Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Sandfire Resources Nl & Another
[2020] NNTTA 44
•7 May 2020
NATIONAL NATIVE TITLE TRIBUNAL
Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Sandfire Resources NL & Another [2020] NNTTA 44 (7 May 2020)
Application No: | WO2019/0804 WO2019/0805 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Colin Hamlett & Others on behalf of Wajarri Yamatji #1 (WC2004/010)
(native title party)
- and -
Sandfire Resources NL
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Member Nerida Cooley |
Place: | Brisbane |
Date: | 7 May 2020 |
Catchwords: | Native title – future act – proposed grant 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 interference with areas or sites of particular significance – whether acts likely to involve major disturbance to land or waters – the acts are acts attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 148, 151, 237 Mining Act 1978 (WA) ss 57, 58, 61, 66 |
Cases: | Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 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 Little v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FCR 576 (Little v Oriole) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Stephen Compton |
| Representative of the grantee party: | Adam Groenveld, Sandfire Resources NL |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety Rob Beattie, State Solicitor’s Office |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licences E51/1917 and E52/3715 (licences) to Sandfire Resources NL (Sandfire).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licences, which are located in the Meekatharra Shire in Western Australia. The relevant notification days were 19 June 2019 for E51/1917 and 17 July 2019 for E52/3715. Each notice included a statement that the State considers the grant of the licences are acts attracting the expedited procedure. If the expedited procedure applies to a licence it may be granted without negotiation under s 31 of the NTA.
The licences are adjacent and fall partly within the area of a native title determination application made by the Wajarri Yamatji #1 native title claim group (WAD28/2019). On 5 September 2019, the registered native title claimant for the Wajarri Yamatji #1 claim (Wajarri Yamatji) lodged objections against the State’s inclusion of the expedited procedure statement in relation to each licence.
I note that on 19 October 2017, the Federal Court made a determination of native title in relation to the Wajarri Yamatji #1 native title determination application as it relates to the area of the licences, however the determination is not yet entered on the Native Title Register under the NTA (see I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia).
I have been directed to constitute the Tribunal for the purposes of determining, under
s 32(4) of the NTA, whether the grant of either licence is an act attracting the expedited procedure. For the reasons outlined below, my determination is that the expedited procedure applies to the grant of both licences.
Procedural matters
On 17 September 2019, I made directions for the provision by all parties of contentions and evidence for the conduct of the inquiry in each matter. However, due to the different notification days for each licence, the timeframes for compliance varied.
The State provided contentions and evidence for each licence including mapping, a Tengraph Quick Appraisal, reports and plans from the Department of Planning, Lands and Heritage Sites Register (AHIS report), the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and details of proposed endorsements and conditions. These include a proposed condition regarding entry into a Regional Standard Heritage Agreement, if requested by Wajarri Yamatji within a specified timeframe (RSHA condition).
Wajarri Yamatji initially failed to comply in either matter, following which the Tribunal advised parties that the objections were at risk of dismissal under s 148 of the NTA. In each case Wajarri Yamatji’s responses focussed on its desire to negotiate in good faith with Sandfire and the steps taken to that end. During case management in relation to E51/1917, I explained to Wajarri Yamatji’s representative Mr Compton that, while it is open to parties to negotiate, that is not the objective of the inquiry process. The compliance date for both matters was extended to 16 January 2020 and on that date Wajarri Yamatji provided contentions, but no evidence. Wajarri Yamatji also had the opportunity to provide a reply, but did not do so.
No material was received from Sandfire.
The Tribunal sought the parties’ views on whether they agreed to this matter being determined on the papers as permitted by s 151(2) of the NTA. The State agreed to that approach. No responses were received from Wajarri Yamatji or Sandfire. Having reviewed the material, I am satisfied that the inquiry can be adequately determined without a hearing.
Issues in the inquiry
Under s 237 of the NTA, the grant of the licences will only be acts attracting the expedited procedure if they are not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. The Tribunal’s role is to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.
Wajarri Yamatji’s objection applications raised issues relating to all three limbs of s 237 and indicated that evidence, including affidavit evidence, would be produced.
As noted above, Wajarri Yamatji did ultimately provide contentions as required by the Tribunal’s directions. Those contentions also indicated that Wajarri Yamatji intended to rely on a range of evidence, however, no evidence was forthcoming.
The contentions make a number of general assertions in relation to each limb of s 237. I have dealt with each of these in turn below.
Features of the licences and Sandfire’s proposed activities
The licences are both exploration licences proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
The State’s evidence reveals the following about the area of the licences:
E51/1917
E52/3715
Size
6171.85 hectares
1851.66 hectares
Underlying tenure
“C” Class Reserve Stock Route (5.9%)
Pastoral Lease (C)
Mt Padbury (93.98%)Road Reserves
“C” Class Reserve Stock Route (63.37%)
Pastoral Lease (C)
Mt Padbury (35.45%)Road Reserves
AHIS report
No recorded sites/places
No recorded sites/places
As noted, Sandfire has not provided any material for this inquiry. The only evidence of its intentions are the s 58 statements provided by the State. These statements reveal Sandfire’s targets are gold and copper. They also detail the initial work programmes for years 1 and 2 but note that forecast beyond that time is difficult due to the success driven nature of exploration. Given this limited information, I will proceed on the basis that Sandfire may exercise all of its rights under the licences, if granted.
Predictive Assessment
Section 237(a): is the grant of either licence likely to interfere directly with the native title parties’ community or social activities?
What community or social activities do Wajarri Yamatji carry out on the licence areas?
Wajarri Yamatji’s contentions are brief and general in nature. It says that the activities likely to be interfered with directly by the grant of the licences include, but are not limited to:
(a)camping;
(b)hunting;
(c)fishing;
(d)food gathering;
(e)medicinal resource gathering; and
(f)collection of other resources for traditional and social use.
The State raises a number of issues with Wajarri Yamatji’s contentions and the issues raised in its objection applications, including that no evidence is put forward of the nature, frequency and location of these activities.
I agree with the State that the lack of evidence here is problematic. The interference contemplated by s 237(a) must be direct and requires an evaluative judgment that the grant of the licence is likely to be the proximate cause of the interference. The interference must also be substantial, rather than trivial (see Yindjibarndi v FMG at [16]).
Even if I were to accept that Wajarri Yamatji undertake some or all of the listed activities in the licence areas from time to time, that would not be sufficient to conclude that the grant of either licence would cause direct and substantial interference to the conduct of those activities.
The Tribunal takes a common sense to evidence as discussed in Ward v Western Australia. Details of the activities undertaken by Wajarri Yamatji are matters peculiarly within its knowledge and in the absence of evidence, I am unable to conclude that the grant of the licences is likely to cause the required degree of interference.
Accordingly, I find that the grant of each licences is not likely to cause interference within the scope of s 237(a).
Section 237(b): is the grant of either licence likely to interfere with areas or sites of particular significance to Wajarri Yamatji?
As outlined in Yindjibarndi v FMG, at [17], an area or site within the meaning of
s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders.
In this case, the State argues that Wajarri Yamatji has not provided evidence of any site or area’s location or size (State’s contentions at 29).
Wajarri Yamatji contends that the licence areas are significant in their entirety. In particular, the Yallarwheeler (Murchison River) is said to be extremely significant, sacred and essential to the sustaining of Wajarri traditional and social life (contentions at page 1).
The objection applications refer to artefact scatters in the area of each licence which can only be found on close examination. Wajarri Yamatji’s contentions at page 2 similarly refer to “[i]nnumerable archaeological sites that are testimony to the use by our people” The contentions further state that it is “not reasonable, or possible to provide cadastral information of these features at this time” and goes on to note that the Wajarri community is not presently resourced to provide evidence in the form of scientific reports”.
It is not necessary for scientific reports to be produced to identify sites or areas of particular significance to Wajarri Yamatji. The majority of expedited procedure applications do not rely on such reports, preferring direct evidence from members of the native title party.
However, it is necessary for the area or site to be known and able to be located. In this case, the only area specifically identified by Wajarri Yamatji is the Murchison River, which does traverse the licences and is shown on the mapping provided by the State. Mr Compton also mentioned the “high cultural significance” of the Murchison River in correspondence dated 25 November 2019 regarding the potential dismissal of E51/1917. He expressed concern regarding the risk of cultural heritage impacts due to the lack of previous heritage surveys in the area and sites registered nearby.
There is no supporting evidence provided by Wajarri Yamatji and the statements made regarding the significance of the river are broad and general. No explanation is given of the particular significance of the Murchison River in accordance with Wajarri Yamatji traditions (as discussed in Cheinmora v Striker Resources at 34-35).
These are matters peculiarly within Wajarri Yamatji’s knowledge and it was afforded a number of opportunities to provide evidence in support of its application. Accordingly, on the limited information provided, I am unable to conclude that there is a site or area of particular significance within the meaning of s 237(b) in the licence area. It is therefore not necessary for me to consider the question of interference.
I note for completeness that the State’s proposed RSHA conditions will, in any event, afford Wajarri Yamatji an opportunity to enter into Regional Standard Heritage Agreements with Sandfire.
Section 237(c): is the grant of either licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Considering whether major disturbance under s 237(c) is likely requires an evaluative judgment as to whether there is a real risk of major disturbance from the grant of the licence. In this context ‘major disturbance’ is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. There is also nothing to preclude Wajarri Yamatji raising here matters already considered in relation to s 237(a) and (b) (see Little v Oriole Resources at [39]-[54]; Dann v Western Australia at 395, 401 and 413).
Wajarri Yamatji contends that, as Sandfire’s intentions are not clear, it can only assume that Sandfire would “want the right to disturb the area in its entirety”.
Wajarri Yamatji argues at page 2 that the effect of this would be obvious, citing by way of example:
• vegetation clearance,
• impacts to the water, water table and water movement,
• access to the area would be limited and/or prevented,
• game numbers would be reduced due to the disturbance to water and flora,
• loss of amenity for the Ngoonooru Wajarri (Wajarri Yamatji WC2004/010) people,
• loss of aesthetic value to the Ngoonooru Wajarri (Wajarri Yamatji WC2004/010) people,
•
and direct impacts on the mother river itself.
However, while I have concluded that Sandfire may exercise all of its rights under the licences, it does not follow that the entirety of the licence areas would be subject to disturbance. Further, there is no evidence to support Wajarri Yamatji’s contentions and they do not take account of the regulatory regime and the conditions and endorsements to be imposed on the grant of the licences, which include conditions intended to minimise damage to water sources and waterways and regarding rehabilitation (see also State’s contentions at 40).
Having regard to the evidence and the requirements for s 237(c), I am not satisfied that the grant of the licences is likely to involve major disturbance within the meaning of that section.
Determination
I determine that the grant of each of E51/1917 and E52/3715 to Sandfire Resources NL is an act attracting the expedited procedure.
Ms Nerida Cooley
Member
7 May 2020
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