Dennis Forrest & Ors on behalf of the Kakarra Part A Native Title Claim Group v Kalgoorlie Nickel Pty Ltd and Another
[2021] NNTTA 57
•12 October 2021
NATIONAL NATIVE TITLE TRIBUNAL
Dennis Forrest & Ors on behalf of the Kakarra Part A Native Title Claim Group v Kalgoorlie Nickel Pty Ltd and Another [2021] NNTTA 57 (12 October 2021)
Application No: | WO2021/0507 |
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 -
Kalgoorlie Nickel 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: | 12 October 2021 |
Catchwords: | Native title – future act – proposed grant of exploration 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) 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 (Kakarra v Goongarrie Operational and Mining) 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: | Alex Mukherji, Ardea Resources Ltd |
| Representatives of the Government party: | Jeff O’Halloran, State Solicitor’s Office Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
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 exploration licence E29/1089 (proposed licence) to Kalgoorlie Nickel 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).
The proposed licence is approximately 5.94 square kilometres in size, situated approximately 31.3 kilometres southeast of Menzies on 96.85% unallocated crown land and 3.15% common reserve 16153. The proposed licence is subject to the Maduwongga, Nyalpa Pirniku and the Kakarra Part A registered native title claims (WC2017/001, WC2019/002 and WC2020/005). All are native title parties because at the relevant times, each was a registered native title claimant 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. The Maduwongga and Nyalpa Pirniku registered native title claimants chose not to do so.
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
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)).
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 NTA and therefore whether it is an act that attracts the expedited procedure (Smith v Western Australia at [23]). The legal principles are set out 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
The proposed licence is an exploration licence, a type of licence outlined in ss 56C-70 of the Mining Act 1978 (WA) (Mining Act). Exploration licences are granted for five years (with up to seven years’ extension in specific circumstances). 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, 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] Mining Regulations 1981 (WA), Regulation 20.
In its contentions, the grantee states approximately 2 of the 5.9 square kilometres that comprise the proposed licence are subject to granted mining leases. Therefore the grantee will only be permitted to explore on approximately 3.9 square kilometres located in the north and east of the proposed licence (at 6-7).
The grantee states the area has been subject to extensive exploration and mining activity over an extended period of time (at 10). It provides no specific details of its proposed activities beyond initial non-ground disturbing activities followed by possible drilling (at 11-12, and in its initial licence application). Therefore it is open to me to conclude the grantee will exercise its rights to the full upon grant.
Determination to be made on the papers
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 5 May 2021 a short 3 day extension was provided to the Government party with subsequent dates amended accordingly. 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 (unopposed by the grantee but opposed by the State). I declined to grant the further extension because I was of the view that procedural fairness had been afforded to Kakarra. On 5 July 2021, I amended the directions as the State requested a one week extension owing to a COVID lockdown.
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. A signed (but not witnessed) copy of this document was later provided. I accept it as a signed statement and give it the same value as if it were a sworn affidavit because the Tribunal is not bound by the rules of evidence (s 109(3) of the NTA).
Mr Tucker is one of the persons listed as comprising 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.
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) of the NTA).
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?
Mr Tucker’s statement is very similar to that provided for Kakarra v Goongarrie Operational and Mining. He 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).
The State contends there is insufficient evidence to establish that community or social activities are currently conducted on the proposed licence (at 36-38). Even if that were established, the State contends the evidence about the activities is insufficient in relation to the location, intensity, frequency or participants to conclude interference is likely given the low-scale and infrequent nature of exploration and activities (at 40-41 and 47).
As Kakarra have provided general and limited information (similar to that provided in Kakarra v Goongarrie Operational and Mining), 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?
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]).
As he asserted in his evidence for Kakarra v Goongarrie Operational and Mining, Mr Tucker states the proposed licence ‘is in an area of country that is very important to the Kakarra’ because it is located on Lake Goongarrie ‘which is a site of significance ato [sic] 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).
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 or areas of particular significance to the Native Title Party’ (at 57).
The grantee also contends there is insufficient evidence regarding sites of particular significance (at 14-15). It contends it will comply with the AHA and ‘is fully supportive of entering into another Heritage Protection Agreement with the Native Title Party’ but the agreement offered by Kakarra is ‘not workable’, although it does not indicate what it considers to be a ‘workable’ agreement (at 17).
As I noted in Kakarra v Goongarrie Operational and Mining, 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 their 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?
In its contentions, Kakarra states it ‘makes no contentions with respect to section 237(c) of the NTA’ (at 10) and it has not provided 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
My determination is that the grant of exploration licence E29/1089 to Kalgoorlie Nickel Pty Ltd is an act which attracts the expedited procedure.
Glen Kelly, Member
12 October 2021
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