IN THE MATTER of an inquiry into expedited procedure objection applications

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

**DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

DETERMINATION THAT THE ACT IS NOT AN ACT 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 - acts are not 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 - CullCulli 2 as an area or site of particular significance - act (P 20/2508) is likely to interfere with areas or sites of particular significance - whether acts are likely to involve major disturbance to lands and waters - acts are not likely to involve major disturbance - act (P 20/2507) is an act attracting the expedited procedure - act (P 20/2508) is not an act attracting the expedited procedure

Aboriginal Heritage Act 1972 (WA) ss 17, 18

Mining Act 1978 (WA) s 48

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) 142 ALR 21 ('Dann 1996')

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

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

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

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')

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

Julie Shields and Harper Quinlan, State Solicitor's Office; Andrea Wyles, Department of Mines, Petroleum and Exploration

• [1] Mr Philip Box has applied for the grant of two prospecting licences, P 20/2507 and P 20/2508, located north-easterly of Cue in Western Australia.
• [2] The State of Western Australia considers that the grant of each licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth). If the expedited procedure applies, each licence may be granted without first requiring negotiation in good faith between Mr Box, the State and any native title parties for the licence area.
• [3] The relevant native title party is Yugunga-Nya Native Title Aboriginal Corporation RNTBC, which holds non-exclusive native title rights in trust for the common law holders (Yugunga-Nya People) in relation to the whole of each licence area.
• [4] Yugunga-Nya objects to the application of the expedited procedure on the basis that the grant of each licence is likely to directly interfere with the carrying on of community and social activities, interfere with areas or sites of particular significance to Yugunga-Nya People and involve major disturbance. Of special importance to Yugunga-Nya is a registered Aboriginal site called CullCulli 2 located in P 20/2508, which is described as so sacred even Yugunga-Nya People do not go there.
• [5] Both the State and Mr Box contend that interference or disturbance as alleged by Yugunga-Nya is not likely due to the activities proposed by Mr Box, as well as aspects of the State's regulatory regime, including the conditions and endorsements to which each grant will be subject.
• [6] 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].
• [7] 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 have determined that the grant of P 20/2507 is an act attracting the expedited procedure, but that the grant of P 20/2508 is not an act attracting the expedited procedure due to likely interference with CullCulli 2. My reasons follow.

• [8] There are three key issues relevant to whether the expedited procedure applies.
• [9] The first is whether the grant of either 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 relevant 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].
• [10] The second issue is whether the grant of either 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 relevant grant is likely to result in interference in accordance with Yugunga-Nya traditions: Yindjibarndi v FMG at [17].
• [11] The third issue is whether the grant of either licence is likely to involve major disturbance to any land or waters within the meaning of s 237(c) of the Native Title Act. 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. 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.
• [12] I will deal with each of these issues in turn.

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

• [13] The licences are located near to each other. Yugunga-Nya has provided a map which shows both licences, an area of previous disturbance to the west labelled Reedy's Gold Mine, breakaway areas to the east and a number of waterways or creeklines. The CullCulli 2 registered site is shown as overlapping a large portion of P 20/2508.
• [14] Yugunga-Nya says that frequent community and social activities are carried out in the area of both licences, including hunting for traditional foods, visiting the land with family members and intergenerational teaching of traditional knowledge.
• [15] Yugunga-Nya elder Mr Billy Shay and common law holder Mr Robert Kelly have provided statements in support of Yugunga-Nya's objections. Specifically, Yugunga-Nya points to evidence given by Mr Kelly but Mr Kelly does not detail any activities undertaken other than saying he has family who go to the area of the licences for food because there are no kangaroos near Meekatharra. He also makes a number of references to flora and fauna in the general area. Mr Shay similarly says that he and a lot of other Yugunga-Nya People go to the area near Reedy's Gold Mine and undertake activities such as hunting "around all over the Country in that area".
• [16] As the State contends, the evidence is vague in relation to the nature and extent of activities undertaken. Rather, much of Yugunga-Nya's arguments and the evidence of Mr Shay and Mr Kelly are directed to general concerns about the risks of harm arising from disturbance including contamination, safety concerns, restricted access and impacts on the availability of flora and fauna. Reference is made to experience in other areas such as Reedy's Gold Mine. Mr Kelly says the "Country needs to be left alone". While I do understand and appreciate these sentiments and concerns, they are not supported by evidence, but more to the point, they do not go to the issues for the application of s 237(a) because there is no specific evidence regarding community or social activities undertaken in either licence area.
• [17] Interference for s 237(a) must be direct and substantial. On the evidence provided, there is no basis to support such a conclusion in relation to either licence.

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

What areas or sites does Yugunga-Nya identify?

• [18] Yugunga-Nya identifies four areas or types of areas as being of particular significance. Of these, the CullCulli 2 registered site relates only to P 20/2508. The remaining areas relevant to both licences, are the breakaway areas shown on the map, rock shelters and caves mentioned in the evidence and creeklines or waterways within the licences.

• [19] CullCulli 2 is the only named area or site located within either licence. The boundary of the site, which is described on the State's search of the Aboriginal Cultural Heritage Inquiry System as reliable, shows the site as a circle occupying a substantial portion of the southern half of P 20/2508 and extending beyond the licence to the east.
• [20] The registered site is described as "Artefacts / Scatter; Rock Shelter". Both Mr Shay and Mr Kelly refer to rock shelters in the area. Mr Kelly also says that the area is significant because of the connection to old people who camped at the site. He says it is so sacred Yugunga-Nya People do not go into the site themselves.
• [21] While the State concedes that CullCulli 2 may be an area or site of particular significance to Yugunga-Nya People, its contentions primarily focus on the likelihood of interference, as do those of Mr Box. I will deal with the question of interference later in these reasons, but I am satisfied that CullCulli 2 is an area or site of particular significance to Yugunga-Nya People given its nature and the additional evidence of Mr Shay and Mr Kelly. It is clearly identified and located partly within the area of P 20/2508.

• [22] Yugunga-Nya says that the breakaway areas shown on the map easterly of P 20/2508 are areas or sites of particular significance. It also says there are rock shelters and caves within and around the proposed licence areas. It expresses concern about the consequences of destruction or damage to these areas.
• [23] Mr Shay refers to rock shelters in the breakaway areas and says "we ... do not want anyone near those rock shelters".
• [24] Mr Kelly's statement includes a section entitled "Hill range and caves (Northeast of [licences])". He says there are a few caves "out where Mr. Box's [licences] are" and that "[t]here are etchings and other cultural material there". However, it is not clear if this is a reference to the breakaway areas or the area more generally.
• [25] Mr Kelly says people need to stay "well clear" of the entire area around the range of the hills that are further northeast of the licences. He expresses concern about damage caused previously, although no particulars are given, and says "[w]e would love to preserve the rest of what is [the licences]".
• [26] Despite Yugunga-Nya's contentions, none of this evidence relates directly to the licence areas. The only evidence regarding rock shelters in the licence area is in relation to CullCulli 2, which I have already addressed. All of the breakaway areas shown on the map are located outside the licences, although one is close to P 20/2508. The location of the hills mentioned is unclear other than that they are clearly described as further northeast of the licences.
• [27] Therefore, while the evidence about the breakaway areas points to the existence of rock shelters in some or all of those areas, the locations are insufficiently identified for me to make any findings about specific areas or sites of particular significance. The evidence about the hills northeast of the licences is even less detailed.
• [28] In any event, as I have noted, other than CullCulli 2, the evidence regarding the breakaway areas, caves and rock shelters concerns areas outside of the licence areas and there is no evidence to suggest that interference with any of these areas is likely.

• [29] Yugunga-Nya contends that creeklines have special cultural significance to Yugunga-Nya People and raises concerns about the impacts of prospecting on the waterways, including consequences for animal life.
• [30] This issue is mentioned in exceedingly general terms by Mr Shay who references the creeklines and says there is to be no wastewater going into them. Mr Kelly says the creeklines are special and sacred to Yugunga-Nya People but there is no evidence beyond that bare assertion. Again, most of the concerns expressed by Mr Kelly relate to environmental impact.
• [31] Accordingly, on the basis of the evidence provided, I am not satisfied that any creeklines which pass through either licence are areas or sites of particular significance for s 237(b).

Is the grant of P 20/2508 likely to interfere with CullCulli 2?

• [32] Of the areas or sites identified by Yugunga-Nya, I have found CullCulli 2, located partly within P 20/2508, to be an area or site of particular significance for s 237(b). As I have not made any findings regarding areas or sites of particular significance in relation to P 20/2507, it is not necessary for me to consider the question of interference with respect to that licence.
• [33] Mr Box says that he is a retiree who enjoys prospecting by metal detector. He argues that Yugunga-Nya's concerns about the impact of machinery are moot as the use of machinery is prohibited. However, the rights of the holder of a prospecting licence under s 48 of the Mining Act 1978 (WA) contemplate the use of machinery and the special conditions which the State proposes to apply to the licence would enable the use of machinery with prior approval of the relevant departmental Environmental Officer.
• [34] Mr Box also says that he is well aware of the CullCulli 2 site, has no intention of operating in the area of this site and sought to exclude it from his original application, as is evident from the copy of the application provided by the State. He says that it was the State's decision to include the site in the licence area. That may be so but, nonetheless, the licence includes part of the registered site which, from the mapping, covers a sizeable portion of the licence area.
• [35] The State says that there is insufficient evidence to support a conclusion of likely interference. It relies on Mr Box's stated intention not to operate in the area of the site and on the operation of s 17 of the Aboriginal Heritage Act 1972 (WA) which makes it an offence to excavate, destroy, damage, conceal or alter a registered site without a permit under s 18. It says that Yugunga-Nya would have to be consulted as part of the process.
• [36] In its reply, Yugunga-Nya says that neither the State nor Mr Box have given adequate explanation or assurance regarding likely interference with this site. It points to Mr Shay's evidence that Yugunga-Nya does not want anyone near CullCulli 2 or the rock shelters. Similarly, Mr Kelly's evidence is that the area is so sacred even Yugunga-Nya people do not go there.
• [37] I appreciate Mr Box's stated intention to avoid the CullCulli 2 site but, as he has acknowledged, the site has not been excluded from the licence application and his unenforceable intentions, no matter how honourable, are of little weight in that context. This is a point the Tribunal has made many times (see Border Exploration at [37]). If Mr Box wishes to commit to such an arrangement that is more appropriately a matter for agreement with Yugunga-Nya.
• [38] While the evidence regarding interference is limited, both Mr Shay and Mr Kelly are consistent in the need to stay away from CullCulli 2. That is not something either the State or Mr Box has addressed, other than by reference to Mr Box's unenforceable intentions. In particular, the State's analysis regarding the application of the Aboriginal Heritage Act does not address the differences in application between s 17 of that Act and s 237(b) of the Native Title Act. Again, that is an issue the Tribunal has drawn out in other matters: see Border Exploration at [48]-[49].
• [39] In this case, given the sizeable extent to which the site extends into the licence, possibly up to a third of the licence based on the mapping, and the apprehended interference including entry into the registered site, I am satisfied that interference within the meaning of s 237(b) with CullCulli 2 is likely.

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

• [40] The rights available to Mr Box under each licence are set out in s 48 of the Mining Act. Mr Box's proposed activities are also discussed above. Additionally, each 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 and the Aboriginal Heritage Act.
• [41] Yugunga-Nya's key argument regarding major disturbance is that caves, rock shelters and etchings in breakaway areas are of critical importance and should not be disturbed. To do so would amount to major disturbance. It says that is the case for the whole community and notes Mr Shay's evidence that rock shelters are sacred to a lot of people.
• [42] I am inclined to agree with Yugunga-Nya regarding the Australian community's views of the destruction of rock shelters, caves and etchings. The destruction of such areas would not be taken lightly. The difficulty again here is that the breakaway areas are outside the tenements, which is a point made by the State. In reply, Yugunga-Nya contends that disturbance to the surrounding areas will cause disturbance to the sites themselves. However, there is simply no evidence to support that view in the context of the location of the breakaway areas in this case.
• [43] I am therefore not satisfied that the grant of either licence is likely to involve major disturbance.

• [44] I determine that the grant of P 20/2507 is an act attracting the expedited procedure.
• [45] I determine that the grant of P 20/2508 is not an act attracting the expedited procedure.