Evelyn Gilla & Others on behalf of the Yugunga-Nya People v Great Western Exploration Limited and Another

[2020] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of the Yugunga-Nya People v Great Western Exploration Limited and Another [2020] NNTTA 35 (24 March 2020)

Application Nos: WO2018/0637, WO2018/0638, WO2018/0639, WO2018/0640, WO2018/0641, WO2018/0642, WO2018/0644, WO2018/0645 and WO2018/1019

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Evelyn Gilla & Others on behalf of the Yugunga-Nya People (WC1999/046)

(native title party)

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Great Western Exploration Limited (grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACTS ATTRACT THE EXPEDITED PROCEDURE

Tribunal:

Helen Shurven, Member

Place:

Perth

Date:

24 March 2020

Catchwords:

Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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 attracted – the acts attract the expedited procedure

Legislation:

Native Title Act 1993 (Cth) ss 32, 151, 237

Mining Act 1978 (WA) s 58

Cases:

Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti)

Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources)

Silver v Northern Territory of Australia[2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory)

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208

WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17 (WF v Emergent Resources)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)

Representative of the native title party:

Carl Peterson, Yugunga-Nya Heritage Services Pty Ltd

Representative of the grantee party: Jennifer Johnson, Hetherington Exploration & Mining Title Services Pty 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

1. Under s 32 of the Native Title Act 1993 (Cth) (the Act), if a Government Party states the expedited procedure applies to an act, then a native title party has the right to object to that statement. In this matter:

   ·    the Government party is the State of Western Australia (the State);

   ·    the acts are the grant of exploration licences E51/1877, E51/1878, E51/1879, E51/1880, E51/1881, E51/1882, E53/1982, E53/1983 and E53/2029 (licences) to Great Western Exploration Limited (Great Western); and

   ·    the native title party are the Yugunga-Nya native title claimants, as the licences are located over land and waters where the Yugunga-Nya People (WC1999/046) claim native title.

2. Yugunga-Nya lodged objections to the expedited procedure applying to the grant of these licences. I was appointed to conduct an inquiry to determine whether or not the expedited procedure applies. For the reasons outlined below, I conclude the expedited procedure applies to the grant of each licence.

Issues for Inquiry

1. Under s 237, a licence grant is only 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));

   (b)interfere with areas or sites of particular significance, in accordance with their traditions, to those holders (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)).

2. Yugunga-Nya did not submit contentions or evidence regarding s 237(a) and reserved ‘the right to lead evidence’ for 237(c) until after they received information about Great Western’s activities. Great Western elected not to lodge any submissions, and Yugunga-Nya did not lead any further contentions or evidence regarding s 237(c).

3. Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before the Tribunal in this inquiry which indicates the grants of the licences are likely to involve direct interference with community or social activities or major disturbance to the land or waters concerned. As such, it is appropriate for me to conclude that interference of the kind outlined in s 237(a) and (c) is not likely from the grants of these licences. This inquiry and the remainder of this decision focuses on the consideration of s 237(b).

Party submissions and determination on the papers

1. From the lodgement of these objections to the expedited procedure, both Great Western and Yugunga-Nya indicated they were endeavouring and anticipating to resolve the objections by agreement.  Several changes in representation of Yugunga-Nya delayed the agreement making progress, and ultimately I set directions as I formed the view the inquiry could not be delayed further.

2. The State provided contentions and evidence including mapping, tengraph quick appraisal tenure documents, search results from the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS searches), the licence applications with the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act), and details of the proposed endorsements and conditions to be imposed on the grants.

3. As noted above, Great Western made no submissions.

4. Yugunga-Nya provided three statements of contentions; one for E51/1877, E51/1878, E51/1879, E51/1880, E51/1881 and E51/1882 (combined contentions 1); one for E53/1982 and E53/1983 (combined contentions 2); and one for E53/2029 (contentions for E53/2029). No other material or reply was provided.

5. The directions contemplated parties submit an agreed statement of facts and to indicate whether they sought a hearing. The State advised they were unsuccessful in their attempts to confer with parties on these directions and submitted that they were content to proceed on the papers without a hearing. I am satisfied the inquiry can be adequately determined without a hearing (s 151(2)).

The s 237 predictive assessment

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance?

1. The assessment of s 237(b) is in two parts. First, the Tribunal must determine whether any sites or areas are of particular significance, as required by s 237(b), and if so, determine whether interference is likely. If I conclude there are no sites of particular significance, then the issue of interference cannot be assessed (Yindjibarndi v FMG at [125]). The expression ‘particular significance’ means of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). If an area or site is of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]).

Do Yugunga-Nya identify any areas or sites on the licences?

1. Because of the number of licences in this inquiry, I look firstly at what areas have been identified on the licences. Then I consider, further below, whether any of those meet the requirement of ‘particular significance’ under s 237(b).

2. In their contentions for E51/1877, E51/1878, E51/1879, E51/1880, E51/1881 and E51/1882, and for E53/1982 and E53/1983, Yugunga-Nya include the same map showing the location of AHIS registered sites in the general vicinity of the licences (at 16). They make the same contention in both of their combined contentions that ‘the area of these licence applications is adjacent to many Aboriginal sites that hold significance to the Yugunga-Nya’ (at 16) and that the area of the licences ‘may include further sites of particular significance’ (at 18).  The map was not greatly helpful as it referred to the general area of the licences, and did not provide detail about the sites, or how they were connected or related to the licences which are subject to this inquiry.

3. The State’s AHIS searches show no registered sites or heritage places situated on E51/1877, E51/1878, E51/1879, E51/1880, E51/1881, E51/1882, E53/1982 or E53/1983.

4. In their contentions for E53/2029, Yugunga-Nya include a map showing the location of AHIS registered sites that are in the vicinity of the licence and which overlap part of the licence (at 16). The sites are marked as site 2175 and 2177.  The State’s AHIS searches for E53/2029 show there are two registered sites overlapping an eastern portion of the licence: ‘Milpa’ (ID 2175) and ‘Winytjupula’ (ID 2177).  Both sites are identified as ‘mythological’ with restricted locations.

5. Yugunga-Nya contend (at 16):

   The licence application intrudes over at least 2 known, registered Aboriginal sites that hold significance to the Native Title Party. These sites hold particular ethnographic significance and archaeological history for the group. Registered Aboriginal sites that hold significance to the Native Title Party are common within the area and are not always recorded. This shows the need for greater control and awareness within this area.

6. Yugunga-Nya go on to make the same contention as they do in their combined contentions for the other licences. That is, the area of the licence ‘may include further sites of particular significance’ (at 18).  There is nothing further about why the sites are of particular significance to Yugunga-Nya, in accordance with their traditions.

Are any of the identified areas or sites of ‘particular significance’ as required by s 237(b)?

1. The Tribunal ‘has repeatedly found that … the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance’ (see Barnes v AngloGold Ashanti (at [49], for example). This approach is further outlined in WF v Emergent Resources (at [45]):

   Mere reference to the existence of a…place without identifying the nature of its significance or its location does not provide an adequate basis for the Tribunal to make a finding about the existence of sites or areas of particular significance on the proposed licence…let alone a finding that the area in which the tenement is located is…imbued with a pervasive spirituality such that any unauthorised entry on the tenement area would constitute relevant interference.

2. In this matter, Yugunga-Nya have provided no evidence beyond the assertion in contentions that any AHIS registered sites in the vicinity of the licences and those overlapping and near to E53/2029 ‘hold particular ethnographic significance and archaeological history for the group’ (at 16 of the contentions for E53/2029, for example). Following the Tribunal’s jurisprudence noted above, there is no basis for me to conclude that areas or sites of particular significance exist on any of the licences. Without this precondition being met, the question of interference cannot be addressed.

Determination

1. The grants of exploration licences E51/1877, E51/1878, E51/1879, E51/1880, E51/1881, E51/1882, E53/1982, E53/1983 and E53/2029 to Great Western Exploration Limited are acts attracting the expedited procedure.

Helen Shurven
Member
24 March 2020