NATIONAL NATIVE TITLE TRIBUNAL

Ngan Aak-Kunch Aboriginal Corporation RNTBC v Glencore Bauxite Resources Pty Ltd and Another [2016] NNTTA 22 (10 June 2016)

Application No: QO2015/0078

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

Ngan Aak-Kunch Aboriginal Corporation RNTBC (native title party)

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Glencore Bauxite Resources Pty Ltd (grantee party)

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The State of Queensland (Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Mr JR McNamara Place: Brisbane Date of hearings: Directions hearings 12 October 2015 and 11 March 2016 Date of determination: 10 June 2016

Catchwords: Native title – future act – proposed grant of mineral development 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 cause major disturbance to land or waters – expedited procedure attracted – non-disclosure orders – confidential material– native title protection conditions – NTPC – Aurukun Project

Representatives of the Mr David Yarrow, Counsel native title party: Mr Adam McLean, Cape York Land Council Aboriginal Corporation Mr Philippe Savidis, Cape York Land Council Aboriginal Corporation

Representatives of the Ms Bernadette Wrafter, Crown Law Government party: Ms Rebecca Rowling, Crown Law

Representatives of the Mr Dominic McGann, McCullough Robertson Lawyers grantee party: Mr Liam Davis, McCullough Robertson Lawyers Mr Julian Farrugia, Glencore Bauxite Resources Pty Ltd 2

Legislation: Mineral Resources Act 1989 (Qld), ss 181, 194, 194AAA, 194AC, 231A, 231G Native Title Act 1993 (Cth) ss 29, 31, 32, 150, 151, 155, 237

Cases: Cheinmora v Striker Resources NL (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) Gilla v Western Australia [2002] NNTTA 35 (‘Gilla v WA’) Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (‘Hale v Mings Mining Resources’) Little and Others on behalf of the Badimia People v Oriole Resources Pty Ltd [2005] FCAFC 243 (‘Little v Oriole Resources’) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another [2016] NNTTA 16 (‘Tjurabalan v Rich Resources’) Walley v Western Australia (2002) 169 FLR 437 (‘Walley v Western Australia’) Wik Peoples v Queensland [2004] FCA 1306 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG’) Ward v Northern Territory (2002) 169 FLR 303 (‘Ward v NT’)

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REASONS FOR DETERMINATION

Introduction

[1] This is not a decision to grant mineral development licence MDL2001 to Glencore Bauxite Resources Pty Ltd (Glencore) or anyone else. This is because the Tribunal does not have the power to grant MDL2001, or any other tenement.

[2] The matter the Tribunal must decide, by reference to specified criteria in the Native Title Act 1993 (Cth) (the Act), is whether the State of Queensland can grant MDL2001 to Glencore using a fast-tracked process known as the ‘expedited procedure’, or whether parties must follow the right to negotiate process set out in the Act, to ensure the validity of its grant.

[3] The State’s website says that a mineral development licence allows the holder to carry out further studies of a resource and to assess the development potential of a site, once the holder has discovered that minerals or coal exist. In addition to activities allowed under exploration permits, the permitted activities include the conduct of feasibility studies, geoscientific programs (for example drilling, seismic surveys), engineering design studies and other studies to evaluate the development potential of the resource.

[4] Glencore wishes to further study the bauxite resource and assess its development potential in an area of land which is approximately 30 kilometres north east of Aurukun and approximately 573.6 square kilometres in size. The proposed licence falls within the Aurukun Project area, which is subject to special provisions of the Mineral Resources Act 1989 (Qld) (see Chapter 5 Part 2). The native title party, Ngan Aak-Kunch Aboriginal Corporation RNTBC (‘Ngan Aak-Kunch’), highlights that these provisions were enacted to ‘facilitate the commercial development of the Aurukun bauxite resource’1.

[5] Ngan Aak-Kunch holds exclusive native title rights and interests over an area of land which includes the area of the proposed licence. It holds these rights and interests on behalf of the native title holders, the Wik and Wik Way People (see

1 Explanatory notes to Mineral Resources and Other Legislation Amendment Bill 2006 4

Federal Court determination Wik Peoples v Queensland). Approximately 99.67 per cent of the licence application area is subject to the native title determination.

[6] If the expedited procedure applies, the State can grant the licence without the State, Glencore, and Ngan Aak-Kunch and any other native title parties needing to negotiate about the grant of the licence. Both Glencore and the State assert the expedited procedure applies. Ngan Aak-Kunch has asserted that the expedited procedure does not apply and it lodged an objection application with the National Native Title Tribunal on 8 September 2015. No other objection applications were received. Although there are other native title parties for the licence area, Ngan Aak-Kunch is the only party who lodged an objection.

[7] The licence cannot be validly granted while there is an objection on foot. The objection can be finalised if, for instance, the native title party withdraws the objection (this often occurs where parties have reached agreement). If the objection has not been withdrawn or otherwise finalised, the Tribunal is to make a decision through an arbitral inquiry process as to whether or not the expedited procedure applies (see s 32 of the Act). Shortly after the objection application was received, Glencore requested that directions be set for the arbitral inquiry. Correspondence received from parties details various interactions and confirms that the parties did not reach agreement. I was appointed by the Tribunal’s President, Ms Raelene Webb QC, to make this arbitral decision.

[8] Parties submitted written material to the Tribunal in accordance with directions I issued. Ngan Aak-Kunch made a request under s 155 of the Act to restrict parties’ use of certain documents. After seeking comments from the other parties, I directed that parties’ use of those materials provided by Ngan Aak-Kunch (Annexures 15-17 to NTP Contentions 13 January 2016) be restricted.

[9] In conducting an inquiry, I am to decide whether or not I can make my determination in the absence of the parties using the written material provided, rather than holding a hearing (see s 151(2)). Ngan Aak-Kunch initially requested that a hearing be held and provided submissions which characterised the issue as whether or not a set of Queensland conditions, known as the native title protection 5

conditions (NTPCs), apply to the licence (NTP Submissions 23 February 2016). Paragraphs [4] to [5] of that request read as follows (most footnotes omitted):

4. The ultimate issue for determination by the Tribunal is whether the proposed future act, being the grant of mineral development licence MDL 2001 to the Grantee Party (GP) is an act attracting the expedited procedure.

5. An intermediate issue for the Tribunal’s determination is whether the proposed future act to be assessed against the criteria of NTA s.237 is a mineral development licence which is subject to the “Native Title Protection Conditions” or one which is not. This matter is contentious between the NTP and the Government Party (GVP), and not addressed by the GP in its contentions. [Footnote reads: ‘Grantee Party merely asserts that the Native Title Protection Conditions will apply if the proposed mineral development licence is granted...’]

[10] On 24 February 2016, taking account of the matters raised at [9] above, I issued new directions requiring all parties to provide their view on the holding of a hearing. Glencore’s view was that a hearing was not necessary, whereas the State thought it was. After considering all parties’ viewpoints and the written material before me, I convened a directions hearing on 11 March 2016 to discuss the management of the inquiry. On the morning of the directions hearing, party representatives discussed their views amongst themselves and then informed me that they agreed that the decision could be made ‘on the papers’. Having considered the circumstances, I am satisfied that I can make the decision on the papers. Further detail about the directions hearing is provided at [20]-[22] below.

[11] In making my decision, I have also considered a map of the licence and surrounding area prepared by the Tribunal’s Geospatial Services, to which no party objected.

[12] I must consider whether the grant of the licence is likely to:

 interfere directly with the carrying on of the Ngan Aak-Kunch’s community or social activities;  interfere with any areas or sites of particular significance to Ngan Aak- Kunch, in accordance with their traditions; and  involve major disturbance to, or create rights which, if exercised, would involve major disturbance to, relevant land or waters (see s 237 of the Act).

[13] If all three of those factors are answered in the negative, then the expedited procedure applies. If any one or more of them is answered in the affirmative, then the expedited procedure does not apply and the negotiation parties will need to enter 6

into good faith negotiations about the grant of the licence (see ss 31 and 32(5) of the Act).

[14] A table of key events relevant to this inquiry is attached to this determination at Appendix A. A list of the documents and material received from the parties in relation to the inquiry appears at Appendix B.

Consideration of the NTPCs and MDL2001

[15] The application of the NTPCs to MDL2001 has been a prominent and contentious issue in this inquiry.

[16] The NTPCs are a standard set of conditions which address cultural heritage management and provide processes for inspections, notice requirements and administrative payments among other things. It is a condition of the NTPCs that exploration activities must not be carried out in an area if they are likely to directly interfere with ... community or social activities; are likely to interfere with ... sites of particular significance; and are likely to involve ... major disturbance, except in accordance with the NTPCs. They are publicly accessible on the Queensland Government Business and Industry portal (https://www.business.qld.gov.au/industry/mining/land-access-environment/native- title/expedited-procedure/protection-conditions), which states that the NTPCs are ‘placed on exploration permits for minerals and coal, and some mineral development licences, granted under the expedited procedure’ (my underlining). The website explains that the NTPCs identify which native title parties to engage, what the proponent and native title parties must do before and after exploration, and what happens when parties do not meet specified time frames.

[17] Where the State of Queensland issues a notice (under s 29 of the Act) of its intention to grant a tenement pursuant to the expedited procedure, the State has a practice of including a statement that the grant will be subject to the NTPCs applying. Specifically for a mineral development licence, often the public notice specifies that the grant is ‘subject to the Native Title Protection Conditions for Mineral Development Licences Version 3, June 2014, pursuant to s. 194(1)(j) of the Mineral Resources Act 1989 (Qld) (‘MRA’) and s. 194AAA of that Act’. In the case of MDL2001, the public notice was issued twice (the first notice with 7

notification day 17 April 2015 was withdrawn by the State, and the second notice with notification day 13 May 2015 remains in place). Neither notice contained a reference to the NTPCs. I note Ngan Aak-Kunch, in their reply material (NTP Contentions 19 February 2016), provided two examples of MDL notices issued in September and November 2015 which include the wording set out above regarding Version 3, June 2014 NTPCs and s 194(1)(j) and 194AAA of the MRA.

Background and viewpoints prior to directions hearing

[18] Within their contentions, Ngan Aak-Kunch asserted that it regards the future act in question to be the grant of MDL2001 without it being subject to the NTPCs, as per the notice, and that subsequent letters from the State were insufficient to confirm that the NTPCs would attach (NTP Contentions 13 January 2016, at [23]). The State and Glencore expressed in contentions their view that MDL2001 would be subject to the NTPCs, pointing to the State’s correspondence to Ngan Aak-Kunch dated 3 December 2015 indicating the State intends to make the NTPCs conditions of grant.

[19] In their contentions of 19 February 2016, Ngan Aak-Kunch asserted (at [18], footnotes omitted):

‘...the absence of a statement foreshadowing the application of the NTPCs to MDL2001 in the State’s s 29 notice is significant in that:

(a) there was an initial expectation that an Indigenous land use agreement would be negotiated with respect to native title consents as outlined in [Ngan Aak-Kunch’s] Statement of Contentions; (b) the [State] were informed of [Glencore’s] intention to seek an expedited native title process well in advance of the notification of the proposed grant of MDL2001 under s.29 of the NTA; (c) past notification practises by the [State] created an expectation that an act attracting the expedited procedure (and subject to the NTPCs) would be appropriately notified. This is particularly the case where there is no statutory imperative, 8

whether under the MRA or NTA, that an act attracting the expedited procedure must be subject to the NTPCs; (d) the Aurukun Provisions suspend the mandatory application [Land Access Conditions] which would ordinarily apply to the grant of a mineral development licence under the MRA’.

Directions hearing and subsequent material received

[20] As noted at [10] above, I held a directions hearing on 11 March 2016. Following a private discussion between parties prior to the directions hearing, parties clarified outstanding matters and presented me with a set of proposed directions that they agreed upon, requiring each party to provide submissions as to:

(a) how the Native Title Protection Conditions Version 3, June 2014 should be considered in the making of the Tribunal’s predictive assessment of the future act, and the weight to be attributed to the NTPCs in considering whether or not the proposed grant of MDL2001 to Glencore is an act attracting the expedited procedure; and (b) whether, regardless of the application of the NTPCs, the proposed grant of MDL2001 to Glencore is an act attracting the expedited procedure.

[21] I made those directions allowing for submissions from each party and a native title party reply. I also explained to parties that there were two issues upon which I sought clarification, one of which was in relation to how version 3, June 2014 NTPCs relates to MDL2001, and the other about the Environmental Authority – see the ‘Issues for Clarification’ at Appendix D below. Parties were happy to address those issues in their material to be filed in accordance with the directions made 11 March 2016.

[22] While the issues identified by the parties at the directions hearing for further submissions concern how the NTPCs should be considered in the making of the Tribunal’s predictive assessment, Ngan Aak-Kunch in their 21 March 2016 contentions at [20] repeat their 13 January 2016 contentions (at [23] to [24]) that the 9

proposed future act to be evaluated in the inquiry is the grant of MDL2001 without it being subject to the NTPCs.

Consideration of the NTPCs

Absence of the NTPCs on s 29 notice

[23] It is clear that the State did not include reference to the NTPCs in the public notice, but later communicated its intention for MDL2001 to be subject to the NTPCs. Although reference to the NTPCs appears in the 28 April 2015 ‘Native title notification for MDL2001’, formal confirmation was not given until 3 December 2015.

[24] In the State’s ‘Further Submissions on Behalf of the Government Party’, 18 April 2016, the State provided information about the grant process, namely that the recommendation that the Minister should impose the NTPCs to grant is made by a Department of Natural Resources and Mines (DNRM) officer after it has been decided (applying the State’s ‘native title process’, or if there is a Tribunal inquiry, by the Tribunal) that the expedited procedure applies (affidavit of Mr Benjamin Johns, annexure to GVP Further Submissions 18 April 2016, at [8]).

[25] The s 29 notice is given by the Minister for Natural Resources and Mines and is signed under delegation by the Executive Director, Mining and Petroleum, DNRM.

[26] In his affidavit that accompanied the State’s further submissions of 18 April 2016, Mr Benjamin Johns, Manager, Mineral Assessment Hub, DNRM, says that (at [8]): “If the native title assessment (or alternatively an inquiry) determines that the application for a grant of an MDL should be proposed by way of expedited procedure, I recommend to the Minister that the Native Title Protection Conditions (NTPCs) should apply to the grant ...”.

[27] The ‘native title assessment’ in this case was carried out by Ms Michelle Lucas, Manager, Field and Land Access, DNRM. In her affidavit which also accompanied the State’s further submissions of 18 April 2016, she says that having reviewed the ‘work program information’ and having received advice from Mr Warren Cooper, Manager, Mining Development Unit, DNRM, to the effect that Glencore was not 10

proposing exploration activities that would result in significant ground disturbance, she (at [10]): “formed the view that any interference with native title rights and interests could be managed by the application of the Native Title Protection Conditions (NTPCs) to the grant thereby meeting the requirements of s237 ...”.

[28] The ‘work program information’ was received from Glencore by the State on 16 March 2015 (Affidavit of Mr Warren Cooper annexed to the GVP Further Submissions, at [13]).

[29] At [15] of Mr Cooper’s affidavit (again, which was annexed to the State’s further submissions of 18 April 2016), Mr Cooper, corroborating Ms Lucas’ affidavit at [8], says that on or about 9 April 2015 Mr Cooper gave verbal advice to Ms Lucas “which indicated ... the Grantee Party were not proposing exploration activities which would result in significant ground disturbance”.

[30] On 9 April 2015 Ms Lucas emailed parties attaching a copy of a s 29 notice with a notification date of 24 April 2015 and advised that the State considers the grant of MDL2001 as an act that attracts the expedited procedure. The notice did not specify that the grant would be subject to the NTPCs.

[31] The timing would suggest that after speaking to Mr Cooper, Ms Lucas completed the ‘native title assessment’ and forwarded the assessment to Mr Johns. The (first) s 29 notice was published that same day (9 April 2015) and a copy attached to an email from Ms Lucas to the parties. The s 29 notice is signed by the Executive Director, Mining and Petroleum Operations on behalf of the Minister. The material does not disclose who prepared the notice, nor explain the absence of a reference to the NTPCs in the notice.

[32] There is no requirement under s 29 of the Act that a future act notice include mention of particular conditions. Nonetheless, it is notable that in the instance of MDL2001, the notice did not mention the NTPCs. This is particularly so as Ms Lucas explains that after a native title assessment by the State, or the Tribunal’s inquiry determines that the expedited procedure applies to a tenement, it is recommended to the Manager of the Mineral Assessment Hub that a recommendation be made to the Minister that the NTPCs apply (my underlining). The omission to include reference to the NTPCs in the s 29 notice in this instance 11

created the risk of leaving Ngan Aak-Kunch under the impression for many months that another native title process, for example an ILUA, might be being pursued. The omission quite possiblyinfluenced the decision of Ngan Aak-Kunch to object to the expedited procedure statement leading to this inquiry – but equally it could have caused them not to object on the assumption that another native title process would be adopted.

[33] As a general proposition, whether the expedited procedure applies is not dependent upon the application of the NTPCs. NTPCs are a uniquely Queensland creation. Theoretically, any future act to which subdivision P of the Act applies could proceed through the expedited procedure so long as it would not offend the s 237 criteria. The 13 February 2015 letter from Glencore to the State made the point that it (Glencore) did not expect the activity would offend the s 237 criteria.

[34] In fact the State in its further submissions dated 18 April 2016 at [43] state that: “the limited nature of the work program means that the grant of MDL2001 will comply with the requirements of section 237 (a) and (c) of the NTA regardless of whether or not the NTPCs apply”. And, at [48]: “the effect of the Aboriginal Cultural Heritage Act 2003 (QLD) is that the grant of MDL2001 will comply with the requirements of s237(b) of the NTA regardless of whether or not the NTPCs apply”.

[35] Leaving aside the absence of a reference to an intention of the State to impose the NTPCs in the notice, the issue remains whether I am satisfied that the NTPCs can and are likely to be a condition on the grant of MDL2001, and this shall be discussed below.

Application of v3, June 2014 NTPCs to a MDL

[36] One issue is whether the NTPCs version 3 June 2014, as proposed by the State, can apply to the mineral development licence.

[37] The NTPCs that the State provided during this inquiry, which also appear on the State’s website, are version 3, June 2014. The definitions within those NTPCs prescribe that they apply to an ‘exploration tenement’ which means an ‘exploration permit’, which has ‘the meaning in the MRA’. Even though the MRA contains a 12

power for the Minister to impose NTPCs for a MDL, the NTPCs provided are tailored to exploration permits.

[38] During the 11 March 2016 directions hearing I drew parties’ attention to the issue and invited submissions. Ngan Aak-Kunch noted that the NTPCs refer to exploration activities throughout, and in their submissions, distinguished mineral development licences and exploration permits in terms of the permitted activities.

[39] In her affidavit accompanying the State’s further submissions of 18 April 2016, Ms Lucas explains that up until June 2014 there was a NTPCs document for MDLs and a separate one for exploration permits, however since June 2014 there is a single set of NTPCs intended for both types of tenement. She says that during the consolidation process ‘there was an oversight with regard to the definition of ‘Exploration Tenement’. This definition should include reference to ‘Mineral Development Licence’. The Department intends to correct this oversight before MDL 2001 is granted’ (Affidavit of Ms Michelle Lucas annexed to the GVP Further Submissions 18 April 2016, at [19]).

[40] I am satisfied the State’s proposed change will resolve the issue.

Power to vary NTPCs

[41] Ngan Aak-Kunch has made submissions addressing the Minister’s power to vary the NTPCs (NTP Contentions 21 March 2016), summarised as follows:

 It is ‘reasonably likely’ that during the term of the licence (if renewed, a period of up to ten years) the NTPCs will cease to apply to the licence, as s 194AC of the Act allows for tenement conditions to be amended by the Minister, without the need to give notice under s 29 of the Act.  Ngan Aak-Kunch has been unable to identify any policy regarding variation of MDL applications (whereas they found a policy for exploration tenement variation which was silent as to whether or not the NTPCs specifically might be varied or altered).  Ngan Aak-Kunch regards the absence of a policy on MDL variation as consistent with ‘a considerable discretion for the Minister to vary the conditions of an existing MDL’. Apart from the mandatory conditions in s 13

194, Ngan Aak-Kunch says the Minister’s discretion for variation is unlimited so it is ‘impossible to exclude the possibility that the NTPCs would be removed or altered during the potential 10 year life of MDL2001 (as granted and renewed)’ (at [15]).  Ngan Aak-Kunch contends any variation to MDL2001 conditions, such as the removal of the NTPCs, would not necessarily be subject to the right to negotiate provisions.

[42] Acknowledging the discretion that the Minister has to grant a MDL and to vary its conditions, the State contends that the Minister will exercise his discretion within the boundaries of the law; the State calls upon the presumption of regularity, that is, the Tribunal can presume compliance with the law unless shown otherwise.

[43] Glencore states it has always understood that, if Glencore seeks to have the NTPCs removed or to expand the authorised activities (for example, by seeking the right to undertake bulk sampling), 'that action would trigger a native title assessment by the Government party, which would result in the application of the Right to Negotiate process under the Native Title Act 1993 (Cth)’ (GP Further Contentions 18 April 2016, at [4]).

[44] In its further submissions of 18 April 2016, the State, having noted that it is not a matter for the Tribunal to determine whether or not the removal of the NTPCs would be a future act, goes on to explain its view that removal of the NTPCs would be a future act which would be subject to the right to negotiate process. This explanation appears at paragraphs [23] to [28] and those paragraphs can be found below at Appendix E. Additionally, the State makes the point that for various reasons it is ‘extremely unlikely that DNRM would ever recommend the removal of the NTPCs from an MDL which was granted under the expedited procedure without some other native [title] process (such as an agreement under s 31 of the NTA) taking its place’ (GVP Further Submissions 18 April 2016 at [16]).

[45] I acknowledge the State’s explanation that any such variation would be treated as a separate future act subject to the right to negotiate process.

Weight to be attributed to the NTPCs 14

[46] Ngan Aak-Kunch contends that the NTPCs are not suited to a ‘mining tenement’ such as MDL2001, noting that: the tenement has been subject to a lengthy period of exploration; it is of established economic significance; and it is subject to a legislative regime to fast track its development (I assume this to be a reference to the MRA Chapter 5 Part 2). Rather, Ngan Aak-Kunch regards the conditions as ‘more suited to the type of exploration activities designed to prove up a resource’ (NTP Contentions 21 March 2016 at [19]).

[47] The State asserts the Tribunal should place ‘significant weight’ on the application of the NTPCs as part of the predictive assessment, as the NTPCs are a ‘critical element’ in the State’s approach to ensuring compliance with the expedited procedure criteria.

Conclusion re the NTPCs

[48] The correspondence and submissions outlined indicate that Glencore and the State are willing for the NTPCs to apply. When parties were asked to provide viewpoints on the application of the expedited procedure regardless of whether the NTPCs apply, Ngan Aak-Kunch reiterated its view that the future act to be evaluated in this inquiry is the grant of MDL2001 without it being subject to the NTPCs. They also set out factors considered relevant to my assessment before concluding that regardless of the NTPCs, the Tribunal should determine the expedited procedure does not apply (NTP Contentions 21 March 2016 at [20] to [22]). After Ngan Aak- Kunch made those submissions, the State made its NTPC submissions saying that it shall amend the definition of ‘Exploration Tenement’ in the NTPCs to include ‘Mineral Development Licence’.

[49] My determination must be that the expedited procedure does or does not apply. The State has explained that the permitted activities are those approved in the ‘Work Program’ and has stated the intention of its officers to recommend to the Minister that the NTPCs (with amended wording incorporating mineral development licences) apply as a condition of grant to MDL2001 if the Tribunal determines that the expedited procedure does apply.

[50] The State has described in detail its administrative practices regarding compliance with the relevant future act provisions of the Native Title Act; its commitment to 15

recommend to the Minister the imposition of the NTPCs in this case and whenever the expedited procedure is applied; and, its ‘view’ that ‘any variation of an MDL to remove the NTPCs as conditions would be a future act to which subdivision P applies’ (GVP Further Submissions 18 April 2016 at [23]). I note also Glencore’s understanding referred to at [43] above that an application to have the NTPCs removed or to expand the authorised activities would trigger a ‘native title assessment’ which would result in the application of the right to negotiate process.

[51] I consider it highly unlikely that the State would retreat from such a clearly articulated position should an application be later made to remove or alter the conditions of grant. Accordingly, as part of my predictive assessment, I take the NTPCs into account in assessing the grant of MDL2001. On the basis that the NTPCs would be imposed upon grant, I do not consider it necessary to consider the other matter posed at paragraph 1(b) of the 11 March 2016 directions, that is, whether, regardless of the application of the NTPCs, the proposed grant attracts the expedited procedure.

Is the grant likely to interfere directly with the carrying on of the community or social activities of Ngan Aak-Kunch?

(i) What are Ngan Aak-Kunch’s community or social activities?

[52] Ngan Aak-Kunch contends that the grant of MDL2001 would interfere with the exercise of Wik and Wik Way native title rights in respect of decision-making and notes the right to make decisions about access to and use of the area. The Wik and Wik Way native title rights and interests are set out in Appendix C below. The third of the listed exclusive rights is to ‘give or refuse, and determine the terms of any permission to enter, remain on, use or occupy the Determination Area by others’.

[53] That description bears some similarity to the responsibility of ‘managing country’ to the extent that the latter involves decision-making, which has been construed in other Tribunal determinations concerning s 237(a). In Yindjibarndi Aboriginal Corporation v FMG, the native title party gave evidence that making decisions about managing country was a very important community activity required to be undertaken under Birdarra Law. The Tribunal noted there may be 16

physical activities associated with ‘looking after’ and managing country and sites, though there was insufficient evidence in that case and in ‘the context of the evidence provided by the native title party [the Tribunal] would not characterise ‘looking after’ and managing country and sites as a ‘community or social activity’ for the purposes of s 237(a)’ (at [74]).

[54] On the facts before me, with regard to evidence inclusive of the restricted evidence, I have not been provided with specific evidence of the decision-making taking place in any communal or social way within the area of proposed MDL2001. In its contentions, Ngan Aak-Kunch has not given specific examples of that right being exercised nor explained how that native title right and interest would specifically be affected by MDL2001.

[55] The evidence has largely been from an anthropological perspective rather than witness statements from the Wik and Wik Way native title holders directed to the impact of MDL2001. Within the restricted evidence, there is a report from anthropologist Ms Diana Romano which speaks generally about the exercise of native title rights and interests within the area of proposed MDL2001. The Tribunal recently made the following comments about anthropological evidence in circumstances where the proponent and State challenged the weight to be given to the indirect form of evidence (Tjurabalan v Rich Resources at [19] to [20]):

The State and Rich Resources challenge Ms Ronay’s evidence on several grounds. First, they contend her evidence is not supported by the direct evidence of any native title holders. In this respect, both Rich Resources and the State rely on the Tribunal’s decision in Campbell v Murchison Metals, in which Member O’Dea commented on conclusions he reached in an earlier decision, WF v Emergent Resources.

In Campbell v Murchison Metals, Member O’Dea observed (at [30]) that, in the context of the predictive assessment required in an expedited procedure inquiry, anthropological evidence about the ‘existence, location and significance of Aboriginal sites may not be accorded significant weight in circumstances where the anthropological evidence is not supported by the evidence of traditional owners.’ Although Member O’Dea stated the Tribunal is required to give appropriate weight to anthropological evidence where it is shown to be based on specialised knowledge derived from the anthropologist’s training, study or expertise, he considered ‘the probative value of such evidence may be limited where Aboriginal witnesses or potential witnesses are in a position to give evidence on such matters but fail to do so.’ 17

[56] In my view the fact that certain rights and interests are determined to exist or that the Wik and Wik Way native title holders are entitled as a matter of law to exercise those rights and interests, does not support a finding that a community or social activity is being exercised, or that the proposed licence is likely to interfere with the carrying on of the native title party’s community or social activities. I am not satisfied that the evidence before me supports a finding that a community or social activity is being exercised.

(ii) Will Glencore’s activities be likely to interfere with Ngan Aak-Kunch’s community or social activities? [57] It is the likelihood of the proposed licence being the proximate cause of substantial, rather than trivial, interference with the carrying on of the native title party’s community or social activities which I must consider – having regard to contextual factors.

[58] Having found there is insufficient evidence regarding community or social activities, it is not necessary to consider the question of likelihood of interference.

[59] It has not been established that grant of MDL2001 is likely to interfere with community and social activities of Ngan Aak-Kunch.

Will the grant be likely to interfere with areas or sites of particular significance to Ngan Aak-Kunch?

[60] In relation to the legal principles to be applied in considering this question, I adopt those outlined by President Raelene Webb QC in Yindjibarndi Aboriginal Corporation v FMG at [17] to [18] as follows:

[17] As Deputy President Sosso explained in Silver v Northern Territory (at [88]), s 237(b) focuses the inquiry towards areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title. The applicable principles discussed in Silver v Northern Territory (at [88]-[92], [101]- [102]) are as follows:

(a) the area or site must be of special or more than ordinary significance to the native title holders (applying Carr J’s explanation in Cheinmora v Striker Resources at 34). In this regard I note it is well established that a site or area may be of particular significance without being recorded on the Government’s cultural heritage register (see Little v Lake Moore Gypsum at [67]);

(b) if an area or site is of particular significance, it must be known and must able to be located and the nature of its significance explained to the Tribunal (referring to Western Australia v McHenry); 18

(c) even slight interference to a relevant area or site may be unacceptable in the context of s 237(b) but the interference must involve actual physical2 intervention;

(d) generally the relevant area or site will be located within the proposed licence, in order for it to be directly affected by grant. It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. Examples given in Silver v Northern Territory at [89] are ‘construction of roads, truck movements to and from the proposed licence etc’; and

(e) there must be a real chance or risk of interference with the area or site (referring to Smith v Western Australia and Little v Western Australia, adopting the “real risk” approach).

[18] As explained in Parker v Ammon at [35], whilst the Tribunal is entitled to have regard, and give considerable weight, to the Government party’s site protection regime (relevantly in this matter, the provisions of the Aboriginal Heritage Act 1972 (WA) (‘AHA’)), this does not mean that in all cases the protective regime will be adequate to make interference unlikely under s 237(b). This approach was approved by Siopis J in Parker v Western Australia at [18].

(i) Are there any sites or areas of particular significance? [61] In addressing this question, Ngan Aak-Kunch refers to various materials the subject of the non-disclosure orders. Within that material (Annexures 15 to 17):

 An expert report dated 10 December 2015 prepared by anthropologist Diana Romano entitled ‘Wik and Wik-Way Interests in MDL2001: Ward River (Tappelbang & Coconut Creeks) and North West Watson River’;

 Wik and Wik Way Sites Register for MDL2001 dated December 2015/January 2016. Attached to it are extracts from a report by Peter Sutton, David Martin, John von Sturmer, Roger Cribb & Athol Chase in 1990 entitled ‘AAK: Aboriginal Estates and Clans between the Embley and Edward Rivers, Cape York Peninsula’ (‘AAK extracts’);

Note: the Sites Register is said to be formed based on site specific information from: the AAK extracts above; the Romano report above; the Queensland Aboriginal Cultural Heritage Database (‘QACH Database’);

2 The word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’ such that mere entry onto the site ... could be regarded as physical and ‘non-trivial’ – see [76] of FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 19

and information within confidential report prepared for Cape York Land Council entitled ‘Sutton, P. 1997. Appendix 3 Supplementary Site Report: Wik Native Title Anthropological Overview, The Wik Peoples Native Title Determination Application QC94/3’. It lists individual site entries numbered consecutively 1 to 158; and

 Two maps prepared by the Tribunal’s Geospatial Services depicting sites Ngan Aak-Kunch outlined, entitled ‘Wik and Wik Way Significant Sites, Site Map 1’, and ‘Wik and Wik Way Significant Sites, Site Map 2’ dated 5 January 2016.

[62] Ngan Aak-Kunch contends that the combination of recorded site information (Sites Register, NNTT mapping, Expert Report) form a ‘cluster of sites’, contending that the sites are ‘sites of particular significance’ as described in the Sites Register and they cite Cheinmora v Striker Resources per Carr J and Walley v Western Australia per Sumner DP. Ngan Aak-Kunch says (NTP Contentions 13 January 2016, at [47]):

Given the distribution and heavy concentration of sites along coastal areas and inland waterways it is reasonable to infer that a similar distribution and concentration of sites would be reproduced to a greater or lesser extent along waterways internal to the MDL2001 area notwithstanding that these sites have not been identified by reference to geospatial coordinated or formally registered upon Queensland Aboriginal Cultural Heritage Database.

[63] No detailed submission is made in support of the assertion that the sites are of particular significance.

[64] Ngan Aak-Kunch contends ‘these sites’ are sites of particular significance, based on the explanation of the significance outlined in the Sites Register document.

[65] I note that the State refers to Ngan Aak-Kunch’s Sites Register and contends (footnotes omitted):

...that there may be further sites along coastal areas and inland waterways, notwithstanding that these sites have not been identified or formally registered. An assertion that a site is of significance in the abstract without any supporting material is not sufficient. If an area or site is significant it must be known and able to be located and the nature of its significance explained to the Tribunal. Therefore, the Tribunal is not required to consider the impact of MDL2001 on these unidentified sites (GVP Contentions 3 February 2016 at [7.3]). 20

[66] In relation to the Romano anthropological report above, Ngan Aak-Kunch comments that the report notes the difficulty in identifying the precise location of sites of significance given the short timeframe for the preparation of the report which was also hampered by the inability to access another highly restricted document (extracts of which were subsequently made available to the Cape York Land Council, the representative body for Ngan Aak-Kunch). Under the heading ‘Significant Sites’, Ms Romano notes that due to the constraints of the report, no mapping or site visits were undertaken and the site list is preliminary and indicative only (Romano Anthropological Report, Annexure 15 to NTP Contentions 13 January 2016, at p 35).

[67] In respect of the sites listed in the first section of the Sites Register Ms Romano says: they have been provided by informants in November 2015; the locations are not precise; the list is not exhaustive; and, further consultation and site visits may lead to the revelation of more sites (Romano Anthropological Report, Annexure 15 to NTP Contentions 13 January 2016, at p 35). The second section lists sites on the QACH Database, while the third section lists sites detailed in Sutton’s (1997) Wik Anthropological Overview Report, Appendix 3 Supplementary Site Report. The Site Register records under the heading ‘location’ a general description and sometimes commentary, for example, ‘Appears to be within the MDL2001 area’, ‘does not appear to be within MDL2001, but in the vicinity’, or often no reference to MDL2001 at all. In the ‘Proximity to MDL2001’ column, the entries are ‘Close to MDL2001’, ‘Within MDL2001’, ‘Not Mapped’, or the column is simply left blank. Of the 158 entries, 32 are said to be within MDL2001, and 36 close to MDL2001.

[68] As noted above, two maps were produced by the Tribunal at the request of Ngan Aak-Kunch based on the Sites Register information (some sites with coordinates, some with location description, some with broad feature description). The maps are Annexure 17 to the NTP Contentions 13 January 2016. The maps suggest that the majority of sites on the Sites Register which are said to be within or in the vicinity of MDL2001 are along what might be described as the southern boundary of MDL2001, at or near the Watson River. Ms Romano says (at p 35): 21

Of those listed, it would appear that at least two specific sites [withheld], and two generalised places [withheld], are located within the boundary, and at least five sites [withheld] are not within the boundary, with the remainder unclear, or within the vicinity of MDL2001, to an extent that would require consultation. [Due to the restricted nature of the evidence, the names that appear within the report have been redacted].

[69] The specific sites listed are identified by area description and coordinates, ‘details’, and ‘source/informant’. Accepting the conclusion of Ms Romano stated above, the two specific sites which appear to be within the MDL2001 area appear on the QACH Database, were recorded in 1978, and are both described as a ‘story place’. They are included in section 2 (QACH Database) and do not seem to correspond with sites described in section 1 and provided to Ms Romano by informants in November 2015. The two generalised places, being the Ward River and Watson River reference sites, some which appear to be within the MDL2001 area, or state that the ‘exact location to be identified’ – are perhaps in the vicinity of MDL2001.

[70] In her conclusion Ms Romano identifies families and individuals whom she considers ought to be consulted with respect to developments on MDL2001. She says that site recording work would provide a clearer picture of the sites which might be impacted should the area be developed. At page 47 of the report, she says:

It is also important to note that while sites such as story places are in and of themselves significant, the country as a whole, and the resources it contains are also significant. As such, native title holders for MDL2001 may be concerned not just for the protection of sites, but also for the protection of an entire river catchment and the animal and plant life associated with it.

[71] Ngan Aak-Kunch contends that where sites of significance exist within the MDL2001 area but have not been precisely located, there is a real risk of interference particularly where the area that may be affected by the proposed future act is ‘site rich’, citing Gilla v WA at [21]. I note that Gilla v WA is also authority for the proposition that in ‘site rich’ areas, evidence as to the grantee party’s intentions is important. Ngan Aak-Kunch contends that the Tribunal should find that the MDL2001 area is a ‘site rich area’ in the sense that the Tribunal has previously used that term, citing Ward v NT at [82].

[72] Within that passage of Ward v NT, the Tribunal said that the term ‘site rich’ is simply a short hand description of an area of land and waters where the number and nature of sites is such that the Tribunal is put on notice that, even applying the presumption of regularity (i.e. essentially that a proponent will comply with the 22

law), there is often a real chance or risk that the act in question will interfere with the spiritual fabric of the locality. The Tribunal went on to say that a site rich area can be understood not only as an area where the number of sites is large, but also that the number of sites is itself a manifestation of the overall spiritual importance of the land and waters in the relevant locality – which can be of relevance in making an assessment of the likelihood of interference pursuant to s 237(b). Importantly, the Tribunal also said that it must be guided on the nature of the evidence before it and it is not possible or sensible to make any broad and sweeping generalisations about the implication of finding that an area is site rich.

[73] I also note the Tribunal’s general comments about the term ‘site rich’ in Hale v Mings Mining Resources at [81]:

The Tribunal has found on a number of occasions that the term ‘site rich’ is not a particularly helpful lens through which to view the issues that need to be determined in an inquiry such as this. To the extent that ‘site rich’ has been used in previous decisions, it has reflected an evidentiary conclusion about the existence of areas or sites of particular significance and the likelihood of interference (see Lungunan v Geotech International at [43]; Campbell v Murchison Metals at [55]). The central issue remains whether the grant of the licence is likely to interfere with areas or sites of particular significance. The nature or distribution of the areas or sites may have a bearing on the risk of interference. However, the evidence must establish the existence of areas or sites likely to be affected by the grant of the licence. It is not enough to simply assert an area is ‘site rich’ or provide reasons why sites that may exist in a given area have not been identified.

[74] The sites referred to in the Romano anthropological report and the Sites Register are not described in a way which suggests to me that they are of a kind which demand prohibition from ‘external or uninvited’ access for reasons of culture, spirituality, or the potential for adverse impact. For example, in the material, no ceremony invoked at a site before entry is described or explained, nor does the material speak to any consequences of access, such as adverse impact or harm.

[75] Consequently, I am of the view that the sites identified are not of the nature of sites of particular significance.

(ii) Will Glencore’s activities on the licence be likely to interfere with any sites or areas of particular significance?

[76] In order to answer this question, I shall outline some information about Glencore’s intended activities and the nature of the licence. 23

[77] The licence, if granted:

(a) will authorise the holder to do all things allowed under the MRA and carry out activities ‘leading to the evaluation and economic development of the ore body’ subject to the MRA. The licence is for a term not exceeding five years, with the option of renewal for a term not exceeding five years (see s 29 notice);

(b) will be bound to the entitlements and obligations set out in s 181 of the MRA;

(c) will be subject to the conditions set out in s 231G MRA (i.e. MDL conditions for an Aurukun Project);

(d) will be subject to the regulatory regime, which includes provisions under the ACHA, EPA and MRA generally. The Code of Environmental Compliance (see [103] to [104] below) and the Land Access Code are both relevant.

[78] As set out in the document itself (dated November 2010, available on the DNRM website at https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0009/193086/land- access-code-nov-2010.pdf), the Land Access Code serves to provide best practice guidelines for communication between the holders of authorities and owners and occupiers of private land, and imposes mandatory conditions on various authorities (including exploration permits and mineral development licences under the MRA) concerning the conduct of authorised activities on private land. Prior to the passage of the Mineral Resources (Aurukun Bauxite Resource) Amendment Bill 2016 (Qld), which received royal assent on 24 March 2016, the State contended the mandatory provisions of the Land Access Code applied by way of s 231G(6) MRA (which provides, in relation to mineral development licences for an Aurukun Project, that ‘conditions requiring compliance with stated codes or industry agreements may be imposed on the licence’).

[79] The provisions of the amended MRA commenced on royal assent. I have considered the relevant provisions and understand one of the effects of the amending legislation to have been the inclusion a further sub-section, ss 24

231G(1)(aa), which provides that a mineral development licence (for an Aurukun Project) is subject to a condition that the holder must ‘comply with the mandatory provisions of the land access code to the extent it applies to the holder’.

[80] In its reply of 26 April 2016, Ngan Aak-Kunch submits a view that the amendments to the MRA are relevant to the predictive assessment required by s 237 of the Act.

[81] I note the following other information about the proposed licence:

(a) The proposed licence area falls entirely within ‘Restricted Area 315’, an area which prohibits any mining permits being granted over the area apart from those made in accordance with Chapter 5 Part 2 MRA (i.e. mineral development licences for the Aurukun Project). (b) The underlying tenure for the licence is as follows: Lot 211 Plan SP241404 Aboriginal Freehold; Road (Road type parcel); Watson River (Watercourse type parcel); (c) There are no other current licences or permits underlying the MDL2001 application area. (d) There are various historical underlying permits, licences, authorities and one mining lease.

[82] The Work Program (dated February 2015) that Glencore provided to the State sets out the intended activities. Glencore states the objective of any MDL is ‘to establish the commercial and technical feasibility of the proposed development of a bauxite resource within Restricted Area 315 together with obtaining the necessary regulatory approvals and community endorsement to underpin an investment decision by Glencore to construct a mining operation’ (page 2 Work Program). It says two of the stages Glencore is focusing on during the term of the MDL are the completion of a technical and commercial Feasibility Study and the issue of an Environmental Authority by the Queensland Department of Environment and Heritage Protection. I note that Glencore has been granted Environmental Authority EPSX03393415. Some specific factors from the Work Program are noted as follows:

(a) Regarding drilling, ‘Glencore considers that only a limited drilling program would be required during the MDL term, primarily focussed on geotechnical 25

information for infrastructure design and density information on the bauxite. If further re-drilling of the resources is required it would be targeted to focus on the particular deposit that is the subject of Glencore’s Project concept’;

(b) Under heading 5.2 Environmental Impact Assessment, within the sub- heading Indigenous Cultural Heritage Assessment, the following matters are listed: Review of existing information and survey results; Survey of the potential project disturbance is to identify additional places of cultural heritage significance; Identification and mapping of cultural heritage (to the extent permitted by traditional owners); Assessment of potential impacts on places of significance; Consultation with relevant traditional owners regarding potential measures to avoid, mitigate or offset impacts.

[83] The Work Program is less specific about where proposed works will be conducted within the area of MDL2001.

[84] In correspondence from Glencore to Cape York Land Council (CYLC) dated 11 September 2015 (in response to a letter from CYLC dated 4 September 2015), the nature of proposed activities are detailed but in response to ‘precise location’ information, Glencore says:

Glencore’s work program notes that locations for resource verification drilling will need to be identified and determined subject to cultural heritage clearance of that location.

[85] In relation to construction activities, again in response to ‘precise location’ information, Glencore says that field work is likely to be conducted based out of Aurukun but if it becomes necessary for employees and/or contractors to remain in the field over night, swag or tent like accommodation equipment is expected to be used. They say that supporting infrastructure would likely be limited to lockable shipping container/s to store field equipment if required, most likely located at Beagle Camp.

[86] Also within the 11 September 2015 letter Glencore says:

However, as identified to NAK directors in the course of 2013, Glencore is interested in assessing the feasibility of the various bauxite resources located north of the Watson River. 26

Each of these resources may have different requirements with respect to marine facilities, mine infrastructure, power etc.

Subject to further assessment, our Project is looking at two initial stages for development being:

 Extraction of bauxite from the North Watson bauxite resource with potential barging shipment along the Watson River to an offshore transhipping location; and  Extraction and processing of bauxite from the Coconut bauxite resource with barging shipment from a point on the western coast to an off-shore transhipping location.

The locations of the North Watson and Coconut bauxite resources are shown in Annexure 1.

There are a range of options for infrastructure associated with both these stages that are intended to be assessed in the course of the MDL.

Any proposal for construction would be subject to significant consultation with the community, including directors of NAK. We are looking forward to the opportunity to advance our assessment of these developments.

[87] I understand Glencore to be saying that the operation on the MDL regarding feasibility of the resource includes an assessment of the requirements to support the project (development). The project itself could have a significant impact on the use, access and enjoyment of the North Watson River area. However, it is not the impact of the project I am to consider, rather the likely interference or disturbance occasioned by the MDL.

[88] For the purpose of assessing environmental impacts, in the 11 September 2015 correspondence, Glencore says that the precise nature may change but activities would include taking samples of surface water, monitoring stream flow, surveys of surface water beds and banks, aquatic ecology surveys, surveys of the marine environment, and, characterisation of the existing marine transport environment. Again, the precise locations are not specified, however, it might be reasonable to conclude that this would involve activities in or around the rivers within MDL2001.

[89] Glencore contends that any impact of the activities contemplated by its Work Program will be managed by the NTPCs that will form part of the licence. It says the conditions will ensure that the impact of its activities on any areas or sites of particular significance are managed to ensure that the impacts are minimised or altogether avoided where possible. As noted above I take the NTPCs into account in my consideration of the objection to the application of the expedited procedure to the grant of MDL2001. 27

[90] Glencore contends that the proposed extent of any sampling work is very limited as the resource has already been subject to significant drilling, and any additional drilling will be limited in scale, nature and location. Additionally, Glencore contends that the proposed activities will be low level and temporary and consistent with activities eligible under the expedited procedure. Glencore notes its obligations under the ACHA, the Environmental Protection Act 1994 (Qld) and the MRA.

[91] In relation to the two sites identified as a story place on the QACH Database (see [69] above) Glencore contends they will be managed under the NTPCs ‘to ensure (they) are not impacted by the activities of the grantee party under MDL2001’.

[92] The State contends that the impact of activities undertaken under MDL2001 can be managed by the conditions of the licence, primarily the NTPCs and the mandatory conditions of the Land Access Code. Regardless of the NTPCs, the State contends the limited nature of the Work Program, the application of the ACHA and the presumed compliance that Glencore will have with the ACHA, are relevant to the expedited procedure assessment.

Conclusion – Will the grant be likely to interfere with areas or sites of significance to Ngan Aak-Kunch?

[93] Before me I have the contentions of Ngan Aak-Kunch that the combination of recorded site information form a ‘cluster of sites’; the contention that the sites as described in the Sites Register are ‘sites of particular significance’ based on the explanation outlined in the Sites Register; and, the contention that there may be further sites along coastal areas and inland waterways.

[94] The Sites Register provides some limited description of a site, such as ‘story place’, but it is insufficient information to form the basis of a conclusion of significance – other than by its existence.

[95] The material, including the Tribunal mapping based on the Sites Register information, might suggest the likelihood of further sites. However, in my view, the evidence presented is inadequate to elevate the known information coupled with the suggestion of further sites, to support a conclusion that a location is site rich such that there is a real risk of interference. 28

[96] Further, although Glencore concedes precise activity location information is currently unavailable and the precise nature of activities may change, the Work Program indicates that in terms of cultural heritage assessment Glencore intends to: review existing information and survey results; survey potential project disturbance to identify additional areas of cultural heritage significance; identify and map cultural heritage (to the extent permitted by traditional owners); assess potential impacts on places of significance; and, consult with traditional owners regarding measures to avoid, mitigate or offset impacts.

[97] Should the project proceed to production there could be significant impact on the use, access and enjoyment of the Watson River area – an area where further investigation may identify sites of significance. However, as mentioned, it is not the impact of production activities I am to consider, rather the likely interference or disturbance occasioned by MDL2001.

[98] Finally, I have already concluded that the future act I am considering is the grant of MDL2001 subject to the NTPCs. The NTPCs offer a cultural heritage protective regime and engagement framework. Coupled with its obligations under the ACHA and the MRA I am satisfied that there is a site protection regime in place which would make adverse impact on sites unlikely, or managed. However, as I have concluded that sites of particular significance have not been identified, this simply provides comfort to Ngan Aak-Kunch that sites currently unidentified are not likely to be adversely affected.

Will the grant be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned?

[99] Ngan Aak-Kunch contends that the following is relevant to its assertion that major disturbance is likely:

(a) The rights of grant for MDL2001 under Chapter 5 MRA without the NTPCs. They note that the rights under s 181(4) and 231A MRA are regarded as being broad, citing s 181(4)(a)(i) which includes the words ‘any activities ... as are appropriate for the purpose for which the licence is granted’; (b) the Tribunal is to consider the full scope of rights permitted under grant; 29

(c) in relation to past enquiries about the precise scope and nature of activities in the Work Program Glencore can carry out activities that exceed the scope of works described in Glencore’s 11 September 2015 letter; (d) the objective of the Work Program (see [82] above).

[100] I note Ngan Aak-Kunch’s view above regarding the Minister having discretion to vary the licence.

[101] I have given consideration to the parties’ viewpoints on whether MDL2001 activities would involve bulk sampling. I note the Work Program (i.e. the ‘approved work program’ also known as the ‘supporting information’) does not refer to bulk sampling. Ngan Aak-Kunch has opined ‘given the considerable work already undertaken with respect to the resource located within MDL 2001, and the potential 10 year life of the tenement, it is reasonable to predict that some form of bulk sampling will occur within the area of [MDL2001] in conjunction with considerable infrastructure work as [Glencore] moves to establish the development potential of the Aurukun project and validate its business case’ (NTP Contentions of 21 March 2016 at [10]). In response, Glencore states the Work Program ‘did not propose to undertake any bulk sampling’ and asserts it has always understood the MDL activities it sought were exploratory and no bulk sampling would be approved on the basis of its licence application (GP Further Contentions 18 April 2016 at [2]). The State confirms that MDL2001 would be conditional upon compliance with the approved Work Program, which does not provide for any bulk sampling or ‘considerable infrastructure work’ (GVP Further Submissions 18 April 2016 at [34]), and that carrying out either of those, in the absence of an application for variation, would be a breach of the licence.

[102] The State contends that ‘the Tribunal should conduct its predictive assessment on the basis that the conditions of the MDL will not allow the Grantee Party to engage in activities which involve significant ground disturbance (including bulk sampling or considerable infrastructure work) without an application from the Grantee Party to vary those conditions and that such an application would trigger a new native title process (whether through an ILUA or through a section 31 Agreement)’ (GVP Further Submissions 18 April 2016). 30

[103] Glencore points to the State’s regulatory regime, the Environmental Authority granted and the Code of Environmental Compliance (which imposes standard conditions on an Environmental Authority for exploration and mineral development projects) as a sufficient basis for ensuring that no major disturbance occurs to land or waters concerned.

[104] Regarding the Environmental Authority, Glencore states the conditions include the criteria that ‘the mining activity does not, or will not, at any one time, cause more than 10 [hectares] of land to be significantly disturbed’ (GP Contentions 25 November 2015 at [39]). Condition 2 of the Code of Environmental Compliance concerning that criterion differs in wording: ‘the holder of the environmental authority must ensure that the area and duration of disturbance to land and vegetation is minimised. Not more than 1000 [square metres] can be disturbed at any one location excluding campsites’ (Document 9 of GVP List of Documents 27 October 2015). The Tribunal has not been provided with a copy of the actual Environmental Authority. Glencore has clarified that those statements are two separate sets of constraints. Specifically (GP Further Contentions 18 April 2016 at [10]):

‘(a) under the environmental authority, only 10 hectares can be significantly disturbed within the whole of the MDL area at any one time. That is, if a further area is required to be disturbed within the area of MDL 2001, the Grantee Party would first have to rehabilitate the previously disturbed areas so that the total area disturbed at any one time does not exceed 10 hectares; and

(b) in addition to that 10 hectare significant disturbance restriction under the environmental authority, the Grantee Party cannot disturb more than 1000m2 at any one location (for example, over a particular drill site).’

[105] The State confirms both constraints are distinct from each other and both are correct.

[106] Glencore also contends that it is unlikely that animals and plants will be impacted to any greater significance than previous activities due to the ‘limited scope’ of its proposed activities. The State notes significant work, including drilling and sample collection, has been undertaken for the bauxite deposit by previous tenement 31

holders. The State also notes it has retained extensive drilling samples from previous works, which can be used to evaluate resources for present purposes without the need to collect any more samples.

[107] The State contends that any major physical disturbance to land is unlikely if Glencore acts lawfully in the exercise of rights under MDL2001, with the grant being subject to the NTPCs and also the Land Access Code.

[108] Regardless of whether the NTPCs apply, the State contends s 237(c) requirements will be complied with due to the limited nature of the Work Program. The State notes the Tribunal can take into account how the Work Program indicates rehabilitation and mitigation measures will be undertaken. The State also notes the Work Program proposes a limited drilling program and does not include bulk sampling or considerable infrastructure work.

[109] The assessment of whether a future act is likely to involve, or create rights whose exercise are likely to involve, major disturbance to the land and waters must be evaluated by reference to what is likely to be done, rather than what could be done (Little v Oriole Resources at [51]).

[110] The concerns of the Aboriginal community, including matters such as community life, customs, traditions and cultural concerns are relevant matters for consideration in evaluating ‘disturbance’ (Little v Oriole Resources at [53]).

[111] The Tribunal is entitled to have regard to the context of the proposed grant including the history of mining and exploration in the area, the characteristics of the land and waters concerned and any relevant regulatory regime (Little v Oriole Resources at [52] to [54]).

[112] Taking account of the Work Program, the Environmental Authority, the Code of Environmental Compliance, and the results of ‘previous activities’ (including retained drilling samples which can be used to evaluate resources), I am of the view that it is not likely that Glencore will engage in activities which involve significant ground disturbance. I also accept and would find it highly unlikely, based on contentions made by the State, that any form of sampling that might cause major disturbance would be permitted without requiring another native title process to be followed.

Conclusion 32

[113] As stated at the beginning of these reasons, this is a decision about whether the grant of MDL2001 can be made to Glencore using the expedited procedure - it is not a decision to grant MDL2001. That is a matter for the State.

[114] I accept that should the State proceed to grant MDL2001 to Glencore, the grant will be subject to the NTPCs. At [50], I noted the State’s and Glencore’s position that any application to have those conditions removed or to expand the authorised activities would trigger a ‘native title assessment’ resulting in the application of the right to negotiate process.

[115] The criteria to determine whether the expedited procedure applies concern matters of likely interference with the relevant native title party’s community or social activities, and sites of particular significance; and, the scale of likely disturbance to land or waters.

[116] There was insufficient direct evidence before me of community or social activities being exercised for me to conclude that the relevant interference was likely.

[117] While there was information regarding sites within the MDL2001 area, for example, in the Sites Register and anthropological reports, apart from general descriptions, I concluded at [93] to [98] that sites of particular significance had not been identified – noting that the cultural heritage protective regime and engagement framework of the NTPCs, coupled with the proponent’s obligations under the ACHA and the MRA, would make adverse or unacceptable impact on sites unlikely.

[118] Finally, I concluded that taking account of the Work Program, the Environmental Authority, the Code of Environmental Compliance, and the results of previous activities, it was not likely that Glencore will engage in activities which involve significant ground disturbance. That conclusion is supported by the contentions of the State and acceptance by Glencore that any form of sampling which might cause major disturbance would not be permitted without requiring another native title process to be followed.

[119] Consequently, as all three elements of the s 237 criteria are answered in the negative, the expedited procedure applies to the grant of MDL2001.

Determination 33

[120] The determination of the Tribunal is that the act, being the grant of MDL2001 to Glencore Bauxite Resources Pty Ltd, is an act attracting the expedited procedure.

Mr JR McNamara Member 10 June 2016

34

Appendix A: Table of key events

Item Date Fact Comments

1 12 January Application for MDL2001 lodged by Tenement application form Q7 2015 Glencore Bauxite Resources Pty Ltd requires five year information pursuant to Chapter 5 Part 2 MRA. In regarding ‘work program’. Only one response to Q6 in the tenement year information ‘inputted’ and application form regarding the native title reference to pre-feasibility study (not process the applicant wished to undertake, provided in materials). Glencore nominated ‘option 5 – Right to Negotiate and ILUA’ (GVP List of Documents 27 October 2015 at Document 1).

2 13 Glencore wrote to the State noting it had Letter not copied to Ngan Aak- February initially sought to undertake a right to Kunch until 17 November 2015. 2015 negotiate and indigenous land use Letter states that the grantee party agreement process, however ‘upon further does not expect that its activities review of the work program proposed... would cause the interference or we consider that the expedited native title impacts referred to in s 237. While process would be appropriate’ and requesting the adoption of the requested DNRM to adopt that process. expedited procedure, it does not (GP Contentions 25 November 2015 at [4] mention the willingness of the and Annexure 1). grantee party to submit to the NTPCs.

3 February Glencore produced document entitled Only the ‘supporting information’ 2015 ‘Aurukun Bauxite Project MDL Work document provided in the enquiry. It (precise date Program - February 2015’ (containing does not contain reference to the unknown) commercial in confidence information and NTPCs. The State’s further not provided in this enquiry). At the submissions of 18 April 2016 request of the State, a further document explain the commercial in entitled ‘Aurukun Bauxite Project MDL confidence material was provided Work Program – Supporting Information only to the State, and that the – February 2015’ was provided on 16 supporting information document March 2015. contains the details of the actual 35

proposed activities.

The supporting information was provided to the State on 16 March 2015 and to Ngan Aak-Kunch ‘as part of the s 29 NTA notification process’. It appears to be the document referred to as ‘Approved Work Program MDL2001’ at document 7, State’s list of documents filed 27 October 2015. Ngan Aak-Kunch refers to the ‘supporting information’ document as ‘the MDL Work Program’, annexure 5 to their contentions of 13 January 2016.

4 9 April Email from the State (Michelle Lucas) to Email attaches a copy of a s 29 2015 NNTT, Glencore and Ngan Aak-Kunch notice with a notification date of 24 April 2015 and advises that the State considers the grant of MDL2001 as an act that attracts the expedited procedure.

The notice did not specify that the grant would be subject to the NTPCs.

5 24 April Section 29 notice advertised publicly The notice does not contain 2015 (with notification date 13 May 2015). reference to the NTPCs.

6 28 April The s 29 notice (13 May 2015 notification Although including a link to the 2015 date) was sent by the State to parties by NTPCs, the notification does not email. Another attachment to the email explicitly say that the NTPCs will was entitled ‘Native title notification for apply to MDL2001. MDL2001’ containing ‘an overview of native title notification information’ (GVP Contentions 3 February 2016 at Annexure 36

4). It contains the tenement number and party details. Within the document there is general information including a paragraph which reads ‘A copy of the Native Title Protection Conditions can be found on the department’s website’ with a website link. (GVP Contentions 3 February 2016 at Annexure 4).

7 28 August Ngan Aak-Kunch wrote to Glencore On 11 September 2015, Glencore 2015 referring to the s 29 notice and stating responded to the 28 August 2015 ‘[g]iven the objectives of the Work correspondence providing further Program, the broad range of activities information regarding proposed outlined thereunder are insufficiently activities. detailed to allow an assessment of whether such acts are adequately protected by the [NTPCs] under MRA section 194AAA’. Ngan Aak-Kunch requested more detailed information. Ngan Aak-Kunch also wrote to the State seeking similar information (NTP Contentions 13 January 2016 at Annexure 11).

8 8 Ngan Aak-Kunch lodged objection to the September expedited procedure (Form 4) (Affidavit 2015 of Phillipe Savidis at [2] and Attachment ‘PS1’).

9 21 Ngan Aak-Kunch replied to Glencore’s September letter of 11 September 2015 seeking 2015 further information.

10 28 September NNTT accepted objection application. 2015 37

11 30 Glencore requests the objection over September MDL2001 be progressed through an 2015 arbitral inquiry.

12 12 October Directions hearing held and directions 2015 made.

13 27 October The State’s List of Documents provided to 2015 the Tribunal on 27 October 2015 included the NTPCs version 3, June 2014, at Document 8.

14 29 October Ngan Aak-Kunch wrote to Glencore 2015 noting the s 29 notice didn’t mention the NTPCs and asking for confirmation of whether Glencore is intending to accept and rely on the NTPCs.

15 17 Glencore responded to Ngan Aak-Kunch The letter notes that correspondence November saying ‘as we have previously indicated, from Glencore to the State dated 13 2015 the proposed work program for MDL2001 February 2015 had not been copied was specifically settled to ensure that it to Ngan Aak-Kunch. That would attract the expedited procedure... correspondence informed the State and the [NTPCs] (as contemplated by that Glencore had reviewed the sections 194(1)(j) and 194AAA of the Work Program and considered the [MRA])’. expedited procedure would be appropriate and formally requested the State ‘adopt the expedited native title process for this application’. (NTP Contentions 13 January 2016 at [15] and Annexure 7).

16 3 Ngan Aak-Kunch wrote to the State December requesting confirmation of whether the 2015 State would impose the NTPCs (NTP Contentions 13 January 2016 at [20] and Annexure 8). 38

17 3 The State responded to Ngan Aak-Kunch, On 3 December 2015 Ngan Aak- December advising that MDL2001 would be subject Kunch was formally advised of the 2015 to the NTPCs (version 3, June 2014) if the intention to impose the NTPCs. Tribunal determines that the expedited The NTPCs were referred to in procedure applies, and enclosed a copy of general information contained in the version 3, June 2014 NTPCs. (NTP 28 April 2015 ‘Native title Contentions 13 January 2016 at [21] and notification for MDL2001’. Annexure 9; also found within GVP Contentions of 3 February 2016 at [4.4] and Annexure 17).

18 13 January Non-disclosure directions made. 2016

19 13 The State’s contentions of 13 February February 2016 attach the NTPCs version 3, June 2016 2014, at Annexure 15.

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Appendix B: Documents and material received from parties

Document Party Document title Date No. of Short title No. received supporting from documents 1 Ngan Aak- Affidavit of Phillipe 12 11 Affidavit of Kunch Savidis October Phillipe Savidis 2015 sworn 12 October 2015 2 State “Government Party’s 27 9 GVP List of List of Documents October Documents 27 Relevant to the 2015 October 2015 Inquiry” 3 Glencore “Statement of 25 21 GP Contentions 25 Contentions on Behalf November November 2015 of the Grantee Party” 2015 4 Ngan Aak- “Statement of 13 18 NTP Contentions Kunch Contentions on Behalf January 13 January 2016 of the Native Title 2016 Party” 5 State “Statement of 3 20 GVP Contentions Contentions on Behalf February 3 February 2016 of the Government 2016 Party” 6 Ngan Aak- “Statement of 19 1 NTP Contentions Kunch Contentions in Reply February 19 February 2016 on Behalf of the Native 2016 Title Party” 7 Ngan Aak- “Submissions in 23 NTP Submissions Kunch Support of a Hearing February 23 February 2016 on Behalf of the Native 2016 Title Party” 8 Glencore Email including 26 GP Submissions submissions re a February 26 February 2016 hearing 2016 9 State Email including 26 GVP Submissions submissions re a February 26 February 2016 hearing 2016 10 Ngan Aak- “Further Statement of 21 March 5 NTP Contentions Kunch Contentions on Behalf 2016 21 March 2016 of the Native Title Party” 11 State “Further Submissions 18 April 3 GVP Further on Behalf of the 2016 Submissions 18 Government Party” April 2016 12 Glencore “Further Statement of 18 April GP Further Contentions on Behalf 2016 Contentions 18 of the Grantee Party” April 2016 13 Ngan Aak- “Further Statement of 26 April NTP Further Kunch Contentions in Reply 2016 Contentions 26 on Behalf of the Native April 2016 Title Party”

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Appendix C: Native title rights and interests as listed on the National Native Title Register

Exclusive native title rights and interests

... 3. The nature and extent of the native title rights and interests in relation to the Determination Area, other than the flowing, tidal and underground waters, are that, subject to paragraph 5 and but for the rights and interests identified in paragraph 6, they confer possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders, including rights to do the following: (a) speak for, on behalf of and authoritatively about the Determination Area; (b) inherit and succeed to the native title rights and interests; (c) give or refuse, and determine the terms of any permission to enter, remain on, use or occupy the Determination Area by others; (d) make use of the Determination Area by: (i) engaging in a way of life consistent with the traditional connection of the Native Title Holders to the Determination Area; (ii) hunting and gathering on, in and from the Determination Area; (iii) living on and erecting residences and other infrastructure on the Determination Area; (iv) conducting ceremonies on the Determination Area; (v) being buried on, and burying Native Title Holders on, the Determination Area; (vi) maintaining and caring for springs, wells and other places in the Determination Area where underground water rises naturally, for the purpose of ensuring the free flow of water; (e) take, use and enjoy the natural resources from the Determination Area; (f) maintain and protect by lawful means those places of importance and areas of significance to the Native Title Holders under their traditional laws and customs in the Determination Area; and (g) use and enjoy the Determination Area and its natural resources for the purposes of teaching, communicating and maintaining cultural, social, environmental, spiritual and other knowledge, traditions, customs and practices of the Native Title Holders in relation to the Determination Area.

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Appendix D: Issues for clarification (provided by the Tribunal to parties during 11 March 2016 directions hearing)

Background

For mineral development licences (MDLs) generally, Ch 5, part 1 s 194(1)(j) Mineral Resources Act 1989 (Qld) (MRA) provides that each MDL shall be subject to ... such other conditions as are determined by the Minister, and s 194AAA says that conditions determined under s 194(1)(j) may include NTPCs.

In relation to an Aurukun project MDL, Ch 5, part 2, s 194AAA is seemingly ‘brought forward’, through the effect of s 231A, in particular s 231A(4), and not ‘disapplied’ as a result of s 231A(3).

The MRA allows the Minister to impose NTPCs (no definite article) in respect of exploration permits (EPs), MDLs, and an Aurukun project MDL. For Prospecting Permits (PPs) the Chief Executive may impose NTPCs. In that regard s 194AAA mirrors Chapter 2, part 2 s 25AA (PPs) and Chapter 4, part 4 s 141AA (EPs). In each of s 194AAA, s 25AA and s 141AA, the term ‘NTPCs’ is not prefaced by the definite article. The scheme of the MRA might suggest that NTPCs are specific/tailored to each form of tenement.

This raises a question about the form and content of the NTPCs presented by the State and their application to the proposed tenement (MDL2001).

The native title party contentions paragraph [21] annexure 9 includes a letter from the Department of Natural Resources and Mines to Cape York Land Council dated 3 December 2015 which says: “that MDL2001 would be subject to the Mineral Resources Act 1989 and the Native Title Protection Conditions Version 3, June 2014 ...”. A copy of NTPCs version 3, June 2014 was attached. Within the Government party’s documents provided for this inquiry, on two occasions the same version 3, June 2014 copy of the NTPCs was provided.

The NTPCs version 3, June 2014 refer throughout to exploration permits, not PPs, nor MDLs, nor an Aurukun project MDL.

Response sought

Can the Government party and/or grantee party explain how it is intended that the Minister impose the NTPCs version 3, June 2014 on the proposed grant of MDL2001?

 Environmental conditions

Background 42

The Tribunal has not been provided with Environmental Authority (EPSX03393415). So, I might be at a disadvantage.

Annexure 11 to the native title party contentions (letter from Glencore to Ngan Aak-Kunch dated 11 September 2015) says:

“The conditions that apply to the Environmental Authority are the standard conditions contained in the Code of Environmental Compliance for exploration and mineral development projects”.

The grantee party goes on to say in that correspondence that they:

“must ensure its activities comply with the relevant eligibility criteria which include (amongst others) the requirement that:

The mining activity does not or will not at any one time, cause more than 10ha of land to be significantly disturbed” (my underling).

This statement is repeated in the grantee party’s contentions at paragraph [39].

The Code of Environmental Compliance was provided in the Government party’s bundle of documents on 27 October 2015.

Under Standard conditions, Condition 2, Land Disturbance – it says:

“not more than 1000m2 can be disturbed at any one location, excluding campsites” (my underling).

Response sought

Noting the underlined words above, can GP and/or the GVP reconcile the statements?

Outcomes

Should a hearing proceed the task for us is as follows:

 Precise identification of the relevant issue/s;  What evidence is proposed to be called, including the names of proposed witnesses;  An estimate of how long the evidence would take; and,  Where the party would propose the hearing be held.

For the moment: 43

 Directions/Timetable for responses (submission and reply) to the primary question (NTPCs);  Directions/Timetable for responses (submission and reply) to the questions posed today;  Directions/logistics for hearing.

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Appendix E: Excerpt from Further Submissions on Behalf of the Government Party, 18 April 2016, at [23] to [28] (footnotes omitted)

[23] Notwithstanding that it is not a matter for the tribunal to determine, the Government Party holds the view that any variation of the MDL to remove the NTPCs as conditions would be a future act to which subdivision P applies. The basis for this view is set out below.

[24] An application to vary the conditions of an MDL is initiated by the MDL holder pursuant to section 194AC of the MRA. This application is assessed in accordance with the MRA as if it were an application for a new MDL.

[25] Ministerial approval of such an application has the potential to be a ‘future act’ if it ‘affects’ native title.

[26] Contrary to the submissions of the Native Title Party section 26 does not exclude such a variation from the application of subdivision P. The Government Party’s view is that the variation does create a new right to mine. This application of the subdivision to such an act is also consistent with the terms of section 26D of the NTA which provides that:

(1) This Subdivision does not apply to an act consisting of the creation of a right to mine if:

(a) the creation of the right is done by:

(i) the renewal; or (ii) the re-grant or re-making ; or (iii) the extension of the term;

of an earlier right to mine; and

(b) the earlier right:

(i) was created on or before 23 December 1996 by an act that is valid (including because of Division 2 or 2A); or (ii) was created by an act to which this Subdivision applied that was invalid any extent under section 28; and 45

(c) the area to which the earlier right relates is not extended; and (d) the term of the right is not longer than the term of the earlier right; and (e) no rights are created in connection with the right that were not created in connection with the earlier right.

(Emphasis added)

[27] In the premises, the Government Party’s view is that the removal of the NTPCs from an MDL would be a re-grant or re-make of an earlier valid MDL. The re- grant or re-make would be a future act because it would create new rights, namely the right to act in the absence of the restrictions imposed by the NTPCs. Those new rights were not created in connection with the earlier right. Accordingly, the Government Party’s view is that the removal of the NTPCs is an act to which subdivision P applies.

[28] Alternatively native title validation for the removal of the conditions could be achieved through an ILUA.