Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 v Jordan James Mitchell and Others
[2024] NNTTA 46
•27 June 2024
NATIONAL NATIVE TITLE TRIBUNAL
Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 v Jordan James Mitchell and Others [2024] NNTTA 46 (27 June 2024)
Application No: | WO2023/0278; WO2023/0279; WO2023/0280; WO2023/0281 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 (WC2022/003)
(native title party)
- and -
Jordan James Mitchell
(grantee party)
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Stephen Ronald Mitchell
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 27 June 2024 |
Catchwords: | Native title – future acts – proposed grant of special prospecting licences – expedited procedure objection applications – whether acts are likely to interfere with the carrying on of community and social activities – whether acts are likely to interfere with areas or sites of particular significance – evidence insufficient to allow path of Kalaya (Emu) Dreaming story to be located in the area of the licences – whether acts are likely to involve major disturbance to lands and waters – acts are acts attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) Native Title Act 1993 (Cth) ss 31, 32, 151, 237 |
Cases: | Andrews and Others v Northern Territory of Australia and Another [2002] NNTTA 170; (2002) 170 FLR 138 (‘Andrews v Northern Territory’) Cheinmora v Striker Resources NL and Others; Dann v State of Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21 (‘Dann 1996’) Dann v Western Australia and Another [1997] FCA 332; (1997) 74 FCR 391 (‘Dann 1997’) Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 v Mining Equities Pty Ltd and Another [2024] NNTTA 34 (‘Mining Equities’) Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (‘Little v Oriole Resources’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd, [2011] NNTTA 170 (‘Kingx’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representative of the native title party: | Ashley Truscott, TCA & Co Legal |
| Representative of the grantee party: | Matthew Clohessy, Emerald Tenement Services |
| Representatives of the Government party: | Alicia Nowak, State Solicitor’s Office; Paola O’Neill, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This decision concerns the proposed grant of four adjacent special prospecting licences under the Mining Act 1978 (WA). Mr Jordan Mitchell is the applicant for two of the licences (P 51/3300-S and P 51/3301-S) and Mr Stephen Mitchell is the applicant for the other two licences (P 51/3302-S and P 51/3303-S). Over 98% of each licence falls within the area of the Yugunga-Nya People #2 native title determination application (WAD110/2022).
The State of Western Australia considers the grant of each licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth), which would mean it may be granted without first requiring negotiation in good faith in accordance with s 31 of that Act.
The registered native title claimant for Yugunga-Nya #2 (Yugunga-Nya) objects to the application of the expedited procedure, mainly for reasons related to the Kalaya (Emu) Dreaming story, which is said to pass through the area of the licences.
The Tribunal’s role is to determine whether or not the expedited procedure applies: s 32(4) Native Title Act. I have been directed to constitute the Tribunal for that purpose and am satisfied the matters can be adequately determined without a hearing: s 151(2) Native Title Act. The grantee parties are jointly represented, and all four objections have been dealt with together.
For the reasons explained below, I have determined that the grant of each licence is an act attracting the expedited procedure.
When does the expedited procedure apply?
Under the Native Title Act, the expedited procedure will only apply if the grant of the licence is not likely to:
(a)interfere directly with the carrying on of the native title holders’ community or social activities: s 237(a);
(b)interfere with areas or sites of particular significance to the native title holders, in accordance with their traditions: s 237(b); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters located in the licence area: s 237(c).
In order to determine whether the expedited procedure applies, I must undertake a predictive assessment by considering the likely consequences arising from the grant of each licence (in the sense of a real, not remote, chance) (see overview of approach in Yindjibarndi v FMG at [15]).
Is the grant of each licence likely to directly interfere with the Yugunga-Nya People’s community or social activities?
In its contentions, Yugunga-Nya argues that Yugunga-Nya traditional laws and customs have survived colonisation in the form of community and social activities and that, to prevent a decline in Yugunga-Nya culture and heritage, the expedited procedure does not apply to the grant of the licences.
The difficulty with this type of general argument is that it does not address the specific requirements of s 237(a), which is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that direct interference involves an evaluative judgment that the act, in this case the grant of each licence, “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.
Therefore, for each licence, I would need to be satisfied that Yugunga-Nya People undertake community or social activities in the licence area and that those activities will be subject to direct, non-trivial, interference from the grant of the relevant licence or licences.
Yugunga-Nya relies on the evidence of Mr Raymond Wingo, a Yugunga-Nya traditional owner and common law native title holder. Mr Wingo has provided two largely identical witness statements in support of Yugunga-Nya’s objections, one for P 51/3300-S and P 51/3301-S and one for P 51/3302-S and P 51/3303-S.
Mr Wingo sometimes refers to tenement in the singular, but I understand each witness statement to refer to both of the relevant licences. Each licence is the same shape and roughly the same size and, being adjoining, together comprise one larger rectangular area. It is possible, but not without doubt, that is what Mr Wingo views as “the tenement”.
In any event, Mr Wingo’s evidence in relation to community and social activities is very brief. He mentions:
(a)the area of a pool south of the licences where his family goes hunting “maybe like three or four times a year for food and cultural activities” passing “through the country where the [licences are]”;
(b)checking that the Kalaya Dreaming is not “messed with”, noting also that he and others go to check “this area for mining activity occurring without our consent” to guard against harm to the Kalaya Dreaming and comparing these checks to “a roster for work”; and
(c)collecting water from and checking on Gnamma Hole (Site ID 11433) near the licences which Mr Wingo says is a water source site that is significant and sacred to Yugunga-Nya People. According to the Tribunal’s online mapping tool Native Title Vision, Gnamma Hole is a lodged, not registered, site about 15 kilometres south-easterly from the nearest of the four licences.
The grantee parties did not provide any contentions, choosing to rely on those made by the State. The State points to the general nature of the activities described and the lack of detail provided and submits that the evidence is insufficient for me to conclude that community or social activities are undertaken by Yugunga-Nya People in the area of any of the licences.
There is merit in that submission because there is very little I can draw from the evidence regarding community or social activities undertaken by Yugunga-Nya People in the area of the licences.
Mr Wingo speaks broadly of passing through the country where the licences are possibly three or four times a year, but that does not necessarily mean passing through any or all of the licences. The evidence regarding checking on the Kalaya Dreaming is also very general and Mr Wingo does not provide any details of the nature of this activity or exactly where, when, or how often it occurs. This evidence also suffers from the issues discussed below in relation to the uncertain location of the Dreaming in any of the licences. The other examples given by Mr Wingo relate to areas outside the licences.
Because the evidence provided is very general and lacking in detail or is unrelated to the licences, it is insufficient to support any findings regarding community and social activities undertaken by Yugunga-Nya People in the area of any of the licences. Accordingly, there is no basis on which I could conclude that the grant of any of the licences is likely to cause direct and non-trivial interference within the meaning of s 237(a).
Is the grant of each licence likely to interfere with areas or sites of particular significance to the Yugunga-Nya People, in accordance with their traditions?
An area or site of particular significance for s 237(b) is one of special, or more than ordinary, significance to the native title holders in accordance with their traditions: Dann 1996 at page 35. Such an area or site must also be known and be able to be located, and the nature of its significance explained: Yindjibarndi v FMG at [17]. The identification of a Dreaming track will not necessarily result in a finding of particular significance; the particular significance of the area or site associated with the Dreaming track needs to be adequately explained: Andrews v Northern Territory at [124].
Yugunga-Nya contends that the whole of each licence area is of more than ordinary significance due to the special significance placed on the Dreaming story of Kalaya that it says intersects the licences.
Mr Wingo says that the grant of each licence will interfere with the Kalaya Dreaming which is a significant Dreaming story of Western Desert Tjukupurra (also spelled Tjurkupurra) that connects all western desert tribes. He explains the significance of Kalaya and its connection to Mt Yagahong, which he says is “mama for our people”.
Mr Wingo describes the path of the Kalaya Dreaming as coming from Mt Gould in the west of Yugunga-Nya country before travelling to the Peak Hill area in the northern part of Yugunga-Nya country, just on the western border, and then down through Doolgunna “passing where the [licences are]” and then travelling to Mt Yagahong.
Similar to the recent decision in Mining Equities, Mr Wingo’s description of the path of the Dreaming story is exceedingly general. There is no map of the path and none of the places mentioned are shown on any of the mapping provided by the State.
Mr Wingo also says that the Kalaya Dreaming ‘passes’ the area of the licences and that it “passed through where the [licences are] now”. Those statements could suggest that the Dreaming passes through the area or country in which the licences are located, rather than through the licences themselves. In its reply, Yugunga-Nya says that the Dreaming story “intersects” the licences but that is not at all clear from the evidence as none of the identified places on the path are clearly in or near the licences.
Overall, the evidence does not identify the path in relation to the area of the licences sufficiently for me to be satisfied of its location as required for s 237(b). In its reply, Yugunga-Nya disputes that Mr Wingo’s evidence is vague as to the travel path of the Kalaya Dreaming, but it simply repeats parts of Mr Wingo’s evidence which does not provide any clarification.
Further, as was also the case in Mining Equities, there are no specific areas or sites of particular significance identified in the area of any of the licences, nor any explanation of why the whole of each licence area is of particular significance in accordance with tradition. This is a point also raised by the State. Mr Wingo does identify Gnamma Hole as a water source site that is significant and sacred to Yugunga-Nya People, although he does not mention the Kalaya Dreaming in connection with this site. In any event, as noted, Gnamma Hole appears to be about 15 kilometres from the nearest of the four licences.
Mr Wingo also refers to seeing a hand print and other prints in the rock “on the country where the [licences are]”. He refers to Yugunga-Nya having put a 50 metre buffer zone around this site, but says it was “disrespected” by a mining company. However, it is not sufficiently clear from the evidence that this site is located in any of the four licences because of Mr Wingo’s general references to “the country where the [licences are]”.
Again, similar to Mining Equities, Yugunga-Nya argues that I should follow the decision in Kingx where it says the Tribunal found that the Kalaya Dreaming story was a site of particular significance. However, the Tribunal’s findings in Kingx were based on specifically identified sites associated with a number of different Dreaming stories. The paths of those Dreaming stories, in relation to the relevant tenements, were also shown on a map. Moreover, none of the specific areas or sites on which the Tribunal made findings appear to specifically relate to the Kalaya (or Karlaya as it was spelt in Kingx) Dreaming.
Because of the very general description of the path of the Kalaya Dreaming and the fact that none of the locations identified are shown on any mapping, I am not satisfied that the Dreaming story traverses any or all of the licences, nor that there are any specific areas or sites of particular significance in any of the licence areas.
Is the grant of each licence likely to cause major disturbance?
In the context of s 237(c), major disturbance is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people (see Littlev Oriole Resources at [52]–[54]). I can also have regard to the context of each licence, including the history of mining and the characteristics of the land and waters to determine whether major disturbance is likely. In Dann 1997 at page 395 the word “major” is described as an adjective of degree in respect of which the Tribunal must make a value judgement.
Each of the licences is a special prospecting licence for gold to be granted under the Mining Act for a term of four years. As I have noted above, the licences are adjacent, and each is a little over nine hectares in size. There is a current prospecting licence over a very small portion of each licence. According to the material provided by the State, there was also an exploration licence covering the majority of the licences, but Native Title Vision no longer shows that tenement.
The licences will be subject to a number of conditions and endorsements provided by the State, as well as regulatory controls, such as those under the Mining Act and Aboriginal Heritage Act 1972 (WA) (AHA). The amended AHA commenced on 15 November 2023, during the course of this inquiry. All parties were invited to provide submissions on the application of the amended AHA but only the State did so.
The land tenure underlying the majority of the area of the licences is unallocated Crown land. There is no evidence of any Aboriginal community in or in the vicinity of the licences. There is no evidence of the extent of any mining activity undertaken under any current or previous tenements. There are no registered Aboriginal sites under the AHA or lodged sites in the area of the licences.
Yugunga-Nya’s arguments in relation to s 237(c) largely echo its submissions in Mining Equities and Mr Wingo’s evidence is, for the most part, identical. Yugunga-Nya says that any disturbance needs to be negotiated to prevent interference to creeks but there is no evidence to suggest such disturbance is likely. The arguments made about the impacts of a reduction in water levels on hunting and gathering are purely speculative.
As discussed in MiningEquities, the bald argument that any disturbance is too much disturbance does not assist my predictive assessment. Again, there is nothing in the evidence here to support a conclusion that major disturbance is likely, particularly taking account of the endorsements and conditions to be imposed on the licences and the State’s regulatory regime.
Determination
I determine that the grant of each of P 51/3300-S, P 51/3301-S, P 51/3302-S and P 51/3303-S is an act attracting the expedited procedure.
Ms Nerida Cooley
Member
27 June 2024
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