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

Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 (WC2022/003)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Native title - future act - proposed grant of exploration licence - expedited procedure objection application - whether act is likely to interfere with the carrying on of community and social activities - act is not likely to interfere with community and social activities - whether act is likely to interfere with areas or sites of particular significance - Mt Yagahong - Karlaya (Emu) Dreaming story - Wati Kutjara (Two men) Dreaming story - Papa (Dog, Dingo) Dreaming story - act is not likely to interfere with areas or sites of particular significance - whether act is likely to involve major disturbance to lands and waters - act is not likely to involve major disturbance - act is an act attracting the expedited procedure

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA)

Native Title Act 1993 (Cth) ss 151, 237

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

Dann v Western Australia and Another [1997] FCA 332; [1997] FCA 332; (1997) 74 FCR 391 ('Dann 1997')

Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 3) [2021] FCA 1338 ('Yugunga-Nya Determination')

Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2011] NNTTA 170 ('Kingx')

Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 ('Little v Oriole Resources')

Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 v Mining Equities Pty Ltd and Another [2024] NNTTA 34 ('Mining Equities')

Smith v Western Australia and Another [2001] FCA 19; [2001] FCA 19; (2001) 108 FCR 442 ('Smith v Western Australia')

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

Yugunga-Nya Native Title Aboriginal Corporation RNTBC v Kelro Pty Ltd and Another [2024] NNTTA 63 ('Kelro')

Julie Shields, State Solicitor's Office; Paola O'Neill, Department of Mines, Petroleum and Exploration

• [1] Paleogold Limited has applied for the grant of an exploration licence north-easterly of Cue in Western Australia.
• [2] The State of Western Australia considers that the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth). If the expedited procedure applies, the licence may be granted without first requiring negotiation in good faith between Paleogold, the State and any native title parties for the licence area.
• [3] The Yugunga-Nya #2 registered native title claimant, which is a relevant native title party, objects to the application of the expedited procedure on the basis that it will directly interfere with the carrying on of community and social activities, interfere with areas or sites of particular significance and involve major disturbance. Central to Yugunga-Nya's case is the location of a Dreaming path, which it says passes through a corner of the licence area.
• [4] The State argues that interference or disturbance as alleged by Yugunga-Nya is not likely, asserting that the evidence provided by Yugunga-Nya is insufficient in a number of respects. Paleogold relies on the State's material.
• [5] To determine whether the expedited procedure applies, I must undertake a predictive assessment by considering the likely consequences from the grant of the licence in the sense of a real, not remote, chance: see overview of approach in Yindjibarndi v FMG at [15].
• [6] I am satisfied this matter can be adequately determined without a hearing: s 151(2) Native Title Act. On the basis of the evidence provided, I am not satisfied that any of the consequences contended by Yugunga-Nya are likely and I have therefore determined that the grant of the licence is an act attracting the expedited procedure. My reasons follow.

• [7] There are three key issues in this matter.
• [8] The first is whether the grant of the licence is likely to interfere directly with the carrying on of the Yugunga-Nya People's community or social activities: s 237(a) Native Title Act. This involves a consideration of both the extent of the community and social activities undertaken and whether the grant of the licence is likely to cause direct interference with those activities. Trivial impacts are outside the scope of interference contemplated by the section: Smith v Western Australia at [26].
• [9] The second issue is whether the grant of the licence is likely to interfere with areas or sites of particular significance to Yugunga-Nya People: s 237(b) Native Title Act. For that to be the case, I must be satisfied of the identification and location of such areas or sites and that the grant is likely to result in interference in accordance with Yugunga-Nya traditions.
• [10] These first two issues largely turn on evidence about the Wati Kutjara (Two men) and Papa (Dog, Dingo) Dreaming stories which Yugunga-Nya says pass through a corner of the licence area. This is because the Dreaming path for these stories is identified as an area or site of particular significance to Yugunga-Nya People and the reason for activities undertaken to protect the Dreaming stories.
• [11] The third issue is whether the grant of the licence is likely to involve major disturbance to any land or waters in accordance with s 237(c), which Yugunga-Nya says it does primarily due to its impact on water.

Is the grant of the licence likely to directly interfere with the Yugunga-Nya People's community or social activities?

• [12] Yugunga-Nya asserts that community and social activities related to the observance of the Wati Kutjara and Papa Dreaming stories occur within and in the vicinity of the licence area, specifically the maintenance of and checking on the stories.
• [13] Yugunga-Nya relies on evidence from Mr Colin 'Tomorrow Tomorrow' Peterson who is a Western Desert traditional owner and Tjukupurra top law man. Mr Peterson is not a Yugunga-Nya person but says he has been given permission to speak on behalf of Yugunga-Nya traditional owners. He explains his long association with and knowledge of Yugunga-Nya country, including that his wife is a Yugunga-Nya elder.
• [14] Mr Peterson explains the paths of the Karlaya (Emu) Dreaming and the Wati Kutjara and Papa Dreamings. Mr Peterson describes the path of the Wati Kutjara and Papa Dreamings coming from Warburton to the east to Mt Russell, then on to Mt Yagahong, out to Montague Range and then over to Brown Soak, before going "down to Liru (Yarraquin) and Tjungara, which is garden rock".
• [15] This description is similar to the description given in Mining Equities at [12] and, according to the Tribunal's online mapping tool, Native Title Vision, the tenement considered in Mining Equities is located a short distance north-easterly of the licence. In that determination at [16]-[17], I observed that the locations identified on the path did not accord with the location of the tenement and, therefore, I did not accept that the Dreaming path passed through the tenement in question.
• [16] In this case, Mr Peterson's written description is accompanied by a map with a hand drawn path for the Karlaya Dreaming story and a separate path for the Wati Kutjara and Papa Dreamings, including one section outside of the licence where the two paths meet. I understand this to be the area around Mt Yagahong where Mr Peterson says the stories intersect. Only the path of the Wati Kutjara and Papa Dreamings is shown as passing in or near the licence area.
• [17] However, other than Meekatharra, none of the places mentioned in Mr Peterson's description are shown on the map. Further, while the path of the Wati Kutjara and Papa Dreamings shown on the map appears to dogleg into the south-easterly corner of the licence area, the width of the line is so thickly drawn that it is difficult to be confident of its path in relation to the licence area. The challenges in reconciling the written description with the location of the licence, as was the case in Mining Equities, also remain.
• [18] Considering the apparent inconsistencies between the description of the path and the mapping, I do not have confidence in the path of the Dreaming stories as it relates to the licence. However, even if I were to accept that the Dreaming path does pass in or near the south-easterly corner of the licence area and that Yugunga-Nya People undertake activities to protect and maintain the stories, including checking on the area and making sure the stories are safe, that is not a sufficient basis to conclude that interference within the meaning of s 237(a) is likely.
• [19] Other than his general description, Mr Peterson does not provide any details of the nature of the activities undertaken or how often, when and where they occur. As already noted, the State also raises the insufficiency of the evidence.
• [20] In reply, Yugunga-Nya says that Paleogold being physically in the way of a traditional owner desiring to conduct cultural practices on any given day when Paleogold is operating ought to be considered substantial interference, although it says this could be mitigated by its preferred heritage agreement.
• [21] While that may be a theoretical possibility, the evidence in this case does not support such a conclusion because there is no detail provided of the cultural practices said to be undertaken.
• [22] As noted at [8] above, interference for s 237(a) requires direct and substantial interference. The limited evidence provided, coupled with the ambiguity regarding the location of the Dreaming path, does not meet that threshold and I am not satisfied such interference is likely in this case.

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

• [23] An area or site of particular significance for s 237(b) is one of special, or more than ordinary, significance to the native title holders in accordance with their traditions: Dann 1996 at page 35. Such an area or site must also be known and be able to be located: Yindjibarndi v FMG at [17].
• [24] In its contentions in relation to s 237(b), Yugunga-Nya explains the deep spiritual and religious importance of Mt Yagahong and its connection to the Karlaya, Papa and Wati Kutjara Dreaming stories. The particular significance of Mt Yagahong is not in dispute and has been recognised by the Tribunal on many occasions: see Kelro at [42]-[46].
• [25] The issue is whether there are any areas or sites of particular significance in accordance with Yugunga-Nya traditions associated with the Dreamings with which the grant of the licence is likely to interfere. It is not, as Yugunga-Nya suggests, whether interference can be ruled out.
• [26] There are two key aspects to Yugunga-Nya's arguments on this issue.
• [27] Firstly, it asserts that the whole of the licence area is of particular significance because the Dreamings intersect the licence, but there is no evidence to support that argument. The evidence suggests that, at most, the Dreaming path traverses only a small corner of the licence and there is nothing in the evidence which would support a finding in relation to the whole of the licence area. As mentioned, the way the path has been drawn on the map makes it very difficult to have confidence in how the path relates to the licence area.
• [28] Secondly, Yugunga-Nya contends there are significant landmarks all along the Dreaming path, including artefact scatters in the licence area. Mr Peterson says there are "things on the ground in the [licence] that shows the dreaming story goes that way" but no further detail is given.
• [29] In its reply to the State's contentions, Yugunga-Nya appears to accept that there is no evidence of specific areas or sites in the licence area but it says the way to address that is by a heritage survey conducted by the traditional owners.
• [30] Mr Peterson also speaks at length about the hurt that arises from mining, the need for Paleogold to speak to Yugunga-Nya first, the need for cultural heritage surveys and the risk of harm. He says a heritage survey is needed, even if it may have occurred previously, due to changes in the landscape over time.
• [31] I do appreciate and understand the sincere concerns expressed by Mr Peterson and Yugunga-Nya's desire for a heritage survey to ensure heritage protection. However, in order to conclude there is a likelihood of interference within the meaning of s 237(b), I must be satisfied that there is an identified area or site of particular significance with which the grant of the licence is likely to interfere. In this case, despite Yugunga-Nya's broad assertions about the whole of the licence area and references to landmarks along the path, the concerns raised by Mr Peterson are, in the absence of specific evidence of those matters, somewhat speculative.
• [32] As was the case in Mining Equities, Yugunga-Nya also relies on the decision in Kingx in which it says the Wati Kutjara Dreaming story was found to be a site of particular significance for s 237(b). However, as I explained in Mining Equities at [22], the Tribunal's decision in Kingx did not relate to the entirety of the Dreaming path but turned on specific identified areas or sites, including landscape features, associated with the Dreaming story, the particular significance of which was explained. That is what is lacking in the evidence in this case.
• [33] In its reply, Yugunga-Nya speaks of the landscape as an "enduring whole" which needs to be understood by the "universality of the dreaming of the Western Desert Tjurkurpa". Again, I understand and appreciate those sentiments, as well as the significance of Yugunga-Nya country generally.
• [34] However, the limitations of the evidence in this case, coupled with the uncertainty about the location of the path of the Dreaming stories in relation to the licence area, mean I am unable to make any findings in relation to the existence of areas or sites of particular significance to Yugunga-Nya People relevant to the licence area. Accordingly, it is not necessary for me to further consider the question of likely interference.

Is the grant of the licence likely to involve major disturbance?

• [35] There is no information before me about Paleogold's proposed activities. As the State submits, I proceed on the basis that Paleogold may utilise the full suite of rights available to it under the licence. Even so, it does not necessarily follow that major disturbance is likely.
• [36] In the context of s 237(c), major disturbance is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people: Little v Oriole Resources at [52]-[54]. I can also have regard to the context of the relevant grant, including the history of mining and the characteristics of the land and waters to determine whether major disturbance is likely.
• [37] In Dann 1997 at page 395 the word "major" is described as an adjective of degree in respect of which the Tribunal must make a value judgement.
• [38] While Yugunga-Nya asserts that the grant of the licence is likely to involve major disturbance within the scope of s 237(c), relying on the connections to country reflected in the Yugunga-Nya Determination, its contentions are exceedingly general in nature, mainly referring to water having sustained Yugunga-Nya People for centuries. Mr Peterson does not directly address the issue of major disturbance.
• [39] The State argues that Yugunga-Nya has not addressed the likely impact of Paleogold's activities in any specific way, to which Yugunga-Nya replies that any disturbance is too much disturbance. The Tribunal has observed previously that such a generic submission does not assist the predictive assessment for s 237(c): see Mining Equities at [39].
• [40] The licence is approximately 3,964 hectares in area. The underlying tenure is primarily leasehold but includes road and reserve areas. Native title has been determined not to exist in relation to about 36% of the licence area: see Yugunga-Nya Determination.
• [41] The licence will be subject to a number of conditions and endorsements provided by the State, as well as regulatory controls, such as those under the Mining Act 1978 (WA) and the Aboriginal Heritage Act 1972 (WA). A number of these relate to the taking of water and none have been addressed by Yugunga-Nya which, as I have noted, simply makes a number of very general contentions regarding major disturbance.
• [42] On the material before me, I am not satisfied that the grant of the licence is likely to involve major disturbance within the meaning of s 237(c).

• [43] I determine that the grant of E 20/1065 is an act attracting the expedited procedure.