Kulyamba Aboriginal Corporation RNTBC v Gamut Resources Pty Ltd
[2021] NNTTA 21
•25 May 2021
NATIONAL NATIVE TITLE TRIBUNAL
Kulyamba Aboriginal Corporation RNTBC v Gamut Resources Pty Ltd and Another [2021] NNTTA 21 (25 May 2021)
Application No: | WO2019/1096 and WO2019/1097 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kulyamba Aboriginal Corporation RNTBC (WCD2009/002)
(native title party)
- and -
Gamut Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 25 May 2021 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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 – the act is not an act attracting the expedited procedure - the act is an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 109, 151, 237 Aboriginal Heritage Act 1972 (WA) |
Cases: | FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182 (FMG Pilbara v Yindjibarndi) Thudgari People v State of Western Australia [2009] FCA 1334 (Thudgari People v State of Western Australia) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG Pilbara) |
| Representative of the native title party: | Karin Kenkel, Kulyamba Aboriginal Corporation RNTBC |
| Representative of the grantee party: | Yorke Zhao, Stellar Mining Management Pty Ltd |
| Representatives of the Government party: | Bethany Conway and Michael McMahon, Department of Mines, Industry Regulation & Safety Genevieve Williams, State Solicitor’s Office |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licences E08/3114 and E08/3115 (the licences) to Gamut Resources Pty Ltd (Gamut Resources). The State of Western Australia considers the grant of the licences are acts attracting the expedited procedure. By including a statement in their notice of the proposed grant that the expedited procedure applies, the State asserts the activities permitted under the licences are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act/NTA). That is, the State asserts the grants are not likely to, in summary:
(a)interfere directly with community or social activities carried on by members of the native title claims or determined areas;
(b)interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The licences cover approximately 230 and 60 square kilometres respectively, and are located in the Pilbara region of Western Australia. The Kulyamba Aboriginal Corporation RNTBC hold native title rights and interests on behalf of the Thudgari People in the licence areas (Thudgari People v State of Western Australia). The Kulyamba Aboriginal Corporation exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies, arguing that the expedited procedure should not apply as interference or disturbance with one or more of the s 237 criteria is likely to occur.
The Kulyamba Aboriginal Corporation and Gamut Resources endeavoured to reach agreement. However, negotiations were disrupted by the effects of COVID-19 and the death of a senior member of the community, and parties were ultimately unable to come to agreement. I was appointed to conduct an inquiry and determine whether or not the grant of the licences attracts the expedited procedure. If I find the expedited procedure applies, a licence can be granted without parties being required to negotiate. If I find the expedited procedure does not apply, Gamut Resources and the State must negotiate in good faith with a view to reaching an agreement with the Kulyamba Aboriginal Corporation about the grant of that proposed licence. I must base my decision on the criteria set out in s 237 of the Act.
Contentions and evidence
The State, Gamut Resources and the Kulyamba Aboriginal Corporation submitted contentions and information to the Tribunal in relation to this matter.
A hearing was scheduled on 19 May 2021 so that I could clarify the materials provided, as well as giving parties the opportunity to provide any final comment to each other’s submissions. The Kulyamba Aboriginal Corporation provided their reply orally at the hearing. While the Act allows the Tribunal to make a determination on the papers, without holding a hearing, the Tribunal ‘must hold a hearing if it appears to the Tribunal that the issues for determination cannot adequately be determined in the absence of the parties’ (s 151(2) of the Act). The head elder who provided the written statement of evidence for the Thudgari People, Mr Charlie Lapthorne, attended the hearing along with the Kulyamba Aboriginal Corporation representative, together with Gamut Resources’ representatives and the State’s representatives. The hearing was held by telephone, allowing the Tribunal to proceed in a fair, economical and prompt way, pursuant to s 109 of the Act.
At the hearing, the Kulyamba Aboriginal Corporation and Gamut Resources indicated they remained committed to progressing towards an agreement, and would continue to do so regardless of the outcome of this inquiry. I outlined that due to the age of these matters, I would be publishing the decision as soon as possible after the hearing.
The State’s materials
The State provided proposed endorsements and conditions they intend to impose on each licence. State contentions outline that these include environmental approval being required before any ground-disturbing activities are carried out (at 11 and 64). However, there is no approval or negotiation requirements with the Thudgari People, apart from the Regional Standard Heritage Agreement (RSHA) Condition the State intends to apply to each licence.
The RSHA condition is in the following terms:
In respect of the area covered by the licence the licensee, if so requested in writing by the Kulyamba Aboriginal Corporation RNTBC the registered native title body corporate in respect of the Thudgari People determination area (the "native title party"), such request being sent by pre-paid post to reach the licensee's or agent's address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the native title party any Regional Standard Heritage Agreement ("RSHA") nominated by the native title party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading "Regional Standard Heritage Agreement”
The State’s evidence notes that for E08/3114: there are no sites recorded under the Aboriginal Heritage Inquiry System (AHIS) which was created under the Aboriginal Heritage Act1972 (WA); there are various tracks; there are various watercourses; and a named hill. For E08/3115, the State’s evidence notes: a historic mine site; various watercourses; and a track exist on the licence, as well as the mythological site of Maranoo Bore in the south west of the licence (which is registered on the AHIS).
Gamut Resources’ materials
Gamut Resources’ evidence, from the information provided to the State in their licence applications, notes that for both licences they will engage in: historical data collection; surface rock sampling and a site visit in the first year in the abundant target commodity areas; infill surface sampling; and diamond drilling. Gamut Resources provided contentions which indicated (at 3) they were willing to enter into the Regional Standard Heritage Agreement.
Gamut Resources’ contentions also noted (at 4) that:
(a)In their view there was no evidence of community or social activities on the licences;
(b)‘Prospecting activities do not involve major disturbances to land or waters and even if the full extent of the rights in an Exploration Licence were ever exercised there is sufficient protection for a Native Title Holder rights in the Native Title Act, the Aboriginal Heritage Act and the environmental framework including the mining tenement conditions and the Environmental Protection Act. The Grantees do not propose to use mechanised equipment or to disturb vegetated areas which is in compliance with the standard conditions of grant’;
(c)‘The adoption a Heritage Agreement and any necessary heritage surveys will protect any heritage or other sites of significance on the land and that a coordinated communication to discuss planned activities on the land by either the Native title Party or the Grantee Party will ensure that conflicts in land use can be avoided’.
Is the grant of the licences likely to interfere directly with the community or social activities of the Thudgari People?
What activities do the Thudgari People undertake on the licences?
Section 237(a) deals with whether an act is likely to interfere directly with the community or social activities carried on by the native title holders.
The Kulyamba Aboriginal Corporation outline that for E08/3114 there are ‘a vast number of pools in the south’ and to the west. These pools are said to have been the focus of daily life, including for gathering, birthing and burial. The Kulyamba Aboriginal Corporation statement outlines that:
These gathering, birthing and burial places are important areas to the Thudgari people as they still physically connect the People with their ancestors and thus they strengthen the Thudgaris cultural identity; especially also as engravings can still be found in those pool areas.
I outline more about the places in my consideration of s 237(b). For the purposes of s 237(a), my focus is on the community and social activities undertaken.
The statement goes on to outline that:
If the tenement was granted and exploration activities other than low impact exploration were to be conducted it is very likely that these activities would disturb those pool areas and thus not only diminish the Thudgari Peoples access to these water sources, but it would also interfere with Peoples right to have access to these water sources and furthermore it would diminish the Peoples cultural connection to their country.
The statement refers to the Thudgari People exercising their native title rights in this licence by gathering bush foods and bush medicines, hunting for wildlife and other traditional resources such as firewood. They argue ‘the grant of the tenement would interfere with those rights’.
With regards to E08/3115, the Kulyamba Aboriginal Corporation statements argues the Thudgari Peoples ‘right to take flora, fauna and other traditional resources would also be interfered with as the People still gather and hunt in this tenement area’, including in ‘Crab holes’ which are described as ‘water holes much like a Billabong’. The statement outlines that ‘The Thudgaris right to access these water holes would likely to be interfered with if the tenement was to be granted’.
The State argue (at 23 and 71) that the Kulyamba Aboriginal Corporation evidence has not outlined where their social and community activities occur, their frequency and intensity, or how the grant of the licences would interfere with these activities.
For E08/3114, the State acknowledges that Cain Springs is a water source for the Thudgari People, however, the State also argues (at 31-34) that there is no evidence to indicate the level of social and community activities are such that Gamut Resources and the Thudgari People cannot co-exist on the licence in terms of their respective activities. The State asserts Gamut Resources activities are unlikely to cause interference with Thudgari People community and social activities.
For E08/3115, the State outline (at 73-74) that the Thudgari People have not provided sufficient information about the social and community activities on this licence, nor have they explained the use of crab holes. The State asserts Gamut Resources’ activities are unlikely to cause interference with Thudgari People community and social activities (at 76).
At the oral hearing, Mr Lapthorne focused on sites and areas on the mapping of the licences, rather than on social and community activities.
Conclusion
As stated in Ward v Western Australia at [26]:
where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence.
The Kulyamba Aboriginal Corporation has provided limited evidence in relation to the nature or extent of the activities the Thudgari People undertake on E08/3114 and E08/3115.
On the material before me, I am unable to find interference with the Thudgari People’s social or community activities is likely on E08/3114 or E08/3115.
Is the grant of the licences likely to interfere with areas or sites of particular significance to the Thudgari People?
To establish that interference of the kind set out in s 237(b) is likely, a native title party must: provide sufficient evidence to show that an area or site exists on the proposed licence; explain its significance and distinguish it from other areas; and demonstrate it is of more than ordinary significance to the native title party in accordance with their traditions (Yindjibarndi v FMG Pilbara at [17]).
The Kulyamba Aboriginal Corporation statement outlined that for E08/3114, as well as the pools referred to in s 237(a) above, there are also artefacts like grindstones which ‘can still be found in those pool areas particularly, however they are also scattered all across the tenement’. The statement goes on to say ‘All pools and in particular Cain Springs in the north of the tenement are to this day water sources for Thudgari People who go on country’. At the oral hearing, it was established that the Thudgari People were satisfied that areas such as Cain Springs were unlikely to suffer from interference from Gamut Resources activities. As such, the remainder of my consideration for s 237(b) deals with E08/3115 only.
In relation to E08/3115, the Kulyamba Aboriginal Corporation statement by Mr Lapthorne outlined that the Maranoo Bore site ‘has particular significance to the Thudgari People and as such it strengthens their connectedness and sense of belonging to country’. This area was canvassed at the oral hearing, and I am satisfied that the area of Maranoo Bore, and the area between Maranoo Bore and Pindanni Pool (in the centre of the licence), is an area which holds particular significance to the Thudgari People. The particular significance of this area includes a story as told during the hearing relating to a death on or related to Pindanni Pool, and a cave on or near to the AHIS site of Maranoo Bore.
Mr Lapthorne’s statement outlined the risks of interference with such an area, and specifically outlined that tampering with the site ‘would diminish the Peoples sense of belonging and thus diminish their cultural identity’, and that ‘if exploration activities other than low impact exploration were to be conducted in that area it would be possible that the site would be damaged’.
The State contentions outline (at 87) that the grant of E08/3115 is not likely to interfere with sites of particular significance because of the protection afforded by their regulatory regime (at 88, and 48-54) and the grantee party intentions (at 89, and 55-58). At the hearing, Gamut Resources emphasised its commitment to heritage protection. They also indicated that if sites of concern were identified, Gamut Resources would work to avoid them as much as possible, and consult with the native title party. However, there is currently no mechanism between Kulyamba Aboriginal Corporation and Gamut Resources to guide such heritage protection, although they continue to work towards an agreement. The grant entitles Gamut Resources to extract up to 1000 tonnes of material from each licence. I am not satisfied that the endorsements or conditions the State intend to impose on the grant of E08/3115, including the RSHA, are sufficient that interference with the area of particular significance is not likely.
Conclusion
The Federal Court of Australia held in FMG Pilbara v Yindjibarndi (at [39]–[40]) that the task of the Tribunal includes taking into account any evidence provided by the explorer as to precautions it would take against interference, and balance those against:
the nature and importance of the particular site in terms of the evidence given… There is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interference under s 237 NTA is likely to arise.
While I accept Gamut Resources intends to act within the State’s regulatory regime, and have the best intentions, when I weigh up the area of particular significance and exploration activities, I conclude it is likely that interference could occur in that area on licence E08/3115.
Is there likely to be major disturbance to the land or waters concerned?
In relation to s 237(c), the Kulyamba Aboriginal Corporation did not explicitly make any contentions or adduce evidence on the issue of whether the grant of the licences are likely to involve, or create rights whose exercise is likely to involve, major disturbance to the relevant land or waters. On the available evidence, I conclude that such interference is unlikely.
Determination
I find the grant of exploration licence E08/3114 to Gamut Resources Pty Ltd is an act attracting the expedited procedure.
I find the grant of exploration licence E08/3115 to Gamut Resources Pty Ltd is not an act attracting the expedited procedure.
H Shurven
Member
25 May 2021
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