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

NATIONAL NATIVE TITLE TRIBUNAL

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 (11 October 2021)

Application No: WO2021/0508

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)

- and -

Goongarrie Operational and Mining Pty 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:	11 October 2021

Catchwords:

Native title – future act – proposed grant of prospecting 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 – expedited procedure – the act is an act attracting the expedited procedure

Legislation:

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA)

Native Title Act 1993 (Cth)

Cases:

Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia)

Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith 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

Representative of the grantee party: Claire McGowan, Mining Access Legal

Representatives of the Government party: Jeff O’Halloran, State Solicitors Office
Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Background

1. On 4 November 2020, the State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant prospecting licence P29/2588 (proposed licence) to Goongarrie Operational and Mining Pty Ltd (the grantee). The notice included a statement that the State considers the grant is an act attracting the expedited procedure (see s 32 of the NTA).

2. The proposed licence is approximately 0.0301 square kilometres in size, situated approximately 36.8 kilometres south of Menzies on unallocated crown land subject to the Maduwongga and the Kakarra Part A registered native title claims (WC2017/001 and WC2020/005). Both are native title parties because at the relevant times, each were registered native title claimants over the area of the proposed licence (ss 29(2)(b) and 30(1) of the NTA). The Kakarra Part A registered native title claimants (Kakarra) exercised their right to lodge an objection with the National Native Title Tribunal (Tribunal) against the expedited procedure applying to the proposed licence. Maduwongga chose not to.

3. I have been directed by the President to constitute the Tribunal to determine whether or not the expedited procedure applies to the grant of the proposed licence.  For the reasons set out below, I have determined the expedited procedure applies.

Considerations

1. In determining whether the expedited procedure applies, the Tribunal must consider 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 areas or sites of particular significance, in accordance with their traditions (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. In doing this, I must undertake a predictive assessment of what is likely to result from the grant of the licence, decide whether there is a real chance or risk of the interference or disturbance outlined in s 237 of the Act and therefore whether it is an act that attracts the expedited procedure (Smith v Western Australia at [23]). The legal principles are outlined in Yindjibarndi v FMG at [15] – [21] and I adopt these principles for the purposes of this inquiry and determination.

The proposed licence and the proposed activities

1. The proposed licence is a prospecting licence, a type of licence outlined in ss 40-56B of the Mining Act 1978 (WA) (Mining Act).  Prospecting licences are granted for four years (with up to four years extension in specific circumstances, and can be granted for further periods if the licence has retention status).  Prospecting licences limit the holder to excavating, extracting or removing mineral bearing materials up to 500 tonnes (although further amounts can be approved by the Minister).

2. In its contentions, the grantee states the proposed licence ‘has been applied for in connection with Kingwest’s Goongarrie Gold Project’ (at 9).  It states the area has been subject to previous disturbance, including a mining lease and it will comply with all the relevant laws (at 15, 29, and 36). It provides no other indication of its proposed activities and so it is open to me to conclude it will exercise its rights to the full upon grant.

Determination to be made on the papers

1. On 29 March 2021, I made directions for the conduct of an inquiry into this matter which included specified dates for the parties to provide contentions and other supporting material. On 20 May 2021, I amended the directions as Kakarra requested a four week extension (supported by the grantee and the State). On 21 June 2021, Kakarra requested a further extension (opposed by the grantee and the State). I declined to grant the further extension because I was of the view that procedural fairness had been afforded to Kakarra. However, I chose to accept Kakarra’s late submissions (because these were lodged only nine days later on 30 June 2021) and allowed the grantee and the State additional time to lodge their contentions.

2. The State provided contentions and evidence which included mapping, key tenure information for the proposed licence, Aboriginal Heritage Inquiry System (AHIS) searches, a copy of the licence application and proposed endorsements and conditions to be imposed.  The grantee provided contentions. Kakarra provided contentions and the unsworn affidavit of Mr Travis Tucker. The sworn affidavit was later provided which I accepted it as its contents were the same as the unsworn affidavit.

3. Mr Tucker is one of the persons listed as the applicant for the Kakarra Part A native title claim and states the area of the proposed licence is part of the country he is responsible for under Kakarra traditional rules as a wati (initiated man) (at 6-8). I accept his authority to speak for the area on behalf of Kakarra.

4. All parties submitted their view that a determination could be made on the papers and having reviewed the materials before me, I am satisfied that I can determine the matter on the papers (s 151(2)).

Predictive assessment for s 237

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

1. In his affidavit, Mr Tucker broadly states ‘I have lived in Kalgoorlie for most of my life and regularly go out on my country (including the Kakarra Part A claim area) hunting, camping, protecting sites and teaching my children’ (at 5). He also asserts the Kakarra claim group have the right ‘to hunt, gather, camp, take and use all of the resources of the country such as animals, wood, ochre and plants, to use fire and to prevent other people from damaging country or taking things from country without permission’ (at 10).

2. The grantee contends there is no specific evidence that community or social activities are currently conducted on the proposed licence nor that these activities cannot coexist with the grantee’s intermittent and non-intensive activities (given the relatively small size of the proposed licence compared to the Kakarra Part A claim area) (at 24-26).

3. The State makes similar contentions, contending that the evidence about the activities is insufficient in relation to the location, intensity, frequency or participants to conclude interference is likely (at 28-29, 33-36)

4. As Kakarra have provided general and limited information, I am unable to conclude that direct interference with community or social activities is likely as a result of the grant of the proposed licence.

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

1. The State’s AHIS searches indicate the proposed licence contains no sites or other heritage places registered under the Aboriginal Heritage Act 1972 (WA) (AHA). However this does not preclude the existence of areas or sites of particular significance under s 237(b) of the NTA because the Tribunal must consider all the evidence provided in a matter (see Yindjibarndi v FMG at [119]-[120], [126] and the cases cited therein). For a site or area to be of ‘particular significance’ under s 237(b), it must be must be known, able to be located and the nature of its significance explained to the Tribunal (Yindjibarndi v FMG at [120]).

2. Mr Tucker asserts the proposed licence ‘is in an area of country that is important to Kakarra’ because it is located near and partly on Lake Goongarrie ‘which is a site of significance to Kakarra’ (at 20). He asserts ‘there would be lots of artefacts’ because Kakarra ‘old people’ camped in the area as it was an important area for hunting (at 20-21).

3. The State contends Kakarra’s evidence ‘does not establish the significance of Lake Goongarrie and the location of heritage artefacts with sufficient particularity … to enable the Tribunal to determine whether they are sites of areas of particular significance to the Native Title Party’ (at 50).

4. The grantee also contends Kakarra have provided insufficient evidence regarding sites of particular significance (at 37). It contends it will comply with the AHA and ‘is ready, willing and able to enter into an appropriate heritage agreement’ (although it does not indicate what it considers to be an ‘appropriate’ agreement) (at 38).

5. I have no doubt the area is of significance to Kakarra (being a historic hunting and camping area). However, Mr Tucker’s evidence about Lake Goongarrie is insufficient in explaining its significance and his evidence about artefacts is insufficient in explaining location to meet the threshold of particular significance as required by 237(b) of the NTA. As such, I cannot conclude that the grant of the proposed licence will interfere with any areas or places of particular significance to Kakarra.

Section 237(c) – Is the grant likely to involve major disturbance to the area of the licence?

1. In its contentions, Kakarra state it ‘makes no contentions with respect to section 237(c) of the NTA’ (at 7) nor does it provide evidence related to this subsection. As such, there is no factual material before me which indicates the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance as contemplated in s 237(c). Therefore, applying the common sense approach outlined in Ward v Western Australia at [26] I find that major disturbance under s 237(c) is unlikely.

Determination

1. My determination is that the grant of prospecting licence P29/2588 to Goongarrie Operational and Mining Pty Ltd is an act which attracts the expedited procedure.

Glen Kelly, Member

11 October 2021