Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC and Nyamal Aboriginal Corporation RNTBC vs Red Rock Australasia Pty Ltd vs Another
[2022] NNTTA 71
•23 November 2022
NATIONAL NATIVE TITLE TRIBUNAL
Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC and Nyamal Aboriginal Corporation RNTBC vs Red Rock Australasia Pty Ltd vs Another [2022] NNTTA 71 (23 November 2022)
Application No: | WO2022/0202; WO2022/0767 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC (WCD2002/002)
Nyamal Aboriginal Corporation RNTBC (WCD2019/010)
(native title parties)
- and -
Red Rock Australasia Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Melbourne |
Date: | 23 November 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licence – an expedited procedure objection application from two native title parties whose rights and interests overlap the exploration licence – 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 – the act is not an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) s 58, 66 |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia[2019] FCA 1570 (Allen v Western Australia) Cheinmora v Striker Resources NL; Dann v Western Australia(1996) 142 ALR 21; [1996] FCA 1147 (Cheinmora v Striker Resources) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Forrest v Aruma Exploration) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182 (FMG v Yindjibarndi) James on behalf of the Martu People v Western Australia [2002] FCA 1208 (James v Western Australia) Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC v Attstar Pty Ltd and Another [2022] NNTTA 66 Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (Western Desert Lands v Teck Australia) |
| Representatives of the native title parties: | Dante Mavec, Cross Country Native Title Services (for Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC) Alissa Bishop-Thorpe and Erin Flynn, Arma Legal (for Nyamal Aboriginal Corporation RNTBC) |
| Representative of the grantee party: | Shelly Zhang, Aurora Tenement Consulting |
| Representatives of the Government party: | Jake Lincoln, Department of Mines, Industry Regulation and Safety Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
Introduction
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E45/5859 to Red Rock Australasia Pty Ltd (Red Rock). The notice included a statement that the grant is an act attracting the expedited procedure (see s 32 of the Act). This would, subject to any successful objection, allow the licence to be granted without the requirement to negotiate as outlined in s 31 of the Act.
Under s 237 of the Act, 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 the holders traditions (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)).
The proposed licence E45/5859 is just over 226 square kilometres in size. Two native title parties who hold native title rights and interests over the proposed licence lodged objections to the expedited procedure applying to the grant: the Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC (WCD2002/002), (Western Desert Lands) and Nyamal Aboriginal Corporation RNTBC (WCD2019/010), (Nyamal People #1). Red Rock and the State argue the expedited procedure should apply.
Western Desert Lands hold exclusive native title rights and interests over part of the licence, on behalf of members of the Martu and Ngurrura native title claims (as determined in James v Western Australia). Western Desert Lands lodged an objection against the State’s assertion the expedited procedure applies to the licence on the basis that interference or disturbance according to s 237(a) and (b) of the Act is likely. Western Desert Lands did not pursue their initial objection on the basis of s 237(c) of the Act and taking a common sense view of the available evidence, I do not conclude there is likely to be interference in respect of the elements of s 237(c). The focus of this decision is on s 237(a) and (b).
Nyamal People #1 hold non-exclusive rights and interests in part of the proposed licence, as described in Allen v Western Australia. Nyamal People #1 contentions (at 3) outlined that they pursued their objection on the basis of s 237(b). However, their contentions contained some assertions about s 237(a), as did their reply document. As such, I also consider s 237(a) in relation to Nyamal People #1 materials.
As outlined in Silver v Northern Territory (at [21]), which I adopt for the purposes of this inquiry (emphasis in original):
…section 237 requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences outlined in paragraphs (a) – (c) set out above. The proper approach to the application of section 237 was explained by French J in Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442. His Honour pointed out (at 450): "The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement." … [T]his approach was also endorsed by R D Nicholson J in Little v Western Australia [2001] FCA 1706 at [69].
For the reasons outlined below, my determination is that the grant of the licence is not an act attracting the expedited procedure.
Materials provided for the inquiry
Western Desert Lands materials
Western Desert Lands provided a statement of contentions and a reply to the State’s and Red Rock’s submissions. The contentions were supported by the affidavit of Anne Mitchell, a native title holder who speaks for the proposed licence area. Mapping was attached to the affidavit.
Nyamal People #1 materials
The Nyamal People #1 provided contentions and a reply to the State’s and Red Rock’s submissions. The contentions were supported by the statements of Tony Taylor and Jane Taylor, Nyamal traditional owners who speak for the proposed licence area. Mapping was attached to both statements.
The State’s materials
The State provided contentions and evidence including mapping and the tengraph quick appraisal document, as well as Red Rock’s accompanying statement under s 58 of the Mining Act 1978 (WA), and details of proposed endorsements and conditions to be imposed on the proposed licence by the State. That information is limited and shows Red Rock intends to explore using a historical review of the area, geological mapping and sampling, and then depending on results, ‘the project will proceed to assaying and drilling’.
Search results from the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS) have also been included, showing there are no AHIS sites on the proposed licence. Regardless of whether or not a site or area is on the AHIS, it is possible for a native title party to establish that a site or area constitutes ‘areas or sites of particular significance’ to them ‘in accordance with their traditions’ (as per s 237(b) of the Act) by providing sufficient evidence.
The State’s materials also shows the majority of the proposed licence tenure is unallocated crown land.
Under the grant of the licence, s 66 of the Mining Act allows Red Rock to do the following:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a)to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d)to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
Red Rock’s materials
Red Rock provided contentions arguing against the submissions of both Western Desert Lands and Nyamal People #1. The submissions were cast in broad terms.
Section 237(a): is the grant of the licence likely to directly interfere with community or social activities?
The Tribunal is required to make a predictive assessment of whether the grants of each licence and activities undertaken pursuant to those grants are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). The assessment involves an evaluative judgment about whether the grant of the licences is likely to be the proximate cause of the interference which must be substantial and not trivial (Smith v Western Australia at [26]).
In the present matter, both the Western Desert Lands affidavit evidence and the Nyamal People #1 statements are general in relation to social and community activities, particularly as they are conducted on or around the proposed licence. The State and Red Rock argue that such lack of specificity means I cannot conclude the stated activities are likely to be substantially interfered with by exploration activities. I note that some of the activity and community travel for Western Desert Lands is said to be conducted in relation to the Isabella Ranges which runs through the proposed licence. However, this is a large area and the Ranges run within and outside of the proposed licence (from mapping provided).
Social and community activities for Western Desert Lands are focused in the area of Mijijimaya, which is both a community off the licence, and an area of a proposed lease which has significance to the native title party in accordance of their traditions (as outlined in my consideration of s 237(b) below). The Nyamal People #1 outline their social and community activities are focused around the area of Koongaling Creek.
However, I could not say any of these activities are so described to enable me to conclude exploration activities would substantially interfere with them.
Section 237(b): is the grant of the proposed licence likely to interfere with areas or sites of particular significance?
My assessment of s 237(b) turns on whether or not there are areas or sites of ‘particular significance’ – meaning 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]).
Koongaling Creek
Mr and Mrs Taylor identity Koongaling Creek as being an important place for Nyamal people. The State’s tengraph and party mapping confirm the creek runs through the proposed licence. Mrs Taylor outlines the creek area is important for fishing and camping and states (at 8) ‘Koongaling Creek flows into the Oakover [River]. Our ancestors have been using this area for a long time, it is culturally very important to the Nyamal people’. Mrs Taylor also refers to artefacts in the area (at 9).
Mr Taylor refers to it as a ‘very significant area’ (at 8) because it has been associated with camping and hunting and there are features nearby including artefacts, rockshelters and yintas ‘that need to be protected’. Mr Taylor mentions having been born at Warrawagine Station (at 7), and Mrs Taylor makes mention of both Warrawagine and Braeside (at 7) as areas she grew up in, but the references are broad. Red Rock argue in relation to the Nyamal People #1 evidence that Warrawagine and Braeside Station are not located in the proposed licence. They say little else in relation to s 237(b) sites or areas.
While broad reference is made in the statements to the significance of Koongaling Creek and a cultural protocol for accessing the area, this is in very general terms only. The Nyamal People #1 reply (at 7) noted that Mr Taylor was uncomfortable talking about a men’s place on the proposed licence, and I accept that native title holders will no doubt be sensitive and reluctant to provide detail of some sites and areas for the purposes of an inquiry. Non-disclosure directions can be imposed in such circumstances, however I understand that this is not always sufficient to overcome the reservations of a traditional owner or native title holder giving evidence in an inquiry.
While I accept the area of Koongaling Creek is important to Nyamal, I could not conclude it is an area of particular significance, as little is said about the traditions associated with the area or the nature of its significance. The argument that the area is of particular significance is made largely at the level of an assertion, with little detail to support that assertion apart from in general terms, such as the existence of artefacts and other features.
Mijijimaya
The area of Mijijimaya is the focus of the evidence provided by Ms Mitchell for the Western Desert Lands. Mijijimaya is the name given to both a community focused location, and also to the broader lease area, as described by Ms Mitchell. While the community area of Mijijimaya is within the Mijijimaya lease, the community area is not on the proposed licence – it is to the north of the proposed licence. The larger lease area of Mijijimaya does overlap a northern portion of E45/5859. Ms Mitchell asserts the community and the lease areas are of particular significance to the native title party in accordance with their traditions.
Mijijimaya the community location
Mijijimaya the community location is described as being near to the proposed licence by Ms Mitchell (at 4). The Western Desert Lands contentions (at 7) describes the area as being 15-20 kilometres to the north of the proposed licence. Mijijimaya is described as being used for a camp for women, and a community, and there is also a law camp nearby (at 5-8). While the community was closed down in the 1980’s (at 8), it is still recognised as an ‘important place’ for the community and a base from which to camp and be in the surrounding area (at 9). I accept this area is of particular significance to the native title party, however, I do not consider it likely to be subject to interference from exploration activities as it is some distance from E45/5859.
Mijijimaya the lease area
The larger lease area also called Mijijimaya is being applied for by the native title party ‘to protect the important places around Mijijimaya. It covers our important camping grounds, hunting grounds, places to get bush tucker - all the places we still use today’ (at 15) and Ms Mitchell states she and other elders contributed to the identification of the boundary for the lease application. Red Rock (at 12-13, against Western Desert Lands) argue that Mijijimaya is not on the proposed licence, however, they may be referring to the community area of Mijijimaya rather than to the area where the native title party are pursuing a lease to protect that area, also referred to as Mijijimaya.
Ms Mitchell states (at 14) the southern part of that lease boundary overlaps with the north of the proposed licence. This is confirmed by mapping attached to the statement. Ms Mitchell states (at 17):
Some of our old law men still alive today used those law grounds and while they are not used for law right now, they are very much still important places that we need to protect. When we camp, we stay away from those law grounds to respect the culture there.
Ms Mitchell describes it as a ‘very special, sensitive area’ (at 18).
The State is concerned (at 40) that the evidence lacks specificity as to where the area is. However, mapping confirms Ms Mitchell’s assertion that the Mijijimaya lease area, which I accept is a special and sensitive area to the native title party, of more than ordinary significance, does overlap part of E45/5859.
Interference with the Mijijimaya lease area
I recently considered Ms Mitchell’s evidence in relation to the Mijijimaya lease area in Jamukurnu-Yapalikunu v Attstar Pty Ltd, where the tenement to be explored was much smaller than E45/5859. However, as with the facts and tenement in that inquiry, the Mijijimaya lease overlaps part of E45/5859, and there is no guidance from Red Rock as to where it is likely to conduct its exploration activities.
As noted at [14] above, Red Rock may extract up to 1,000 tonnes of material from E45/5859, including in the area overlapped by the proposed Mijijimaya lease. Western Desert Land’s exclusive rights and interests include the ‘right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs’. Taking 1,000 tonnes of material from the portion of the overlap with Mijijimaya is likely to cause interference, particularly given the evidence that the southern portion of the proposed Mijijimaya lease is where the law grounds and men’s areas are stated to be (Ms Mitchell at 17). This is the portion which overlaps the proposed licence.
The State (at 43) argue there may have been previous disturbance over E45/5859. However, I note the tenure is almost entirely unallocated crown land, and no evidence has been provided regards previous interference. In addition, even if an area has been previously disturbed, this does not necessarily mean the area has lost its particular significance or that further disturbance would not constitute interference according to the native title holders’ traditions (see Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]).
Western Desert Lands argue in their reply document that the State’s regulatory regime is insufficient to protect sites which are of particular significance to the native title party (at 19). I accept that argument based on the description of the area and the native title party traditions associated with the lease area of Mijijimaya. In looking at the State’s proposed endorsements and conditions, I could not see any which would mitigate interference with the Mijijimaya area.
As McKerracher J outlined in FMG v Yindjibarndi in relation to s 237(b) and interference (at [79]) ‘the impact must be substantial or non-trivial. The meaning of these terms must be taken in the context of the particular site and the laws and customs in relation to that site’. At [75]-[76], McKerracher J further noted:
That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions... It may follow that mere entry onto the site other than on supervised terms and conditions … may from the native title party’s perspective none the less be non-trivial interference...
Determination
The grant of exploration licence E45/5859 to Red Rock Australasia Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
23 November 2022
0
3
0