Evelyn Gilla and Others on behalf of Yugunga-Nya v Pegasus Metals Limited and Another
[2020] NNTTA 15
•18 February 2020
NATIONAL NATIVE TITLE TRIBUNAL
Evelyn Gilla and Others on behalf of Yugunga-Nya v Pegasus Metals Limited and Another [2020] NNTTA 15 (18 February 2020)
Application No: | WO2018/0855, WO2018/0856 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Evelyn Gilla and Others on behalf of Yugunga-Nya (WC1999/046)
(native title party)
- and -
Pegasus Metals Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 18 February 2020 |
Catchwords: | Native title – future act – proposed grant of prospecting licences – 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 – whether act likely to involve major disturbance to land or waters – expedited procedure – act does not attract the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32(4), 146, 151(2), 237 Mining Act 1978 (WA) ss 40, 45, 48 |
Cases: | Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd [2002] NNTTA 35 (‘Yugunga-Nya v Blackjack Resources’) Ward v Western Australia [1996] FCA 1452; [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: | Garry Plowright and Carl Peterson |
| Representative of the grantee party: | Craig Hall, Delta Resource Management |
| Representatives of the Government party: | Ellise O’Sullivan, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act1993 (Cth) (NTA) applies to the grant of prospecting licences P51/3016 and P51/3017 (licences) to Pegasus Metals Limited (Pegasus).
The State of Western Australia (State) gave notice under s 29 of the NTA of its intention to grant the licences, with a notification day of 11 July 2018. The notice included a statement that the State considers the grant of each licence is an act attracting the expedited procedure, which would allow each licence to be granted without requiring negotiation under s 31 of the NTA.
The licences are adjacent and wholly located within the area of a native title determination application made by the Yugunga-Nya native title claim group (WAD6132/1998). On 1 November 2018, the registered native title claimant for the Yugunga-Nya claim (Yugunga-Nya) lodged objections against the State’s inclusion of the expedited procedure statement in respect of the licences.
In light of Yugunga-Nya’s objections, the Tribunal is required to determine whether the grant of either licence is an act attracting the expedited procedure (s 32(4) NTA) and I have been directed to constitute the Tribunal for that purpose. For the reasons outlined below, my determination is that the grant of each licence is not an act attracting the expedited procedure.
Issues in the inquiry
The grant of either 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) NTA);
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b) NTA); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c) NTA).
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. 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. The grantee party’s intentions may be relevant to that assessment.
Determination on the papers
I made directions for the conduct of the Tribunal’s inquiry which provided for all parties to provide contentions and evidence. The State provided a statement of contentions and supporting evidence. No submissions were received from Pegasus. Yugunga-Nya provided contentions, but no supporting evidence. Yugunga-Nya also had the opportunity to provide a reply, but did not do so.
The State’s evidence included mapping, a Tengraph Quick Appraisal form, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), the licence applications under the Mining Act 1978 (WA) (Mining Act), as well as details of proposed endorsements and conditions to be imposed on grant of the licences (Tenement Endorsements and Conditions).
All parties agreed to the matter being determined on the papers and, having reviewed the material, I am satisfied that the inquiry can be adequately determined without a hearing (s 151(2) NTA).
The licences and Pegasus’ proposed exploration activities
The licences are prospecting licences proposed to be granted under s 40 of the Mining Act. Under s 45 of the Mining Act prospecting licences are granted for four years, although they may be extended on application in certain circumstances. Section 48 of the Mining Act prescribes the activities which may be undertaken by the holder of a prospecting licence.
The State’s evidence reveals the following information regarding the area of the licences:
P51/3016
Area
138.72 hectares
Land Tenure
C Class Reserve Common (98.71%) and road reserves
P51/3017
Area
146.03 hectares
Land Tenure
Pastoral lease (98.44%); C Class Reserve Repeater Station Site (0.55%); and road reserves
The area of each of the licences has also been subject to a number of historical mining tenements, including two mining leases, one of which covered the whole of the licences.
In addition to the Tenement Endorsements and Conditions, the State says that it will also place a condition on each licence requiring Pegasus to enter into a Regional Standard Heritage Agreement, if requested by Yugunga-Nya within 90 days of the grant of either licence.
Pegasus has not provided any detail regarding its proposed activities, and therefore I find that it may exercise all of the rights available to it under each licence.
Registered Aboriginal Sites in the area of the licences
The AHIS searches provided by the State identify two registered Aboriginal sites under the AHA within the area of each of the licences. These are:
(a)ID 7449 – Nowthanna Hill Scatter – Artefacts/Scatter, Quarry Type (No Gender Restrictions); and
(b)ID 7451 – Nowthanna Hill – Mythological Type (Male Access Only).
The AHIS searches and the State’s mapping show that Nowthanna Hill site ID 7451 covers almost the entirety of each licence.
The State has also provided details of registered and lodged sites intersecting a 25km buffer around the licences, which includes the following additional sites:
(a)ID 11133 – Mt Yagahong – Ceremonial/Man-Made Structure/Mythological Type (Registered Site);
(b)ID 11139 – Yakong – Ceremonial/Mythological/Repository, Cache, Other: Proposed PA 109 (Registered Site);
(c)ID 162 – Burnakura – Artefacts/Scatter (Registered Site);
(d)ID 114 - Yarrabubba - Man-Made Structure (Lodged Heritage Site)
Predictive assessment
Section 237(a): is the grant of the licence likely to interfere directly with Yugunga-Nya’s community or social activities?
The potential impact of the licences on Yugunga-Nya’s community or social activities are matters peculiarly within Yugunga-Nya’s knowledge. However, despite some general assertions in its Form 4 objections, no evidence or contentions have been provided regarding the likelihood of interference within the meaning of s 237(a).
Applying a common sense approach to the evidence as discussed in Ward v Western Australia at [26], I find disturbance under s 237(a) is unlikely.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Yugunga-Nya?
The accepted approach to s 237(b) is also summarised in Yindjibarndi v FMG at [17]-[18]. In particular, 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. There must be a real risk of interference, but even slight interference may be unacceptable in the context of s 237(b).
What areas or sites are identified by Yugunga-Nya on the licence areas?
In its contentions, Yugunga-Nya refers to the two registered sites listed above at [15], and states that they “hold particular ethnographic significance and archaeological history for the group”. However, there is no information or evidence provided as to the nature of the significance and why the sites are of particular, or more than ordinary, significance.
Yugunga-Nya also says that the area of the licences “may include further areas of particular significance to members of the Native Title Party”. It argues that without proper site avoidance procedures being undertaken, it is likely that activities under the licences will impact negatively on any sites of particular significance and says that consultation and discussion between Pegasus and Yugunga-Nya is necessary to avoid that outcome. However, this contention is speculative.
I appreciate that Yugunga-Nya is concerned about the possibility of sites existing in the area of the licences, but in order for me to consider the likelihood of interference under s 237(b) a site must be known, able to be located and the particular significance explained. The contentions provided by Yugunga-Nya in this matter are insufficient for that purpose.
However, the Tribunal has considered the Nowthanna Hill site in previous determinations. In particular, in Yugunga-Nya v Blackjack Resources, the Tribunal accepted evidence from a number of witnesses including Ms Evelyn Gilla, who is a member of Yugunga-Nya. Ms Gilla’s affidavit is set out at [10] of that decision and includes the following paragraphs:
7.Nowthanna Hill is a site that is recorded on the Register. The proposed tenement is partially covered by the Nowthanna Hill site. The site is a men’s site. There are sacred and important stories for Nowthanna Hill. Only initiated men can know the story for Nowthanna Hill. I know about the site but cannot talk about it. Bad things can happen if people talk about a site when they are not allowed to. It is very important to Yugunga-Nya people that people do not touch or disturb the site.
8.There are special sacred grounds all around the area. The old Yugunga-Nya people including my mother used to travel and camp all around the area including the area of the proposed tenement. The area including the area of the proposed tenement is a very good place to hunt and camp and that is why the old people used to camp there a lot. I know about those special sacred grounds and some of them are within the area of the proposed tenement. Yugunga-Nya people do not want to tell people where those sites are. They are important and special sites. It is important to Yugunga-Nya people that the sites are not interfered with or damaged.
The Tribunal discussed the evidence regarding Nowthanna Hill at [18] and was satisfied it was a site of particular significance to Yugunga-Nya, although there was some uncertainty about the extent to which it extended into the tenement area in that case. The Tribunal also found on the evidence that Mount Yagahong (listed at [17] above) is a site of particular significance to Yugunga-Nya although it was about 15 kilometres to the north of the tenement under consideration. While not always a helpful expression, the Tribunal considered at [21] that the area of the tenement in Yugunga-Nya v Blackjack Resources was “rich in sites” such that the presumption of regularity was insufficient to preclude a real risk of interference.
The State argues that Yugunga-Nya’s evidence is insufficient to enable me to conclude there are sites of particular significance within the area of the licences. That would certainly be the case on the strength of the material provided in this matter, however the State does not appear to have considered the findings regarding Nowthanna Hill in Yugunga-Nya v Blackjack Resources.
There does not appear to be any question, given the location of the tenement in Yugunga-Nya v Blackjack Resources, that the registered site Nowthanna Hill considered in that case is the same site ID 7451 under consideration here, particularly given the relative proximity of the Mount Yagahong site. Under s 146 of the NTA, I am able to adopt the Tribunals’ previous finding that Nowthanna Hill is a site of particular significance to Yugunga-Nya. In my view it is appropriate to do so, particularly having regard to the nature of the site and the fact that it is registered under the AHA.
The question that then arises is whether the grant of either of the licences is likely to interfere with the site.
While there is no detail of Pegasus’ proposed activities, I am conscious that the proposed licences are prospecting licences, with arguably more limited rights than other forms of mining tenement. However, the Nowthanna Hill site covers almost the entirety of each licence and is a men’s site. There is nothing before me to explain how Pegasus will undertake its activities in that context or how, as the State argues, the AHA will be sufficient protection.
The State also refers to a number of historical tenements over the area and says prior activity may mean the grant is unlikely to cause substantial further interference. There are a number of difficulties with this argument. Firstly, the issue is not one of cumulative or additional interference. The relevance of any previous tenements will depend on the evidence, including the exploration activities conducted on the area, the nature of the site and the type of interference concerned. Further, it is not known if the holders of those tenements conducted activities under an agreement with native title parties. Certainly, that may have been the case for the more recent mining lease granted after the commencement of the NTA.
Accordingly, in the absence of further evidence, there is nothing I can draw from the list of previous tenements that would mitigate the likelihood of interference in this case.
I therefore find that the grant of each licence is likely to interfere with Nowthanna Hill, being a site of particular significance to Yugunga-Nya.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Yugunga-Nya do not make any contentions in relation to s 237(c) and there is nothing before me which indicates the grant of the licences is likely to involve major disturbance to any of the land or waters concerned. Therefore, I find disturbance within the meaning of s 237(c) is unlikely.
Determination
I determine that the grant of each of P51/3016 and P51/3017 is not an act attracting the expedited procedure.
Ms Nerida Cooley
Member
18 February 2020
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