Dennis Forrest & Ors on behalf of the Kakarra Part A Native Title Claim Group & Maximal Investments Pty Ltd

[2021] NNTTA 69

NATIONAL NATIVE TITLE TRIBUNAL

Dennis Forrest & Ors on behalf of the Kakarra Part A Native Title Claim Group & Maximal Investments Pty Ltd [2021] NNTTA 69 (17 November 2021)

Application No: WO2021/1022

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Dennis Forrest & Ors on behalf of the Kakarra Part A Native Title Claim Group (WC2020/005)

(native title party)

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Maximal Investments Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	17 November 2021

Catchwords:

Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – whether acts likely to interfere directly with the carrying on of community and social activities – whether acts likely to interfere with sites or areas of particular significance – expedited procedure

Legislation:

Mining Act 1978 (WA) ss 57, 58, 61, 66

Native Title Act 1993 (Cth) ss 31, 32, 151, 237

Cases:

Dennis Forrest & Ors on behalf of the Kakarra Part A Native Title Claim Group v Goongarrie Operational and Mining Pty Ltd and Another [2021] NNTTA 56

Dennis Forrest & Ors on behalf of the Kakarra Part A Native Title Claim Group v Kalgoorlie Nickel Pty Ltd and Another [2021] NNTTA 57

Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’)

Ward and Others v State of Western Australia and Another [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)

Representative of the native title party:

Andre Maynard, Cross Country Native Title Services Pty Ltd

Representative of the grantee party: Stephen Pearson, Maximal Investments Pty Ltd

Representatives of the Government party: Domhnall McCloskey, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

1. Maximal Investments Pty Ltd (Maximal) is the applicant for the grant of exploration licence E31/1274 (licence), which the State of Western Australia (State) considers is an act attracting the expedited procedure under the Native Title Act 1993 (Cth) (NTA). If the expedited procedure applies, the licence may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA.

2. The licence is located partly within the Kakarra Part A native title determination application (WAD297/2020) (Kakarra claim) and, on 27 May 2021, the registered native title claimant for the Kakarra claim (Kakarra) lodged an objection against the application of the expedited procedure in accordance with s 32(3) of the NTA.

3. The President of the Tribunal has directed me to constitute the Tribunal in order to determine whether or not the expedited procedure applies to the grant of the licence. I made directions for the conduct of the inquiry and the State and Kakarra provided contentions and evidence in accordance with those directions. Maximal did not submit any material. 

4. Having reviewed the material provided and considered the issues, I am satisfied that this matter can be adequately determined without a hearing in accordance with s 151(2). For the reasons given below I have concluded that the expedited procedure applies.

What do I need to consider to determine whether the expedited procedure applies?

1. Under s 237 of the NTA, a licence will only be an act attracting the expedited procedure if it is not likely to, in summary:

   (a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));

   (b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or

   (c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).

2. I am required 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 (see overview of approach in Yindjibarndi v FMG at [15]).

3. In this case Kakarra does not make any contentions regarding major disturbance under s 237(c). The Tribunal takes a commonsense approach to the evidence as discussed in Ward v Western Australia at 216-218 and, on the material before me, there is no basis to conclude that major disturbance within s 237(c) is likely.

Details about the licence

1. The licence is an exploration licence proposed to be granted under s 57 of the Mining Act 1978 (WA) (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 outlines the rights conferred on the holder of an exploration licence, which include the right to “excavate, extract or remove … earth, soil, rock, stone, fluid or mineral bearing substances” up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).

2. The State’s evidence includes a range of information about the licence. The Quick Appraisal document reveals that the proposed licence area is 2967.75 hectares and the underlying tenure is pastoral lease. The Aboriginal Heritage Inquiry System (AHIS) Searches provided show that there are no registered Aboriginal sites or Other Heritage Places in the licence area.

3. While Maximal has not provided any material for the inquiry, the State has provided a copy of Maximal’s licence application and accompanying statement under s 58 of the Mining Act, as well as the proposed endorsements and conditions to be imposed upon the grant of the licence.

4. The s 58 statement states that Maximal is an exploration company particularly interested in gold tenements in Western Australia. Its proposed method of exploration is historical data compilation, ground truthing to ascertain whether historical drill holes are still visible on the ground and planning a geochemical program utilising the historical drilling. The proposed expenditure for the first year of the term is $23,328.00.

Predictive assessment

Section 237(a) - Is the grant of the licence likely to interfere directly with Kakarra’s community or social activities?

1. Section 237(a) is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that this involves “an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts are outside the scope of interference contemplated by the section.

2. In this case, Kakarra relies on a witness statement of Mr Travis Tucker dated 11 August 2021. Mr Tucker is a member of the applicant for the Kakarra claim and says his statement is “based only on my cultural knowledge passed on to me by my old people in accordance with my traditional laws and customs”.

3. In relation to s 237(a), Kakarra contends, based on Mr Tucker’s evidence at 20, that the licence covers an area where hunting and camping occurs and is an important area.

4. Mr Tucker’s evidence at 19-20 of his statement is as follows:

   19. My ancestors have camped in the area of land subject to the Tenement. If Maximal staff and contractors drove through the land subject to the Tenement without permission from the Kakarra it would upset the spirits within the land. I and other Kakarra would get in trouble with senior wati for not looking after country.

   20. There is a lot of wildlife in the area. This area was historically used by Kakarra people for hunting and camping. As a result there are definitely artefacts in the area that are significant to our people that need to be protected.

5. However, Mr Tucker’s evidence at 20, does not appear directed to interference within the scope of s 237(a). The only community or social activities mentioned are historical and the concerns expressed by Mr Tucker relate to heritage protection rather than interference with the conduct of activities.

6. Further, while Mr Tucker refers generally at 4-5 to undertaking community or social activities on his country, there is no evidence regarding any specific activities undertaken in the licence area or activities which would otherwise be subject to direct interference from the grant of the licence.

7. As argued by the State and consistent with other recent Kakarra determinations (see for example Kakarra Part A v Goongarrie Operational and Mining and Kakarra Part A v Kalgoorlie Nickel), the evidence overall is very general, and insufficient to conclude that interference within the meaning of s 237(a) is likely.

Section 237(b) - Is the grant of the licence likely to interfere with areas or sites of particular significance to Kakarra?

1. Kakarra asserts that interference within the meaning of s 237(b) is likely in this case. In reliance on Mr Tucker’s statement at 19, Kakarra contends that the licence area is important because it is an area where Mr Tucker’s ancestors lived, although Mr Tucker’s evidence (extracted above) is not exactly in those terms. I note also that Mr Tucker refers at 20 to significant artefacts in the licence area.

2. However, as discussed 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.

3. Nothing in Mr Tucker’s evidence identifies any specific sites or areas of particular significance in the licence area. While Mr Tucker says there are “definitely” artefacts in the area, he does not indicate where. Mr Tucker’s evidence appears to be speculative in the sense that he is sure there are or would be artefacts present because of previous occupation of the area by his ancestors, rather than knowing of the existence and location of such artefacts. I note that the State makes a similar point in its contentions at 37. There is also insufficient information regarding the particular significance of any such areas as opposed to the significance of Kakarra country generally.

4. Much of Kakarra’s contentions and Mr Tucker’s evidence is directed at the potential risk of damage to country or heritage sites if Maximal undertakes exploration activities in the absence of an agreement with Kakarra. I understand that position but it is not sufficient to ground any conclusion that interference with areas or sites of particular significance is likely. Overall, on the limited evidence provided, I am unable to find that there are any sites or areas of particular significance to Kakarra within the meaning of s 237(b). It is therefore not necessary for me to further consider the likelihood of interference arising from the grant of the licence.

Determination

1. I determine that the grant of E31/1274 is an act attracting the expedited procedure.

Nerida Cooley
Member
17 November 2021