Kyburra Munda Yalga Aboriginal Corporation RNTBC v Rock Solid Holdings Pty Ltd
[2020] NNTTA 31
•11 March 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kyburra Munda Yalga Aboriginal Corporation RNTBC v Rock Solid Holdings Pty Ltd & Another [2020] NNTTA 31 (11 March 2020)
Application No: | QO2019/0056 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kyburra Munda Yalga Aboriginal Corporation RNTBC (QCD2014/014 & QCD2015/006)
(native title party)
- and -
Rock Solid Holdings Pty Ltd
(grantee party)
- and -
State of Queensland
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 11 March 2020 |
Catchwords: | Native title – future act – proposed grant of exploration permit for minerals – 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 cause major disturbance to land or waters – expedited procedure attracted |
Legislation: | Aboriginal Cultural Heritage Act 2003 (Qld) Mineral Resources Act 1989 (Qld) ss 141, 141AA, 147A Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237 |
Cases: | Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd; [1996] FCA 1452; [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Ngan Aak-Kunch Aboriginal Corporation RNTBC v Glencore Bauxite Resources Pty Ltd and Another [2016] NNTTA 22 (‘Ngan Aak-Kunch v Glencore’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltdand Another [2014] NNTTA 8 (‘Yindjibarndi v FMG Pilbara’) |
| Representatives of the native title party: | Andrew Morrell David Saylor, Saylor Legal |
| Representative of the grantee party: | Alex White, Rock Solid Holdings Pty Ltd |
| Representatives of the Government party: | Karen Dawson, Department of Natural Resources, Mines and Energy Sarah McBratney, Crown Law |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act1993 (Cth) (NTA) applies to the grant of exploration permit for minerals (EPM) 27174 (permit) to Rock Solid Holdings Qld Pty Ltd (Rock Solid).
The State of Queensland (State) gave notice under s 29 of the NTA of its intention to grant the permit, with a notification day of 17 April 2019. The notice included a statement that the State considers the grant of the permit is an act attracting the expedited procedure, which would allow it to be granted without requiring negotiation under s 31 of the NTA.
The permit is located south east of Home Hill in north Queensland. Kyburra Munda Yalga Aboriginal Corporation RNTBC (Kyburra) ICN 7581 holds native title in trust for the Juru People in relation to approximately 69% of the permit area.
On 25 June 2019, Kyburra lodged an objection against the State’s inclusion of the expedited procedure statement in relation to the permit. In light of Kyburra’s objection, the Tribunal is required to determine whether the grant of the permit is an act attracting the expedited procedure (s 32(4) NTA). I have been directed to constitute the Tribunal for that purpose.
For the reasons outlined below, my determination is that the grant of the permit is an act attracting the expedited procedure.
The issues in the inquiry
The grant of the permit will only be 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 permit area (s 237(a) NTA);
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b) NTA); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the permit area (s 237(c) NTA).
In this case, Kyburra’s objection is limited to interference under s 237(b). It says there are no community or social activities with which the grant of the permit is likely to interfere, and does not make any contention in relation to the likelihood of major disturbance within the meaning of s 237(c). Applying the common sense approach to evidence as discussed in Ward v Western Australia at [26], I conclude that the grant of the permit is not likely to cause interference within the scope of s 237(a), or involve major disturbance as contemplated by s 237(c).
Accordingly, my consideration of the issues is limited to the likelihood of interference under s 237(b).
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. I am required to undertake a predictive assessment by considering what is likely to occur (in the sense of a real, not remote, chance) as a result of the grant of the permit. The grantee party’s intentions may be relevant to that assessment.
Determination on the papers
I made directions for the conduct of the Tribunal’s inquiry which provided for all parties to provide contentions and evidence. While all parties provided contentions, only the State provided any evidence. Kyburra also had the opportunity to provide a reply, but elected not to do so.
The State’s evidence included mapping, a copy of the application and approved work program for the permit, a cultural heritage database search under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) and details of the underlying tenure and current and historical tenements in the area of permit. The State has also provided a copy of version 6 of the native title protection conditions (NTPCs) referred to in s 141AA of the Mineral Resources Act 1989 (Qld) (MRA), dated July 2019, as well as the standard environmental conditions to which the permit will be subject.
All parties were content for the matter to be determined on the papers and, having reviewed the material, I am satisfied that the inquiry can be adequately determined without a hearing (s 151(2) NTA).
The permit and Rock Solid’s proposed exploration activities
The permit is an exploration permit for minerals proposed to be granted under the MRA. The proposed permit term is 2 years but it may be renewed under s 147A of the MRA. The permit would allow exploration for all minerals other than coal.
The permit area covers 28 sub-blocks and the underlying land tenure consists of a range of tenure types including freehold, State leasehold, reserves, unallocated State land, watercourses and roads.
The general conditions to which the permit is subject are set out in s 141 of the MRA. In addition, the State proposes to grant the permit subject to the NTPCs.
The approved work program for each year of the initial term of the permit contemplates reconnaissance mapping (15 days), auger drilling (50 holes) and soil sampling (150 samples) at a total of $24,000 expenditure. The approved work program also indicates that a 50% relinquishment of sub-blocks would be required if Rock Solid seeks renewal of the permit.
In its contentions, Rock Solid says that its work program consists of exploration to be carried out entirely by hand methods and has provided a copy of a brochure showing the apparatus used for hand auger sampling. Rock Solid argues that its proposed work program is low impact, and that higher impact activities would only be proposed if significant mineralisation is found.
Predictive assessment for s 237(b)
My assessment of the likelihood of interference within the meaning 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]). There must be a real risk of interference to the site or area of particular significance, but even slight interference may be unacceptable in the context of s 237(b).
What areas or sites have been identified as being of particular significance to Kyburra?
The State’s evidence identifies 29 Aboriginal sites recorded under the ACHA located in the area of the permit. These sites are described as shell middens, artefact scatters, burials, weir/fish trap and hearth/oven.
As noted, Kyburra has not provided any evidence for the purposes of this inquiry. However, it says that all of the sites shown on the search within and adjacent to the permit area are sites of significance to Juru People, although the search does not show the full extent of all cultural sites in the area.
Kyburra says that Juru People consider “all country to be significant as it holds spiritual connection to our people”. It says that some of the sites or areas that are significant are not recorded or reported for this reason. Kyburra argues further that the activities under the approved work program may impact on sites that are significant to Juru People.
In the context of this inquiry, the significance of Juru country to Juru People and the significance of sites, both recorded and unrecorded, is not in question. However, as noted above, s 237(b) is concerned with sites of particular significance, meaning that the area or site must be of special or more than ordinary significance to Juru, in accordance with traditions. This is in contrast to the significance of the Juru country generally, as contended by Kyburra.
Kyburra has not provided any evidence regarding the particular significance of any of the sites on the permit area. The only statement of significance in Kyburra’s contentions refers to the significance of the permit area because over half of the apical ancestors in Juru’s native title determination originate from this area. However, this does not address the requirement to identify areas or sites of particular significance to Juru in accordance with its traditions.
Therefore, I agree with the State’s submission that “there is insufficient evidence before the Tribunal identifying any sites or areas of particular significance to engage
s 237(b) of the NTA” (State’s contentions at paragraph 6.11).
The likelihood of interference from the grant of the licence
As there is insufficient evidence to make a finding of any sites of particular significance (within the meaning of s 237(b)) to Juru in the permit area, it is not necessary for me to consider the likelihood of interference.
However, I note that Kyburra says that it would like to initiate a formal cultural heritage management plan with Rock Solid. As the State submits at paragraph 6.24 of its contentions, that is a matter for Kyburra and Rock Solid, and it is certainly open to the parties to reach agreement in relation to cultural heritage management at any time.
In any event, Rock Solid must comply with its cultural heritage duty of care under the ACHA and the NTPCs, which require notification, field inspection and monitoring for certain activities. The extent of protection afforded by the NTPCs has been considered in previous Tribunal decisions, see for example Ngan Aak-Kunch v Glencore at [98].
In its contentions, Rock Solid says that it is aware of its obligations under both the ACHA and NTPCs and will also ensure its employees and contractors are made aware of those responsibilities.
Determination
I determine that the grant of EPM27174 is an act attracting the expedited procedure.
Nerida Cooley
Member
11 March 2020
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