Alec Alexander & Others on behalf of Jurruru #1 (Part B) Claim v Miramar Resources Limited and Another
[2022] NNTTA 35
•12 May 2022
NATIONAL NATIVE TITLE TRIBUNAL
Alec Alexander & Others on behalf of Jurruru #1 (Part B) Claim v Miramar Resources Limited and Another [2022] NNTTA 35 (12 May 2022)
Application No: | WO2021/0440 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Alec Alexander & Others on behalf of Jurruru #1 (Part B) Claim (WC2000/008)
(native title party)
- and -
Miramar Resources Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 12 May 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – whether the act likely to involve major disturbance to any land or waters concerned – expedited procedure does not apply |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 150, 237 Aboriginal Heritage Act 1972 (WA) ss 17, 18 Mining Act 1978 (WA) ss 58, 66 Mining Regulations 1981 (WA) Reg 20 |
Cases: | David Smirke and Others on behalf of the Jurruru People/Western Australia/Aurora Resources Pty Ltd, [2009] NNTTA 142 (Smirke v Aurora Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG Pilbara v Yindjibarndi) Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others[2021] NNTTA 59 (Nyalpa Pirniku v Anderson) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Naomi Wakelin , Yamatji Marlpa Aboriginal Corporation |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety David Reger, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E08/3284 (the proposed licence) to Miramar Resources Limited (Miramar). The notice for the proposed licence included a statement that the State considers the grant is an act attracting the expedited procedure (see s 32 of the Act).
I have been appointed by the President of the National Native Title Tribunal to determine whether the expedited procedure applies, as an objection was made against its application to the grant of the proposed licence. I must assess whether the grant of the licence is 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 area or sites of particular significance, in accordance with their traditions, to those 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)).
The proposed licence is subject to the Jurruru #1 (Part B) (WC2000/008) registered native title claim, and it is the Jurruru #1 claimants (Jurruru) who objected to the application of the expedited procedure. Jurruru pursued the objection on grounds of s 237(b) and 237(c), and, taking a common sense view of the information provided in relation to s 237(a), I consider the grant of the proposed licence is not likely to cause interference to Jurruru’s community or social activities. As such, the remainder of this decision considers s 237(b) and s 237(c).
The proposed licence is approximately 219 square kilometres in size, and approximately 68 kilometres north-easterly of Mount Augustus.
The Inquiry
Member Kelly was initially appointed to conduct this matter, and he also referred parties for assistance from the Tribunal under s 150 of the Act – ultimately, parties were unable to reach agreement and the matter proceeded through the inquiry process. All parties submitted their view that a determination could be made on the papers, and I saw no reason to require a hearing in the matter.
Jurruru materials
Jurruru provided contentions and mapping, supported by the following evidence, as well as contentions in reply to Miramar and the State:
· affidavit of Toby Smirke affirmed 15 July 2009
· affidavit of David Smirke affirmed 15 July 2009
· affidavit of Max Serjeant signed 17 August 2021
· statement of Stephen Morgan signed 19 August 2021
· witness statement of Ivan Smirke signed 19 August 2021
Mr Ivan Smirke provided evidence for the present inquiry. The evidence provided by Mr Toby Smirke and Mr David Smirke was relied upon in a previous Tribunal inquiry (Smirke v Aurora Resources), for 2 tenements which are near but which do not overlap the proposed licence area (E08/1754 and E08/1778). I note the evidence provided in that inquiry referred to areas around those tenements, rather than specifically to areas within the tenements themselves, and the Tribunal held that the expedited procedure applied. Jurruru contend (at 57) that the evidence discussed in that matter is ‘more applicable’ to the licence area in the present matter which is, at the closest, approximately 10 kilometres east of those previous tenements.
Both the State (at 33) and Miramar (at 32) argue that the location of the tenements in Smirke v Aurora Resources, being some kilometres from the proposed licence in the present matter, means that the evidence provided for the previous inquiry does not specifically relate to this current inquiry. However, as I outline below, the tenements were between the Kenneth Range and Capricorn Range, as is the proposed licence. For that reason, I accept and consider all of the evidence. The evidence provided by Messer’s Smirke are on the basis they have the authority of the claim group to speak for the relevant area by virtue of their senior positions in the Jurruru claim group.
Mr Stephen Morgan does not outline in any detail his qualifications and experience. However, I note he has an MA in Applied Anthropology and is employed as a Senior Anthropologist for the Jurruru representative (Yamatji Marlpa Aboriginal Corporation (YMAC)). I accept the evidence he has provided on that basis.
Mr Max Serjeant is an anthropologist employed by YMAC – again, as with Mr Morgan’s affidavit, it would assist if his qualifications and/or relevant experience were outlined. However, based on his employment as an anthropologist for YMAC, I accept the evidence provided.
Miramar materials
Miramar lodged contentions and mapping.
The State’s materials
The State provided contentions and materials including mapping, and searches of the Aboriginal Heritage and Inquiry System (AHIS) which shows places recorded under the Aboriginal Heritage Act 1972 (WA) (AHA). The State also provided the draft endorsements and conditions to be imposed on the proposed licence upon grant.
The proposed licence and the proposed activities
My decision is made in the context of what the grant entitles an explorer to do on the proposed licence, and in consideration of the evidence about what they are likely to do. Looking at s 66 of the Mining Act 1978 (WA) (Mining Act), an exploration licence, while it remains in force, authorises the holder (in accordance with any conditions to which the licence may be subject):
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 (WA) outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
The Tengraph Quick Appraisal provided by the State reveals that the underlying tenure of the proposed licence is predominantly Unallocated Crown Land.
The proposed licence application from Miramar (required under s 58 of the Mining Act), which accompanies the States materials for this inquiry, provides that the proposed licence is directed towards exploration for various target minerals and/or metals.
The work programme put forward by Miramar in its application proposes, in year one, to undertake an initial ‘Literature and previous explorers’ report search and data compilation. Following this, exploration activities will be directed towards nickel copper and platinum group elements using ‘known exploration techniques’, being rock chip and soil sampling, grid soil sampling (800 x 200m) and gravity survey. During year 2 Miramar proposes to implement a scout ‘RC drilling’ (Reverse Circulation drilling) programme to test the potential of targets delineated in year one.
Any further programme of works is stated to be contingent on the outcome of the first 2 years of work.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Jurruru?
What sites or areas are identified on the proposed licence?
As noted above (at [7]) the evidence of Mr Toby Smirke and Mr David Smirke was initially prepared for an earlier Tribunal inquiry relating to 2 other tenements. There is no mapping attached to those affidavits, which limits the usefulness of the evidence. However, what I can conclude from those 2 earlier affidavits is that the tenements were in between the Kenneth Ranges and the Capricorn Ranges, and the area in between those Ranges contain important rock engravings and other artefacts. I note from mapping provided by Jurruru that the proposed licence falls within this area. The Minniera Range and Fords Creek are also specifically mentioned as places of importance and significance to Jurruru people in those 2 earlier affidavits. I consider that information in the context of the more specific and recent evidence from Mr Ivan Smirke which relates to the current inquiry.
The Jurruru contentions identify 3 sites which they assert are of particular significance, which I summarise below. The Jurruru contentions (at 31) emphasise the importance of engravings as a means of recording, preserving and transmitting cultural knowledge, and this is supported by the statement of Mr Ivan Smirke (at 23-24).
Pingandy Station
The Pingandy Station site is a set of engravings located on the edge of a gorge overlooking Fords Creek inside the southern boundary of the proposed licence (Jurruru contentions at 23-25; Mr Serjeant affidavit at 6-10; Mr Ivan Smirke at 22-24). Pingandy Station is listed on the AHIS as a Registered Site (ID 8999). Mr Morgan’s evidence (at 7-11) outlines how Pingandy Station was added to the AHIS and confirms it is difficult to access and that the site is in the Fords Creek area.
The evidence provided by Mr Serjeant (at 4-8) indicated an inspection was undertaken of the State’s files in relation to this AHIS registered site, including photographs, and that the site consists of a set of engravings and is within the proposed licence. More specifically, this evidence asserts (at 10) ‘that the Site is located on Fords Creek, at the edge of a gorge. It is adjacent to a set of permanent waterholes located at the bottom of the gorge, and between 500 to 1000 meters from the junction of Ford[s] and Martin Creeks. The Site is close to the Kenneth Range’.
Mardabaiya (Kenneth Ranges)
I take it from the evidence provided from the previous inquiry, as well as the current inquiry, that Mardabaiya is also referred to as the Kenneth Ranges, or specific parts of the Kenneth Ranges. There is an area at the southern end of the Minniera and Kenneth Ranges ‘where the two Ranges cannot be clearly distinguished’ (Jurruru contentions at 26; Statement of Mr Ivan Smirke at 19).
Jurruru contends (at 31) that Mardabaiya holds particular cultural significance to Jurruru, including by maintaining water sources in times of drought. The witness statement of Mr Ivan Smirke provides (at 20-21, emphasis in original):
My lawyer showed me a map of the Tenement [E08/3284], with Fords Creek, the Pingandy Station Site Rock Carving (Rock Carving) marked on it. That Tenement is part of the Mardabaiya.
The Mardabaiya is very important to the Jurruru People. Our Old People always lived and travelled around these Ranges.
Fords Creek
Fords Creek runs along the southern border of the licence area before changing direction and cutting north easterly through the central portion of the proposed licence area (Jurruru contentions at 27, and supported by party mapping). The State’s Tengraph confirms a Watercourse Line named Fords Creek runs through the proposed licence. The importance of this Creek is specifically referred to by Mr Toby Smirke (at 13-18), and Mr Ivan Smirke (as outlined below). Mr Toby Smirke refers to it as one of the ‘special places’ (at 18).
Jurruru contends (at 31) that Fords Creek is also culturally significant with engravings, as a water source and as a passage of travel through the Kenneth and Minniera Ranges. Regarding Fords Creek, the statement of Mr Ivan Smirke provides (at 15-18):
There are gorges all along Fords Creek that start about 15 kilometres from where Fords Creek crosses the main road and about 25 kilometres from where Fords Creek joins the Ashburton River…
Dad told me that Jurruru People camped all the way along Fords Creek. It was an important place because it cuts through the Ranges, and gave them one path through the Ranges and a way they could travel across the country.
Responses to the evidence asserting sites of particular significance
Miramar submits (at 33) that it is ‘uncontroversial’ that Pingandy Station is a site within the definition of s 237(b) of the Act. In respect of the Fords Creek and Mardabaiya sites, Miramar contends (at 36-37) that insufficient information has been provided to allow the Tribunal to assess whether they are of particular significance, the extent to which they are located within the area of the proposed licence or to undertake a predictive assessment of whether the grant of the licence is likely to affect these sites.
The State accepts (at 23) that Pingandy Station contains a site of particular significance. The State contends, however, (at 26) that the materials concerning the Mardabaiya and Fords Creek sites ‘are of a general nature, and do not adequately explain the particular significance of these areas in accordance with the Native Title Party's traditions’ (emphasis in original). Further, the State contends (at 27) that Fords Creek and Mardabaiya ‘have not been identified with the requisite degree of specificity’ to allow the Tribunal to conclude whether there are sites of particular significance associated with them and undertake a predictive assessment of the impacts of the proposed activities on such sites
In their reply (at 12-14) Jurruru contend that the particular significance of the Mardabaiya and Fords Creek sites has been explained with reference to the cultural and traditional laws of the Jurruru people and evidenced by engravings located in gorges in Fords Creek.
Conclusion regarding sites of particular significance
Both the State and Miramar accept that Pingandy Station is a site of particular significance, and I see no reason to deviate from that assessment. Mapping and evidence supports that Pingandy Station is on the proposed licence. I accept that Fords Creek is an area of particular significance, and that it runs through the proposed licence. I accept the evidence as a totality paints a picture of an area between the Kenneth Range and the Capricorn Range which is of particular significance to Jurruru, predominantly because of its rock engravings, proximity to water and the limited pathways available for passing through the area. I accept that, in accordance with the Jurruru traditions, Fords Creek and Pingandy Station are also of particular significance, and they fall within this area between those Ranges, as does the proposed licence.
Is there likely to be interference to sites or areas of particular significance?
Jurruru submits (at 31) that Jurruru people are responsible for maintaining and protecting the physical and spiritual integrity of Jurruru country. Failure to properly do so may result in physical or spiritual harm or punishment to Jurruru people and uninvited visitors (Jurruru contentions at 31; Statement of Mr Ivan Smirke at 26-30).
Jurruru contends (at 35) the information provided by Miramar concerning their proposed programme of works is insufficient, being ‘broad and general’ and submits that the Tribunal is entitled to assume Miramar will exercise the full range of available rights under the proposed licence. Jurruru contends (at 37-38) Miramar’s budget and proposed programme of works do not include any provision for, or reference to, a heritage survey. Similarly Jurruru contends (at 37, 47-48) there has been limited engagement between the parties, including on the proposed exploration activities and how Miramar intends to reduce the risk of interference and manage its responsibilities. Jurruru submits (at 38) that failing to carry out a survey prior to drilling will likely lead to damaging sites of particular significance.
Mr Ivan Smirke (at 26, emphasis in original) outlines that it is ‘dangerous to go into the Mardabaiya if you aren't Jurruru or unless you have been invited by a Jurruru Person. The country might harm you’, and he goes on to outline the circumstances of such harm (at 27-30).
Jurruru note (in their contentions at 40; and in their reply at 32-33) that the State does not detail any particular previous disturbance in the area of the proposed licence and suggests that the limited length and encroachment of the previous tenements indicates ‘there has likely been very limited interference from Exploration Activities’. I note the area is predominantly Unallocated Crown Land.
Miramar contends (at 34) that it is ‘uncontroversial that Pingandy Station… is not likely to be impacted by the grant’. Miramar submits (at 35, 49-54) that Pingandy Station comprises 0.45 per cent of the licence area and that in such circumstances the Tribunal ‘cannot reasonably conclude’ that the grantee party would exercise the full suite of rights under the proposed licence within Pingandy Station where such exercise would likely contravene s 17 of the AHA. The question I need to consider, however, is whether, in exercising their rights available under the grant of the licence, Miramar is likely to interfere with sites of particular significance. The grantee can apply to the Minister (under s 18 of the AHA) to lawfully disturb any site of particular significance, regardless of its size or importance to a native title party.
Mr Ivan Smirke (at 23-25) outlines that:
Engravings are really important to the Jurruru People because they tell the stories we need, to understand the country. We need to protect them so that we can show the young people and so that we can pass the stories on.
Engravings like this are only found in places that are special to the Jurruru People and where important Creeks are. They are left there by our Old People to help us identify Jurruru Country, to tell us the story of that place and guide us safely through Jurruru Country.
Engravings are not always obvious to people who do not know what to look for and could be destroyed by Miramar doing their exploration activities.
The State argues (at 39) that how the proposed exploration activities would interfere with such sites should have been spelled out by the native title party. However, Jurruru has outlined the location and nature of the areas of particular significance, and described that because of the nature of the areas, even slight interference is likely to cause such disturbance. As McKerracher J noted in FMG Pilbara v Yindjibarndi (at [39]-[40]):
It must be emphasised that the task of the Tribunal in such an application is to make a predictive analysis. In this instance it was to take into account its apparent reliance upon the evidence given for [the grantee party] as to the precautions it would take and balance those against the nature and importance of the particular site in terms of the evidence given. That is clearly the approach it has taken and, in my view, it is the correct approach.
There is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interference under s 237 NTA is likely to arise. The task for the Tribunal is to make the predictive analysis as to whether the interference is likely to arise and to make a finding in relation to interference.
In this present inquiry, Miramar offered little information about the precautions it would take, given the evidence which had been offered regarding the significance of Pingandy Station and Fords Creek. The State argues (at 39) that given the difficulty in accessing an area such as Pingandy Station, it is unlikely the grantee will drill in such an area. I accept such an argument, however, it will be open to the grantee to explore anywhere on the proposed licence, including Fords Creek, and to take up to 1,000 tonnes of material. The only limitations on those rights come from the State’s regulatory regime. For example, Miramar (at 40) argues that:
The Grantee Party cannot clear native vegetation nor take water without authorisation under the Environmental Protection Act 1986 (WA) (and associated regulations) and the Rights in Water and Irrigation Act 1914 (WA) (and associated regulations), respectively.
The regulatory regime does not require the grantee to consult with the native title party – for example, the endorsements and conditions to be imposed on the proposed licence require the grantee to liaise only with relevant State departments for permissions to access water and waterways. The State argues (at 43-45), as does Miramar (at 6-7), that the area of the proposed licence has been subject to previous interference from pastoral and exploration activities. However, there is little evidence in relation to such activity, and as I outlined in Nyalpa Pirniku v Anderson (at [16]), it has long been understood that even if an area has been previously subject to exploration or other activity, it does not mean the area has lost its traditional significance or that further disturbance would not constitute interference. The evidence in this matter suggests to me that the area of Pingandy Station and Fords Creek retain their particular significance.
My conclusion in relation to s 237(b) of the Act is that it is likely that activities conducted under the grant of the proposed licence would cause interference with areas or sites of particular significance, in accordance with Jurruru traditions.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area?
The evidence provided by the parties in relation to s 237(c) is broad. For my consideration of s 237(c), I adopt the principles outlined in Yindjibarndi v FMG Pilbara (at [19]-[21]). My task with respect of s 237(c) is to ‘is to undertake a predictive assessment as to whether there is a real chance or risk of major disturbance to land and waters’ where the ‘relevant disturbance is understood to be a significant, direct physical disturbance to the land or waters concerned’. I must take into account the future act itself, and the effect of the rights created by it. The summary of principles for s 237(c) from Yindjibarndi v FMG Pilbara (at [21]) are as follows:
Following Little v Oriole Resources No 2, the approach to s 237(c) is as follows:
(a) section 237(c) requires a consideration of the effect of the relevant future act and also consideration of the effect of any rights created by the future act (Little v Oriole Resources No 2 at [41]);
(b) the assessment, in respect of both granted and contingent rights, is in relation to what is likely to be done, rather than what could be done (Little v Oriole Resources No 2 at [51]);
(c) the term ‘major disturbance’ is to be given its ordinary English meaning as understood by the whole Australian community, including Aboriginal people. The concerns of the Aboriginal community including matters such as community life, customs, traditions and cultural concerns are relevant matters for consideration in evaluating the disturbance (Little v Oriole Resources No 2 at [52]-[54], referring to Dann v Western Australia at 395, 401 and 413); and
(d) the Tribunal is entitled to have regard to the context of the proposed grant, including the history of mining and exploration in the area (Oriole Resources at [39] referring to Nicholson J in Little v Oriole Resources at [44]), the characteristics of the relevant land and waters, as well as the remedial regulatory regime in place (Freddie v Western Australia at [70]).
Jurruru contends (at 61-63) their evidence supports that the waterways in the proposed licence area hold water during drought time, that compliance with water related obligations is only included as endorsements, not conditions, on the grant, and that ‘the conduct of the proposed activities will likely result in major disturbance to native vegetation; archaeological surface and sub-surface material yet to be identified by archaeological surveys and the waterways identified as particularly significant which cross the Tenement Area’.
Miramar submits (at 38) that Jurruru does not provide sufficient information concerning major disturbance in relation to s 237(c). Miramar also submits (at 39-41) that the endorsements referenced by the Jurruru are approvals, issued and enforced by State departments, which would regulate the activities, ancillary to exploration, it could undertake on the proposed licence.
The State (at 57-58) agrees with the position of Miramar and further contends the grant is not likely cause major disturbance because:
(a)Jurruru does not clearly establish the link between not providing details beyond year 2 of the proposed works and the major disturbance;
(b)all activities will be subject to the State’s regulatory regime;
(c)the proposed conditions to be placed on the grant would require Miramar to engage in mitigation;
(d)the proposed licence area has been subject to previous explorations and possible mining activity; and
(e)the proposed licence area does not appear to have any particular characteristics which would give rise to a major disturbance.
Conclusion regarding major disturbance
I do not accept the broad Jurruru argument that the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to archaeological surface and sub-surface material yet to be identified by archaeological surveys and the waterways in general. In addition, I find the information and evidence in relation to s 237(c), taking into account the principles outlined at [40] above, do not establish the ordinary English meaning of the phrase ‘major disturbance’ in relation to the land and waters concerned, as understood by the whole Australian community, including Aboriginal people. The arguments put forward go more to the likelihood of disturbance and interference for the purposes of s 237(b), rather than establishing major disturbance for the purposes of s 237(c).
Determination
I find the grant of exploration licence E08/3284 to Miramar Resources Limited is not an act which attracts the expedited procedure.
Ms Helen Shurven
Member
12 May 2022
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