Dennis Forrest & Ors on behalf of the Kakarra Part B Native Title Claim Group v Australian Nickel Company Limited and Another
[2021] NNTTA 61
•19 October 2021
NATIONAL NATIVE TITLE TRIBUNAL
Dennis Forrest & Ors on behalf of the Kakarra Part B Native Title Claim Group v Australian Nickel Company Limited and Another [2021] NNTTA 61 (19 October 2021)
Application No: | WO2021/0652 |
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 B Native Title Claim Group (WC2020/006)
(native title party)
- and -
Australian Nickel Company Limited
(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: | 19 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) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) 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: | Domnhall McCloskey, State Solicitor’s Office Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
On 18 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 E28/3045 (proposed licence) to Crest Investment Group 1 Limited. The notice for the proposed licence 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 260 square kilometres in size and is situated approximately 155 kilometres east of Kambalda. It is on land subject to the Kakarra Part B (WC2020/0006) and Upurli Upurli Nguratja (WC2020/004) registered native title claims and the Ngadju native title determination (WCD2014/004). As such, pursuant to ss 29(2) and 30(1) of the NTA, the Kakarra Part B and Upurli Upurli Nguratja registered native title claimants as well as Ngadju Native Title Aboriginal Corporation RNTBC are native title parties. The Kakarra Part B and the Upurli Upurli Nguratja native title claims both overlap the same part of the proposed licence area by approximately 24% with the Ngadju determination overlapping the remainder.
On 18 March 2021, the Kakarra Part B 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. Neither Upurli Upulri Nguratja nor Ngadju Native Title Aboriginal Corporation RNTBC lodged an objection with the Tribunal.
As a result of an application being made by the grantee party to the Australian Securities and Investment Commission to change its company name, on 24 June 2021 it was recorded the company name as being amended to Australian Nickel Company Limited (grantee).
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 does apply.
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 for this assessment are summarised 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.
According to the grantee’s first year work programme, provided in the initial State information set, the grantee’s target mineral is gold. While it doesn’t include an outline of the proposed works, geochemical activities and drilling are included in the costs, with an overall estimated year one expenditure of $91,255. The grantee also states that its ‘intended exploration activity is likely to be non-intensive, intermittent and limited to the very small area’ of the proposed licence (grantee contentions at [23]).
No additional details were provided by the grantee party in relation to its proposed activities, therefore it is open to me to conclude the grantee will exercise its full set of rights over the duration of the proposed licence (Silver v Northern Territory at [30]).
Determination to be made on the papers
On 30 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 three day extension was provided to the State with subsequent dates amended accordingly. On 20 May 2021, I amended the directions due to Kakarra seeking a four week extension as parties had indicated a preference to resolve the objection by agreement, however this was ultimately not fruitful. On 24 June 2021, I amended the directions a final time as a result of Kakarra seeking a further four week extension to finalise a key witness statement.
The State provided contentions and evidence including mapping, key tenure information for the proposed licence, searches of the Aboriginal Heritage and Inquiry System (AHIS), a copy of the licence application together with a copy of the grantee’s first year work programme and details of proposed endorsements and conditions to be imposed on the grant of the proposed licence.
On 24 July 2021, Kakarra provided contentions and an unsigned witness statement from Mr Travis Tucker which was dated 23 July 2021 (unsigned Tucker witness statement). A signed version of the witness statement of Mr Travis Tucker, also dated 23 July 2021 but marked as being signed on 11 August 2021, was provided on 13 August 2021 (Tucker witness statement).
The grantee party provided contentions lodged 6 August 2021. Kakarra did not lodge any contentions in reply.
Aside from the signing date, the Tucker witness statement differs only from the unsigned Tucker witness statement in that the unsigned Tucker witness statement refers to the Kakarra Part A claim group while the Tucker witness statement refers to the Kakarra Part B claim group, the native title party in this inquiry. The grantee noted the amendment to the Tucker witness statement and contended it should be disregarded by the Tribunal (grantee contentions at [4]).
Noting the witness statements are otherwise identical and that both the signed and unsigned witness statements refer to the proposed licence subject to this inquiry (E28/3045), I accepted this as a typographical error in the unsigned Tucker witness statement and on that basis accepted the Tucker witness statement on 23 August 2021. Parties were informed of this decision and were invited to provide comments for my consideration. The State advised it had no additional comments to make on the Tribunal’s acceptance of the Tucker witness statement and the grantee party made no comment.
Mr Tucker is an applicant and a member of the Kakarra Part B claim group. Mr Tucker states he ‘was born in Kalgoorlie and grew up there’ and that ‘my family taught me our traditional ways and took me out on our traditional country teaching me about the country I was responsible for’ and that ‘[t]hey taught me I was responsible for the land and waters that are now in the Kakarra Part B claim area’ (Tucker witness statement at [2] and [4]). On this basis, I accept Mr Tucker has the necessary authority to speak for the area on behalf of Kakarra.
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA. Having regard to the material before me, I am satisfied the matter can be determined without the need for a hearing.
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?
To meet the threshold of interference, the interference ‘must be substantial in its impact upon community or social activities. That is to say trivial impacts … are outside the scope of the kind of interference contemplated by this section’ (Smith v Western Australia at [26]).
Kakarra contends that the grant of the proposed licence, without a heritage agreement between the native title party and the grantee party and the inability for Kakarra to conduct heritage surveys, would interfere directly with the community activity of Kakarra (Kakarra contentions at [16] and [17]).
Mr Tucker asserts that the land which the proposed licence covers is an area that he would ‘regularly go out on my country (including the Kakarra Part B claim area) hunting, camping, protecting sites and teaching my children about where they can and can’t go under our traditional rules’ (Tucker witness statement at [5]). Mr Tucker also states that ‘[t]his area of Kakarra country within the Tenement was used a lot by the old Kakarra people for hunting and Kakarra still go out camping in that area today’ (Tucker witness statement at [22]). From the material provided however, these activities do not seem to be specific to the proposed licence.
The grantee asserts that Kakarra has provided no specific evidence that social or community activities are conducted within the area of the proposed licence or that any social or community activities cannot co-exist with the grant of the proposed licence without direct or substantial interference (grantee contentions at [24]).
Additionally, the grantee contends that it has ‘been engaged in negotiation of a heritage agreement with the Native Title Party for the resolution of the objection since May 2021 and remains willing to enter into a heritage agreement with the Native Title Claimants on suitable terms’ (grantee contentions [27]) although no information on what these suitable terms may be has been provided.
The State similarly contends that the evidence provided by Mr Tucker is too general for the Tribunal to determine ‘what, if any, community or social activities within the meaning of section 237(a) are presently carried out on the Tenement’ and that ‘the NTP has otherwise provided insufficient evidence to establish that the [sic] its members presently undertake any of the community or social activities alleged by the NTP in this inquiry on the Tenement on a regular basis, or at all’ (State contentions [29] and [30]).
Overall, Kakarra has provided general information, with the evidence of community and social activities being insufficiently specific in terms of the location, intensity, frequency and attendees of any social or community activities in the area of the proposed licence. Therefore, I am unable to conclude that direct or substantial 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 AHIS searches provided by the State indicate the proposed licence area contains no sites or other heritage places registered under the Aboriginal Heritage Act 1972 (WA) (AHA). However, an area or site need not be registered to be of particular significance for s 237(b) of the NTA, as the Tribunal must consider the evidence provided in each matter on its merits (see Yindjibarndi v FMG at [119]-[120], [126] and the cases therein). For a site or area to be of ‘particular significance’ under s 237(b), it must be known, able to be located and the nature of its significance explained to the Tribunal (Yindjibarndi v FMG at [120]).
Mr Tucker contends that the ‘area of Kakarra country within the Tenement was used a lot by the old Kakarra people for hunting and Kakarra still go out camping in that area today. As a result there would be artefacts in that country that are significant to our people that need to be protected’ (Tucker witness statement at [22]).
Mr Tucker also states that ‘[w]e don’t have any heritage or land access agreement’ with the grantee and that ‘[b]y doing exploration activities including percussion and diamond core drilling without coming and talking to us, [the grantee] might damage the land and artefacts that are within the Tenement and upset the spirits. We would then be punished’ (Tucker witness statement at [17] and [18]).
As mentioned previously at [23], the grantee contends it has sought to reach a heritage agreement with Kakarra although further detail is not available. Overall however, the grantee contends that Kakarra has not provided evidence of areas or places of particular significance in the area of the proposed licence (grantee contentions at [36]).
The State contends that the evidence in the Tucker witness statement is not sufficient to determine or locate any particular area or site on the proposed licence and does not establish that any part of the proposed licence is of particular significance to Kakarra in accordance with its traditions (State contentions at [40]-[41]).
Ultimately, the information and materials provided by Kakarra are not sufficient to enable me to conclude there are sites of particular significance on or close to the area of the proposed licence. Evidence on artefact material provided by Mr Tucker is not sufficient to allow specific locations to be discerned and there is insufficient information before me to explain the particular significance of any such places. As such, I cannot conclude for the purpose of s 237(b) that the grant of the proposed licence will interfere with any areas or places of particular significance to the Kakarra people.
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 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 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 E28/3045 to Australian Nickel Company Limited is an act which attracts the expedited procedure.
Glen Kelly, Member
19 October 2021
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