IN THE MATTER of the Native Title Act 1993 (Cth)

IN THE MATTER of an inquiry into expedited procedure objection applications

Yugunga-Nya Native Title Aboriginal Corporation RNTBC (WCD2021/008)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Native title - future acts - proposed grant of prospecting licences - expedited procedure objection applications - whether acts are likely to interfere with the carrying on of community and social activities - whether acts are likely to interfere with areas or sites of particular significance - acts are acts attracting the expedited procedure

Native Title Act 1993 (Cth) ss 31, 151, 237

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

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

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

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

Anja Gambie-Becker, Yugunga-Nya Native Title Aboriginal Corporation RNTBC

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

• [1] Complete Prospecting Pty Ltd has applied for the grant of eight prospecting licences listed in Annexure A, located in the mid-west of Western Australia.
• [2] Yugunga-Nya Native Title Aboriginal Corporation RNTBC holds non-exclusive native title in trust for the Yugunga-Nya People in relation to the whole or part of each licence area.
• [3] The State of Western Australia considers the grant of each licence to be an act attracting the expedited procedure as defined in s 237 of the Native Title Act 1993 (Cth), meaning it may proceed to grant without first requiring Complete Prospecting, Yugunga-Nya and the State to negotiate in good faith in accordance with s 31(1)(b).
• [4] Yugunga-Nya objects to the application of the expedited procedure in each case. The objection applications lodged in 2023 were originally before Member Kelly but because all eight matters share similar facts and involve largely identical evidence, it is convenient for me to deal with them together.
• [5] Yugunga-Nya presses two bases for its objections. Firstly, it contends that the grant of each licence is likely to directly interfere with community and social activities undertaken by Yugunga-Nya People. Secondly, it says each grant is likely to interfere with areas or sites of particular significance to the Yugunga-Nya People, with the evidence focussing on the area around Mt Yagahong, a highly sacred site.
• [6] Complete Prospecting, generally supported by the State, says interference of either kind is not likely, primarily because the licences are located outside the area where community and social activities are undertaken and all are some distance from any registered Aboriginal sites.
• [7] To determine whether the expedited procedure applies, I must undertake a predictive assessment by considering the likely consequences from the grant of each licence in the sense of a real, not remote, chance: see overview of approach in Yindjibarndi v FMG at [15].
• [8] I am satisfied these matters can be adequately determined without a hearing: s 151(2) Native Title Act. For the reasons outlined below, I am not satisfied that direct interference with community or social activities is likely, nor am I satisfied that the grant of any of the licences is likely to interfere with any areas or sites of particular significance to the Yugunga-Nya People. I have therefore determined that the grant of each licence is an act attracting the expedited procedure.

• [9] There are two key issues in this matter.
• [10] The first is whether the grant of any of the licences 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 community and social activities undertaken and whether the grant of each 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].
• [11] The second issue is whether the grant of any of the licences is likely to interfere with areas or sites of particular significance to the Yugunga-Nya People: s 237(b) Native Title Act. For that to be the case, I must be satisfied there are such areas or sites in or near the relevant licence area and that the grant is likely to interfere with those areas or sites in accordance with Yugunga-Nya traditions.
• [12] Despite the terms of its objections, Yugunga-Nya does not contend that the grant of any of the licences is likely to involve major disturbance to any land or waters in accordance with s 237(c) so it is not necessary for me to consider that issue.

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

• [13] Relying on the evidence of Ms Davina Lane, a Yugunga-Nya common law holder, Yugunga-Nya argues that the licence areas are used by over a quarter of the Yugunga-Nya People with such frequency, duration, intensity and freedom of access that interference within the meaning of s 237(a) is likely.
• [14] Yugunga-Nya relied on the same evidence in Kelro where I discussed Ms Lane's evidence at [12]-[22]. Her evidence relates to an area hand drawn in blue on the maps attached to her statement. I described the area as loosely triangular in shape with Meekatharra, where Ms Lane says her family lives, located at or about the northernmost point of the westerly side of the triangle. I was satisfied from Ms Lane's evidence that a sizeable number of Yugunga-Nya People frequently conduct community and social activities in the hand drawn blue triangular area.
• [15] By reference to the Tribunal's online mapping tool, Native Title Vision, the northerly side of the triangle seems to follow the path of Meekatharra-Sandstone Road from Meekatharra in a south-easterly direction towards Mt Yagahong. From the State's mapping and Native Title Vision, it appears that all eight of the licences in issue in this case are located outside the hand drawn area. This is a point also made by Complete Prospecting. Two are located a considerable distance to the north and one far to the south. Only five of the licences are in the vicinity of the area and all of those are located just on the other side of Meekatharra-Sandstone Road, as clearly shown on the State's mapping.
• [16] In Smith v Western Australia at [26], the Federal Court of Australia explained that direct interference involves an evaluative judgment that the act, in this case each licence, "is likely to be a proximate cause of the apprehended interference".
• [17] None of Yugunga-Nya's contentions specifically address the licences in issue or explain how Ms Lane's evidence purportedly relates to the locations of the licences. Given their location in relation to the hand drawn area, I am not satisfied the grant of any of the licences is likely to interfere with community or social activities undertaken in that area.

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

• [18] An area or site of particular significance for s 237(b) is one of special, or more than ordinary, significance to the native title holders in accordance with their traditions: Dann 1996 at page 35. Such an area or site must also be known and be able to be located, and the nature of its significance explained: Yindjibarndi v FMG at [17].
• [19] Yugunga-Nya contends that the licences are within an area of particular significance which is the "spiritual centre" of Yugunga-Nya Country. While it does not expand on that contention, it again relies on evidence submitted in Kelro, being statements by common law holders, Mr Leonard (Jeff) Barnard and Mr Andrew Gentle Snr, which focus on the importance of Mt Yagahong/Yagahong Hill and surrounds. As was the case in Kelro, some of the evidence is subject to non-disclosure directions.
• [20] As discussed in Kelro at [39], there are two registered Aboriginal sites related to Mt Yagahong, called Mt Yagahong and Yakong. There is also a surrounding lodged, but not registered, site called Yagahong Hill.
• [21] As shown in Annexure A, each licence is, according to Native Title Vision, located some distance from the Yakong registered site. Complete Prospecting says the closest any of the licences is to a registered site is 3.5 kilometres, but it does not say to which licence or site this refers. The State also raises the distance of the licences from Mt Yagahong and points out that Yugunga-Nya has not explained how the evidence, which was originally prepared for different matters, relates to the licences.
• [22] The area identified by Mr Barnard is hand drawn in blue on a map annexed to his statement and roughly circular in shape. It is at least 50 kilometres in diameter centring on the registered and lodged sites as shown on the map. Mr Gentle Snr's statement does not include a map but he refers to the area all around Yagahong Hill.
• [23] None of the licences are shown on Mr Barnard's map with the blue circle. Again, from the State's materials and Native Title Vision, only the five licences close to Meekatharra-Sandstone Road appear to be located within the blue circle but it is clear that none overlap the registered sites or the lodged site.
• [24] The decision in Kelro included detailed consideration, not just of the evidence of Mr Barnard and Mr Gentle Snr, but also of previous Tribunal decisions regarding Mt Yagahong, its surrounds and the registered and lodged sites related to it: see Kelro at [36]-[57].
• [25] The relevant points from Kelro can be summarised as follows:

(a) Mt Yagahong is highly sacred and of central importance to the Yugunga-Nya People and is an area or site of particular significance to the Yugunga-Nya People within the meaning of s 237(b);

(b) as acknowledged in previous Tribunal decisions, there is evidence which indicates that particular significance extends to an area or areas around the base of Mt Yagahong, but the extent and basis of particular significance of any such area or areas is not clear; and

(c) there is no evidence to support a finding that any area of particular significance beyond Mt Yagahong itself would extend to the area mentioned by Mr Gentle Snr or the area of the blue circle discussed in Mr Barnard's statement, which is larger again.

• [26] As discussed in Kelro at [58], the evidence does not support a finding of particular significance in relation to either the whole of the area within the blue circle shown on the map annexed to Mr Barnard's statement or the area described by Mr Gentle Snr.
• [27] Accordingly, on the evidence before me there is no area or site of particular significance to Yugunga-Nya in or relevantly proximate to any of the licences. It is therefore not necessary for me to further consider the question of likely interference.

• [28] I determine that the grant of prospecting licences P 51/3310, P 51/3311, P 51/3312, P 51/3286, P 51/3287, P 20/2515, P 51/3399 and P 51/3400 are acts attracting the expedited procedure.