Jurruru #1 (Part B) claim v Eastern Goldfields Mining Company Pty Ltd
[2022] NNTTA 10
•14 February 2022
NATIONAL NATIVE TITLE TRIBUNAL
Jurruru #1 (Part B) claim & Another v Eastern Goldfields Mining Company Pty Ltd & Another [2022] NNTTA 10 (14 February 2022)
Application Nos: | WO2021/0679 & WO2021/0682 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection applications
Jurruru #1 (Part B) claim (WC2000/008) & Jurruru Aboriginal Corporation RNTBC (WCD2015/002),
(native title parties)
- and -
Eastern Goldfields Mining Company Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Member Helen Shurven |
Place: | Melbourne |
Date: | 14 February 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – act is likely to interfere with sites or areas of particular significance – act is likely to involve major disturbance to land or waters – expedited procedure does not apply |
Legislation: | Aboriginal Heritage Act 1972 (WA) |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Russell Mining Pty Ltd and Another [2021] NNTTA 34 (Karajarri v Russel Mining) Marputu Aboriginal Corporation RNTBC (ICN 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Nyalpa Pirniku v Robert John Anderson [2021] NNTTA 59 (Nyalpa Pirniku v Anderson) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939 (Smirke v Western Australia) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Coronet Resources Ltd and Another [2020] NNTTA 55 (Wanjina-Wunggurr v Coronet) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Lucky Break Operations Pty Ltd and Another [2019] NNTTA 125 (Wanjina-Wunggurr v Lucky Break) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG Pilbara) |
| Representatives of the native title party: | Alex Ihanimo and Radhika Kayarat, Yamatji Marlpa Aboriginal Corporation |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Bethany Conway and Matthew Smith, Department of Mines, Industry Regulation and Safety David Reger, State Solicitor’s Officer |
REASONS FOR DETERMINATION
Background
This is a decision about whether the expedited procedure applies to the proposed grant of exploration licence E08/3165 to Eastern Goldfields Mining Company Pty Ltd (Eastern Goldfields/the grantee party/GP). By including an expedited procedure statement in their notice of the proposed grant under s 29 of the Native Title Act 1993 (Cth) (the Act), the State of Western Australia asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Act. That is, the State asserts the grant is not likely to, in summary:
·interfere directly with community or social activities carried on by members of native title claims or determined areas (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders(s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The Yamatji Marlpa Aboriginal Corporation (YMAC) lodged objections with the National Native Title Tribunal (Tribunal/NNTT) against the State’s assertion of the expedited procedure (as YMAC were the representative of the native title parties at the relevant time). The objections were lodged on behalf of the registered native title claimants for, respectively, the Jurruru #1 (Part B) claim (WC2000/008) and the Jurruru Aboriginal Corporation RNTBC (WCD2015/002), the latter of which is the registered native title body corporate for the Jurruru native title rights and interests determined in Smirke v Western Australia. The persons claiming to hold native title in the Jurruru #1 (Part B) claim and the persons determined to hold native title in Smirke v Western Australia, collectively the Jurruru People, are identical. In this decision, I refer to the objectors as the Jurruru People or native title parties, and some quotes refer to ‘the NTP’.
The proposed exploration licence is approximately 310 kilometres in size, and is located approximately 73.1 kilometres north of Mt Augustus. The native title parties argue the expedited procedure should not apply because interference or disturbance as outlined in s 237(b) and s237(c) of the Act is likely. During the inquiry process, the Jurruru People did not maintain their objection on the basis of s 237(a) of the Act. Based on a common sense view, I conclude there is unlikely to be interference with social or community activities. The focus of this inquiry is on s 237(b) and s 237(c).
The President of the Tribunal appointed me to conduct an inquiry and determine whether the expedited procedure applies. If I find the expedited procedure applies, the State can grant the licence without the parties being required to negotiate with each other. If I find it does not apply, the grantee party and the State must negotiate in good faith with a view to reaching an agreement with the native title parties about the grant of the licence. In this inquiry I have concluded that the expedited procedure does not apply.
All parties were content for me to determine this inquiry on the papers and I saw no reason to do otherwise.
Contentions and evidence
Materials provided by the Jurruru People
The Jurruru People lodged contentions in support of their objections, including mapping, extracts from native title Registers, and the following evidence:
· Witness Statement of Ivan Smirke – a Jurruru Elder, senior member of the Jurruru People, an applicant in the Claim, and he is authorised to speak for the area of the proposed licence.
· Affidavit of Radhika Kayarat – a lawyer employed by YMAC who verified Mr Smirke’s witness statement over the telephone as it was not practicable for Mr Smirke to sign the statement. I accept the witness statement on that basis.
· Affidavit of Max Serjeant – an anthropologist employed by YMAC, who conducted a desktop review of research materials held by YMAC to find evidence relating to the presence of Aboriginal sites in the proposed licence – this affidavit provided extracts from witness statements of Toby Smirke and David Smirke, both senior Jurruru Elders (as filed in the Jururru People Part A claim (WAD 6007 of 2000) (dated 2013)); and an expert report by anthropologist Dr Pam McGrath relating to the Jururru and Yinhawangka Gobawarrah Claim overlap proceedings (dated 2019).
· Affidavit of Luke May – a senior anthropologist employed by YMAC, who conducted an interview with Mr Ivan Smirke in Carnarvon on 13 October 2021 for the purpose of obtaining evidence for this inquiry.
The State’s materials
The State provided contentions and materials, including endorsements and conditions they intend to impose on the licence on grant, as well as mapping, tenure information, and information from the Aboriginal Heritage Inquiry System (AHIS), which records Aboriginal heritage places in Western Australia, as assessed under the Aboriginal Heritage Act 1972 (WA) (AHA). The Kenneth Range Camp site (ID 30262) is recorded under the AHIS, located in part in a north-west area of the proposed licence. The file for this site is restricted, as is the boundary to the area, and access is recorded as being male only. It is described as an artefacts/scatter, engraving, grinding patches/grooves, archaeological deposit, camp. The Jurruru People contentions (at 33) note that male restricted sites are used to educate young men.
The State also provided Eastern Goldfields’ Statement which accompanied their exploration licence application. This notes the exploration program would target gold and base metals. The Statement outlines that in year one of their program, Eastern Goldfields plans to acquire existing relevant information about the area, review that information and then ‘Geological reconnaissance of the area would follow, including field mapping, rock chip and soil sampling. This process may involve several field trips’. Targets would then be reviewed for follow-up exploration ‘which may include drilling. Any heritage survey required would be also commissioned’.
The Statement describes year two as a continuance of year one:
with the aim of clearly identifying target areas justifying further exploration…The ultimate aim of the program is to identify and define drilling targets and to implement a drilling, assaying and review program capable of providing thorough evaluation of the targets identified.
What occurs in later years of exploration ‘are contingent on the results obtained’.
Eastern Goldfields’ materials
Eastern Goldfields provided contentions. They outline (at 14-15) that the:
Grantee Party would not unnecessarily exercise the full suite of rights available to it over the whole of the area of the Application. The more reasonable view is that the Grantee Party would take a staged approach, starting with low impact, inexpensive surveying and sampling and, if areas of interest are identified, gradually defining and refining those areas of interest through more advanced exploration techniques.
Eastern Goldfields also outline (at 18) that ‘once there are realistic targets justifying further exploration, [they would] consult with the Native Title Party in respect of access and heritage surveys’. The State argue (at 43-44) that the grantee party intention is ‘to undertake heritage surveys prior to conducting more advanced exploration techniques (e.g drilling)’. It is not entirely clear to me what are the activities proposed prior to any heritage surveys being commissioned, and I consider this further under my assessment of s 237(b) below.
Eastern Goldfields outline (at 19) that ‘the area of the Application has been subject to extensive exploration. There are 63 publicly available exploration reports over the area of the Application’, and annex a list of those repots to their contentions at Annexure 2. The Jurruru People reply (at 20-25, and Annexure 1 of the reply), provides an analysis of the list of reports, and further nuance as to the meaning of the reports. This includes the evidence from Mr Serjeant (at 8), which refers to anthropological and traditional owner knowledge of the Kenneth Range Camp/Wandarry Creek area as at 2002, where it was reported as being undisturbed since its last Aboriginal occupation (I refer to Wandarry Creek further, below). They also refer to the previous tenements overlapping parts of the proposed licence which were subject to heritage protection agreements between the native title parties, at the relevant time of exploration, and the explorers who held those tenements. Of those reports which refer to drilling having occurred, they pre-date the 2002 inspection of the area. From that, I accept the Jurruru People argument that I can conclude those drillings did not affect the Kenneth Range Camp/Wandarry Creek area, as it was still undisturbed in 2002 according to the evidence provided by Mr Serjeant.
Is the grant of the licence likely to interfere with areas or sites of particular significance to the Jurruru People?
In considering this limb of s 237, I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at 34-35).
·To be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91]).
·If I am satisfied the site or area is of particular significance, I must consider the likely interference, in the context of the laws and traditions of the native title party (Silverv Northern Territory at [88]).
·Even slight interference may be unacceptable, and within s 237(b) ‘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’ (as outlined at [64]-[76] of FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC).
·There must be a real chance or risk of interference with the site or area, not just a possible chance (Smith v Western Australia at [23]).
·I will give weight to State’s heritage and regulatory regime (Walley v Western Australia at [11]).
I also adopt my reasoning in Wanjina-Wunggurr v Lucky Break (at [21]), where I explained that identification of areas of particular significance needs to go beyond merely asserting that significance.
Are there any sites of particular significance on or near the proposed licence?
The Jurruru People assert a number of sites and areas are of particular significance with respect to the requirements of s 237(b):
1. Kenneth Range Camp
2. Wandarry Creek/Wanari/Secret Creek
3. Banganu
4. Blue Bar Creek
5. Mardabaiya
I address each site and area below separately, while also acknowledging there are intersections and connections between the sites and areas.
Kenneth Range Camp
This AHIS recorded site (ID 30262) partly overlaps the proposed licence, and as noted at [7] above, is characterised as an ‘artefact/scatter, engraving, grinding patches, grooves, arch deposit, camp’. The State (at 38) ‘accepts that artefacts generally may be of special or more than ordinary significance to the Native Title Party, and that the Kenneth Range Camp Site likely contains a site or area of particular significance within the meaning of s 237’. (The State argues (at 39-44) this area is unlikely to suffer from interference, which I deal with in my consideration of interference below).
Eastern Goldfields accepts that the Kenneth Range Camp has been identified (at 32) but argues (at 27) that no recent evidence has been provided in regards to the artefacts at Kenneth Range Camp (for example, the report provided by the Jurruru People is 20 years old) (at 27) - I dealt with this at [10]-[11] above).
The Jurruru People reply (at 13-14) refer to the evidence of Dr McGrath, as contained in Mr Serjeant’s affidavit (at 8), noting that:
…when discussing the Kenneth Range Camp site, identifies the location of the artefact scatter and engraving site as being two to three kilometres from its tributary with Wandarry Creek, “just outside the area of interest”…This report was written for the Jurruru 1 (Part B) claim and the “area of interest” in the report is the Jurruru 1 (Part B) claim area. The border of the claim is marked on the map at Annexure 4 of the Native Title Party Contentions. Given we know this site is being discussed in the Report context of Kenneth Range Camp, following any of the creeks that lead west from Wandarry in this area for two to three kilometres would still place that location within the Proposed Tenement (see map at Annexure 4 of Native Title Party’s Contentions).
Mr Smirke (at 32-33) describes engravings in this area to be of particular significance because they tell the stories Jurruru People need to understand the country, and those stories are passed on according to Jurruru People traditions. He also confirms (at 31) there are artefacts in this area and engravings only men are allowed to see.
I am satisfied that Kenneth Range Camp is a site of particular significance to the native title parties.
Wandarry Creek/ Banganu
Wandarry Creek is also referred to in materials as Wanari or Secret Creek. Mr Smirke provides a description of the creek (at 23) and mapping provided by the parties confirms that Wandarry Creek travels through the west of the proposed licence. Kenneth Range Camp is approximately 4 kilometres away from the Creek. The State argue (at 47) that the evidence related to this area is too broad, and the location of any sites within the area has not been specified. The State does not accept this is an area of particular significance (at 48).
In relation to the Jurruru People argument that Wandarry Creek contains or is adjacent to numerous artefacts, including tools and engravings, and that it is a site of particular significance, Eastern Goldfields argue it has not been established as to why the song connected with Wandarry Creek is more than of ordinary significance (at 28). Eastern Goldfields does concede (at 30) that ‘Banganu, which is located within, or immediately adjacent to, Wandarry Creek and otherwise within the area of the Application...is a permanent water pool. The NTP Evidence speaks to its significance in detail’. The State (at 56) accepts Banganu falls within the proposed licence, however, they do not accept (at 59) it is a site of particular significance for the purposes of this inquiry.
The Jurruru People contentions (at 39) note the area is a ‘place of frequent habitation’, and Mr Smirke asserts (at 23-24) ‘The whole place is a site’, and given there are law songs connected to the area, disturbance would cause ‘big trouble. That’s the wider community that would have issues with it’.
I find the Jurruru People mapping clearly shows Banganu to be on Wandarry Creek, and located on the proposed licence. The Jurruru People contentions (at 43) explain this area is a yinda site, being a pool of permanent water where the mythological water snake resides. The Jurruru People contentions go on to outline (at 44-45) that they are believed to be spiritually dangerous areas, and are associated with traditional ritual and cultural protocols to be followed. These are emphasised by Mr Smirke (at 27-29) who explains that disturbing one yinda can have wider consequences.
I am satisfied that Wandarry Creek and Banganu are areas of particular significance to the native title parties. I am also persuaded that the area between Kenneth Range Camp and Wandarry Creek is an area of particular significance, because of the artefacts which exist in the area (as evidenced by the anthropological evidence provided for this inquiry, and the report descriptions from previous explorations), and that there is a connection of the Creek to Banganu, which is itself an area of significant spiritual importance to the Jurruru People.
Blue Bar Creek
Jurruru People contentions (at 41) note that Blue Bar Creek goes east from Wandarry Creek. This is confirmed by mapping which also shows Blue Bar Creek to be in the south western portion of the licence. The contentions assert Blue Bar Creek contains engravings and a camp ground, however, these are not marked on mapping.
The State (at 61) accepts Blue Bar Creek falls within the proposed licence, however, they do not accept (at 62) it is a site of particular significance for the purposes of this inquiry. The State (at 60-62) asserts the evidence regarding sites and areas associated with Blue Bar Creek is too broad, and could not be said to be within the proposed licence with any certainty (they refer to a camping ground, engravings and a law ground).
In relation to the Jurruru People argument that Blue Bar Creek contains or is adjacent to artefacts, including tools and engravings, and that the area is a site of particular significance, Eastern Goldfields argue (at 29) the Jurruru People have not provided the location for the important camp and important law ground along Blue Bar Creek, or explained why the area is of more than ordinary significance.
Mr Smirke (at 22) outlines:
There’s camping grounds all along that creek. There’s an important place there with engravings and a camp ground and a law ground a bit further along. It’s rough country and you can get to the end of the tracks, but not into the Ranges. You can get into the creek though. That’s Wanari (Wandarry Creek) as well. But this place Mardabaiya is hard to get into. Things in there need to be found. We don’t want white people in there damaging things.
The Jurruru People reply asserts that ‘Though the Native Title Party is unable to provide a precise location for the engravings, this creek clearly falls within the Proposed Tenement’.
While I accept Blue Bar Creek is no doubt important to the Jurruru People, and that it falls within the proposed licence, I cannot be confident from the evidence provided that a camping ground, engravings or a law ground exist on or near to the proposed licence, or that such are of particular significance. For this reason, I also cannot conclude that the portion of Blue Bar Creek which travels through the proposed licence is of particular significance to the native title parties.
Mardabaiya
The State (at 65-69) dispute the proposed licence overlaps the Mardabaiya area, and in particular rely on the Eastern Goldfields mapping (at Annexure 1 of the grantee contentions) to assert this. They do not accept this area is of particular significance for the purposes of s 237(b). Eastern Goldfields do not accept the proposed licence is ‘within Mardabaiya, described as the Kenneth and Minnierra Ranges west of Fords Creek’ (at 31) and provide mapping (at Annexure 1 of their contentions) which asserts the proposed licence is approximately 8 kilometres from the Kenneth Ranges and just over 30 kilometres from the Minnierra Ranges. Having looked carefully at what is said in the Jurruru People evidence, I do not interpret it as saying Mardabaiya is only within the Kenneth or Minnierra Ranges as such, which I accept are not within the proposed licence. I will explain this interpretation.
Mr Smirke (at 7) states ‘Dad was a natural leader. He was given a lot of knowledge from the old people. He passed some of it on to me. He did a lot of work for the native title claim and provided information for the Kenneth and Minnierra Ranges. We call that Mardabaiya’, and Mr Smirke goes on to say (at 8) ‘The Madabaiya country is a significant place’. Mr Smirke then outlines (at 16-18) that:
I have seen a map of tenement E08/3165 located on the Wandarry Creek and Blue Bar Creek. This is west of Fords Creek and in the Mardabaiya area. Mardabaiya is very important to Jurruru people. Our Old People always lived and travelled around these Ranges. It’s dangerous to go into the Mardabaiya if you aren’t Jurruru, or unless you have been invited by a Jurruru person. The country might harm you.
Taking all of this information in its entirety, I accept that Mardabaiya is an important area between Fords Creek, and the Kenneth and Minnierra Ranges. Fords Creek is approximately 4 kilometres directly to the east of the proposed licence. The proposed licence sits in between the Kenneth and Minnierra Ranges and Fords Creek.
The Jurruru People reply (at 9) refer to paragraphs 17-21 of Mr Smirkes affidavit, and say that Mr Smirke:
…expressly puts the tenement within the Mardabaiya area… The Jurruru People…consider Mardabaiya dangerous to enter unless invited by a Jurruru Person, with spiritual and physical consequences to follow’ if the traditional protocols are not followed.
The Jurruru People reply (at 9) maintains that ‘Mardabaiya’s particular significance has been sufficiently explained’.
The Jurruru People contentions (at 46) and Mr Smirke (at 17) assert that the old people lived and travelled through this area and around the ranges, which I accept given the geography of the area being near water, and the evidence of scatter sites and other evidence of people living in the area, including at Kenneth Range Camp. Mr Smirke is clear in his evidence (at 16) that the proposed licence ‘is in the Mardabaiya area’, that the Mardabaiya has dangerous places for non-Jurruru people, and there are restricted places where only men can go (at 18-20). He is also consistent in his locating the proposed licence west of Fords Creek, on Blue Bar Creek and Wandarry Creek, and the location of Kenneth Range Camp, so I accept the proposed licence is in the Mardabaiya area, which extends beyond the proposed licence in all directions for some kilometres.
It is not clear, however, that the engraving sites and the men’s area, and other areas which are dangerous and of significance to the Jurruru People, are within the Mardabaiya area. It is those areas which I am likely to find to be of particular significance to the native title parties, rather than the whole Mardabaiya area, given the uncertainty I have about the extent of the Mardabaiya area. I also understand the assertion that the whole of the Mardabaiya is dangerous to enter, but again, I am not clear the extent of this area or whether it is those places within in which make it so. On that basis, while I accept the Mardabaiya area is of importance to the Jurruru People, and may contain sites or areas of particular significance which have not been identified with any certainty in this inquiry, I do not conclude the Mardabaiya area is of particular significance for the purposes of this inquiry.
Conclusion in relation to sites of particular significance
As I have concluded Kenneth Range Camp, Wandarry Creek and Banganu are sites of particular significance, I now consider whether or not they are likely to be interfered with for the purposes of s 237(b).
Is there likely to be interference with sites of particular significance, by exploration activities associated with the grant of the proposed licence?
My decision is made in the context of what the grant entitles an explorer to do on the proposed licence, and in consideration of the evidence about what they are likely to do. Looking at s 66 of the Mining Act 1978 (WA), an exploration licence, while it remains in force, authorises the holder (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.
The Jurruru People contend (at 23) that the grantee party do not provide details of their exploration program beyond years 1 and 2. The Jurruru People contentions outline that:
Given the general nature of the program the NNTT may proceed on the assumption that the Grantee Party will exercise the full suite of rights available to it under sections 61 and 66 of the Mining Act. This includes digging pits, sinking bores, excavating and extracting 1000 tonnes of soil and earth and taking and diverting water for the purpose of mineral exploration. The Grantee may receive a permit to extract more than 1000 tonnes of the material from the tenement.
The Jurruru People reply emphasises (at 15) that ‘the grantee party does not argue that it does not intend on exercising the full suite of rights’. The State also refers to the grantee party intentions, and notes the grantee party ‘willingness to work with the NTP to avoid disturbance to areas of particular significance’ (at 22). However, as noted by Member Cooley in Wanjina-Wunggurr v Coronet (at [39]), intentions and willingness are not a contractual obligation, and such statements are unenforceable. On grant, it is open to an explorer to exercise all of the rights and interests it is granted. I must take into account what an explorer outlines is their likely program of activities, and I do note what Eastern Goldfields have outlined in this matter. I take into account the commercial realities that an explorer will put their efforts into those parts of a tenement that are most prospective for their target metal or mineral.
As it currently is described, I understand Eastern Goldfields will conduct initial mapping, rock chipping and soil sampling, which will take several field trips. Eastern Goldfields asserts the area is difficult to access by anything other than helicopter. However, I do not accept this proposition as State mapping shows a track running from the Ashburton Downs Meekatharra Road, directly into the proposed licence, and another track running to within approximately 2-3 kilometres of the north western area of the proposed licence (where the Kenneth Range Camp is near), and intersecting part of Wandarry Creek just outside the proposed licence. In addition, the States tengraph information records two tracks on the proposed licence.
I accept there is limited access to the proposed licence and that it is remote (as outlined by the Jurruru contentions at 71 and 73). However given the tracks, with one running off a main road, I can reasonably assume the field trips will involve vehicles and various personnel traversing the proposed licence to identify the likely target areas for further exploration, including drilling - the explorer’s materials are silent on the detail of the field trips. As the Jurruru People reply notes (at 28), ‘the “protection” afforded under the AHA “may not extend to areas or sites to which s 237(b) applies”: Marputu v Gianni per President John Dowsett AM, QC at [44]’. In addition, the Jurruru People reply (at 29) argues the point as made by Member Kelly in Karajarri v Russell Mining (at [64]), that ‘there is merit in an argument that the AHA is ‘not designed to protect sites where there are traditional laws and customs placing prohibitions on access itself”. I accept and adopt that principle in this matter. I also note the issue as outlined in the Jurruru People reply (at 30-32) that the grantee party can apply for Ministerial permission under s 18 of the AHA to interfere with sites that may otherwise be regarded as of particular significance under s 237(b).
The State rely on the AHA and their regulatory regime (at 70-78) to assert interference is unlikely for the purposes of s 237(b). They argue the endorsements and conditions they intend to impose on the grant of the proposed licence will protect any sites of particular significance from interference. The State argues (at 20) that the breach of conditions can expose the explorer to the licence being forfeited. However, as noted in the Jurruru People reply (at 33-36, citing several recent Tribunal cases in support) these endorsements and conditions do not require notification or consultation with a native title party. The Jurruru People reply concludes (at 38) that ‘it does not agree that mere compliance with the existing regulatory regime will avoid or mitigate interference with areas and sites of particular significance’.
The State argue (at 41) that for the Kenneth Range Camp, the native title party have not demonstrated ‘how the artefacts and engravings located within the area…are capable of being 'directly' and 'physically' interfered as a result of the Grantee Party's proposed activities within the area of the proposed tenement, given the small area of overlap’. The State argue (at 49) against the Jurruru People contentions (at 63) that there is unlikely to be interference with Wandarry Creek and to the law songs, the Banganu, and cultural ramifications because of water diversion activities, and that this is the only activity which has been outlined by the native title party to cause interference to this area. The State argue (at 50-53) that the grantee party proposed activities do not outline water diversion in relation to the Creek area or with Banganu (at 54-59). However, Eastern Goldfields have not provided any detail about their proposed activities in relation to water, yet it appears from the endorsements the State intends to impose on the proposed licence, that water related activities are likely to take place (as outlined further at [46]-[47] below).
I have dealt with the issue of access to the proposed licence at [40] above, and do not think it unreasonable to conclude the explorer is likely to remove up to 1,000 tonnes of material as part of their exploration program. Whether or not the explorer will apply to exceed that amount of earth or fluid is speculative, particularly given the remoteness of the proposed licence. I do not believe endorsements or conditions which allow for rehabilitation will mitigate interference for the purposes of s 237(b), even assuming the likely amount to be removed would be up to 1,000 tonnes. Rather, Eastern Goldfields will attempt to put back any disturbed areas to how they were prior to the interference.
In relation to the arguments about previous activities having already disturbed the area, and in some way this giving a green light to current disturbance, 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 provided by Mr Smirke and the anthropologist’s affidavits suggests to me that the area of Kenneth Range Camp, Wandarry Creek and Banganu retain their particular significance.
I agree with the State that it is unlikely the early proposed exploration activities of rock chipping, soil sampling and geological surveys would be of the type to cause major disturbance to land or waters. However, I must also consider activities such as drilling, which Eastern Goldfields have indicated will be part of their program in their target areas, should such targets be found. I must also take into account that it appears exploration activities will involve some form of intersection with water on the proposed licence, given the endorsements the State intends to impose.
I note that of the 12 endorsements the State intends to impose on the grant of the proposed licence, 10 of those relate to the use of water in some way, and none of them require consultation with a native title party. Those endorsements are either for noting by the explorer, or allow the taking or management of water on the proposed licence with the appropriate licences or permits from relevant State departments (such as the Department of Water and Environmental Regulation). This includes surface water and ground water. As such, it is not unreasonable for me to conclude that Eastern Goldfields is likely to engage with water on the proposed licence in some way in relation to their exploration activities. They have provided little commentary about this in their materials.
The Jurruru People contentions (at 88) specifically outlines that ‘Diverting or taking water out of Wandarry Creek would be a major disturbance to a highly significant Creek to the Jurruru People’. I have accepted (at [24]) that Banganu on Wandarry Creek is a yinda site, being a pool of permanent water where the mythological water snake resides. I also accept that this area is of particular significance to the Jurruru People and disturbance of same is likely to have far reaching effects on the community and individuals within the community who are charged with looking after the area, including Mr Smirke (as outlined in his statement at 24).
Jurruru People contentions (at 54, 64) refer to issues with passing on Jurruru People culture if areas are disturbed, as well as causing spiritual harm and having unfortunate consequences. Jurruru People contentions argue (at 62, 66) that inadvertent damage could be caused if the exploration activities are not conducted in the context of a heritage agreement between Eastern Goldfields and the Jurruru People. Mr Smirke reinforces this argument (at 34) by asserting that sites of particular significance are ‘not always obvious to people who don’t know what to look for…’
As outlined by the Federal Court in FMG v Yindjibarndi (at [75]):
…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.
Conclusion in relation to interference with sites of particular significance
Given the sensitivities of Kenneth Range Camp, Wandarry Creek and Banganu, I accept interference is likely to be caused to these areas even on the basis that Eastern Goldfields complied with the State’s regulatory regime. For example, I conclude the grant of the proposed licence is likely to involve interference to Banganu on Wandarry Creek, particularly given it is a permanent waterhole in the area, imbued with high cultural and traditional significance to the Jurruru People. Even if the explorer were only to use the Banganu area minimally, or the areas of Wandarry Creek connected to Banganu, I accept that would have major repercussions for the Jurruru People, and reach the threshold of interference as envisaged by s 237(b) of the Act.
The customary concerns related to these areas are such that inadvertent interference is likely to occur by activities which occur early in an exploration program. As such, interference is likely to occur early in the process of Eastern Goldfields looking for their realistic targets, which is prior to their intention to consult with the Jurruru People, as that was said to occur once there were realistic targets. I do not accept that it is only activities such as the drilling of targets which is likely to cause interference with these sites of particular significance.
Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned?
For my consideration of s 237(c), I adopt the principles as outlined in Yindjibarndi v FMG Pilbara (at [19]-[21]). My task with respect of s 237(c) is to ‘is to undertake a predictive assessment as to whether there is a real chance or risk of major disturbance to land and waters’ where the ‘relevant disturbance is understood to be a significant, direct physical disturbance to the land or waters concerned’. I must take into account the future act itself, and the effect of the rights created by it.
For convenience, I extract the summary of principles for s 237(c) from Yindjibarndi v FMG Pilbara (at [21]):
Following Little v Oriole Resources No 2, the approach to s 237(c) is as follows:
(a) section 237(c) requires a consideration of the effect of the relevant future act and also consideration of the effect of any rights created by the future act (Little v Oriole Resources No 2 at [41]);
(b) the assessment, in respect of both granted and contingent rights, is in relation to what is likely to be done, rather than what could be done (Little v Oriole Resources No 2 at [51]);
(c) the term ‘major disturbance’ is to be given its ordinary English meaning as understood by the whole Australian community, including Aboriginal people. The concerns of the Aboriginal community including matters such as community life, customs, traditions and cultural concerns are relevant matters for consideration in evaluating the disturbance (Little v Oriole Resources No 2 at [52]-[54], referring to Dann v Western Australia at 395, 401 and 413); and
(d) the Tribunal is entitled to have regard to the context of the proposed grant, including the history of mining and exploration in the area (Oriole Resources at [39] referring to Nicholson J in Little v Oriole Resources at [44]), the characteristics of the relevant land and waters, as well as the remedial regulatory regime in place (Freddie v Western Australia at [70]).
The Jurruru People argument (at 83-91) in relation to this limb of s 237 focuses on the likelihood of drilling and ground disturbing activity planned for the later years of the exploration program (should viable targets be found in the earlier stages). They argue the rights conferred by s 66 of the Mining Act (as outlined at [36]-[37] above), includes excavating/extracting earth, soil, rock, stone, fluid or mineral bearing substances to the prescribed limit of 1,000 tonnes (with the possibility of requesting the limit be increased up to 10,000 tonnes). The grant also will give the explorer the right to take or divert water from natural springs, lakes, pools or streams to use in mineral exploration, subject to the Rights in Water and Irrigation Act 1914 (WA). The Jurruru People assert this would include Wandarry Creek.
The Jurruru People assert (at 86) this would constitute major disturbance ‘to native vegetation; archaeological surface and sub-surface material yet to be identified by archaeological surveys and the numerous waterways which criss-cross the Proposed Tenement’. I note that in addition to Wandarry Creek, the State’s tengraph information shows 130 watercourse lines (natural channels along which water may flow), as well as Blue Bar Creek. I have already concluded that Banganu is on Wandarry Creek, on the proposed licence, and that it is imbued with traditional and cultural significance for the Jurruru People. The Jurruru People reply does not address arguments in relation to s 237(c).
Eastern Goldfields argue (at 36) ‘the NTP Evidence does not include sufficient information as to why the area of the Application is at greater risk than, for example, the exploration licences presently or historically granted on or surrounding the area of the Application’. They also argue (at 37) that potential disturbance from exploration ‘is temporary, confined and largely reversible’, and the area is also subject to rehabilitation, under the State’s regulatory regime.
The State contentions argue (at 83):
•The Jurruru People have ‘not clearly established how the alleged major disturbance to native vegetation, waterways and archaeological surface and sub-surface materials would be likely to arise as a result of the Grantee Party's proposed activities of rock chipping, soil sampling and geological surveys in the first instance’.
•The Jurruru People assumption the explorer will seek to remove 1,000 - 10,000 tonnes of earth, and also take and divert water from waterways, is not reasonable given the area is difficult to access ‘by anything other than helicopter’.
•The States regulatory regime will avoid major disturbance to land and waters, including endorsements and conditions to be imposed on the proposed licence on grant, including rehabilitation.
•The activities of Eastern Goldfields ‘would be the same as, or no more significant than, the previous and continuing use of the area’.
Conclusion
I do not accept the Jurruru People argument that the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to archaeological surface and sub-surface material yet to be identified by archaeological surveys and the waterways in general. The arguments in this respect are broad.
In addition, I find the information and evidence in relation to s 237(c), taking into account the principles outlined at [52] and [53] above, do not establish the ordinary English meaning of the phrase ‘major disturbance’ to the land and waters concerned - as understood by the whole Australian community, including Aboriginal people. The arguments put forward go more to the likelihood of disturbance and interference for the purposes of s 237(b), rather than establishing major disturbance for the purposes of s 237(c).
Determination
I find the grant of exploration licence E08/3165 to Eastern Goldfields Mining Company Pty Ltd does not attract the expedited procedure.
H Shurven
Member
14 February 2022
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