Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC v Attstar Pty Ltd and Another
[2022] NNTTA 66
•26 October 2022
NATIONAL NATIVE TITLE TRIBUNAL
Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC v Attstar Pty Ltd and Another [2022] NNTTA 66 (26 October 2022)
Application No: | WO2021/1825 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC (WCD2002/002)
(native title party)
- and -
Attstar 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: | 26 October 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – consideration of s 237(a) whether act likely to interfere directly with the carrying on of community or social activities – consideration of s 237(b) whether act likely to interfere with sites or areas of particular significance – the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Native Title Act 1993 (Cth) ss 29, 31, 32, 237 Mining Act 1978 (WA) ss 58, 61, 66 Mining Regulations 1981 (WA) reg 20 |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (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) 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 v Western Australia (2001) 108 FCR 442; [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 party: | Dante Mavec, Cross Country Native Title Services |
| Representative of the grantee party: | Evan Rogers, Austwide Legal Pty Ltd |
| 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 E45/5979 to Attstar Pty Ltd (grantee party). 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)).
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].
The proposed licence is just over six square kilometres in size and approximately 133 kilometres from Marble Bar. The Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC (WCD2002/002), (Western Desert Lands), holds exclusive native title rights and interests over most 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. Attstar and the State argue the expedited procedure should apply. 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 could not conclude there is likely to be interference relating to the elements of s 237(c), and the focus of this decision is on s 237(a) and (b).
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 Attstar’s submissions. The contentions were supported by the affidavit of Anne Mitchell, a Martu native title holder who speaks for the proposed licence area. The reply was supported by the affidavit of Anthony David McRae who is the Chief Executive Office of the Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC. Mr McRae’s evidence focused on the negotiations between the grantee and the native title party. However, the focus of an expedited procedure inquiry is on an assessment of the limbs of s 237 of the Act.
The State’s materials
The State provided contentions and evidence including mapping and the tengraph quick appraisal document, as well as Attstar’s accompanying statement under s 58 of the Mining Act 1978 (WA), and details of proposed endorsements and conditions to be imposed on the licence by the State. That information shows Attstar intend to explore for target minerals in year one of the grant, using historical analysis, field mapping and reconnaissance, rock chip sampling and testing. Drill targets are likely to be generated in year two, and Attstar outline that in following years drilling is likely to occur in the target areas, initially at a shallow depth and deeper if warranted.
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 Attstar materials
Attstar provided contentions and the statement of Yaxi Zhan, a Director of the grantee party. The statement outlines the proposed program of works and provides estimates of the likely ground disturbance from an explorer’s point of view. I note this may not necessarily accord with a native title party’s view about interference from various exploration activities (as outlined at [26] below, for example). It is the Tribunal’s role to weigh up and consider all the available evidence presented by parties, and make a decision about the likelihood of interference in context of the relevant limbs of s 237.
Attstar’s contentions (at 12) argue that activities such as ‘rock chip sampling and analysis, soil sampling and analysis, geophysical surveys and interpretation’ causes ‘between nil, negligible and minimal’ disturbance. Ms Zhan’s statement (at 10) outlines that activities such as rock chip sampling ‘will be undertaken by a geologist using hand tools and accessing the Exploration Licences via light vehicle using existing roads and tracks’. No mapping or information is provided regards where these tracks traverse. I note the State’s tengraph material indicates there are three tracks on the proposed licence.
Under the grant of the proposed licence, the grantee has various rights and can explore and drill in all areas of the grant. Attstar’s evidence regarding their proposed exploration activities is broad and general and I assume they will exercise the full suite of rights available under s 61 of the Mining Act. I accept their assertions they will comply with the State’s regulatory regime, and make my decision in that context – that is, even complying with the regime, will social or community activities, or sites of particular interference, be likely to suffer from relevant interference as per s 237 of the Act?
Section 237(a): is the grant of the licence likely to directly interfere with Western Desert Lands 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, the Western Desert Lands affidavit evidence is general in relation to social and community activities, particularly as they are conducted on or around the proposed licence. The State and Attstar 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 is said to be conducted in relation to the Isabella Ranges. However, this is a large area and the Ranges run to the east of the proposed licence, with perhaps some overlap into the proposed licence (from mapping provided).
Social and community activities are focused in the area of Mijijimaya, which is both a community off the licence, and an area of a proposed lease the native title party is applying for - this is an area which has significance to the native title party in accordance with their traditions (as described in s 237(b) considerations below). I could not say the community and social activities are so described to enable me to conclude exploration activities would substantially interfere with those activities for the purposes of s 237(a).
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]).
The area of Mijijimaya is a community focused location, and also the name given to a larger lease area, as described by Ms Mitchell. The community location is off the licence, to the north. The larger lease area of Mijijimaya overlaps approximately the northern half of the proposed licence, and the community area of Mijijimaya is within the lease. Ms Mitchell asserts these areas are of particular significance to the native title party in accordance with their traditions. The State’s materials and contentions (for example at 6) confirms the proposed licence is not currently subject to any mining or exploration tenure, and is entirely overlapped by unallocated Crown Land.
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. Ms Mitchell describes Mijijimaya 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. 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 the proposed licence.
Mijijimaya the lease area
The larger lease area also called Mijijimaya is being applied for ‘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.
Ms Mitchell states (at 14) the ‘southern part of that lease boundary overlaps with the northern parts of E45/5979...’ This is confirmed by mapping provided by parties. 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 38-39) 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, does overlap part of the proposed licence. Under the grant of the licence, s 66 of the Mining Act allows Attstar 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.
As such, Attstar may extract up to 1,000 tonnes of material in the six square kilometre proposed licence, including in the area overlapped by the proposed Mijijimaya lease. In James v Western Australia the native title holders were determined to have various rights and interests, on an exclusive basis, including the ‘right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs’.
The State and Attstar argue that there may have been previous disturbance over this proposed licence area. However, I note the tenure is 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 contentions that the States regulatory regime, including the Aboriginal Heritage Act 1972, is insufficient to protect sites which are of particular significance to the native title party (at 23). I accept that argument based on the description of the area and the native title party traditions associated with the area.
As McKerracher J outlined in FMG v Yindjibarndi (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’. McKerracher J also noted (at [75]-[76]):
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 E45/5979 to Attstar Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
26 October 2022
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