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

Watarra Aboriginal Corporation RNTBC (WCD2022/002)

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

Native title - future act - proposed grant of prospecting 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 the carrying on of community and social activities - whether act is likely to interfere with areas or sites of particular significance - Crabhole Swamp as an area or site of particular significance - act is likely to interfere with areas or sites of particular significance - act is not an act attracting the expedited procedure

Aboriginal Heritage Act 1972 (WA)

Native Title Act 1993 (Cth) ss 151, 237

Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 764 ('Darlot Determination')

Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 ('Marputu v Gianni')

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

Ward and Others v State of Western Australia and Another [1996] FCA 1452; (1996) 69 FCR 208 ('Ward v WA')

Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Border Exploration Pty Ltd and Another [2024] NNTTA 28 ('Border Exploration')

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

Jeff O'Halloran, State Solicitor's Office; Nicole Bryant, Department of Mines, Petroleum and Exploration

[1] Tony Roy Faull has applied for the grant of a prospecting licence in the Goldfields region of Western Australia, about ten kilometres northerly of Leonora.

[2] Watarra Aboriginal Corporation RNTBC holds non-exclusive native title rights in relation to appropriately 74% of the licence area in trust for the common law holders of native title (Darlot Group) and native title does not exist in relation to the balance of the licence area (see Darlot Determination).

[3] The State of Western Australia considers that the grant of the licence is an act attracting the expedited procedure within the meaning of s 237 of the Native Title Act 1993 (Cth), which would mean the licence may be granted without first requiring Mr Faull, Watarra and the State to negotiate in good faith about the grant.

[4] Watarra objects to the application of the expedited procedure. It says that the grant of the licence is likely to directly interfere with its community and social activities in the area of the licence and interfere with both a men's site and a women's site of particular significance to the Darlot Group.

[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. For the reasons given below, I have determined that the grant of the licence is not an act attracting the expedited procedure.

[7] There are three factors relevant to whether an act is an act attracting the expedited procedure in accordance with s 237 but only two are in issue in this matter.

[8] The first is whether the grant of the licence is likely to interfere directly with the carrying on of the Darlot Group'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 is whether the grant of the licence is likely to interfere with areas or sites of particular significance to the Darlot Group: 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 Darlot traditions: Yindjibarndi v FMG at [17].

[10] The third factor is whether the grant of the licence is likely to involve major disturbance to any land or waters within the meaning of s 237(c) of the Native Title Act. Watarra does not rely on this aspect of s 237 and has not provided any evidence or contentions on s 237(c). In line with the commonsense approach to the evidence discussed in Ward v WA at [26]-[28], I will not further consider this element.

(a) whether the grant of the licence is likely to interfere directly with the carrying on of the Darlot Group's community or social activities; and

(b) whether the grant of the licence is likely to interfere with areas or sites of particular significance to the Darlot Group, said to be the two gender restricted sites mentioned above.

[12] Because the gender restricted sites are relevant to both issues, I will firstly address likely interference with areas or sites of particular significance before turning to consider direct interference with community and social activities.

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

[13] As noted, there are two elements to this question, the identification and location of an area or site of particular significance to the Darlot Group and likely interference in accordance with Darlot traditions: Yindjibarndi v FMG at [17].

[14] In support of its contentions, Watarra relies on the evidence of Mr Travis Tucker, a Darlot man with cultural authority to speak for the licence area and Darlot woman, Ms Geraldine Hogarth.

[15] Watarra identifies a women's site called Crabhole Swamp in the north of the licence and a men's site being Ironstone rocks/ridge, which the evidence indicates is in the south of the licence. For the reasons explained below, I have not made any finding in relation to the men's site. However, I am satisfied that the women's site is an area or site of particular significance to the Darlot Group and that the grant of the licence is likely to interfere with that site.

[16] Mr Tucker says that the area covered by the licence is part of an important Tjukurrpa (Dreaming), being the Papa Tjukurrpa or Dingo Dreaming, and contains a key location where the dingo pups stopped, represented by ironstone ridges on the land. Ms Hogarth also mentions a men's site called ironstone rocks in the south of the licence although she does not like saying the name because it is disrespectful and dangerous for women.

[17] Mr Tucker explains that the ridges and outcrops are not just one separate feature or site on a map but rather interconnected to the other outcrops and lakes along the Papa Tjukurrpa. He describes this location as sacred to initiated men only and known only to those with the right cultural authority. He says the presence of these outcrops and lakes makes the entire area spiritually and physically sensitive.

[18] The State's material reveals that there are no registered sites under the Aboriginal Heritage Act 1972 (WA) in the licence area. However, there is a site that has been lodged, but not yet assessed, called Ironstone Knob, shown on the southern boundary of the licence, and located mostly outside. This site is described as a Landscape/Seascape Feature and does not specify any gender or cultural sensitivities.

[19] The State's contentions appear to assume that the lodged site, Ironstone Knob, is the site identified by Mr Tucker. Mr Tucker does not refer to the site by that name, but Ms Hogarth says the men's site is in the south. Further, Watarra's contentions suggest the site is shown on the mapping attached to each statutory declaration and Ironstone Knob is the only site shown to the south. In its reply, Watarra argues that I should reject the State's assertions about the likelihood of interference simply because the men's site appears to be the same as that registered under the Aboriginal Heritage Act. Watarra does not dispute the relevance of the lodged site but it certainly questions whether the men's site entirely coincides with the lodged site as shown on the mapping. As noted, Mr Tucker's evidence also indicates that the location is known only to those with the right cultural authority and that the ridges and outcrops are not just one site on a map. All these factors create a degree of uncertainty about the site's location and extent.

[20] On what is before me, I am inclined to the view that Ironstone Knob is the site or at least part of the site referred to by Mr Tucker and Ms Hogarth. However, given the ambiguity regarding the location and extent of the men's site and the fact that Ironstone Knob is shown mostly outside the licence area, I do not propose to make any finding about the men's site as its location in relation to the licence is insufficiently clear.

[21] The women's site is called Crabhole Swamp and is shown on the mapping in the north of the licence. This is also a lodged site and is described as Landscape/Seascape Feature, Water Source. It is not described as culturally sensitive or as having any gender restrictions, but those details are not conclusive.

1. Where there is an important men's site there's always an important women's site right nearby. There's men's law and women's law. When we need the water to come, we women sing out for it at that site. Then a big rain comes. The big water and flooding comes all the way from Kumpalwarn, down Station Creek and down everywhere through all the little creeks. That's why that women's site on the tenement is important.
2. Water is important for women. Men can't go to that site or even near it. It will disrupt our women's song and the story. I can't tell you much about the song or the story because it is sacred. If men go there and dig around they'll go mad and start seeing things. They need to know where it's not safe go. That north part of the tenement just looks like a swamp to white people (its dry in summer). There's always gold in those areas where water runs and floods. So that prospector will go through that swamp. It will all look the same to him. He won't know where that site is and how far he needs to stay away unless we show him. We don't want him to get hurt. It's really dangerous. Women can't go there either unless they know the women's law. (As per original)

[23] The State does not express a view about whether Crabhole Swamp is an area or site of particular significance to the Darlot Group. Its contentions focus on the question of interference which I will turn to shortly.

[24] Mr Faull did not provide any substantive response to the material provided by Watarra. He asked for the objection to be dismissed and relies on the endorsements and conditions to which the grant of the licence will be subject.

[25] On the basis of the clear evidence of Ms Hogarth in relation to the significance of Crabhole Swamp which is also a lodged site and therefore located on the mapping, I find Crabhole Swamp is an area or site of particular significance to the Darlot Group.

[26] The State says that interference with Crabhole Swamp is unlikely because the site is identified and because Mr Faull is bound by the Aboriginal Heritage Act. However, as the Tribunal has identified on many occasions, the requirements of the Aboriginal Heritage Act do not necessarily address interference for s 237(b): see Marputu v Gianni at [44] and Border Exploration at [48]-[49]. In this case, where the site in question is a women's site into which mere entry by Mr Faull would offend, there is no explanation of why or how the Aboriginal Heritage Act mitigates the likelihood of that interference. Mr Faull has also provided no evidence regarding how he would mitigate that risk.

[27] Accordingly, given the sensitive nature of Crabhole Swamp and the apprehended interference, I am satisfied that the grant of the licence is likely to interfere with Crabhole Swamp.

Is the grant of the licence likely to directly interfere with the Darlot Group's community or social activities?

[28] Watarra contends that interference with community or social activities is likely because the licence is located in the centre of an area which at least three large families of the Darlot Group use intensively and on a regular basis for activities including hunting, maintaining sites and intergenerational teaching. Some of the concerns raised regarding interference, for example, habitat destruction, noise and safety risks, lean towards speculation rather than being borne out of any evidence.

[29] Both Mr Tucker and Ms Hogarth depose to community activities which take place at Station Creek swimming hole north of the licence. Based on the mapping provided, the swimming hole appears to be about one kilometre away. Both witnesses then refer to other community and social activities to the south of the swimming hole in an area which includes the licence area.

[30] Mr Tucker says the activities undertaken include hunting traditional Yilba (goanna) and Marlu (red plain kangaroo) and that, more than subsistence activities, they are social activities that bring families together, teach young people and affirm cultural identity. He also specifically mentions boys being trained in cultural obligations, with the Papa Tjukurrpa and ironstone outcrops, being key learning spots.

[31] Mr Tucker refers to "all" Darlot people going to the licence area but specifically mentions members of his family, the Ashwin family. He says that he goes to the licence area "once or twice a month or so".

[32] Ms Hogarth similarly refers to two large family groups regularly hunting and checking on sites in the area of the licence. She also refers to activities at Crabhole Swamp, noting that women sing for rain at that site.

[33] Again, Mr Faull does not directly respond to this evidence. The State argues that interference with hunting is unlikely due to the conditions and endorsements to be imposed on the licence and otherwise argues that the references to cultural activities at Crabhole Swamp, Ironstone Knob and along the Papa Tjukurrpa are either infrequent or imprecise.

[34] I am satisfied from the evidence that members of the Darlot Group, particularly from the families mentioned, regularly undertake community and social activities in and around the licence area due to its proximity to Station Creek swimming hole and the location of Crabhole Swamp and the men's site. However, while both witnesses refer to activities taking place in the licence area, some of the evidence concerns the area south of the swimming hole generally, including the licence area. So, the frequency and intensity of activities in the licence area itself is insufficiently clear. There is also, as noted, a lack of evidence regarding the apprehended interference asserted by Watarra.

[35] Interference for s 237(a) must be both direct and substantial. For the reasons outlined, the evidence in relation to activities undertaken in the licence area is insufficient for me conclude that interference of that nature is likely here, even if Mr Faull were to avail himself of the full suite of rights available under the licence.

[36] I determine that the grant of P 37/9778 is not an act attracting the expedited procedure.