Is (Name withheld for cultural reasons) and Others on behalf of Wajarri Yamatji v Paul John Sargentson and Another - [2018] NNTTA 26

NATIONAL NATIVE TITLE TRIBUNAL

IS (Name withheld for cultural reasons) and Others on behalf of Wajarri Yamatji v Paul John Sargentson and Another [2018] NNTTA 26 (20 April 2018)

Application Nos:

WO2017/0513, WO2017/0514 and WO2017/0515

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

IS (name withheld for cultural reason) & Others on behalf of Wajarri Yamatji (WC2004/010) (native title party)

- and -

Paul John Sargentson

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms H Shurven, Acting President
Place:	Perth
Date:	20 April 2018
Catchwords:	Native title – future acts – proposed grants of special prospecting licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites or areas of particular significance – whether acts likely to involve major disturbance to land or waters – expedited procedure attracted – the acts are acts attracting the expedited procedure
Legislation:	Native Title Act 1993 (Cth) ss 70, 237 Mining Act 1978 (WA) s 66 Aboriginal Heritage Act 1972 (WA) ss 5, 17
Cases:	Cheinmora v Striker Resources NL [1996] FCA 1147; (1996) ALR 21 (‘Cheinmora v Striker Resources’) Jack Dann & Ors (Unggumi Ngarinyin)/State of Western Australia/GPA Distributors, [1995] NNTTA 43 (‘Dann v GPA Distributors’) IS (Name withheld for cultural reasons) and Others on behalf of Wajarri Yamatji v Terrence Harold Little and Another [2016] NNTTA 24 (‘Wajarri Yamatji v Little’) Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji [2011] NNTTA 172 (‘Weld Range Metals’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
Representative of the native title party:	Raina Savage, Yamatji Marlpa Aboriginal Corporation

Representative of the grantee party:

John Paul Sargentson

Representatives of the Government party:

Domnhall McCloskey, State Solicitor’s Office
Stacey Jackson, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Background

This is a decision about whether the expedited procedure applies to the proposed grants of prospecting licences P20/2295-S, P20/2296-S and P2-/2297-S to John Paul Sargentson. The State of Western Australia considers the grants are acts attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grants, the State asserts the activities permitted under the licences are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (‘the Act’). That is, the State asserts the grants are not likely to:
·interfere directly with community or social activities carried on by members of native title claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
All sections of legislation are to the Act, unless otherwise noted.
The then President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
P20/2295-S, P20/2296-S and P2-/2297-S are 7.31, 8.66 and 6.27 hectares respectively, and are located on Madoonga pastoral lease N049446, about 70 kilometres northwest of Cue. They entirely overlap the land and waters that comprise the Wajarri Yamatji registered native title claim. Wajarri Yamatji exercised their right to lodge objections against the State’s assertion that the expedited procedure applies. They argue the expedited procedure should not apply because interference or disturbance with one or more of the criteria in s 237 is likely.
If I find the expedited procedure applies, the State can grant the licences without the parties being required to negotiate with each other. If I find it does not apply, Mr Sargentson and the State must negotiate in good faith with a view to reaching an agreement with Wajarri Yamatji about the grants of the licences.

Preliminary evidentiary matters

All parties provided written submissions. Wajarri Yamatji included the affidavit of Mr Colin Hamlett. Mr Hamlett is an applicant to the Wajarri Yamatji claim and states he is a winja/bardani (elder). I accept he has authority to speak for the area.
The parties were content for me to make a determination ‘on the papers’ without holding a hearing and I consider it is appropriate to do so (s 151(1)).

The Inquiry

I must base my decision on the s 237 criteria. The issues I need to determine are:
(a)Is the grant of the licence likely to interfere directly with Wajarri Yamatji’s community or social activities?
(b)Is the grant of the licence likely to interfere with areas or sites of particular significance to Wajarri Yamatji?
(c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?

s 237(a) and (c) – act not likely to interfere with community or social activities or involve major disturbance

Wajarri Yamatji do not contend interference with (a) or disturbance to (c) and provide no evidence for these (Contentions at [15] and [55]). As stated in Ward v Western Australia at [26], ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. Therefore, on the limited evidence provided, I find the grants of the licences are not likely to interfere directly with Wajarri Yamatji’s community or social activities, or involve major disturbance to the land or waters concerned. On the material before me, I focus my inquiry on the issue of whether the grant of the licence is likely to interfere with areas or sites of particular significance to Wajarri Yamatji.

s 237(b) - is the grant of the licence likely to interfere with areas or sites of particular significance to Wajarri Yamatji?

An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).

Are there areas or sites of particular significance to Wajarri Yamatji on the licences?

Wajarri Yamatji’s contentions and evidence show the proposed licences are entirely located within the ‘pink box area’ referred to in the Tribunal future act determination Weld Range Metals, which found the ‘act must not be done’. Wajarri Yamatji draw my attention to my findings in Wajarri Yamatji v Little at [19] where I concluded there was no reason in law or principle for the Tribunal to depart from previous findings about the significance of the ‘pink box area’ simply because a different kind of tenement was applied for. There is nothing in this present inquiry which would cause me to depart from that reasoning. Accordingly, I find the entirety of the proposed licences is an area of particular significance to Wajarri Yamatji. I will now turn to the question of whether interference with the area is likely.

Are the grants of the licences likely to interfere with the area of particular significance?

The licences are special prospecting licences under s 70 of the Mining Act 1978 (WA) (‘the Mining Act’). They differ from other prospecting licences in that they authorise the holder to prospect for gold only (s 70(6)(b) of the Mining Act). I note there is currently a live exploration licence, held by another explorer, which entirely covers each licence in this inquiry. Under s 70(6)(c), the grant must not prevent the exploration tenement holder from exploring for minerals other than gold (unless the Minister otherwise directs).
Exploration and mining licences allow for more extensive disturbance than does a prospecting licence. While Mr Sargentson has provided some detail about his intended activities, it is not clear the extent of material he intends to remove from the licences. A special prospecting licence allows for removal of 500 tonnes of material during the life of a licence (s 70(6)(d) of the Mining Ac). Wajarri Yamatji argue that the prospector can apply to the Minister for approval to extract a greater tonnage. They also argue that the aggregate tonnage of 1500 tonnes can be taken from a relatively small area comprising all of the licences (approximately 23 hectares).
I have assumed Mr Sargentson will exercise the full suite of rights available to him under the Mining Act. Mr Sargentson has provided an aerial view photographic map of each licence, which appear to be flat, sandy and with sparse, scattered vegetation on each. One licence appears to show a track or vehicle marks. I note that the identity of each licence is not clearly marked on each photo, however, the shape of the licences is marked which appear to match the shape of each of the licences in this matter. No party has challenged whether the photos are of each of the licences, and I accept they depict the licence areas.
Tenure regarding previous activity is also of relevance, however, I bear in mind that just because there has been previous disturbance on a licence, does not necessarily mean that further disturbance is unlikely to interfere with the area for the purposes of s 237(b). However, there must be evidence of how the grant of the licences is likely to interfere with the area and in this matter, the evidence presented regarding interference is done so very broadly.
The State’s tengraph information indicates that as well as a pastoral lease covering all of these licences, and a live exploration licence, P20/2295-S has a mine and dry-blowing, as well as two tracks and a fence-line. It has also been overlapped 100 per cent by a previous prospecting licence between 2007-2015, and an exploration licence. Tengraph information shows that since 1996, in addition to the pastoral lease and live exploration licence, four exploration licences have previously overlapped P20/2296-S by 25 per cent or more, and two mining claims overlapped prior to the commencement of the Act. In relation to P20/2297-S, as well as the pastoral lease and live exploration licence, five exploration licences have overlapped between 1993-2012, and one mining claim and four prospecting licences had been granted prior to the commencement of the Act.
This tenure raises the question of whether the grant of these licences is likely to have any greater effect than the existing use of the area, particularly given the generality of the information and evidence provided about the effect of low-impact activity on the licences.
Mr Sargentson states he will use existing roads and tracks, and a bobcat to move previously disturbed ground, during a three week prospecting program. It is not clear whether this is a one off three week period, or three weeks each year for the life of each licence.
The State records places of Aboriginal heritage in two main ways. Firstly, as a ‘Registered Site’, which means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (‘the AHA’). Secondly, as an ‘Other Heritage Place’, where information has been received but an assessment has not been completed to determine if it meets s 5. Any site (as defined in s 5 of the AHA) within the area of a proposed licence but not on the register will be protected by s 17 of the AHA. Mr Sargentson may not contravene s 17 without the consent of the Minister.
An ‘Other Heritage Place’ is located within each of P20/2295-S and P20/2297-S: Site 21017 and Site 20990, respectively. P20/2296-S has no recorded heritage sites. Mr Sargentson states that Site 20990 has been mapped incorrectly and is actually off the licence. Whilst there is some correspondence between the relevant government department and Mr Sargentson relating to remapping of Site 20990, it is not clear why that would occur or when. In the absence of further detail I will assume, for the purposes of this inquiry, the site is on the licence. In that case, the State’s heritage regime will regulate Mr Sargentson’s conduct in relation to that area. If it is in fact remapped, then no interference would occur
Wajarri Yamatji argue in their contentions that sites not located within the licences could be interfered with by the activities of the prospector. This argument is made broadly and I do not find there is sufficient evidence to sustain that argument in this inquiry. Mr Hamlett outlines the great significance of Wilgie Mia, a site within the pink box area, and provides some broad information about the area around Wilgie Mia and the pink box. According to mapping provided by parties, Wilgie Mia is approximately 25 kilometres east of the licences in this inquiry. Much of the evidence in this inquiry goes to whether or not the licences are sites of particular significance, which I have accepted is the case. Mr Hamlett refers to ceremonial places and men’s sites in the Weld Range area, as well as to artefacts from camping activities and ochre gathering sites. He also states spirit people live in the hills and caves and should not be disturbed. As noted above, it appears the licences do not contains hills or caves and the evidence does not establish any nexus because the proposed activities on the licences and any risk of interference with areas or sites outside the licences.
In relation to interference, Mr Hamlett states if ‘people dig up the ground in the Weld Range’ they risk affecting sites and ‘have serious effects for Wajarris and other tribes’. It is not clear whether Mr Hamlett is referring to sites within the licence areas or outside the licence areas. He also states the ‘whole of the Weld Range is a ‘no-go’ area – which should not be disturbed’. From the nature of the evidence, it appears he is referring to the whole of the pink box area. Mr Hamlett also states that activities considered low impact, such as rock chip sampling, could interfere with the pink box area, ‘including the licences’. I am asked to assess interference on the basis of general arguments relating to the whole of the pink box area, which include the licences, and on the basis that activities such as rock chip sampling could cause interference for the purposes of s 237(b).
Clearly the general area the licences are in has a low tolerance for interference, in terms of its great significance. As McKerracher J stated in relation to s 237(b) (at [76] of FMG Pilbara v Yindjibarndi Aboriginal Corporation):
There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
However, the way the argument regarding interference is cast, it is difficult to assess the impact on the licences in this matter specifically in relation to native title party traditions and these licences specifically. I do not believe, on the available evidence, I could conclude that rock chip sampling or similar activities would cause interference if done anywhere in the pink box area (including the licences in this matter). Something more specific would need to be outlined with respect to the native title party traditions, the licences, and interference on those licences in accordance with those traditions, for such a conclusion to be drawn.
Wajarri Yamatji argue that Ministerial approval can be sought under provisions of the AHA which would enable Mr Sargentson to do activities which will cause interference to these areas. Argument such as this has been raised in decisions in the Tribunal for many years. An early example where this issue was dealt with in some detail is Dann v GPA Distributors. The Tribunal held that:
I do not consider that the fact that there is a ministerial discretion, even if able to be exercised according to criteria which may not exist in the NTA, which permits interference with sites is of itself sufficient to say that there is likely to be in every case of this kind interference with sites. It would be necessary to look at the exercise of the minister's discretion in this category of case and conclude that it had become a matter of common practice for the minister's consent to be granted to enable exploration to proceed, such that the regulatory regime is ineffective.
The native title party in that matter had suggested a Minister could exercise an unfettered discretion in such a way as to adversely affect a native title party’s rights and interests. Wajarri Yamatji do not suggest there is an unfettered discretion, but rather argued the activities which may be regarded by the grantee party as non-ground disturbing will actually interfere with Wajarri Yamatji’s rights and interests. However, the evidence regarding interference to relation to the licences is sparse, and while there is general evidence about the importance of the pink box area and the native title party traditions in relation to that area, the question I must answer is whether prospecting activity in the specific licence areas is likely to cause interference. Although I accept the pink box area is an area of particular significance to the Wajarri Yamatji, there is little evidence as to how the conduct of prospecting activity in the licence areas is likely to interfere with the pink box area, and the licences specifically, in accordance with their traditions.
The area of the pink box is approximately 75 kilometres long and 35 kilometres wide. I could not suggest this whole area would automatically be subject to interference from activities such as digging or rock chip sampling, because it is of particular significance. I need to assess the evidence to conclude whether or not there is a real risk or chance of such interference. That assessment is an important part of the inquiry process.
The State have argued that a condition which allows the Wajarri Yamatji to request a Regional Standard Heritage Agreement (‘the RSHA’), as well as provisions of the AHA and the State’s regulatory regime in general, will be sufficient to preclude interference as defined under s 237(b) of the Act. The State also indicates it will place a number of endorsements and conditions on each licence to regulate the prospector’s activities. Wajarri Yamatji outline concerns regarding those regulatory processes. They argue in particular that the RSHA does not provide protection against low impact activities. I believe the more nuanced question I need to address in this inquiry is whether low impact activities will be likely to cause interference.

Conclusion

The licences in this matter are overlapped entirely by a pastoral lease, and by a live exploration licence (held by another explorer since it was granted in 2013). While Wajarri Yamatji have provided general evidence arguing that low impact activities will be likely to cause interference in general in the pink box area, and with the licences which are within the pink box area, there is little about how their traditions relate to these licences specifically, and how this prospectors activities will affect the area within these licences specifically. I have no difficulty accepting the whole of the pink box area is of particular significance to the Wajarri Yamatji. In many previous Tribunal decisions, it has been held that certain broad areas of land are of particular significance. However, the question the Tribunal must address is whether there is a real risk or chance that activities done lawfully by the grantee on the licences will interfere with areas or sites of particular significance to the native title party in accordance with their traditions.

I conclude the grant of these licences is unlikely to have any greater effect than the existing use of the licence areas, particularly given the generality of the information and evidence provided about the effect of low-impact activity on the licences.

Determination

For the reasons stated above, I find the grants of prospecting licences P20/2295-S, P20/2296-S and P2-/2297-S to John Paul Sargentson are acts attracting the expedited procedure.

Helen Shurven
Acting President
20 April 2018