Kado Muir and Others on behalf of Manta Rirrtinya v Gold Road Resources (North Yamarna) Pty Ltd & Another
[2019] NNTTA 63
•23 August 2019
NATIONAL NATIVE TITLE TRIBUNAL
Kado Muir and Others on behalf of Manta Rirrtinya v Gold Road Resources (North Yamarna) Pty Ltd & Another [2019] NNTTA 63 (23 August 2019)
Application No: | WO2018/0511 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Manta Rirrtinya / Wakamurru (Aboriginal Corporation) RNTBC (WCD2018/007)
(native title party)
- and -
Gold Road Resources (North Yamarna) 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: | Perth |
Date: | 23 August 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – 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 – whether act likely to involve major disturbance to land or waters – expedited procedure – non-disclosure directions - the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 146, 237 |
Cases: | Muir on behalf of the Manta Rirrtinya People v State of Western Australia [2018] FCA 1388 (Muir v Western Australia) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Ward v State of Western Australia (1996) 69 FCR 208 (Ward v Western Australia) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v MDR (Thomsons) Pty Ltd [2014] NNTTA 91 (Western Desert Lands v MDR) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives(s) of the native title party: | Gavin Dunn and David Reger, Central Desert Native Title Services Limited |
| Representative(s) of the grantee party: | Hayden Bartrop, Gold Road Resources Rhys Davies, DLA Piper Australia |
| Representatives(s) of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety Michael McIlwainem, State Solicitor's Office |
REASONS FOR DETERMINATION
The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E38/3269 (the licence) to Gold Road Resources (North Yamarna) Pty Ltd (Gold Road Resources). The area covered by the licence is approximately 146 square kilometres and is located approximately 129km north-east of the Cosmo Newberry Mission in the Shire of Laverton. The State’s notice included a statement that the proposed grant is an act attracting the expedited procedure (s 32 of the Act).
I have been appointed to decide whether the expedited procedure applies to the proposed grant of the licence. As provided by s 237 of the Act, the expedited procedure applies where the grant of a licence is not likely to, in summary:
(a)interfere directly with the native title holders’ community or social activities;
(b)interfere with areas or sites that are of particular significance in accordance with the traditions of the native title holders;
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The licence is located within the boundaries of the Manta Rirrtinya People’s determined area of native title (WCD2018/007). The Manta Rirrtinya People exercised their right, as native title claimants at that time, to lodge an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion that the expedited procedure applies to the grant of the licence. The native title claim was subsequently determined by the Federal Court in Muir v Western Australia. The Wakamurru (Aboriginal Corporation) Registered Native Title Body Corporate (Wakamurru) holds native title rights and interests on behalf of the Manta Rirrtinya native title holders.
The Manta Rirrtinya People hold exclusive native title over approximately 81.63 per cent of the area covered by the licence – that area is unallocated crown land. The native title holders have the right to possession, occupation, use and enjoyment to the exclusion of all others in relation to that area (with the remainder of the licence covered by an adjoining registered native title claim, which is not subject to this inquiry).
If I find the expedited procedure applies, the licence can be granted without negotiations between the parties. If I find it does not apply, Gold Road Resources and the State must negotiate in good faith with a view to reaching an agreement with Wakamurru about the proposed grant of the licence.
My decision is based on addressing the criteria set out in s 237 and making a predictive assessment (Yindjibarndi v FMG at [15]). I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licence, evidence of the grantee’s intentions, and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
For the reasons outlined below, my determination is that the expedited procedure does not apply to the grant of the licence.
The parties’ submissions
Wakamurru provided contentions and the affidavit of Mr Kado Rentan Eldred Allison Muir. Mr Muir states he is a traditional owner and native title holder for the area. He is also a director and current chairperson of the Wakamurru Aboriginal Corporation and a wati (initiated man). I accept Mr Muir has authority to speak for the area. Wakamurru also provided the affidavit of Mr Kalman Michael Murphy. I accept Mr Murphy is a wati and has cultural authority to speak for the area. Wakamurru applied for non-disclosure orders over parts of the affidavit material, and I issued those, being satisfied the material was culturally sensitive, and with no opposition from the other parties.
Gold Road Resources provided contentions in this matter as well as a digital terrain map, and sought to rely on the affidavit of Sharon Leanne Goddard of Gold Road Resources, who states she is the General Manager – Corporate, for the company. They also rely on the affidavit of Justin Paul Osborne, who states he is Executive Director – Growth, for the company. I accept those affidavits and am satisfied Ms Goddard and Mr Osborne can speak on behalf of Gold Road Resources.
The State provided contentions and evidence, and Wakamurru provided contentions in reply. Gold Road Resources provided some further commentary regarding the Wakamurru reply, and it was then established that all parties were content for the inquiry to be determined on the papers. I was satisfied this matter could be so determined and vacated the remaining directions.
Section 237(a): is the grant of the licence likely to interfere directly and substantially with the Manta Rirrtinya People’s community or social activities?
To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi v FMG at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
In reaching its decision, the Tribunal must also have regard to any other factors that might constrain the native title party’s community or social activities (see Smith v Western Australia at [27]). The term ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence must be provided to identify the individuals as a community (see Silver v Northern Territory at [59]). The term ‘social activities’ can encompass activities carried out by an individual or small group in certain circumstances, such as where the activities have a wider social dimension (see Silver v Northern Territory at [60]).
What community and social activities do the Manta Rirrtinya People carry out on the licence?
Much of the material in the affidavit evidence from Mr Muir and Mr Murphy focuses on cultural obligations regarding sites which are asserted to be sites of particular significance (these also feature in my consideration later in this decision of s 237(b)). In relation to community and social activities, Mr Muir states:
(a)The licence forms part of a cultural landscape with connections to ‘an extremely sacred’ dreaming story (tjukurrpa), which crosses through this licence, and social and community activities focus on looking after sites created by this dreaming story and the ‘secret song’ associated with it (at 9-12). This dreaming story is restricted to men (at 22).
(b)Another tjukurrpa, described as an ‘open story’ which was told to the Judge at the time of the Federal Court determination of native title, travels through the north-west side of the licence and certain activities are conducted in relation to this story (at 21).
(c)Native title holders live in the Mulga Queen Community and Cosmo Newberry Community (at 35). I note, according to mapping, these communities are each over 100 kilometres or more from the licence.
(d)There is some brief information about hunting in the determination area (at 35 and 37), including in areas covered by the licence.
(e)There is brief information about camping occurring near the highway (at 38).
(f)There is brief information (at 41) about gathering resources (including bush tomato, quandong trees, sandalwood trees, spinifex and ‘others’) in the context of holding the right to exclusive possession in relation to the land and waters of the licence and having the right to take and use the resources of the area for any purpose.
Mr Murphy confirms the details in Mr Muir’s affidavit regarding hunting and gathering resources (at 6 and 8). He also speaks to the importance of the tjukurrpa and of the sites associated with the tjukurrpa which are important specifically to men’s business (at 11-15). However, overall the information provided about community or social activities is broad.
The State argue Wakamurru have not sufficiently made out that any social or community activities occur on the licence, or that any such activities will suffer from interference by the proposed exploration activities (see for example 29.4). Gold Road Resources make a similar argument in their contentions (see for example 18-20). Gold Road Resources also outline their intended exploration program (at 30 and 34) and argue that given the size of the licence, and the broad nature of the evidence provided by Manta Rirrtinya People in relation to s 237(a), exploration activities are unlikely to substantially interfere with social and community activities.
Conclusion
In my view, the evidence with respect to the community and social activities of the native title holders is broad, focusing largely on the location and commitments of the Manta Rirrtinya People in relation to sites of particular significance on and near the licence.
As I have concluded in previous decisions, cultural practice is often intimately intertwined with sites of particular significance to the native title holders. In this inquiry, the cultural practice has been expressed in terms of supporting the particular significance of such sites (which goes more to s 237(b)), rather than details having been provided about the nature and extent of the community and social activities of the native title holders (which goes more to s 237(a)).
I have taken into account the expanse of the area covered by the licence, the distance from Aboriginal communities and the broad nature of the evidence pertaining to the social and community activities of the native title holders. On the basis of these considerations, I conclude the activities of the explorer can readily co-exist with the Manta Rirrtinya People’s social and community activities as broadly expressed in their evidence.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
The central issue for consideration in s 237(b) of the Act is whether there are any areas or sites of particular significance to the Manta Rirrtinya People which are likely to be interfered with (in the sense of a real chance or risk of interference) by the activities of Gold Road Resources (see Yindjibarndi v FMG Pilbara (at [17](a), (b) and (e)).
What areas or sites have been identified as being of particular significance to the Manta Rirrtinya People?
Mr Muir and Mr Murphy outline in their affidavits the following sites or areas to be of particular significance. I have omitted information which is sensitive, but provided sufficient information so my reasoning is clear:
(a)The north-western area of the licence contains ‘extremely important’ dreamtime stories (tjukurrpa) and tracks (yiwarra). The yiwarra ‘are dotted with many sacred sites’ (at 10). The cultural responsibilities, and sanctions should those responsibilities not be fulfilled for the area, are outlined (for example Mr Muir at 14-15; Mr Murphy at 11).
(b)One of the tjukurrpa is ‘extremely sacred’ – it is named and gender restricted to men (Mr Muir at 11-14; Mr Murphy at 11). It is represented on the licence by two geographical features in the north-west of the licence (Mr Muir at 16; Mr Murphy at 12-13). Wati have great responsibilities in relation to this area (Mr Muir at 20; Mr Murphy at 12-15).
(c)There is an area in the south of the licence which is part of the tjukurrpa and yiwarra (Mr Muir at 17-18).
(d)There is another tjukurrpa which travels through the north-western side of the licence – this is described as an ‘open story’, which was told to the Judge at the time of the determination of native title (Mr Muir at 21).
Gold Road Resources argue in their contentions, and in their additional material following the native title party reply, that none of the areas outlined in [20] above are established as sites of particular significance. In relation to the area in the south of the licence ([20c]), as well as the ‘open story’ [(20d]), I agree there is insufficient detail for me to conclude they are related to sites of particular significance on or near the licence.
The evidence provided by Mr Muir and Mr Murphy about the two geographical features in the north-west portion of the licence, and their relationship to the ‘extremely important’ dreamtime story is, however, powerful and consistent. In relation to sites or areas such as dreaming tracks or songlines, the Tribunal held in Western Desert Lands v MDR :
Depending on the evidence presented in a particular matter, songlines or dreaming tracks may be regarded as sites or areas of particular significance (see Freddie v Western Australia at [45]-[47]; Lungunan v Geotech International at [41]). In Freddie v Western Australia, Deputy President Sumner suggested that specific parts of a dreaming track might be considered sites of particular significance whereas other parts might not (at [47]). That, of course, is subject to the general requirement that the location of an area or site and the nature of it significance must be identified before it can be accepted as an area or site of particular significance (see Western Australia v McHenry; Silver v Northern Territory at [91]; WF v Emergent Resources at [68]) ( at [74]).
Gold Road Resources and the native title party reply go into some detail about the location of two geographical features which are a manifestation of the sacred tjukurrpa, and Gold Road Resources focuses on a small tabletop feature which appears to be associated with these two geographical features. I do not need to draw any conclusions in relation to the tabletop feature as I am satisfied that the affidavit evidence supports the fact that an extremely sacred story travels through this licence and is manifested along the pathway of the story by the two geographical features in the north-west of the licence. I accept these geographical features associated with the sacred story are sites of particular significance.
What activities does Gold Road Resources intend to undertake on the licence?
Gold Road Resources’ contentions (at 30), and the affidavit of Mr Osborne (at 13-29), outline the following likely proposed mineral exploration activities:
(a)an initial scout program involving limited drilling and clearing access tracks which will take 5 to 7 days;
(b)if the initial program is successful, an infill aircore drill program of approximately 1 month;
(c)if the infill program is successful, a reverse circulation [RC] and/or diamond drilling program of approximately 1 month.
It is reiterated in the further materials Gold Road Resources provided after the native title party reply, that these are three separate and distinct periods of activity, and that ‘each of the aircore and RC/diamond drilling respectively are contingent on the analysis and interpretation of results of prior activities’(email dated 13 August 2019).
In her affidavit, Ms Goddard notes that Gold Road Resources ‘plans to arrange a heritage survey of its areas of interest’ and the preference is ‘for a heritage survey to be undertaken by Wakamurru’ (at 12-13). Mr Osborne also refers to the plan to conduct a heritage survey, and if any areas are identified by the native title holders doing the survey, either a buffer zone or site avoidance would be undertaken, or if that was not possible, Gold Road Resources would first make an application to the Minister under s 18 of the Aboriginal Heritage Act 1972 (WA) (AHA) and consult with Wakamurru in regards to that application (at 40-41).
Mr Osborne outlines that Gold Road Resources has identified two areas where they will focus efforts in terms of their target product, and that other areas of the licence may not be accessed at all depending on the outcome of the drilling program (at 8-10). Mr Osborne provided a map of the two focus areas, and I note one of those areas is located in the north-west of the licence. Mr Osborne outlines that access to the focus areas of interest will be from an adjacent tenement already held by Gold Road Resources, and I accept such access to those areas is unlikely to be the cause of any interference with the north-west area of particular significance. The question is, however, whether exploration activities on the licence will be likely to cause interference.
Mr Osborne confirms that the initial scout program will include up to 30 aircore drill holes, and these will drill through sand and weathered rock (at 13-18). Once fresh rock is hit, a sample is taken for assessment. Nothing is said about the size of the aircore drill rig, but information is provided about the access routes to where the drilling occurs (which appear to be separate to the access route to getting to the actual licence) – I understand there will be three access tracks 10-15 metres wide each to where the drilling will occur. If the initial scout program is not successful, the exploration will cease and the area will be rehabilitated. If the scout program does bear results, the drill program will be increased, and RC drilling will be used to drill deeper holes – the access tracks for the aircore drilling will be used (at 19-24). Further detail about the likely size of any drill pads, as well as the rehabilitation program for the area, is provided (25-30). The rehabilitation largely focuses on interference with vegetation.
Mr Osborne has also provided staff and visitor induction policies and outlines that he is aware of the Guidelines for Consultation with Indigenous People by Mineral Explorers and the Aboriginal Heritage Due Diligence Guidelines, and the State’s regulatory regime generally (at 46-47).
Is the grant of the licence likely to interfere with a site of particular significance?
I have concluded there are two geographical features that are sites of particular significance in the north-west of the licence, and that at least on its initial program, Gold Road Resources will be conducting drilling activities in that area. I must therefore examine whether there is a real, and not remote chance, of the exploration activities interfering with these sites.
Gold Road Resources has outlined it is willing to enter into a Regional Standard Heritage Agreement (RSHA), and/or another form of agreement to address Wakamurru’s concerns in relation to exploration activity. However, no such agreement has been reached at this stage, nor has an RSHA been endorsed by the native title party. Taking into account what the evidence says about the sites of particular significance, I cannot conclude that willingness itself provides clarification about the extent to which the sites will be protected.
Mr Muir outlines that what Gold Road Resources and the State might consider as ‘low-impact’, can be considered ‘high-impact’ from the viewpoint of the native title holders. This includes the activities of drilling, incorrectly accessing areas of country, rock chip sampling and soil sampling (at 30-33). Mr Muir states it is not permitted under Manta Rirrtinya traditions for women or non-initiated men to access the areas of the two geographical features in the north-west of the licence (at 23). To ignore these restrictions risks retribution from other wati and ‘the risk of spiritual retribution from the country itself’ (at 29). Mr Murphy provides similar evidence (at 16-18).
Further, Mr Muir states that ‘…in my view the RSHA is out of date and out of touch. We have never agreed to the RSHA – it is an insult and Wakamurru AC will not accept it. It fundamentally fails to acknowledge our exclusive possession native title rights and does not provide us with the opportunity to properly protect our country because it doesn’t see interference in the same way that we do under our laws and customs’ (at ssss47).
Conclusion
I am satisfied that two geographical features in the north-west of the licence, which are associated with a sacred tjukurrpa, are areas of particular significance to the native title holders. In my view, even acting within the State’s regulatory regime, including under the provisions of an RSHA, drilling by Gold Road Resources and associated exploration activities in the north-west of the licence, is likely to cause interference of the type which offends s 237(b).
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Wakamurru did not make any contentions or provide evidence in relation to s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(c) is unlikely.
Determination
The determination of the Tribunal is that the grant of exploration licence E38/3269 to Gold Road Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
23 August 2019
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