NATIONAL NATIVE TITLE TRIBUNAL
Pearl Gordon & Others on behalf of Malarngowem v True North Resources Pty Ltd and Another [2021] NNTTA 15 (22 April 2021)
Application No:	WO2020/0155	
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Pearl Gordon & Others on behalf of Malarngowem (WC1999/044) 
(native title party)
- and -
True North Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal:	Helen Shurven, Member	
Place:	Perth	
Date:	22 April 2021	
Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure	
Legislation:	Aboriginal Heritage Act 1972 (WA) s 5
Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237
Mining Act 1978 (WA) s 58	
Cases:	Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182 (FMG v Yindjibarndi)
John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697 (Malarngowem v State of Western Australia)
Rosas v Northern Territory & Anor [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) 
Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 	
Representatives of the native title party:	Chloe Thomas and Andrew Topfer, Kimberley Land Council	

Representative of the grantee party:	Yvette Collins, HopgoodGanim Lawyers 	

Representatives of the Government party:	Matthew Smith, Department of Mines, Industry, Regulation and Safety
Anthony Civiello, State Solicitor’s Office	

REASONS FOR DETERMINATION
Introduction
[1]	This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (the Act) applies to the grant of proposed exploration licence E80/5407 (the licence) to True North Resources Pty Ltd (True North).  The State of Western Australia gave notice under s 29 of the Act of its intention to grant the licence. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure.  This would, subject to any objection, allow the licence to be granted without negotiation under s 31 of the Act.  
[2]	The licence is partly within the area of the native title determination application made by the Malarngowem native title claim group (WC1999/044) (Malarngowem/NTP).  The registered native title claimant for the Malarngowem claim lodged an objection against the State’s application of the expedited procedure statement.  I note that the Federal Court has made a conditional determination of native title (WCD2019/005) in relation to the Malarngowem claim (see Malarngowem v State of Western Australia), which confirms that once a prescribed body corporate has been determined, the determination of native title will be entered on the National Native Title Register.
[3]	I have been directed to constitute the Tribunal for the purposes of determining, under 
s 32(4) of the Act, whether the grant of the licence is an act attracting the expedited procedure. For the reasons outlined below, my determination is that the grant of the licence is not such an act.
Issues in the inquiry
[4]	Under s 237 of the Act, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)	interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)	interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)	involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
[5]	The Tribunal takes a common sense approach to the evidence as discussed in Ward v Western Australia.  In this inquiry, Malarngowem have not taken issue with s 237(c) and have not made contentions in that regard. As such, I cannot conclude any interference in relation to the condition of s 237(c).  They do assert interference within the meaning of ss 237(a) and (b) and it is those limbs of s 237 which I address further in this decision.
Determination on the papers
Malarngowem materials
[6]	Malarngowem provided contentions and rely on the joint affidavit of Patrick Mung, Nancy Nodea and Betty Carrington, who are native title holders from the Warmun community (which I note is approximately 15 kilometres from the licence, to the south west).  I accept that evidence.  Malarngowem also rely on the affidavit of Chloe Thomas annexing the unsworn affidavit of Cecil Mosquito, who lives in Warmun and who is connected to the area through his grandmother.  Ms Thomas is a solicitor employed by the Malarngowem representative, and explains the logistical circumstances of why Mr Mosquito’s affidavit was unable to be signed by him, but how she had ‘…read a draft version of the affidavit to Mr Mosquito over the phone and asked him whether it accurately reflected his statements and the evidence he wished to provide. He confirmed that it did and requested that I submit it as evidence’ (at 10).  I accept Mr Mosquito’s evidence on that basis.
The State’s materials
[7]	The State has provided: contentions and evidence including mapping; a Tengraph Quick Appraisal, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS); the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (s 58 statement); and details of proposed endorsements and conditions to be imposed on the grant of the licence. 
[8]	Sites and areas recorded under the AHIS can be characterised in two main ways. Firstly, as a ‘registered site’, which means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (WA) (AHA). Secondly, as an ‘other heritage place’, which includes sites or places which have been assessed as not meeting s 5, and places where information has been received in relation to the place but an assessment has not been completed to determine if it meets s 5. Regardless of whether or not an other heritage place is administratively assessed as meeting s 5 of the AHA, it is possible for a native title party to establish that one or more of those sites constitute ‘areas or sites of particular significance’ to them ‘in accordance with their traditions’ (as per s 237(b) of the Act) by providing sufficient evidence.
[9]	The AHIS searches for this inquiry show the following registered sites, categorised as mythological, which overlap the licence in the north east:
•	Site 13120 - GUWANDJI SPRING 
•	Site 14045 - KOWINTJI
•	Site 13137 – WUNGUNABANY
[10]	The AHIS searches also show the following sites along the northern boundary of the licence, and recorded as other heritage places:
•	Site 17809 - WARINGARRI 04
•	Site 17812 - WONGGONABA 
•	Site 17814 - WOLARRIBAN
•	Site 17825 - WARINGARRI 5
True North’s materials
[11]	True North provided contentions.  The s 58 statement provided by True North to the State on application for the licence indicates they intend to look for prospective metals using historical data, followed by geological reconnaissance of the area. That would include ‘detailed ground based magnetic survey, mapping, rock chip and soil sampling. All data gathered will be collated and reviewed with the aim of identifying and ranking target areas. RAB [rotary air blast] drilling is proposed dependant on the results from the sampling program in year one’. This information as provided in the s 58 statement is confirmed in True North’s contentions (at 5).
[12]	All parties agreed to the matter being determined on the papers as permitted by 
s 151(2) of the Act. Having regard to the information before me, I am satisfied the inquiry can be adequately determined without a hearing. 

Section 237(a): is the grant of the licence likely to interfere directly with Malarngowem’s community or social activities?
[13]	In my consideration under s 237(a), I must balance a grantee party’s proposed exploration activities with any evidence of the native title claimant’s community and social activities, to determine whether the activities can coexist without direct or substantial interference (see for example Rosas v Northern Territory at [71]).  I consider community or social activities that are manifestations of the particular claimed or determined native title rights and interests of the native title party (see Silver v Northern Territory at [58]).  The Malarngowem reply (at 3), outlines those rights and interests are relevantly to:
•	access, remain in and use the land for any purpose, including to move freely through the land, camp on the land and engage in cultural activities including the transmission of cultural heritage knowledge; 
•	access resources and take for any purposes the resources in that area; and
•	protect places, areas and sites of traditional significance, including to visit, maintain and protect from physical harm, areas, places and sites of importance 

What community or social activities do Malarngowem carry out on the licence area?
[14]	I accept the joint affidavit establishes that:
(a)	Members of the Malarngowem community regularly travel from Warmun, and access the licence – they have described in some detail the area between Emu Creek and Waterfall Creek in particular (at 12), which stretches from approximately the centre of the licence to the north east boundary
(b)	An area called Fig Tree Hole (Gelgainy) associated with fishing historically. In current times fish are caught, cooked and eaten on country there – it is ‘the main fishing place’ (at 14-15) – this area is on the licence, just south of the area described in [14(a)] above
(c)	Waterfall Creek (in the north east of the licence) is also associated with ‘really good fishing’ – ‘There's a lot of big fish there, turtle, bream, crocodile, turkey, emu, kangaroo, porcupine, wild pig. That's why people go out there every weekend, because that's the best fishing and hunting place and there's a road straight to there out of Warmun’ (at 15)
(d)	Hunting is undertaken in the licence area and meat is obtained for the old people (at 15).  The method of hunting is outlined (with rifles in current times) (at 15)
(e)	Fishing and hunting are undertaken on the licence ‘all year round’ and particularly after rains (at 15)
[15]	Mr Mosquito’s evidence is consistent with the joint affidavit, and outlines that:
(a)	The licence is easily accessible from Warmun and is accessed regularly
(b)	The ‘main place’ for intergenerational teaching for fishing, hunting and swimming in the licence area is around the Waterfall Creek and Bow River (in the north east of the licence, also called Gowinji) and those trips are made on a regular basis (at 7-15, 20-22) – for example, he states (at 12):
We need those areas in the Tenement Area. Some parents don't take their kids out bush much, but the kids turn up at the school and we got a program where we go out bush every fortnight. We can do these trips because there's lots of ways to access the Tenement Area from Warmun. The Tenement Area is the main area we go because of Waterfall and Gowinji, the fishing and turkey, emu, kangaroo and goanna country.
(c)	Fishing at the Waterfall Creek/Bow River junction is done ‘all the time’ (at 16) and is the ‘main hunting place’ (at 17)
[16]	It may be that Gowinji is the same place as the AHIS Site Guwandji Spring (noted at [9] above and in the north east of the licence).
[17]	True North contentions (at 4-5) assert that fishing, hunting, swimming, camping, bush trips and intergenerational learning activities within the licence can co-exist with their exploration activities.  They state that ‘Any field trips or drill programs will take place in the dry season within limited timeframes and notification will be provided in advance to the traditional owners and rangers’. However, notification in my view does not mitigate against interference with such social or community activities.  In addition, the Malarngowem reply (at 16) argues that ‘…the evidence of the NTP establishes that community and social activities take place year-round, not just during the wet season. The Grantee Party’s apparent commitment to give “advance notice to traditional owners and rangers” is not to say that the Grantee Party is willing to work together with the NTP or alter its work program to avoid interfering with the NTP’s’ community and social activities, but simply to say that the Grantee Party will give prior notice of that interference. This clearly does not minimise the likelihood of interference’.
[18]	True North state they do not intend to explore within any waterways (at 6), but do not say whether they will explore near to waterways.  The Malarngowem reply (at 11) points out that ‘…the community and social activities are not solely carried out on within waterways. For example, hunting, camping and carrying out bush trips…are predominantly land-based activities’.
Conclusion
[19]	In my view, given the intensive nature and variety of the social and community activities conducted on the licence, and the proximity of the licence to the Warmun community, I find it is likely that exploration activities would directly and substantially interfere with them, particularly those conducted in the Waterfall Creek area in the north east of the licence. 

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Malarngowem?
[20]	In considering s 237(b), I note the following principles:
a)	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).
b)	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]).
c)	If I am satisfied the site or area is of particular significance, I must analyse very 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]).  
d)	Even slight interference may be unacceptable (FMG v Yindjibarndi (at 75)).
e)	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]).
What areas or sites are identified on the licence area by Malarngowem?
[21]	I accept the evidence establishes the following sites or areas are found on the licence:
(a)	The area around Waterfall Creek, which is associated with paintings and human remains, and particularly the area where it meets with the Bow River, is an ‘important place’.  The evidence outlines why ‘That country is really dangerous’, in relation to burial practices of ‘the old people’ which are described, as well as a story about human remains of a named individual. There is an area there called Wungunabany which is associated with a named dreamtime story and its significance is described (joint affidavit at 13, 16, 22-23, Mr Mosquito’s evidence at 19).
I note this area is in the north east of the licence, and the description of Wungunabany in the joint affidavit corresponds to an area on or near to where AHIS sites are recorded, and the specific AHIS site of Wungunabany.
(b)	Fig Tree Hole (Gelgainy) (referred to at [14] above) 
Are any of the identified areas or sites of particular significance to Malarngowem?
[22]	I accept the area in the north east of the licence (where Waterfall Creek and Bow River intersect, and which includes Wungunabany and other AHIS recorded sites) is of particular significance to Malarngowem. The area has been described and located as being within the licence. The State contentions (at 32) accepts the area where Waterfall Creek and Bow River meet and associated with human remains, is a site of particular significance. Their contentions (at 33) with respect to Waterfall Creek is the evidence is ‘unclear and inconsistent’. However, I find the evidence creates a picture of an area in the north east of the licence that is not only tied to certain community and social activities (as outlined above in consideration of s 237(a)), but which is tied to a dreamtime and burial area. Overall, I accept this is an area of particular significance to Malarngowem.
[23]	Little is said about Fig Tree Hole (which mapping indicates is in the south of the licence) and I do not conclude that area is of particular significance.  
Is the grant of the licence likely to interfere directly with the sites of particular significance to Malarngowem?
[24]	The joint affidavit explains the ‘Blackfella way’ (at 17) outlining the traditions in relation to burials and a person’s spirit, and the importance of why Malarngowem must ‘leave that place alone’ and respect for the old people (at 17).  The dangerous nature of the country is reiterated (at 17) and traditional practices associated with the country are explained in some detail, referring to mantha and that it ‘is like being baptised’ (at 18-22, and 25-26).
[25]	The joint affidavit explains why the area on and around Wungunabany ‘is really dangerous’, in relation to burial practices of ‘the old people’ which are described, as well as a story about a named individual (at 16 and 22-23).  That place is also associated with a dreamtime story (which is named) and Malarngowem people are told ‘don’t go there’ (at 23).  It is ‘a place for only initiated men’ (at 23).  Mr Mosquito also describes a place where he cannot go or take youth for intergenerational teaching (at 19).  Mr Mosquito explains (at 22) that ‘The Tenement Area is very important to the school, the kids, the old ones and the whole Warmun community. The mining company needs to work together with us to make sure we can keep going out there, and our hunting and fishing places are protected’. I accept that the social and community practices of hunting, fishing and intergenerational teaching are intimately connected to the area around Waterfall Creek and Bow River, particularly where those waterways intersect. I also accept there is a gender restricted area there (Wungunabany).
[26]	As well as their assertions as outlined at [17]-[18] above, True North note they are familiar with the Department of Lands, Heritage and Planning’s Aboriginal Heritage Due Diligence Guidelines and intend on ‘conducting a due diligence review of any on-ground work prior to accessing the ground’ and they are also familiar with the AHA and will comply with those obligations (at 7-9).  The State contentions make similar arguments (at 15-16 and 37-38), and assert that this indicates True North’s willingness to work with Malarngowem to avoid such interference. However, no mechanism is in place which goes to such interference.  
[27]	I accept that True North intend to comply with the State’s regulatory regime (which is outlined in the State contentions at 39-45).  However, the endorsements and conditions which the State intend to apply to the grant of the licence do not prevent or mitigate interference with sites of particular significance. True North is able to apply under the State’s regulatory regime for relevant permits and licences to access and disturb areas on the licence, including those registered or recorded on the AHIS.
Conclusion
[28]	I accept that exploration activities of True North are likely to interfere with the Waterfall Creek/Bow River area of particular significance, and that mere entry onto the area of Wungunabany is also likely to cause interference. As the Federal Court noted in FMG v Yindjibarndi (at [76]):
As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation.  There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘… in accordance with [the native title party’s] traditions’.  It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
Determination
[29]	My determination is that the grant of E80/5407 to True North Resources Pty Ltd is not an act that attracts the expedited procedure.

Helen Shurven
Member
22 April 2021