementary roles and responsibilities to speak for and make decisions about Kewulyi country and ceremony, described by Ms English as follows:

(d) The members of the regional society follow decision-making processes that are required by their traditional laws and customs. The Kewulyi group follows a traditional decision-making process in which authority rests with senior members. Traditional decision-making authority is shared by the senior mingirringgi, junggayi, and darlnyin for Kewulyi country who have distinct but complementary roles and responsibilities to speak for and make decisions about an estate group's country and ceremony.

The role of mingirringgi is inherited from a person's father's father. The role involves making decisions about access to country and its resources and performing distinct roles in ceremony in relation to that country (including wearing painted body designs and performing ritual acts connected with the group's country and dreamings).

The role of junggayi is inherited from a person's mother's father or a person's father's mother. The role involves ensuring that mingirringgi follow the rules in relation to the protection of sites, the access to and use of country, and conduct of ceremony (including painting the mingirringgi with body designs and ensuring the mingirringgi's ritual acts are performed correctly).

The role of darlnyin is inherited from a person's mother's mother. Like junggayi, the darlnyin's role also includes ensuring that mingirringgi follow the rules in relation to country. The darlnyin also have a distinct role in ceremony (including by assisting junggayi to decide when to hold ceremony and, in certain circumstances, by performing ritual acts in relation to the relevant country).

[69] Mr Farrar explains he is "junggayi for Kewulyi country ... like a caretaker. It makes [him] in charge of the land like a police officer".[41] Mr Sandy affirms this, explaining that when it comes to making decisions about country "Bradley's [sic] [Farrar] has got to make the decision. He is the junggayi. You gotta listen to Bradley".[42] Mr Sandy explains that he himself is a senior mingirringgi, or owner, for Kewulyi country, making decisions and keeping an eye on everything.[43] Mr Farrar, as junggayi, watches over him in this role.[44] Mr Doctor Snr is a darlnyin, a kind of policeman, whose "job is to look after the sacred sites and make sure the country stays like that".[45] As mentioned, the traditional decision-making authority is shared between these three interrelated roles, each of which has separate and collective responsibilities[46] that together constitute a "system of permission"[47] designed to protect the Kirrimpu and Parntiyan dreamings (the principal dreamings identified and discussed below), associated sacred sites and the Balgyn ceremony.[48]

[70] Kewulyi identifies two principal dreamings in the area of the mineral lease application, Kirrimpu (black hill kangaroo) and Parntiyan (king brown snake), along with associated sites.[49] These dreamings are both principal characters in the Balgyn ceremony,[50] a ceremony ranked highest of all regional ceremonies, considered to be inherently dangerous, and one which can only be performed on a small range of sites of dreamings associated with it.[51]

[71] Kirrimpu, also called Mutbungula, is a regional dreaming which connects multiple land holding and language groups, originating near Doomadgee in north-west Queensland.[52] It is a significant long range dreaming that is critical to the Balgyn ceremony, which is restricted to initiated men.[53] The witnesses provide that Kirrimpu travels over Namul Namul pastoral lease and there are a number of sites associated with his travels, including Kirrimpu Hills (also referred to as the Mutbungula Hills or Namul Namul Hills), which are located a short distance from the mineral lease application.[54] Kirrimpu Hills are surrounded by a RWA, identified in the contentions and these reasons as RWA 2, which was implemented for the SILL 80 Project. RWA 2 does not appear to overlap but is immediately adjacent to Areas 2, 3 and 4.

[72] In his evidence, Mr Farrar also describes a sacred spring associated with the Kirrimpu dreaming, where the kangaroo stopped "to have a drink" and "made [the sacred spring] from digging". The sacred spring is described as being "a few hundred metres" to the west of Area 1.[55]

[73] Parntiyan is also described as travelling through the Kewulyi people's native title claim area.[56] She is a dangerous dreaming, capable of causing "big trouble" if "muck[ed] around with".[57] The Namul Namul site, associated with Parntiyan, is also surrounded by a RWA implemented for the SILL 80 Project. This RWA is identified in the contentions and these reasons as RWA 1. RWA 1 does not overlap but is adjacent to Area 1.

Obligations to protect and consequences for non-compliance

[74] The evidence draws out the need to ensure specific restrictions associated with one site in particular, Kirrimpu Hills. In this regard, Ms Farrar and Ms Sammy discuss the prohibition on women entering the hills and the way in which they must maintain their distance.[58] Other witnesses discuss particular protocols around access, such as the need to be accompanied by junggayi.[59] This is also supported by the other Kewulyi witnesses who describe the punishments, ranging from fines to risk of serious injury and death, which follow unauthorised access or interference.[60] It is this element of unauthorised access which is particularly important in the context of how the "system of permission" operates, it being not just the physical interference with the land but the presence of strangers on the land or proximate to the site. The evidence draws out a close nexus between the responsibilities to protect dreaming sites through the application of a particular traditional system of permission along with the consequences to mingirringgi, junggayi and darlnyin should they fall short of discharging those responsibilities in accordance with that system.[61] The evidence of the Kewulyi witnesses is unequivocal on one particular point, that being that Mr Farrar, as the junggayi, is the principal decision maker for Kirrimpu Hills, which includes determining what is a culturally safe distance for activities to take place proximate to, or uninitiated persons to be located near, Kirrimpu Hills.[62]

[75] It is necessary here to make some brief comments on the concept of "cutting" and damage to a dreaming, an issue which the parties discussed at some length in their contentions and evidence. Ms English says:

Within their estate, the Kewulyi group have primary responsibility to wholly protect the Kirrimpu and Parntiyan dreamings, through the protection of associated sacred sites, dreaming tracks and ritual property. This includes the Parntiyan sacred sites and the KIRRIMPU HILLS and culturally sensitive surrounding country. Correct management of the dangerous Balgyn ceremony and associated ritual property (powerful and secret objects), by the senior junggayi, is fundamental to the care and protection of the Kirrimpu and Parntiyan dreamings.
"Cutting" or disrupting the Kirrimpu and Parntiyan dreaming tracks is considered serious and dangerous to those mingirringgi responsible for their protection. Bounded sacred sites with visible physical features are located along an ancestor's dreaming track. At times, physical features (like white rocks associated with Kirrimpu discussed at paragraph [62]) mark the path of an ancestor, between bounded sites, and alert Kewulyi people to culturally sensitive areas. Conversely, there may not be physical markers of culturally sensitive country that surround or relate to a dreaming, but such areas remain well-known to Kewulyi people and their neighbours (like Jowalara people discussed a paragraph [64]). Disruption or damage to a dreaming track, including the areas that surround or relate to a dreaming, can be through high impact mining activities occurring on or close to the culturally sensitive country, such as gravel extraction, or even from, what seems to non-Aboriginal people, to be relatively low impact pastoral activities, such as grading, construction of infrastructure like fences, yards or buildings.
Such activities constitute "cutting" the spirit, essence and strength of the ancestor. Aboriginal people believe that "cutting" the dreaming track of their totem is to "cut", their own spirit and strength. "Cutting" the Kirrimpu dreaming track not only "cuts" Kewulyi people's spirit, strength and cultural integrity, but has the same effect on those of Aboriginal people responsible for other parts of the long-range dreaming track of Kirrimpu associated with Balgyn.

[76] I understand "cutting" to refer to the effect of an activity on a dreaming. In this context I take it, as discussed by Ms English at [59]-[60], to have a more expansive meaning which also includes activities that disrupt, damage or disturb a dreaming track or nearby culturally sensitive country. It would be mistaken to think of this as a reference limited to severing the course of a dreaming track or Kewulyi people's connection to culturally sensitive country, although, presumably that could be an effect should the impact be severe. While Ms English uses the term "cutting" in her explanation of the impact of mining, it does not appear in the evidence of the Kewulyi lay witnesses who use terms like "damage" or "disturb" to describe the impacts of mining on the dreamings.

The location of the principal dreamings and associated tracks, sacred spring and Areas 1, 2, 3 and 4

[77] Below at Annexure 1 is a map depicting the locations of the Kirrimpu and Parntiyan dreamings and associated tracks, the sacred spring and the mineral lease application.

[78] It is worth noting at this stage that neither the Kirrimpu nor the Parntiyan dreaming nor their respective associated dreaming tracks travel through, nor is the sacred spring located within, Areas 1, 2, 3 or 4.

[79] The following native title rights and interests have been entered on the Register of Native Title Claims:

1. In relation to the Exclusive Area of the Application Area, which is that area in which any extinguishment of native title rights and interests must be disregarded (see Schedule L), the native title rights and interests that are claimed are the rights of the Primary Native Title Holders to possession, occupation, use and enjoyment as against the whole world.

2. In relation to any Non-Exclusive Areas of the Application Area, which are those areas where paragraph 1 does not apply, the native title rights and interests of the Primary Native Title Holders are the rights in relation to the Application Area to:

(b) Access and take for any purpose the resources of the area; and

3. In relation to both the Exclusive Area and any Non-Exclusive Areas, the native title rights and interests of the Other Native Title Holders are rights in relation to the Application Area to:

4. In relation to any Non-Exclusive Areas, the native title rights and interests do not confer on the Primary Native Title Holders or the Other Native Title Holders:

(a) Any rights of possession, occupation, use and enjoyment of the Application Area to the exclusion of all others;

(b) Any right to control access to, or use of, the land and waters of the Application Area or its resources; or

(i) Water captured by the holders (including sublessees) of perpetual pastoral lease no. 1161;

(ii) Resources that are the private or personal property of another, including but not limited to:

C. Animals that are the private or personal property of another, including stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal that are the private or personal property of another; and

D. Plants, crops and grasses that are the private or personal property of another.

5. The native title rights and interests are subject to and exercisable in accordance with:

(a) The traditional laws and customs of the Primary Native Title Holders; and

(b) The valid laws of the Northern Territory of Australia and the Commonwealth of Australia.

6. There are no native title rights and interests in:

(a) Minerals as defined in s 2 of the Minerals (Acquisition) Act 1953 (NT);

(b) Petroleum as defined in s 5 of the Petroleum Act 1984 (NT);

Should the mineral lease application be granted?

[80] Under s 38 of the Native Title Act, I am required to make one of the following determinations:

(a) that the grant of the mineral lease application must not be done;

(b) that the grant of the mineral lease application may be done; or

(c) that the grant of the mineral lease application may be done, subject to conditions to be complied with by any of the parties.

[81] In making this determination I must have regard to the criteria found at s 39 of the Native Title Act and relevant case law. These criteria, which I consider below, must be applied to the evidence and contentions lodged with the Tribunal.

Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)

[82] Consideration of this criterion is focused on the effect of the act, in this case the mineral lease application, on the enjoyment of the registered native title rights and interests. The Tribunal is directly concerned with the effect of the future act on the "actual exercise or enjoyment" of the registered native title rights in the area, rather than assuming the existence and enjoyment of all registered native title rights and interests across the whole of the relevant area.[63] The "question of whether a particular proposed future act 'affects' the registered native title rights and interests of a particular native title party or parties is a matter of fact to be determined on the evidence in each case".[64]

[83] Kewulyi contends the grant of the mineral lease application will affect its enjoyment of its registered native title rights and interests in four principal ways, by:[65]

(a) preventing Kewulyi people from accessing and using the land for hunting and gathering;

(b) further reducing access to nearby areas, particularly the highly significant Kirrimpu Hills, for hunting, gathering and ceremony;

(c) extending the mine life, thus preventing access, hunting, gathering and ceremony over the wider area of the mine; and

(d) undermining the ability to protect places, areas and things of traditional significance.

[84] While AIR accepts that the grant of the mineral lease application would "impact the ability of the native title parties to enjoy their native title rights and interests over ML33491 while it is subject of mining activities and rehabilitation", it contends this impact is not severe, unexpected or permanent.[66] AIR also notes that the project area is "relatively small" and immediately adjacent to an existing mineral lease. The effect of this, AIR contends, is that the proposed grant will "extend the life of the SILL80 Project by about 18 months" and there "will be no increase in intensity or material change to impacts in addition to those already felt".[67]

[85] Based on the mining operation of the SILL 80 Project, AIR contends that the mineral lease application will not have any devastating impacts, that mining will not extend below 2 metres, ilmenite is not toxic, no chemicals are used in the processing and the land will be rehabilitated back to natural bushland.[68] AIR further contends that Kewulyi's assertion to exclusive possession will not be affected by the mineral lease application, noting that this claim will be subject to the terms of the Namul Namul pastoral lease which is currently sub-let to Hammaco Pty Ltd (Hammaco Lease).[69] AIR also contends that it already has rights to enter onto the four areas comprising the mineral lease application through granted exploration licence 28291[70] and observes that Authority Certificate C2011/224 granted under ML27422 designated Areas 2, 3 and 4 as cleared for mining.[71]

[86] The Government party makes general contentions concerning s 39(1)(a) rather than addressing each subsection. To avoid repetition, these contentions will be detailed here and simply referred to where appropriate below. Firstly, it contends that much of Kewulyi's evidence relates to the impacts of current activities being undertaken by AIR in the vicinity of the mineral lease application area, rather than the impact of the grant itself.[72] Secondly, the Government party contends Kewulyi has not shown how access to the relevant area will be "significantly impacted by the grant".[73] Rather, the Government party contends access will be only limited where it would interfere with "authorised activities being conducted under a mineral title for the purposes section [sic] 149 of the [Mineral Titles Act]".[74]

[87] The Government party also points to the Northern Territory regulatory regime, discussed above at [56]-[65], as providing sign[75]icant protections.75 The Government party further contends that the registered right to exclusive possession is subject to the Namul Namul pastoral lease and that Kewulyi's claims to "enjoy" a right to possession, occupation, use and enjoyment as against the whole world, if it exists, will continue to be suppressed during the life of [76]at pastoral lease.76

[88] The Kewulyi witnesses' evidence does not specifically particularise how they currently exercise or enjoy the right to hunt and gather on the four areas comprising the mineral lease application. Witnesses provide accounts of their preferences for hunting and gathering in other areas, including availability of bushtucker elsewhere,[77] and not wanting to undertake these traditional activities in close proximity to sacred sites[78] but there is little to no evidence on current enjoyment and exercise of these rights and how the mineral lease application will affect those rights. The more common explanation is that hunting and gathering has been affected by the existing mining activity under the SILL 80 Project. For example, Mr Sandy provides in his witness statement "[n]ow this mine has been built, we can't hunt there anymore ... We can't even go walkabout, hunting, shooting kangaroo. If there was more mining, like the new areas, that would make it even harder. Now I never hunt, not ever".[79] Similarly, while Mr Doctor Snr discusses historically hunting and taking resources in areas on the western border of Old Cattle Yard, located on the boundary of Area 1, and the old airstrip located inside Area 1, he states traditional owners "don't hunt around the hills anymore, or stay at the old stock camp" due to current mining activity, being the SILL 80 Project, which has caused the "animals [to] have gone away".[80]

[89] I accept that the mineral lease application will prevent access in Areas 1, 2, 3 and 4 and that it will also reduce access to nearby areas to enjoy the rights to hunt, gather and partake in ceremony. I also accept that it will increase the mine life by approximately 18 months, and presumably longer, noting decommission and rehabilitation of the entire mine area will need to occur before bushtucker returns and access to Kewulyi country is enhanced. However, the evidence suggests that the enjoyment of those rights has been impacted by the extant mining activity and there is little evidence to support the actual enjoyment of those rights in the proposed area of the mineral lease application. I accept that the grant of the mineral lease application will have additional effects to those caused by the existing SILL 80 Project, both in expanding the geographical extent of the project, as well as extending its expected operational term.[81] However, it is difficult to discern, on the evidence, whether those rights are currently enjoyed in the area of the mineral lease application, which is required under this criterion.

[90] In relation to the extent to which hunting and gathering occurs across the wider claim area and the need to access ceremony sites across the same area, the evidence indicates that there are multiple alternative access points to those areas to enjoy those registered rights and interests. It follows that those rights and interests will be affected only to a minimal extent by the mineral lease application.

[91] The evidence is somewhat clearer when it comes to the native title right to "[p]rotect places, areas and things of traditional significance". In particular, the Kewulyi witnesses discuss the importance of protecting Kirrimpu Hills from interference from "strangers". In this regard, Mr Farrar, as the head junggayi, is adamant that a buffer zone of up to 500 metres from those hills be put in place to enjoy this right to protect. It is clear that the Kewulyi people adhere to this imperative for the reasons outlined in [70]-[76] above to avoid the serious consequences that flow if "strangers" enter or interfere in Areas 2, 3 and 4 of the mineral lease application. Whether this putative native title right is an exercise of a right of exclusive or non-exclusive possession matters little for this criterion because it is the enjoyment of this right that is called into question. The reality is that Areas 2, 3 and 4 are subject to the Namul Namul pastoral lease which is sub-let to Hammaco and exploration licence 28291 held by AIR.

[92] Despite Kewulyi people adhering to this requirement, "strangers" are currently legally entitled to enter those areas, certainly to the extent that they are beyond the RWAs. The extent that those strangers exercise their rights on the ground matters little for it is the enjoyment of the registered native title rights by Kewulyi, here the ability to protect the adjoining Kirrimpu Hills by excluding strangers, creating in effect a 'buffer zone', that is the only relevant consideration. In particular, Mr Farrar, as junggayi, has said several times in his evidence that he wants to protect the area by establishing a buffer zone. However, there is no evidence that this right is currently enjoyed by Kewulyi in the area of the mineral lease application, noting again that these areas are outside the RWA immediately surrounding Kirrimpu Hills.

[93] I accept that the mineral lease application will reduce access to Kirrimpu Hills from the east and south-eastern areas contiguous with Areas 2, 3 and 4. However, these areas are comparatively small to the overall size of Kirrimpu Hills that can be accessed via the north, west and south.

[94] I also accept that Kewulyi has a right to protect the Parntiyan dreaming but there is no evidence that junggayi, darlnyin and mingirringi discharge their responsibilities by imposing a prohibition of entry to Area 1, which is adjacent to RWA 1.

[95] I find that the mineral lease application does not significantly affect the enjoyment of the registered right to hunt, gather or conduct ceremony nor the registered right to protect areas of traditional significance. I accept that the right to "[a]ccess, remain on and use the area" for any purpose will be affected during the life of the mine but there is little evidence as to how this right is currently being exercised and enjoyed for the purpose of this specific criterion.

Effect on way of life, culture and traditions: s 39(1)(a)(ii)

[96] This criterion requires consideration of the tangible effect on the contemporary way of life, culture and traditions of the native title party.[82] Unlike the previous criterion, the effects of the future act are not confined to the area that is subject to the mineral lease application but also includes the indirect effect of the future act on the way of life, culture and traditions which is broader than the enjoyment of registered rights and interests within the future act area (cf s 39(1)(a)(i)).

[97] Kewulyi contends that the grant of the mineral lease application "will negatively impact cultural [sic] and traditions ... through the 'cutting' of the Dreaming and damaging associated sacred sites through noise, dust, and the presence of unauthorised (under traditional law and custom) people".[83] Kewulyi submits that there will also be an impact on the way of life in a similar way that it contends in relation to s 39(1)(a)(i). Specifically in relation to the sacred spring, Mr Doctor Snr expresses concern that Area 1 is "too close" and "[i]f they keep digging close, dust and rubble will go into that spring. The water, everything, would be no good".[84]

[98] Concerning disruptions to dreaming tracks, AIR provides "ML33491 is 4.66% of the area of ML33956 and it will not cause any impact to the dreaming tracks additional to any impacts already caused by the SILL80 Project", as well as noting there are no sacred sites within the area of the mineral lease application itself.[85] While acknowledging there are sites outside the tenements, AIR contends there "is no evidence that these sites will be damaged" and notes the existing RWAs which it contends have "well protected" these areas.[86] The sacred spring is contended to be "at a safe distance" such that it will not be affected by mining in Area 1.[87] AIR submits there "is insufficient evidence about the way of life, culture and traditions as practiced within the area of ML33491 to support a conclusion that the grant will have any additional impact other than as already described in relation to section 39(1)(a)(i)".[88]

[99] Some Kewulyi people state that the existing mining activity "doesn't get in the way of life",[89] noting Kewulyi outstation is some 3.5 kilometres from Area 1. Those Kewulyi people base this view on their experience with living nearby to the current SILL 80 Project. They note, however, that there will be additional effects of noise, light and dust interference over and above current SILL 80 Project operations. While those statements are focussed upon the proposed activity associated with Area 1 presenting "no problem",[90] the evidence bears out that a distinction must be made regarding the areas adjacent to Kirrimpu Hills in that those witnesses are unequivocal that "it's best if Bradley decides", as head junggayi, whether the mining is getting too close to Kirrimpu Hills.[91] I take that evidence to mean that the extent to which the proposed activities that will be undertaken in Areas 2, 3 and 4 will effect Kewulyi way of life, culture and traditions, is "best" decided by Mr Farrar as the head junggayi for Kirrimpu Hills and nearby areas, which includes Areas 2, 3 and 4.

[100] As indicated above, Mr Farrar is adamant that any mining activities occurring within Areas 2, 3 and 4 present a significant risk to the Kewulyi people's ability to protect the Kirrimpu dreaming. This protection is exercised by ensuring appropriate buffer zones are put in place and observed through the traditional system of permission that has been discussed at length above.

[101] I take the buffer zones to provide a dual protection, firstly, by protecting against unauthorised access in Areas 2, 3 and 4 that are proximate to Kirrimpu Hills, and secondly, ensuring the system of permission is maintained under Kewulyi traditional law and custom, the erosion of which will significantly impact Kewulyi way of life, culture and tradition. Ms English and the Kewulyi witnesses outline the serious consequences that flow from not following these protocols.[92]

[102] While I accept the concerns of Mr Doctor Snr, a man who holds the status of darlnyin, I cannot discern any significant effect that Area 1 will have on the Parntiyan dreaming or the sacred spring, both of which are located outside Area 1. Mining under the SILL 80 Project currently occurs adjacent to RWA 1, which covers the Parntiyan dreaming. In my view, it is doubtful whether "digging, excessive noise, movement of machinery and vibrations to the country"[93] to be expected in Area 1, a much smaller area than the extant SILL 80 Project, will make any appreciable difference to the effects currently experienced such that it would disturb the Parntiyan dreaming. I also note that Area 1 historically contained the location of an airstrip, as well as an adjacent cattle yard. The area currently has a haul road that runs in an L shape from the north of Area 1 to roughly the centre and exits at the eastern boundary. Doubtless the Parntiyan dreaming is very important to Kewulyi, however, the evidence does not speak to the necessity for buffer zones or the importance of the application of the system of permission that figures very prominently in relation to the Kirrimpu dreaming.

[103] I find that mining and related activities in Areas 2, 3 and 4 will adversely affect the way of life, culture and traditions of Kewulyi. However, these activities also have the potential to improve Kewulyi's way of life in terms of extending the support AIR currently provides to Kewulyi people who live in or visit Kewulyi outstation.

Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)

[104] In Waljen (at page 170), the Tribunal noted that the social, cultural and economic structures of Aboriginal societies are not static and a mining proposal could have either a negative or a positive effect on the development of these structures.

[105] Kewulyi reiterates its contentions made in relation to s 39(1)(a)(ii) and further contends that the grant will interfere with the traditional use of the land for hunting and gathering, along with preventing the use of the land, owned by a related Aboriginal corporation, for pastoral purposes.[94]

[106] AIR acknowledges that the grant of the mineral lease application will interfere with hunting and gathering.[95] However, AIR contends there will not be any "material economic impact", noting the size of the mineral lease application compared to Namul Namul Station and the evidence that bushtucker can be found in a multitude of other areas.[96] In relation to the contention that the grant of the mineral lease application will prevent the use of the area for pastoral purposes, AIR notes that the Hammaco Lease can potentially be extended to 30 October 2041, "long after mining activities on ML33491 have ceased, and rehabilitation has been completed".[97] I note for the sake of completeness that my reading of the evidence suggests that the lease can actually be extended to 2036, rather than 2041 as is suggested in AIR's contentions.[98]

[107] AIR further contends that the grant will have a positive impact by providing employment opportunities and notes it "provide[s] diesel for the communities [sic] generator ... grade the road from Kewulyi Outstation to the access road about 3 times every year ... provide Christmas hampers to the local residents at the Community every year ... [and] provide work to their community members on an as called and ad hoc basis".[99]

[108] The material shows that the Namul Namul pastoral lease is sublet to Hammaco, expiring 30 October 2031, with a five year option to extend.[100] ML33956, which is the tenement where the SILL 80 Project is currently occurring, expires in 2036.[101] Based on the evidence, the duration of the balance of the Hammaco Lease, even including the exercise of the five year option, effectively puts the termination year at 2036, approximately the same time as the cessation of the current SILL 80 Project. By my estimation, the mineral lease application would only serve to extend mining over the Namul Namul pastoral lease area, which would delay the activation of Kewulyi's economic aspirations to pursue pastoral enterprises for a corresponding period of time.

[109] While there is no evidence of the steps Kewulyi has undertaken to progress this opportunity, the fact that Kewulyi is entitled to, and has asserted exclusive possession in the native title claim before the Federal Court of Australia over the Namul Namul pastoral lease by virtue of the operation of s 47 of the Native Title Act, means it could not be said that those aspirations are fanciful. As noted in the Government party's material, there are several other tenements located on the broader Namul Namul pastoral lease that may have a bearing on this aspiration. Nevertheless, I am considering the mineral lease application, which is an extension of the SILL 80 Project, and it is this combined area that is relevant. I accept the stated aspirations to utilise the Namul Namul pastoral lease asset for economic use but put that assertion no higher for the current purposes other than that the mineral lease application would effectively delay the time to action those aspirations. It follows that this delay could not be considered as aiding the development of Kewulyi economic structures as there is a significant asset to make good on that aspiration. In relation to social and cultural structures, I have already stated at [103] above that the proposed mining activities in Areas 2, 3 and 4 present a real risk to both the social structure of decision-making and the cultural structure of maintaining the Balgyn ceremony, critical to Kewulyi traditional laws and customs.

[110] On balance, I am of the view that benefits to economic structures as outlined by AIR are marginal at best when compared with the potential benefits of realising the pastoral operations as expressed by Kewulyi. I do not accept that there would be any positive effects to the social and cultural structures of Kewulyi should the risks associated with Areas 2, 3 and 4 materialise in the manner described by Kewulyi.

Effect on freedom of access to the land or waters concerned and freedom to carry out rites, ceremonies or other activities of cultural significance in accordance with traditions: s 39(1)(a)(iv)

[111] The Tribunal considered the meaning of "on the land or waters concerned" in Waljen, finding:[102]

The wording in s 237(b) is significantly different from that used in s 39(1)(a)(v). The former subsection refers to an act that does not interfere with "areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders ... of the native title in relation to the land or waters concerned". The native title holders of the land or waters concerned (that is, the land and waters which would be covered by the proposed act) may also be native title holders in relation to other land and waters (possibly land and waters adjacent to or surrounding the land which is the subject of the proposed act). If there are areas or sites of particular traditional significance to those people then, irrespective of the location of those sites and areas, it is appropriate to consider whether the proposed act could interfere with the sites and areas.

By contrast, s 39(1)(a)(v) refers to "any area or site, on the land or water concerned, of particular significance to the native title parties in accordance with their traditions". Thus, the area or site must be both of particular traditional significance to the native title parties and "on the land or waters concerned".

Again, the narrower geographic scope of s 39(1)(a)(v) does not prevent the Tribunal taking into account the effect of the proposed act on other traditionally significant areas or sites. Such matters could be considered under s 39(1)(a)(i) or s 39(1)(a)(ii) or s 39(1)(f).

[112] Kewulyi submits the grant of the mineral lease application "will prevent [Kewulyi] from accessing the area the subject of the tenement, and surrounding areas, and will prevent the carrying out of rites and ceremonies".[103]

[113] In response, AIR notes the Tribunal has previously found the use of the phrase "land or waters concerned" limits consideration to the area covered by the mineral lease application itself.[104] As such, any consideration of "surrounding areas" is, in AIR's submission, impermissible.[105] AIR contends there "is no evidence that any rites, ceremonies or activities of cultural significance are carried out on ML33491 therefore, there is no impact on [Kewulyi] under this criterion".[106]

[114] The Tribunal has previously considered in Waljen that the term "land or waters concerned" is confined to the area within the boundary of the tenement.[107] While I accept that the mineral lease application is proximate to Kirrimpu Hills and sites associated with the Parntiyan dreaming, there is no evidence that rites, ceremonies or other activities of cultural significance associated with those sites or dreamings are carried out within the mineral lease application area.

Effect on any area or site of particular significance to Kewulyi on the land or waters concerned: s 39(1)(a)(v)

[115] The expression "particular significance" when considering areas or sites is also used in s 237(b) of the Native Title Act in the context of an inquiry into the application of the expedited procedure and the meaning of the term has been considered extensively in such inquiries.

Australian Ilmenite Resources Pty Limited v Bradley Farrar & Ors

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (453 paragraphs)

Australian Ilmenite Resources Pty Limited v Bradley Farrar & Ors (Kewulyi Polygon Claim) and Another [2026] NNTTA 2 (30 January 2026)

Parties

Legislation Cited (10)

Cases Cited (9)