NATIONAL NATIVE TITLE TRIBUNAL

Walalakoo Aboriginal Corporation RNTBC v 142 East Pty Ltd and Another [2015] NNTTA

64 (24 December 2015)

Application No: WO2014/0828

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

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

Walalakoo Aboriginal Corporation RNTBC (WCD2014/003) (native title party)

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The State of Western Australia (Government party)

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142 East Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE

EXPEDITED PROCEDURE

Tribunal: Ms H Shurven, Member

Place: Perth

Date: 24 December 2015

Catchwords: Native title – future act – proposed grant of exploration licence – expedited

procedure objection application – excision – whether act is likely to interfere directly with the

carrying on of community or social activities – whether act is likely to interfere with sites of

particular significance – whether act is likely to involve major disturbance to land or waters –

expedited procedure is not attracted

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 32, 44H, 75, 76, 77, 237

Mining Act 1978 (WA)

Cases: Cheinmora v Striker Resources NL; Dann v State of Western

Australia (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’)

Cosmos on behalf of the Yaburara & Mardudhunera/Western

Australia/Croydon Gold Pty Ltd [2013] NNTTA 86 (‘Cosmos v

Croydon Gold’)

Little and others v Oriole Resources Pty Ltd [2005] FCAFC 243

(‘Little v Oriole Resources’)

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Monadee & Ors v Western Australia & Anor (2003) 174 FLR 381

(‘Monadee & Ors v Western Australia’)

Silver and Others v Northern Territory and Others (2002) 169

FLR 1 (‘Silver v Northern Territory’)

Smith v Western Australia and Another (2001) 108 FCR 442;

[2001] FCA 19 (‘Smith v Western Australia’)

Walley v Western Australia (2002) 169 FLR 437 (‘Walley v

Western Australia’)

Watson on behalf of the Nyikina Mangala People v State of

Western Australia (No 6) [2014] FCA 545 (‘Nyikina Mangala v

Western Australia’)

Western Desert Lands Aboriginal Corporation (Jamukurnu

Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56

(‘Western Desert v Teck’)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty

Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal

Corporation v FMG Pilbara’)

Representatives of the Ms Julia Smith and Ms Angela Booth,

native title party: Kimberley Land Council

Representatives of the Ms Sarah Power, State Solicitor’s Office

Government party: Mr Michael McMahon, Department of Mines and Petroleum

Representatives of the Ms Stephanie Lee and Mr Yaroslav Legeyda,

Grantee party: McMahon Mining Title Services Ltd

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REASONS FOR DETERMINATION

[1] In August 2014, the State Government of Western Australia notified their intent to

grant exploration licence E04/2355 to 142 East Pty Ltd and included a statement to

the effect they consider the expedited procedure applies to the grant. The licence area

comprises 17,583 hectares, located 67 kilometres south of Derby in the Derby-West

Kimberly Shire. Walalakoo Aboriginal Corporation Registered Native Title Body

Corporate lodged an objection to the inclusion of that statement with the National

Native Title Tribunal.

[2] The right of the Walalakoo Aboriginal Corporation to object to the inclusion of the

expedited procedure statement arises because they are the registered native title body

corporate over the land and waters of the licence.1 Walalakoo Aboriginal Corporation

holds native title in trust for the Nyikina Mangala People, as a result of a Federal

Court native title consent determination made in May 2014 (Nyikina Mangala v

Western Australia). The native title rights and interests held over the area of the

licence are outlined at [11]-[12] below.

[3] Walalakoo Aboriginal Corporation and 142 East were unable to reach an agreement to

resolve the objection. I was appointed by the President of the Tribunal, Raelene Webb

QC, to be the Member conducting the inquiry to determine whether or not the

expedited procedure applies (see ss 31, 32 and 75-77 of the Native Title Act 1993

(Cth)).

[4] A decision that the expedited procedure applies means the State can grant the licence

and 142 East can proceed to explore without negotiating with Walalakoo Aboriginal

Corporation (see s 32(4)). A decision that the expedited procedure does not apply

means the normal negotiation procedure is required: the State and 142 East must

negotiate in good faith with Walalakoo Aboriginal Corporation, with a view to

reaching an agreement about the grant. Those negotiations may be done with or

without mediation assistance from the Tribunal (see s 31).

[5] By including the expedited procedure statement in its notice, the State deems the

activities permitted under licence are not likely to interfere with the Nyikina

Mangala’s community or social activities, any sites or areas of particular significance,

1 Walalakoo Aboriginal Corporation was on the National Native Title Register on 13 August 2014, the

notification day stipulated by the State, and so received notification of the State’s intention to grant the

exploration licence (see 29(2)(a)). Walalakoo Aboriginal Corporation remains on the Register.

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or involve major disturbance to the relevant land and waters (s 237). In objecting to

the expedited procedure statement, Walalakoo Aboriginal Corporation argues such

interference or disturbance is likely.

[6] Each party provided contentions and Walalakoo Aboriginal Corporation also provided

a reply to the State and the 142 East contentions. In addition, the Corporation

provided three affidavits of Robert Watson, chairperson of Balginjirr Lower Liveringa

Community (the affidavits described in this decision as RW1, RW2 and RW3). I

provided the parties with mapping prepared by the Tribunal’s Geospatial Unit for use

in the inquiry. No party objected to use of that mapping. The Balginjirr Community is

noted in the evidence as being an Aboriginal community, and is in the south west

portion of the licence.

[7] In his affidavits, Mr Watson states he is one of the senior people for the Nyikina

Mangala native title determination, was identified by the Nyikina Mangala Applicant

as the right person to speak for the area, and the area is in his buru or country. I accept

Mr Watson has authority to speak on behalf of the Nyikina Mangala native title

holders for the area of the licence.

[8] I will address the following issues in this decision to determine whether or not the

expedited procedure should apply to the grant:

a) Is it likely the grant will interfere directly with the carrying on of the Nyikina Mangala’s

community or social activities?

i. Are there any other interests that might have already interfered with any

community or social activities?

ii. What are the social or community activities and where do they take place?

iii. What are 142 East’s proposed activities?

iv. Is the grant likely to directly or substantially interfere with community or social

activities?

b) Is it likely the grant will interfere with areas or sites of particular significance to the

Nyikina Mangala?

i. What areas or sites are identified?

ii. Are any of these areas or sites of particular significance?

iii. What are 142 East’s proposed activities in relation to these areas or sites?

iv. Will the regulatory regime be sufficient to protect these areas or sites?

c) Is it likely the grant, or the exercise of any rights created by the grant, will involve

major disturbance to any land or waters?

i. Is there any evidence that the land and waters have any special characteristics?

ii. Will the regulatory regime be sufficient to protect these land and waters?

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Is it likely the grant will interfere directly with the carrying on of the Nyikina

Mangala’s community or social activities?

[9] In considering this issue, I note the following principles (Yindjibarndi Aboriginal

Corporation v FMG Pilbara (at [15]-[16]):

The inquiry into interference with community or social activities is contextual,

and I may have regard to other factors that might constrain the community or

social activities.

I must determine whether 142 East’s activities are likely to be the proximate

cause of interference.

The level of interference with community or social activities must be substantial

and not trivial.

i. Are there any other interests that might have already interfered with

community and social activities?

[10] I must take into account how other activities might have already interfered with

community or social activities in the area. In particular, the extent of pastoral activity

is important to consider because the Native Title Act specifies a pastoralist’s activities

will prevail over any native title rights and interests, although do not extinguish them

(s 44H).

[11] I have reviewed Tribunal and State geospatial information provided in this inquiry,

and note the Indigenous held Mt Anderson Pastoral lease overlaps approximately 86

percent of the licence. The Tribunal has previously held a native title party may have

greater ongoing access to an area which is covered by an Indigenous held pastoral

lease. For this type of lease, the Tribunal cannot automatically assess that the ongoing

activities of pastoralists have prevailed over native title rights (Monadee & Ors v

Western Australia at [28]). Furthermore, the Nyikina Mangala hold exclusive native

title over the lease via a consent determination: ‘the right to possession, occupation,

use and enjoyment...to the exclusion of all others’ (with the exception of flowing and

underground waters) (Nyikina Mangala v Western Australia at [5]). Nyikina Mangala

native title holders currently reside on the lease, and they have lived on and managed

the lease for the last thirty years. Mr Watson says he and other families live all year

round at Balginjirr Lower Liveringa Community, which is situated on the lease (RW1

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at 20-22). He identifies the community as Nyikina Mangala (RW2 at 40) and says he

has lived there since 1986 (RW1 at 17). He says ‘Uncle Harry and my Dad started

everything up on Liveringa, the way it is now, after they got possession of Mt

Anderson station in 1984 ... Dad, Uncle Harry and Uncle John worked hard to build

up the station’ (RW1 at 16).

[12] As for the remainder of the licence, native title is extinguished over approximately 1

percent of the licence, and non-exclusive native title is held over the remaining 13

percent of the licence, which is mainly comprised of the Fitzroy Crossing to Nobby’s

Well stock route and a water and stopping place. The determined non-exclusive native

title rights are the rights to: access and move freely; live, enter and remain on, camp

and erect shelters; hunt, gather, fish, take and use flora and fauna, take, use, share and

exchange the natural resources for personal, domestic, cultural and non-commercial

communal purposes; engage in cultural activities in the area, including the

transmission of cultural heritage knowledge; conduct and participate in ceremonies;

hold meetings; and visit, maintain and protect from physical harm, areas, places and

sites of importance (Nyikina Mangala v Western Australia at [6]).

[13] Both the State and 142 East observe the area has prior mineral exploration activity, as

well as historical and current pastoral activity. 142 East contends (at 62) the Nyikina

Mangala’s rights and interests ‘have been, and continue to be able to, co-exist with the

rights granted under an Exploration Licence.’

ii. What are the social or community activities and where do they take place?

[14] As stated previously, Walalakoo Aboriginal Corporation has provided three affidavits

by Mr Watson (RW1, RW2 and RW3). Affidavit RW3 was deposed for this

objection. Affidavits RW1 and RW2 were deposed for two previous expedited

procedure objections lodged for the Nyikina Mangala, and which involved two other

exploration licences applied for by 142 East.2 The licence applications for those two

objections completely overlap the licence in this matter, with the exception of a small

area to the north west along the Fitzroy River catchment area. The Tribunal did not

make a determination about those objections because 142 East withdrew the licence

applications before the matters were determined. Affidavit RW1 was affirmed in

October 2013, RW2 in May 2014 and RW3 in June 2015. Together, the three

2 WO2013/0558 for E04/2238 and WO2013/0782 for E04/2300

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affidavits provide a continuity of evidence which has been very useful for me in this

inquiry.

[15] Mr Watson says his and other families live on Balginjirr Community all year (RW1 at

20). He says those who live there ‘go out onto the exploration licence area daily’

(RW1 at 29). Mapping shows Balginjirr Community is located in the western portion

of the licence. In his affidavits, Mr Watson provides extensive examples to support

his statement that ‘we rely on the area to provide us many of our main meals every

week’ (RW2 at 32). During the wet season in particular, he says ‘we can become

completely isolated from everyone because the roads become flooded. We stock up

for the wet season and can become very dependent on the food we can catch around

us’ (RW1 at 22).

[16] Mr Watson says we ‘use everything in the bush’ including; nyambal or bush orange;

magabala or bush banana vines; nyaliwany which has fruit similar to grapes; boonook

or bush tomato; karriwal which bears white fruit similar to plums; ngamal jarra or

bush cucumber; dadakoon or bush coconut; galaga or bush honey; bidal bidal used in

ointment; bush lemongrass for tea and soap; and nyili nyili or bush chewing gum

(RW1 at 32-33, 36).

[17] In 2013, Mr Watson stated goanna ‘is absolutely the main source of food for us

outside of the fish we catch’ (RW2 at 27). He states the group ‘hunt goanna right

through the year unless, they hibernate’ (RW1 at 34). In 2014 he also refers to goanna

hunting ‘all year round’, as well as a number of specific goanna hunting trips in that

year (RW2 at 14 and 25-27).

[18] Mr Watson says bush turkey is hunted ‘out on the flat near the billabong [Lower

Liveringa Pool]’ (RW1 at 35). Annexed to his third affidavit is a map upon which he

has shaded the flats directly south of Lower Liveringa Pool where ‘we find bush

turkey and duck, this is where they live and breed’ (RW3 at 14). This area is in the

south west of the licence.

[19] In his affidavits, Mr Watson refers to fishing for jarimba or fresh prawns, walja or

barramundi, black brim, catfish, flathead and sword fish along the Fitzroy river and in

the various waterholes and pools (RW1 at 38, RW2 at 20-24, 31). He says some

nights ‘we go down to the river, catch dinner and cook and eat down there on the river

instead of the house’ (RW1 at 38).

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[20] Mr Watson’s evidence strongly links both hunting and fishing activities to the western

side of the licence around the Fitzroy River, its tributaries, floodplains and permanent

pools. The Fitzroy River flows through the northwest and the southwest portion of the

licence. He says the river ‘is about 200 m away’ from the community (RW1 at 38)

and we use ‘the catchment area around the Fitzroy River as our main food source’

(RW2 at 20). He explains that all ‘the animals lives are wound up in the river area as

it offers the aquatic animals a home and enables us to catch them and it also offers

you a better chance to hunt other animals on a hot day when the animals come into

river’ (RW2 at 14).

[21] The hunting area for bush turkey and duck is located along the floodplain south of

Lower Liveringa Pool (RW3 at 14). He refers to a ‘colony of flying foxes’ near Lower

Liveringa Pool (RW2 at 25). He says that ‘even though the goanna are territorial and

may live further away they will access/come into the river during the day, all year

round, where we can catch them’ (RW2 at 14). He describes ‘rich waterholes’ that

‘are wet for most of the year and draw in animals we catch and use as food’ (RW2 at

19). He talks of hunting crocodiles and their eggs, and catching turtles along the

Fitzroy River and in the permanent water holes as the water recedes (RW1 at 38,

RW2 at 20, 28-30).

[22] He says intergenerational ‘teaching on the river’ occurs with his ‘boys’ and others

whilst hunting ‘as the animals behave differently as the seasons change and their

access to water changes’ (RW2 at 9). There is some evidence about caring for country

in general terms, although this is mostly linked to the Fitzroy River and its waterways

(see RW2 at 38 and the Walalakoo Aboriginal Corporation contentions at 15j-k)).

[23] Mr Watson outlines information about the area encompassing the Balginjirr

Community, the Balginjirr ridge and its surrounds. He describes the area as ‘very

special Nyikina Mangala country’ (RW1 at 24 and RW2 at 13). It is apparent there is

a long history of use of the area by the Nyikina Mangala. ‘For the old mob, they know

this country. Lower Liveringa used to be the main camp back in the days when people

could move around at will; and then it became an outcamp for the stations’ (RW1 at

23).

[24] Mr Watson says the ‘pristine beauty of this country is still the same as it was when

my father and Grand-father was here’ (RW3 at 10). He says ‘since I was a child this

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area and Mt Anderson [pastoral lease] was always talked about as our country’ (RW1

at 15). He explains that ‘we use the area to sustain our community life’ (RW2 at 32):

For as far back as we have been made to appreciate in terms of our ancestral occupation

we remember this area ... as what has kept my bloodline alive, our connection to this

area is very precious. It gives us a sense of place and belonging ... [RW2 at 10]

[25] Mr Watson describes the Balginjirr community ‘and the surrounding area...to be a

sanctuary, a safe place where people in need can come and get in touch with their

Nyikina Mangala history’ (RW1 at 24).

[26] He describes in depth the mental health camps, youth camps and other workshops

they run from the Balginjirr community saying ‘the residents at Lower Liveringa,

Nyikina Mangala people, join the organisations who provide services with their

traditional owner constituents... If you have workshops in town then people can leave

when everything gets too confronting.’ He says ‘we are the only place in the

Kimberley that provides the bridge between the essential mental health services and

programs which are on offer and “country”, which means we can provide a unique

service, which is only as powerful as our continued access to country enables it to be’

(RW1 at 45).

[27] He refers to ‘My river’ camps aimed at local youth to ‘grow their understanding of

how disconnected they may have come from the traditional Nyikina Mangala ways of

1000s of their ancestors who would have walked and camped in the exact same area

that we have camped and learnt life skills’ (RW2 at 45). Mr Watson has drawn the

location of the camps and the walk trail undertaken by participants on a map (annexed

to RW2). The walk begins from a point along the stock route road near No. 5 Bore,

about four kilometres south of the licence area. The walk trail runs for about five

kilometres in a northwest direction and enters into the licence area, travelling to a

point at or near Lower Liveringa Pool, before turning southward to base camp located

within the Fitzroy River catchment area. Mr Watson describes this area as where

‘most of the activities ... will take place’ (RW2 at 44).

iii. What are 142 East’s proposed activities?

[28] In their contentions, 142 East state (at 5) they reviewed the Walalakoo Aboriginal

Corporation contentions and Mr Watson’s affidavits ‘and as a result of the concerns

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raised intend to lodge an application to exclude part of its application from grant.’ The

State has since confirmed (at 2) the application to excise has been accepted. The State

has provided a map to the Tribunal and parties showing the area to be excised is to the

west of, and including, the majority of the stock route. The area to be excised includes

Balginjirr community, Lower Liveringa Pool, the Fitzroy River catchment area, and

the area where the camps are undertaken, as described by Mr Watson (RW2 at 44 and

map annexed to RW2).

[29] In the remaining area of the licence, 142 East proposes to undertake ‘the usual

activities associated with exploration licences including conducting field

reconnaissance and geological mapping, surface geophysics, low impact broad spaced

hand auger drilling, collection of samples for core assays, soil sampling, and surveys.

The work that is ground disturbing will be broad based’ (142 East contentions at 52).

They draw attention to the conditions and endorsements the State proposes to apply to

the licence and their intent to abide by these (at 17-49). Those conditions and

endorsements are outlined at Appendix A of this decision. 142 East also confirm a

‘willingness to enter into an agreement in the same terms’ as any of the Regional

Standard Heritage Agreements (RSHAs) which exist in Western Australia, and the

State indicates they will impose an RSHA condition on grant of the licence. The

condition will require 142 East to execute an RSHA in favour of the Nyikina Mangala

People, should they request it, within ninety days after the grant of the licence (at

12A). Each RSHA contains varying provisions for notice, heritage surveys or

clearances, reports and dispute resolution. The aim is to provide grantees and native

title parties with a mechanism for consultation over heritage protection and site

identification. The Nyikina Mangala would be able to choose which of the RSHAs

would best suit their needs.

[30] I do note in the statement of works 142 East provided to the State, which was

provided to Walalakoo Aboriginal Corporation in this objection, they indicated they

were ‘the holder or applicant for tenure in the vicinity of this application and it is the

intention of the Applicant to systematically explore the entire area applied for’, which

I conclude would mean systematically explore all the licence apart from that which

will be excised on grant. The State have also provided the first year work program of

142 East, which indicates about four days of sampling will be undertaken by a field

technician, taking around 200 samples, with 600 metres of RAB (rotary air blasting)

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drilling also scheduled. It is not clear how many holes the 600 metres of drilling will

include. No information is provided for years 2-5.

iv. Is the grant of the licence likely to directly or substantially interfere with

community or social activities?

[31] In answering this question, I must consider the social and community activities

currently being undertaken by the Nyikina Mangala and weigh these against the

activities 142 East are likely to undertake on the licence if granted.

[32] That there is an Aboriginal community on the licence suggests the area around the

community is likely to be used intensively by the Nyikina Mangala native title

holders. In addition, the Nyikina Mangala have exclusive rights to access and move

freely through the majority of the licence area and its surrounds, and to live, remain

and camp there, engage in cultural activities, and so on as outlined in Nyikina

Mangala v Western Australia.

[33] In its submissions, 142 East have taken into account the community and social

activities described by Mr Watson and Walalakoo Aboriginal Corporation. 142 East

have indicated that to reduce their impact on these activities, they have requested part

of the licence be excised on grant. This excised portion will include the Balginjirr

community and areas to the north west and south west of the community, portions of

the Fitzroy River catchment area, and a portion of some sites recorded on the

Department of Aboriginal Affairs (DAA) Sites Database. I refer to these sites in more

detail at [38]-[43] when describing sites of particular significance to the Nyikina

Mangala. 142 East argue that the majority of activities undertaken by the Nyikina

Mangala occur mainly within the area they propose to excise, and any activities which

might occur within the remaining licence area are likely to be able to co-exist with

their exploration activities which they describe as ‘occasional and temporary’ (142

East Contentions 72-123).

[34] Overall, evidence suggests the majority of the community and social activities

described are undertaken within the area to be excised. These include hunting, fishing,

intergenerational teaching and camping. The excised area also includes the part of the

Balginjirr ridge which is enjoyed during the camps. There is simply not enough

evidence about the exercise of social and community activities outside the area to be

excised for me to conclude that the activities conducted within the remainder of the

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licence are likely to be interfered with in a real or substantial way by 142 East.

However, I have no doubt that the remainder of the licence, which still contains the

major portion of Balginjirr ridge, is an area of particular significance to the Nyikina

Mangala. Mr Watson describes the Balginjirr area as ‘very special Nyikina Mangala

country’ which spiritually and physically ‘sustains my wife and family’ and ‘our

community life’ (RW1 at 24 and RW2 at 10, 13, and 32). The significance of the

Balginjirr ridge will be explored further below.

Is it likely the grant will interfere with areas or sites of particular significance to

the Nyikina Mangala?

[35] In considering this issue, I note the following principles:

A site or area of particular significance is one which is of special or more than

ordinary significance to the native title holders (Cheinmora v Striker Resources at

34-35).

To be of particular significance, the site or area must be capable of being

identified and its significance explained (Silver v Northern Territory at [91]).

If I am satisfied the site or area is of particular significance, I must analyse

carefully the potential interference, because of the importance it has to the native

title holders. The nature of the site or area, the nature of the potential interference

and the laws and traditions of the native title holders are relevant considerations

(Silver v Northern Territory at [88]).

There must be a real chance or risk of interference with the site or area, not just a

possible chance (Smith v Western Australia at [23]).

I will give weight to the State’s heritage and regulatory regime (Walley v Western

Australia at [11]).

i. What areas or sites are identified?

[36] As noted above, Mr Watson describes the Balginjirr area as ‘very special Nyikina

Mangala country’ to which the Nyikina Mangala native title holders have a long

history of connection and attachment (RW1 at 15, 23-24 and RW2 at 10 and 13). Mr

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Watson describes the spiritual and physical connection to the area as ‘very precious.’

He states the area: ‘has kept my bloodline alive’; ‘gives us a sense of place and

belonging’; ‘sustains my wife and family’; and ‘sustain[s] our community life’ (RW2

at 10, RW2 at 32). The importance of the area is geographically linked to the

Balginjirr ridge, which is identified in all three of Mr Watson’s affidavits.

[37] The State contentions argue that RW1 provides limited information regarding the

ridge, and ‘the other affidavits make no reference to the area’ (at 62). However, I find

there is reference to the ridge in each of the affidavits.

[38] RW1 contains evidence such as: ‘The actual ridge of Balginjirr is a special place for

Nyikina Mangala people. There is a song about that ridge line, that the old people

know, it is a creation song and is part of corroboree’ (RW1 at 55); it ‘is a special

spiritual balanggan country, balanggan spiritual beings live on the ridge. They are big

spirits and the country up there is very peaceful’ (RW1 at 54). While the men’s site

associated with the ridge story is within the excised portion of grant (as noted by 142

East's contentions at 138), the bulk of the ridge itself is within the area for grant.

[39] The evidence in RW1 is consistent with that in RW2, such as the ridge ‘travels under

the ground and then surfaces at different locations... It has a powerful story...a very

significant story which only the older men can talk to you about’ (RW2 at 51). In

RW3, the ridge is also referred to as being in the southern portion of the licence, as

follows: ‘I have drawn a line at the bottom of the tenement area that identifies that

location, the ridge runs alongside No.6 bore... In terms of its geographical

significance it is very powerful and significant... The ridge runs down to a point at our

billabong [Lower Liveringa Pool], right here where I have marked it with an “X”.

These are areas that have significant sites, there are registered sites here that the

Department of Aboriginal Affairs has acknowledged’ (RW3 at 7-8).

[40] As such, I cannot agree with the State that RW2 and RW3 do not refer to the ridge or

its significance.

[41] Searches of the DAA Sites Database show a rectangular boundary over the Balginjirr

ridge area described by Mr Watson. The area is listed as an ‘other heritage place

13199’ of ceremonial/mythological importance with a restricted boundary location. It

is named ‘Parlkanjirl’, which is phonetically similar to Balginjirr. From the

description provided, I conclude the ridge is the same general area as Parlkanjirl. I

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note from Tribunal mapping that No. 6 Bore is within the boundary of Parlkanjirl in

the southeast portion of the licence. In addition, the Balginjirr community lies

approximately one kilometre inside the western boundary line of Parlkanjirl, and the

proposed excise takes in Balginjirr community and part of the west portion of

Parlkanjirl.

[42] There are two more ‘other heritage places’ within the licence which have been lodged

with the DAA: ‘Mapurrkurrnyutarn’ (ID 13206) located at No. 6 Bore and

‘Nulukurkurl’ (ID 13204) located approximately four kilometres north west of

Balginjirr community. Nulukurlkurl is within the portion of the licence 142 East

intend to have excised. Parts of the Fitzroy River also overlap along parts of the

western licence boundary, and the river is registered as a mythological heritage site

(ID 12687) on the DAA Sites Database. Mapurrkurrnyutarn is within Parlkanjirl.

[43] Mr Watson also notes the following places:

‘There are burial places all along the ridge, our descendents were always buried

up in the high country, not in the ground and that ridge is the only high country

around these parts this was to protect their spirits from drowning if a big wet

came along ... Number 10, number 6 and number 2 bores are on the high ground.

When I went for a trip around the bores with Uncle Johnny he told me that there

were old people buried around the bores’ (RW1 at 57 and 59). ‘All along the

ridge line there are burial sites all along here. The way they dealt with our dead

back then, was that they put their bodies on a platform in a tree. When their

bodies became skeletal, it is then that the funeral took place and then the rightful

family members would pick up their bones with paperbark and place them in the

cracks of the ridge line’ (RW3 at 15). I note that No. 10 Bore and No. 2 Bore are

to the north of the ‘Parlkanjirl’ other heritage place marked on Tribunal mapping,

and No. 6 Bore is within it.

‘I have been told there is a painting and artefacts along the ridge too, and I have

seen evidence on the ridge of signs of past human habitation. Everything needs to

stay where it is so our children can visit the area as if it is a museum, the artefacts

should not be disturbed’ (RW1 at 58).

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‘My father was born here at the billabong and is buried here at Balginjirr... Lower

Liveringa Outcamp. This is the location of our community. My mother and

daughter are also buried here’ (RW3 at 9).

‘There is another significant area straight down from the W in “Lower” on the

map in the exploration license [sic] area which I cannot tell you about because I

am not the right person to speak for that place. It is a special men’s story I am not

allowed to talk about’ (RW2 at 52). I note this area appears to be part of the area

which 142 East have applied to excise from the grant.

ii. Are any of these areas or sites of particular significance?

[44] I must be satisfied that: each area or site of particular significance has been

sufficiently identified as existing on the licence; its significance has been explained

and distinguished from other areas; and it is of more than ordinary significance to the

Nyikina Mangala in accordance with their traditions. These questions are a

precondition for inquiring whether the grant of the licence is likely to cause

interference with areas or sites of particular significance (Yindjibarndi Aboriginal

Corporation v FMG Pilbara at [125]). In other words, if there is insufficient evidence

to answer these questions, I will go no further and will not address the question of

interference.

[45] The State contends the evidence is not sufficient to establish any sites or areas of

particular significance in the licence area (at 59). I do not accept the State’s

contention.

[46] Mr Watson has drawn the location of Balginjirr ridge on a map, described it as ‘the

only high country around these parts’ (RW1 at 57) and says it ‘runs down to a point at

our billabong [Lower Liveringa Pool], right here where I have marked it with an “X”’

(RW3 at 7-8). The area also corresponds with a restricted ‘other heritage place’ on the

DAA sites database (Parlkanjirl). Whilst the area extends beyond the licence, it is

clear that a substantial portion is located within the licence. Mr Watson has described

its significance to the extent he is authorised under Nyikina Mangala law and I am

satisfied Balginjirr ridge is an area of more than ordinary significance to the Nyikina

Mangala. Only a small portion of the area of the ridge within the licence will be

subject to excision. The remainder of the ridge lies within the south portion of the

licence, and extends outside the east boundary of the licence.

16

[47] I am also satisfied the area marked by Mr Watson below Lower Liveringa Pool is a

site of particular significance to the Nyikina Mangala, however, that area will be

excised from grant.

[48] With regard to the burial places in cracks ‘all along the ridge’, the State contends

there is no evidence explaining the significance of the burial sites and so I should not

conclude they are significant sites (at 61). 142 East say they are not likely to disturb

burial sites around bores No. 2, No. 6 and No. 10 as these bores are distinct and

identifiable. They also state the evidence of burial places along the ridge ‘appears to

coincide with, and fall within the (wider) boundaries of the recorded heritage place

Nulukurkurl’ and that disturbance ‘is not likely as the existence, boundaries and

importance of this place has been recognised by both the DAA Register and in the

native title party’s contentions’ (at 140).

[49] In fact, Nulukurkurl is within the area to be excised and it is Parlkanjirl which is the

heritage place overlapping the ridge area. The fact it has a restricted boundary

suggests the relevant area could not readily be identified by persons other than the

native title holders. Applying the principles outlined in Western Desert v Teck (at

[131]), I conclude the burial sites stand out as being of particular significance due to

the Nyikina Mangala’s special connection to the area and in particular to the ridge,

and the connection to the Aboriginal community nearby (while the community area

will be excised from the grant, a large part of the ridge itself will remain within the

grant).

[50] In relation to the paintings and artefacts, whilst I believe these are important to the

Nyikina Mangala, Mr Watson’s description is too general to locate them with any

certainty. Without such evidence, I cannot conclude they are of particular significance

for the purposes of this inquiry.

iii. What are 142 East’s proposed activities in relation to these areas or sites?

[51] As noted previously, 142 East proposes to undertake the usual activities permitted

under an exploration licence. It is willing to enter into an agreement on the same

terms as an RSHA with the Nyikina Mangala, and signifies its intent to abide by all

relevant regulatory regimes. As noted earlier, 142 East intend to systematically

explore the entire area of the licence, apart from the area which will be excised on

grant.

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iv. Will the regulatory regime be sufficient to protect these areas or sites?

[52] The State contentions (at 12A) make an offer to include a condition enabling the

Nyikina Mangala to request that 142 East execute an RSHA of the kind elected by the

Nyikina Mangala. The State contends 142 East has expressed a willingness to enter

into an RSHA and that interference with any sites of particular significance would be

unlikely (at 72).

[53] The part of the Fitzroy River which overlaps the licence and Nulukurkurl (DAA ID

13204) does form part of the excised area. Mapurrkurrnyutarn (DAA ID 13206) is

not in the area to be excised; however, its boundary is not restricted and I am satisfied

142 East could avoid that area. As such, the activities of 142 East are unlikely to

interfere with those areas.

[54] The boundary of Parlkanjirl (DAA ID 13199) is recorded as being restricted and is

classified as ceremonial and mythological. I am satisfied this area is the same as that

described by Mr Watson as the Balginjirr ridge area. Evidence has been provided by

Mr Watson that the ridge area is very important for the Nyikina Mangala, for a

number of reasons. It is also associated with burial sites. It is clear that the ridge area

extends outside the Parlkanjirl buffer zone currently mapped by DAA. The ridge area

also includes the ‘high ground’ including around No. 10 Bore and No. 2 Bore where

burial sites are located (RW1 at 57 and 59).

[55] Only the easternmost part of the ridge area will be excised from the grant of the

licence. A large portion of the ridge area, including that around No. 10 and No. 2

bores will not be excised. With the boundary of Parlkanjirl being restricted and

evidence that the buffer zone currently mapped around it does not include some of the

ridge area, it will be difficult for 142 East to navigate the ridge area and burial

grounds within that area without guidance from the native title holders.

[56] I conclude that given the sensitivity of the Balginjirr ridge area and the difficulty in

locating its boundaries and the burial sites within it, there is a real risk 142 East

activities across the areas available for grant within the licence would pose a real

chance of physical interference with sites and areas of particular significance to the

Nyikina Mangala.

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Will the grant, or the exercise of any rights created by the grant, involve major

disturbance to any land or waters concerned?

[57] In considering this issue, I note the following principles:

I must determine whether there is a real chance or risk of major disturbance to

land and waters. The term ‘major disturbance’ is to be given its ordinary English

meaning as understood by the whole Australian community, including the

Aboriginal community (Little v Oriole Resources at [52]-[54]).

The concerns of the Aboriginal community are relevant to evaluating the degree

of disturbance. However, the concerns must relate to direct, physical disturbance

arising from the grant or any rights created by it (Cosmos v Croydon Gold at

[29]).

i. Is there any evidence that the land and waters have any special

characteristics?

[58] Walalakoo Aboriginal Corporation contends the Fitzroy River, and its tributaries and

floodplains is an area of unique importance. They draw attention to the fact it is

mentioned in the West Kimberley National Heritage Listing as being of ‘outstanding

heritage value to the nation’ given it ‘demonstrates four distinct expressions of the

Rainbow Serpent tradition within a single freshwater hydrological system’

(Contentions at 46-47). Mr Watson’s affidavit (RW3) refers to the south west side of

the licence and outlines its importance as part of the water catchment system (at 16).

This forms part of the area which the State intends to excise from the grant.

ii. Will the regulatory regime be sufficient to protect these land and waters?

[59] I note the State and 142 East propose to excise the Fitzroy River catchment area from

the grant of the licence. The State proposes to include a series of endorsements and

conditions on the grant of the licence which relate to waste disposal, land

rehabilitation, and the protection of water and native vegetation. There is no evidence

that 142 East will not abide by the regulatory regime.

[60] I conclude the regulatory regime is sufficient in respect of such disturbance to land or

waters. The grant of the licence, or the exercise of any rights created by the grant, is

not likely to involve major disturbance to the land or waters related to the grant of this

licence.

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Conclusion

[61] The community or social activities carried on within the licence area have been

described, and I am not satisfied the grant of the licence is likely to directly or

substantially interfere with these activities. Sites and areas of particular significance

exist on the licence, and I am satisfied the grant of the licence is likely to interfere

with some of these as explained above. There is no evidence the grant of the licence,

or the exercise of any rights created by the grant, is likely to involve major

disturbance to the land or waters concerned.

Determination

[62] The determination of the Tribunal is that the act, namely the grant of exploration

licence E04/2355 to 142 East Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven

Member

24 December 2015

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Appendix A: Draft Tenement Endorsement and Conditions

The grant of the E04/2355 will be subject to the following conditions:

1. All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made

safe immediately after completion.

2. All disturbances to the surface of the land made as a result of exploration, including costeans,

drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the

Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and

rehabilitation being required no later than 6 months after excavation unless otherwise approved

in writing by the Environmental Officer, DMP.

3. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings

being removed from the mining tenement prior to or at the termination of exploration program.

4. Unless the written approval of the Environmental Officer, DMP is first obtained, the use of

drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface

disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being

removed ahead of mining operations and separately stockpiled for replacement after backfilling

and/or completion of operations.

5. The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in

person, or by registered post if contact cannot be made, prior to undertaking airborne

geophysical surveys or any ground disturbing activities utilising equipment such as scrapers,

graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised

equipment.

6. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written

notification of:-

the grant of the licence; or

registration of a transfer introducing a new Licensee;

advise, by registered post, the holder of any underlying pastoral or grazing lease details of the

grant or transfer.

7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained

before commencing any exploration activities on Water & Stopping Place Reserve 1307 & Stock

Route Fitzroy Crossing To Nobby’s Well Reserve 23226.

The following draft endorsements (which differ from conditions in that the licensee will not

be liable to forfeit the licence if breached) are also noted:

1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any

Regulations thereunder.

2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the

Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for

the protection of all native vegetation from damage unless prior permission is obtained.

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

3. The Licensee [sic] attention is drawn to the provisions of the:

Waterways Conservation Act, 1976

Rights in Water and Irrigation Act, 1976

Metropolitan Water Supply, Sewerage and Drainage Act, 1909

Country Areas Water Supply Act, 1947

Water Agencies (Powers) Act 1984

Water Resources Legislation Amendment Act 2007

4. The rights of ingress to and egress from the mining tenement being at all reasonable times

preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

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5. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous

substances being in accordance with the current published version of the DoW relevant Water

Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

6. The abstraction of groundwater from an artesian well and the construction, enlargement,

deepening or altering of any artesian well is prohibited unless a current licence for these

activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:

7. Advice shall be sought from the DoW if proposing any exploration within a defined waterway

and within a lateral distance of:

50 metres from the outer-most water dependant vegetation of any perennial waterway, and

30 metres from the outer-most water dependant vegetation of any seasonal waterway.

In respect to Proclaimed Surface Water Areas the following endorsement applies:

8. The abstraction of surface water from any watercourse is prohibited unless a current licence to

take surface water has been issued by the DoW.

9. All activities to be undertaken with minimal disturbance to riparian vegetation.

10. No exploration being carried out that may disrupt the natural flow of any waterway unless in

accordance with a current licence to take surface water or permit to obstruct or interfere with

beds or banks issued by the DoW.

11. Advice shall be sought from the DoW and the relevant service provider if proposing exploration

being carried out in an existing or designated future irrigation area, or within 50 metres of an

irrigation channel, drain or waterway.

In respect to Proclaimed Ground Water Areas the following endorsement applies:

12. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and

a licence to take groundwater has been issued by the DoW.

13. The grant of this Licence does not include any private land referred to in Section 29(2) of the

Mining Act 1978 except that below 30 metres from the natural surface of the land.