Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC vs Red Rock Australasia Pty Ltd vs Another
[2022] NNTTA 67
•28 October 2022
NATIONAL NATIVE TITLE TRIBUNAL
Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC vs Red Rock Australasia Pty Ltd vs Another [2022] NNTTA 67 (28 October 2022)
Application No: | WO2021/1675 |
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 -
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: | 28 October 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – 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) Mining Act 1978 (WA) ss 58, 66 Mining Regulations 1981 (WA) reg 20 Native Title Act 1993 (Cth) ss 29, 31, 32, 237 |
Cases: | Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21; (Cheinmora v Striker Resources) 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) Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others [2021] NNTTA 59 (Nyalpa Pirniku v Anderson) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 |
| Representative of the native title party: | Dante Mavec, Cross Country Native Title Services |
| Representative of the grantee party: | Shelley 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 E45/5989 to Red Rock Australasia Pty Ltd (Red Rock/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 E45/5989 is just over 146 square kilometres in size and approximately 70 kilometres from Telfer. The Jamukurnu-Yapalikunu Aboriginal Corporation (Western Desert Lands) RNTBC (WCD2002/002), (Western Desert Lands), holds exclusive native title rights and interests over 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 with the National Native Title Tribunal against the State’s assertion the expedited procedure applies to the licence on the basis that interference or disturbance according to s 237 of the Act is likely. Red Rock 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. Taking a common sense view of the available evidence, I could not conclude s 237(c) would be offended, 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
The native title party and the grantee party materials for this matter were provided along with sets of materials, references and cross-references to other tenements. Those tenements are also in various stages of the expedited procedure inquiry process with the same grantee and/or native title party. This made considering the evidence complicated, and some time had to be taken to unpick the relevant information from each of those documents.
In addition, there appeared to be some typographical errors in those various documents, which meant I focused on mapping and the context of the information provided, rather than always relying on the specific number or detail which had been provided in contentions. This only serves to highlight the importance of clear contentions and information to assist all parties and the Tribunal navigate the inquiry process.
Western Desert Lands materials
Western Desert Lands provided a statement of contentions and a reply to the State’s and Red Rocks submissions. The contentions were supported by the affidavit of Anne Mitchell, and the joint affidavit of Lindsay Hardacre, Colin Peterson, Neil Bidu and Teddy Biljabu. Ms Mitchell and Messers Hardacre, Peterson, Bidu and Biljabu are Martu native title holders who speak for the proposed licence area.
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 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.
Red Rock’s materials
Red Rock provided contentions. I note that under the grant of the licence, s 66 of the Mining Act (WA) 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 (WA) 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.
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 licence 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 and brief in relation to social and community activities, particularly as they are conducted on or around the proposed licence. The information provided relates more to the sacredness and the traditions associated with Lake Waukarlycarly, which Western Desert Lands asserts is a site of particular significance (and more detail is provided in my consideration of s 237(b)).
Red Rock argue that such lack of specificity means I cannot conclude the stated community and social activities are likely to be substantially interfered with by exploration activities. I agree with that argument, on the basis of the general nature of the information provided for this proposed licence, and that the bulk of the information and evidence was focused on s 237(b), which I consider below.
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 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.
Waukarlycarly
Western Desert Lands contentions explain (at 20) that Waukarlycarly corresponds to the geographical feature of Lake Waukarlycarly. Mapping shows the southern portion of E45/5989 overlaps part of the Lake. Ms Mitchell describes this as a salt lake area, which is more a men’s place (at 20), and a dangerous place not for girls or kids, a ‘powerful place’ and ‘a very sacred place’ (at 21).
The joint affidavit of Messrs Hardacre, Peterson, Bidu and Biljabu also asserts E45/5989 overlaps Lake Waukarlycarly. The joint affidavit outlines the men look after the ‘main law’ for the area and that Waukarlycarly is associated with a male-only songline which has ‘big meaning’ and made the lake (at 3-5). I do not provide the detail in the affidavit as it has cultural sensitivity to the native title party. The evidence provided is consistent with Ms Mitchell’s, that it is a male only place, and a dangerous place (at 8-9).
The joint affidavit explains that ‘Waukarycarly is one of the most important sites for Martu people, and for all different desert languages as well’ (at 9). They go on to outline that ‘You can't touch that lake. When we travel in that country, when we see that lake, we turn, we go around. We never go over that lake’ (at 10). Further detailed evidence is given regards interference with the lake in accordance with native title party traditions, which I do not outline due to cultural sensitivities (at 11-14).
Red Rock argues (at 12) that the overlap between the lake and the proposed licence is small, and that exploration ‘not necessarily will require accessing the Lake area’. The Western Desert Lands reply (at 6) asserts that:
...this statement is not verified by an officer of the corporation. It does not go into any detail as to the circumstances in which Red Rock would and would not require access to the lake area. The Native Title Party contends that it is fair to infer that Red Rock, despite being on notice of the Native Title Party’s traditions in relation to the Lake, considers it may require access to the area and may conduct exploration activities on it.
The State accepts Waukarlycarly is a site of particular significance (at 23). They argue the lake will not suffer from interference (at 24) because Red Rock have indicated they will not necessarily be accessing the lake. However, there is nothing restricting the access to the lake once the grant is made. The State also argue there has been previous activity over the proposed licence (at 25). However, as I outlined in Nyalpa Pirniku v Anderson (at [16]), it has long been understood that even if an area has been previously subject to exploration or mining activity, it does not mean the area has lost its traditional significance or that further disturbance would not constitute interference. The evidence in this matter provided by the native title party suggests to me that the relevant area retains its particular significance.
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’. Western Desert Lands argue in their contentions and reply that the States regulatory regime, including the Aboriginal Heritage Act 1972 (WA), is insufficient to protect sites which are of particular significance to the native title party.
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’. At [75], McKerracher J also 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.
My conclusion is that the grant of the proposed licence is likely to cause interference with Waukarlycarly, being an area or site of particular significance, in accordance with the native title party traditions.
Determination
The grant of exploration licence E45/5989 to Red Rock Australasia Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
28 October 2022
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