Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Marlee Base Metals Ltd & Another
[2021] NNTTA 9
•16 March 2021
NATIONAL NATIVE TITLE TRIBUNAL
Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Marlee Base Metals Ltd & Another [2021] NNTTA 9 (16 March 2021)
Application No: | WO2019/1052, WO2020/0022 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 (WC2004/010)
(native title party)
- and -
Marlee Base Metals Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Glen Kelly, Member |
Place: | Perth |
Date: | 16 March 2021 |
Catchwords: | Native title – future acts – proposed grants of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites or area of particular significance – whether acts likely to involve major disturbance to land or waters – expedited procedure – the acts are acts attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Environmental Protection Act 1986 (WA) Mining Act 1978 (WA) ss 24, 24A, 25, 57, 58, 66 Native Title Act 1993 (Cth) ss 29, 32, 151, 237 Rights in Water and Irrigation Act 1914 (WA) |
Cases: | Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (Wajarri Yamatji v WA) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v WA) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Freddie v WA) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v WA) |
| Representatives of the native title party: | Patricia Edwards, Heritage Link Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation |
| Representative of the grantee party: | Jacob Loveland, All Mining Legal Pty Ltd |
| Representatives of the Government party: | Reywin Rico, State Solicitor’s Office Lauren Pike, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
The State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licences E09/2363 and E70/5289 (the licences) to Marlee Base Metals Pty Ltd (Marlee Base Metals). The notices for the licences included a statement that the grant is an act attracting the expedited procedure (see s 32 of the NTA). By including this statement, the Government party asserts the grant of the licences is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those 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)).
Licence E09/2363 is approximately 214 square kilometres in size, is situated approximately 170 kilometres north east of Kalbarri, and is on land subject to the Wajarri Yamatji (Part A) native title determination (see Wajarri Yamatji v WA). The Wajarri Yamatiji People (Wajarri) hold non-exclusive native title rights and interests over 99.29% of the proposed licence area.
Licence E70/5289 is approximately 461 square kilometres in size, is situated approximately 82.2 kilometres north of Mullewa, and is on land subject to the Wajarri Yamatji #1 Native Title Claim.
Wajarri lodged objection applications with the National Native Title Tribunal (Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licences. Wajarri argue that the expedited procedure should not apply to the licences on the basis that the grant will likely cause the interference contemplated in ss 237(a), (b) and (c).
Having been appointed to this inquiry, I must look at what is likely to result from the grant of the licences and decide whether there is a real chance or risk of the interference outlined in s 237 (see Yindjibarndi v FMG at [15]). For the reasons outlined below, I find the grant of E09/2363 and E70/5289 are acts attracting the expedited procedure.
Submissions and Determination on the Papers
Wajarri provided no contentions and no contentions in reply responding to the other parties’ materials. Instead, they rely solely on an affidavit from Mr Gavin Egan. Mr Egan describes his place of birth as Woolgorong Station on Wajarri country and describes both his matrilineal and patrilineal ties to Wajarri country. I accept Mr Egan has authority to speak for the licence areas.
While Mr Egan’s affidavit refers only to E09/2363, Wajarri are relying on this as evidence for both E09/2363 and E70/5289. As such, I am considering these two matters together.
Marlee Base Metals provided a statement of contentions for both of the licenses while the State provided contentions and documentation including tenure information, the results of searches of the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS), the statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and a draft Tenement Endorsement and Conditions Extract.
Having considered all of the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’, as permitted by s 151, without the need for an oral hearing. All parties indicated they were content with that approach.
The Licences and Marlee Base Metals proposed activities
The licences are exploration licences proposed to be granted under s 57 of the Mining Act for a period of 5 years. Section 66 of the Mining Act sets out the rights conferred by an exploration licence, in summary, as the rights:
(a)to enter the land with the personnel and machinery necessary for exploring for minerals;
(b)to explore and carry out operations and works to explore for minerals including digging pits, trenches, holes, sinking bores and tunnels to the extent necessary, subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act;
(c)to excavate, extract or remove earth, soil, stone, fluid or mineral bearing substances not exceeding the prescribed limit of 1000 tonnes[1] unless approved by the Minister and subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act; and,
(d)subject to the Rights in Water and Irrigation Act 1914 (WA), to take and divert water from any natural spring, lake, pool or stream in or flowing through the licence area or from excavations made and sink a well or bore from which to take water for domestic or mineral exploration purposes.
[1] Prescribed in Regulation 20 of the Mining Regulations 1981 (WA).
As set out by the Government party in the Endorsements and Conditions for the grant of the licence, the exercise of the rights set out in paragraph [10] above requires the prior grant of a licence, permit or permission from the Department of Water and Environmental Regulation.
In its s 58 statement for E09/2363, Marlee Base Metals states that its targets are copper, nickel and other base metals. It sets out that in year one it will undertake a desktop study of previous literature, imagery, geophysics and data after which it will conduct field mapping and reconnaissance, rock chip and soil geochemical sampling and drill target generation. It also sets out that it intends to implement a drilling campaign during the second year and that further exploration from year three onwards will be contingent on results from years one and two. In the s 58 statement, Marlee Base Metals estimates the expenditure for year one will be $70,000, but no estimates are provided for following years.
In its s 58 statement for E70/5289, Marlee Base Metals identifies its targets as copper, gold and other base metals and then describes a program in largely identical terms to E09/2363. The main difference to note between the licences is that it is stated that the total proposed expenditure for year 1 is $157,000, some 225% more than E09/2363, the difference mainly consisting of costs for field mapping and reconnaissance (300% higher) and rock chip and soil geochemical sampling and assaying (250% higher), at least in year 1. While the planned expenditure is significantly higher in this licence area, it must be noted that E70/5289 is more than twice the size of E09/2363 so this does not necessarily translate to a higher intensity of activity.
Legal Principles
The legal principles informing the approach I am taking in this inquiry are outlined in Yindjibarndi v FMG at [15] – [21]. In general terms, it is the role of the Tribunal to undertake a predictive assessment of whether interference in the matters outlined in s 237 is likely to occur as a result of the grant of the licence. In doing this, it is accepted that the term ‘likely’ ‘requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237’.[2]
[2] Smith v Western Australia, [23].
The s 237 predictive assessment
As mentioned, Wajarri provided no contentions and instead rely upon the affidavit of Mr Gavin Egan for both E09/2363 and E70/5289. The components of Mr Egan’s affidavit that relate to s 237 say that:
7. Exploration mining tenement E09/2363 is located on Wajarri country near Wail Outcamp on Yallalong Station, which is an important place for Wajarri people.
8. I have seen a map of E09/2363 and Wail Outcamp is about 8.5 km west of the tenement. This used to be a place where Wajarri people lived and some of my ancestors are buried there.
9. The tenement is also located between the Woodrarung Range in the south and Errabiddy Hills in the north. These places are also important sites for Wajarri people, and water runs off these hills, filling the creeks and tributaries in the tenement area, flowing to Billilly Claypan and eventually the Murchison River.
10 Tilly Pool is located about 28 km north of the tenement area, closer to Muggon station. My mother told me stories of the old people who used to walk north from Billilly Claypan and Wail Outcamp, between the ranges to Tilly Pool. Through this area where the tenement is, there is evidence of how Aboriginal people lived for many years.
11 I still go hunting in the area around Billilly claypan and along those water places because the area is rich in bush tucker and guwiyarl (goanna).
12. The region where the tenement is located has a special significance for me and my family because it is the place that has been left to us to care for and look after.[3]
[3] Gavin Egan affidavit, [7]-[12].
Although there are no specific contentions are made, it would appear that paragraphs [11] and possibly [10] and [12] of Mr Egan’s affidavit relate to s 237(a) while other paragraphs are broadly applicable to s 237(b). As there are no contentions relating to s 237(c) and as there are no specific references to major disturbance in Mr Egan’s affidavit, I find that the licences are unlikely to result in the interference contemplated in s 237(c). As such, this inquiry is confined to s 237(a) and (b).
Section 237(a) – Likelihood of interference with community or social activities
E09/2363 and E70/5289
While not stated explicitly, it would appear as though paragraph [11] and perhaps [10] and [12] of Mr Egan’s affidavit relate to s 237(a). In the case of both tenements, Marlee Base Metals contend that ‘[g]eneral and unspecified evidence is insufficient’ to enable a finding of interference.[4] Marlee Base Metals further contends that the statement from Wajarri does not establish that the granting of the licences will interfere with community or social activities and notes that the activities mentioned relate to Billilly Claypan, which is some 12.5km to the west south west of E09/2363.[5] The area covered by E70/5289 is some 55km south of E09/2363[6] making it even more remote from any of the described locations and activities.
[4] Marlee Base Metals E09/2363 contentions [3.5] and Marlee Base Metals E70/5289 contentions [3.5] after Freddie v WA at [14].
[5] Marlee Base Metals E09/2363 contentions [5.1] and [5.3] and Marlee Base Metals E70/5289 contentions [5.1(a)].
[6] Marlee Base Metals E70/5289 contentions [5.3].
Aside from noting the activities described in Mr Egan’s affidavit do not occur within the area of either proposed exploration licence, in both cases Marlee Base Metals makes the contention that the Wajarri statement does not provide sufficient detail of the activities or the manner in which the grant of the licenses will interfere with them. As such, Marlee Base Metals contend there is insufficient evidence for the Tribunal to make a finding of interference with community or social activities.[7]
[7] Marlee Base Metals E09/2363 contentions [5.4]-[5.5] and Marlee Base Metals E70/5289 contentions [5.4] and [5.6(a)].
The State similarly contends that Wajarri has provided insufficient evidence on the nature, frequency and duration of the activities or the extent to which they may occur on the licence areas. The State also contends that in any case, there is unlikely to be direct and substantial interference with any activities due to prior exploration in the area, which indicates the coexistence of these activities. The low impact nature of the proposed exploration activities, the inability of Marlee Base Metals to control access to the area, the operation of the Aboriginal Heritage Act 1972 (WA) in addition to the commitment of Marlee Base Metals to comply with the AHA and the operation of the Environmental Protection Act 1986 (WA) all combine, in the State’s opinion, to indicate that interference of the kind contemplated by s 237(a) is unlikely.[8]
[8] State E09/2363 contentions [24]-[28] and State E70/5289 contentions [21]-[27].
In conducting my assessment, I have formed a similar view to both Marlee Base Metals and the State in that Wajarri have provided evidence of community or social activities that is of a general and unspecified nature which is generally insufficient to lead to a finding that they will be interfered with by the granting of the licences.[9]
[9] See for example Freddie v WA at [13].
Secondly, Wajarri have not provided evidence relating to how the grant of the licences presents a real risk to community or social activities. There must be a real risk of interference with community or social activities and these impacts must be substantial in their impact.[10] There is no such evidence in relation to either of these two tenements, both of which are some distance from the locations mentioned in the affidavit of Mr Egan.
[10] Smith v WA [26].
My conclusion in relation to s 257(a) then is that there is insufficient evidence to lead to a finding that the grant of the licences will result in direct interference with the community or social activities of the holders of native title.
Section 237(b) – Interference with sites or areas of particular significance
E09/2363 and E70/5289
In his affidavit, Mr Egan states that ‘[t]his used to be a place where Wajarri people lived and some of my ancestors are buried there’, ‘[t]he tenement is also located between the Woodrarung Range in the south and Errabiddy Hills in the north. These places are also important sites for Wajarri people’ and ‘[t]he region where the tenement is located has a special significance for me and my family.’[11] There is no further evidence in the form of contentions from Wajarri relating to sites of special significance or how the grant of the licences may interfere with them.
[11] Gavin Egan affidavit, [8], [9] and [12].
Both the State and Marlee Base Metals note the places mentioned in Mr Egan’s affidavit, namely Billilly Claypan, Wail Outcamp, Woodrarrung Range, Errabiddy Hills and Tilly Pool, are outside of the licence areas and in the case of E70/5289, are a significant distance away. In any case, both the State and Marlee Base Metals contend that Wajarri have not been able to establish any sites of particular significance or that the activities permitted by the grant of the licences would interfere with any such places in any case.[12]
[12] State E09/2363 contentions [31]-[40], State E70/5289 contentions [31]-[38], Marlee Base Metals E09/2363 contentions [5.6]-[5.9] and Marlee Base Metals E70/5289 contentions [5.1]-[5.6].
Section 237(b) refers to interference with areas or sites of particular significance to native title holders in accordance with their traditions. Importantly, two of the relevant principles involved in making this assessment are that an area or site must be of special or more than ordinary significance and that if it is, then it must be known, able to be located and the nature of its significance explained to the Tribunal.[13]
[13] Silver v Northern Territory at [88] and [91].
I am of the view that Wajarri have not provided sufficient evidence to establish the places mentioned as being sites of particular significance in accordance with their traditions. While the areas discussed may have cultural significance, like in Yindjibarndi v WA at [129] (citing Cheinmora v Striker Resources at [34]) there is no distinction drawn as to the particular significance of these places. I am left with no basis upon which to make a finding they are of special or more than ordinary significance to the native title holders in accordance with their traditions.
As such, as there is insufficient evidence to enable a finding that there are places of particular significance in accordance with Wajarri traditions in the first instance, I am unable to conclude that the grant of the licences will interfere with any such sites.
Determination
I find the grant of E09/2363 and E70/5289 to Marlee Base Metals are acts attracting the expedited procedure.
Glen Kelly
Member
16 March 2021
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