Evelyn Gilla & Others on behalf of the Yugunga-Nya People v Dennis Raymond Bosenberg & Another
[2020] NNTTA 46
•13 May 2020
NATIONAL NATIVE TITLE TRIBUNAL
Evelyn Gilla & Others on behalf of the Yugunga-Nya People v Dennis Raymond Bosenberg & Another [2020] NNTTA 46 (13 May 2020)
Application No: | WO2019/0913 |
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 & Others on behalf of the Yugunga-Nya People (WC1999/046)
(native title party)
- and -
Dennis Raymond Bosenberg
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 13 May 2020 |
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 – whether act likely to cause major disturbance to land or waters – expedited procedure attracted |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 40, 45, 48 Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237 |
Cases: | Evelyn Gilla & Ors on behalf of the Yugunga-Nya People/Western Australia/Allarrow Pty Ltd, [2010] NNTTA 36 (‘Yugunga-Nya v Allarrow’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representatives of the native title party: | Kelsi Forest, Roe Legal Carl Peterson, Yugunga Nya Heritage |
| Representative of the grantee party: | Tony Ly, Tenement Administration Services Pty Ltd |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Gemma Mullins, State Solicitor’s Office |
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 licence P51/3142 (licence) to Dennis Raymond Bosenberg (Mr Bosenberg).
The State of Western Australia (State) gave notice under s 29 of the NTA of its intention to grant the licence, with a notification day of 31 July 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure, which would allow it to be granted without requiring negotiation under s 31 of the NTA.
The licence is located wholly within the area of a native title determination application made by the Yugunga-Nya native title claim group (WAD29/2019). On 2 October 2019, the registered native title claimant for the Yugunga-Nya claim (Yugunga-Nya) lodged an objection against the State’s inclusion of the expedited procedure statement in respect of the licence.
In light of Yugunga-Nya’s objection, the Tribunal is required to determine whether the grant of the 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 the licence is an act attracting the expedited procedure.
Determination on the papers
Yugunga-Nya provided contentions, including a map, in accordance with the Tribunal’s directions, but no supporting evidence. Yugunga-Nya also had the opportunity to provide a reply, but did not do so.
The State has provided contentions and evidence about the licence including mapping, a Tengraph Quick Appraisal, a report from the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS report), the licence application under the Mining Act 1978 (WA) (Mining Act), as well as details of proposed endorsements and conditions to be imposed on grant of the licence. These include a condition regarding entry into a Regional Standard Heritage Agreement, if requested by Yugunga-Nya within a specified timeframe (RSHA condition).
Mr Bosenberg provided contentions, which included a map and diagram, and attached copies of emails with Yugunga-Nya.
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).
Issues in the inquiry
The grant of the 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.
The Tribunal applies a common sense approach to the evidence as discussed in Ward v Western Australia at [26]. In this case, although it made general assertions regarding the application of ss 237(a) and (c) in its objection application, Yugunga-Nya contends (at 25) only that the grant of the licence will result in interference within the scope of
s 237(b). Yugunga-Nya did reserve the right to provide evidence in relation to s 237(c) once it had information regarding Mr Bosenberg’s proposed activities (contentions at 24), but as noted, it did not provide any contentions or evidence in reply.
Accordingly, my consideration of the issues focusses on s 237(b).
The licence and Mr Bosenberg’s proposed exploration activities
The licence is a prospecting licence proposed to be granted under s 40 of the Mining Act. Under s 45 of the Mining Act a prospecting licence is granted for four years, although it 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 shows that the licence area is 114.25 hectares. The majority of the land tenure underlying the licence is pastoral lease (87.65%), together with a “C” Class Common Reserve (10.8%) and road reserves.
In his contentions at 4, Mr Bosenberg states that the licence is readily accessible and intersected by the local road network. He also outlines his proposed work plan and budget, although it is not clear whether this applies to the whole of the licence term.
Predictive assessment
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Yugunga-Nya?
As discussed in Yindjibarndi v FMG at [17]-[18], 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.
The AHIS report provided by the State reveals that the licence area does not contain any sites registered under the Aboriginal Heritage Act 1972 (WA) (AHA) nor any ‘other heritage places’. However, areas or sites are not required to be registered under the AHA to be of particular significance within the meaning s 237(b).
As Yugunga-Nya observes at paragraph 18, the Tribunal has previously found interference with sites or areas of particular significance outside a tenement area may fall within the scope of s 237(b). I note the map at Figure 1 of Yugunga-Nya’s contentions appears to show two registered sites (ID 11133 and ID 11139) less than a kilometre away, in the vicinity of Yagahong Hill. The Tribunal has previously found these two sites, named Mount Yagahong and Yakong, to be sites of particular significance to Yugunga-Nya (see Yugunga-Nya v Allarrow at [55]).
However, Yugunga-Nya has not identified any specific areas or sites of particular significance which it says will be subject to interference from the grant of the licence, whether within the licence area or otherwise. While the two registered sites mentioned above appear on a map in Yugunga-Nya’s contentions, it does not contend those sites will be subject to interference from the grant and there is no evidence before me to suggest that is likely.
Yugunga-Nya’s key argument in this case (at paragraph 19) is that:
Without proper Aboriginal heritage site avoidance procedures being taken, it is likely that any activity permitted pursuant to the granting of the future act will impact negatively on any sites of particular significance within the Tenement. Consultation and discussion between the Objectors and the Grantee Party is necessary to ensure that sites are not likely to be interfered with.
Mr Bosenberg considers that entry into a standard or preferred heritage agreement will provide adequate protection (Bosenberg contentions at 2, 4, 5). Mr Bosenberg has also attached to his contentions copies of emails between his representative and a former representative of Yugunga-Nya. These emails indicate that Mr Bosenberg wished to resolve the matter by way of agreement and that he twice sought (and was promised) a copy of Yugunga-Nya’s alternative heritage agreement. I gather that no agreement was ever provided even though this may have provided the opportunity for consultation that Yugunga-Nya seeks.
Assuming the licence is granted, Yugunga-Nya may, in any event, be able to ensure it is consulted on the proposed exploration activities by requesting entry into a Regional Standard Heritage Agreement in accordance with the State’s proposed RSHA condition.
However, as Yugunga-Nya has not identified any specific sites or areas of particular significance, either within the licence area or at risk of interference outside the licence area, I conclude that interference within the scope of s 237(b) is unlikely.
Determination
Having regard to the evidence before me, I determine that the grant of P51/3142 to Dennis Raymond Bosenberg is an act attracting the expedited procedure.
Nerida Cooley
Member
13 May 2020
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