Marputu Aboriginal Corporation RNTBC v Beau Resources Pty Ltd
[2021] NNTTA 77
•22 December 2021
NATIONAL NATIVE TITLE TRIBUNAL
Marputu Aboriginal Corporation RNTBC v Beau Resources Pty Ltd and Another [2021] NNTTA 77 (22 December 2021)
Application No: | WO2021/1102 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Marputu Aboriginal Corporation RNTBC (WCD2017/011)
(native title party)
- and -
Beau Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 22 December 2021 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 146, 151, 237 |
Cases: | Atkins on behalf of the Gingirana People v State of Western Australia [2017] FCA 1465 (‘Gingirana Determination’) Marputu Aboriginal Corporation RNTBC and Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation RNTBC v Great Western Exploration Limited and Another [2018] NNTTA 80 (‘Marputu v Great Western Exploration’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representative of the native title party: | Shantika Wright, Central Desert Native Title Services Ltd |
| Representative of the grantee party: | Linda Skender, Deblin Tenement Management Services |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Andrea Wyles, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E52/3869 (licence) to Beau Resources Pty Ltd (Beau).
Marputu Aboriginal Corporation RNTBC (Marputu) holds native title in trust in relation to the whole of the licence area in accordance with the Gingirana Determination.
The State of Western Australia (acting through the Department of Mines, Industry Regulation and Safety) (State) considers the grant of the licence is an act attracting the expedited procedure under the NTA, and included a statement to that effect in a notice given under s 29 of the NTA. If the expedited procedure applies, the licence may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA.
Marputu objects to the application of the expedited procedure and I have been directed to constitute the Tribunal to determine whether or not it applies. For the reasons given below, I have concluded that the grant of the licence is not an act attracting the expedited procedure.
My determination is made without the need for a hearing
All parties provided material for the inquiry.
The State provided contentions together with mapping, a Quick Appraisal containing key tenement information for the licence, an Aboriginal Heritage Inquiry System (AHIS) search, a copy of the licence application together with the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) and the proposed endorsements and conditions to be imposed upon the grant of the licence.
Marputu provided contentions, a map and an affidavit of Mr Slim Williams signed (but not witnessed) on 29 September 2021. Mr Williams states that he is a traditional owner and wati, or lawman for the country in the licence, which is country he has a cultural responsibility and obligation to protect. He says also that he is a native title holder for the Gingirana Determination and a director of Marputu. Marputu also provided a copy of Mr Williams’ affidavit in Marputu v Great Western Exploration (discussed below), which is in similar terms to his affidavit in this matter.
Beau provided brief contentions by way of email and no evidence.
Having reviewed the material I am satisfied that I can adequately determine this matter without the need for a hearing as permitted by s 151(2) of the NTA. The State and Marputu also agreed to that approach and Beau did not provide comment.
What do I need to consider to determine whether the expedited procedure applies?
Under s 237 of the NTA, a licence 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 licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
I am required to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of each licence (see overview of approach in Yindjibarndi v FMG at [15]).
In this case, Marputu does not pursue its objection in relation to interference within the scope of s 237(a) or major disturbance under s 237(c) and there is no basis to conclude that either of those consequences is likely. Accordingly, my consideration of the issues is limited to s 237(b).
Predictive assessment for s 237(b) – is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
What sites are identified by Marputu?
Section 237(b) is concerned with areas or sites of special, or more than ordinary, significance to the native title holders. Such areas or sites must also be known and be able to be located (see discussion in Yindjibarndi v FMG at [17]).
Mr Williams identifies two rock holes of particular significance to the native title holders – one directly inside the licence and one directly east, which Marputu asserts are sites or areas of particular significance for the purpose of s 237(b). Mr Williams explains that the rock holes are of particular significance due to their association with the Wati Kutjarra tjukurrpa, which is a men’s story. Mr Williams says that the Wati Kutjarra travel from west to east through the licence and stop at the rock holes before continuing east. He describes the rock holes as “special places” which have “important ritual importance to the Gingirana mob”. Mr Williams also mentions granite outcrops created by the Wati Kutjarra which are inside the licence and have sacred importance.
The Tribunal has previously considered the two rock holes in Marputu v Great Western Exploration and found them to be of particular significance to the native title holders (Marputu v Great Western Exploration at [81]). The Tribunal also determined in that case that the grant of the relevant tenement was likely to interfere with the rock holes and that therefore the expedited procedure did not apply.
The relevant tenement application considered in Marputu v Great Western Exploration was E69/3499, which according to the Quick Appraisal provided by the State in this matter covered 86.67% of the licence area. In Marputu v Great Western Exploration, Mr Williams located both rock holes within E69/3499.
The AHIS search for this matter reveals there is a registered site ID1375 named ‘Wati Kutjarra Rockhole 2’ in the licence area. Site ID1375 is described as being of a Mythological, Water Source type and is subject to file and boundary restrictions. The map which accompanies the AHIS search indicates the site is in the north-easterly part of the licence. The AHIS map also shows another registered site, ID1374, just outside the licence area. Both of these registered sites are discussed in Marputu v Great WesternExploration and both were located within the area of E69/3499. The Tribunal listed the sites at [8] and noted site ID1374 is named ‘Wati Kutjurra Rockhole 1’. The Tribunal considered on the evidence that it was likely the two registered sites were the two rock holes identified by Mr Williams (Marputu v Great Western Exploration at [81]).
The State accepts that the two rock holes identified by Mr Williams are of particular significance to the native title holders. Beau has not addressed the significance of the sites in its contentions.
Marputu contends that I should adopt the finding of particular significance in Marputu v Great Western Exploration, as I have a discretion to do under s 146 of the NTA.
However, it is not necessary for me to do so. I have certainly had regard to that decision, but I am equally satisfied on the evidence provided in this case (which largely mirrors that in Marputu v Great Western Exploration) that the rock holes are of particular significance to the native title holders in accordance with s 237(b) of the NTA.
The issue which then arises for consideration is whether the grant of the licence is likely to interfere with the rock holes.
What are Beau’s intentions for the licence?
Exploration licences under the Mining Act are granted for an initial term of five years, and may be renewed (s 61 Mining Act). Section 66 outlines the rights conferred on the holder of an exploration licence, which include the right to “excavate, extract or remove … earth, soil, rock, stone, fluid or mineral bearing substances” up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The Quick Appraisal shows the licence is 4658.48 hectares and the underlying land tenure comprises R11452 C Class Reserve for Government Requirements (21.99%), R12297 C Class Reserve Rabbit Proof Fence No 1 (0.31%), Marymia pastoral lease (71.85%), unallocated Crown land (5.47%) and road reserves.
According to Beau’s s 58 statement which accompanied its licence application, “Beau is a diversified mineral exploration company that primarily explores for Gold, Nickel and Manganese”, although it will also “consider exploring for all other viable commodities including Iron Ore”.
The s 58 statement also outlines the activities and expenditure in the initial phase of exploration as follows:
ACTIVITY
ESTIMATED COST
Detailed compilation and analysis of historical data available for the area, including geophysics, GSWA and GIS data;
$8,000
Reconnaissance geological mapping, together with rock chip and soil geochemical sampling and assaying;
$6,000
Drill target generation and target ranking; and
$4,000
Geological management.
$3,000
TOTAL
$21,000
Subsequent phases are said, naturally enough, to depend on the results achieved in the initial phase.
In its email contentions, Beau states that it is “eager to continue negotiations” in order to reach agreement with Marputu and notes that it will “avoid identified sensitive heritage areas when considering exploration programmes”.
The licence would also be subject to conditions and endorsements as provided by the State. Under proposed condition 7, the prior written consent of the Minister would be required before Beau could commence any exploration activities on the Government Requirements Reserve 11452.
Is the grant of the licence likely to interfere with the rock holes?
In its contentions at paragraph 10, Marputu argues that interference is likely, and again submits that I should adopt the decision in Marputu v Great Western Exploration under s 146 of the NTA (Contentions at paragraph 6.14).
Mr Williams expresses concern about interference with the rock holes, saying (at paragraph 12):
None of theseplaces should be interfered with or even approached without the proper authority of the wati.Women in particular shouldn’t go anywhere near these places because that is against Gingirana laws and people may get punished for this or get sick.
(As per original)
The State argues that interference is not likely. It points to the fact that Beau had been negotiating an agreement with Marputu and to Beau’s contention that it will avoid identified sensitive heritage areas when considering exploration programmes. The State also argues that because the rock hole within the licence area is a registered Aboriginal site, Beau can avoid it. Further, the State contends that Beau’s stated intention to avoid sensitive sites supports the view that it will comply with its obligations under the Aboriginal Heritage Act 1972 (WA) (AHA) with respect to registered Aboriginal sites.
In reply, Marputu says that it is not appropriate for the State to make assumptions about the location of the rock hole by reference to the registered site and that Mr Williams’ evidence should be taken at face value. It argues that interference could occur despite Beau’s good intentions. As regards the AHA, Marputu contends that there may be activities which constitute interference but which are not prohibited under the AHA and equally it is possible for destruction of a site to be approved under the AHA without input from the native title holders. There does not appear to be any question about that possibility.
In my view, nothing meaningful can be drawn from the negotiations between the parties as agreement has not been reached. Beau states that it is willing to enter into an agreement, yet Marputu contends the history of the negotiations indicate a lack of meaningful engagement on Beau’s part. Again, there is no evidence from either party on any of these points, although Beau and Marputu both say that Beau sent a revised draft agreement to Marputu on 13 September 2021. Marputu says it responded with a further draft on 15 October 2021 and invited Beau to meet.
Despite Marputu’s contentions about the locality of the rock hole within the licence, it does seem likely (as was observed by the Tribunal in Marputu v Great Western Exploration) that the registered site ID1375 relates to the rock hole identified by Mr Williams in the licence area. Nonetheless, the exact locality of the site is restricted and as Marputu contends (at paragraph 10.2(a)) the nature of sites created by the tjukurrpa may not be readily identifiable.
Further, there is no evidence about what Beau will or will not do on the licence or how it will go about conducting exploration activities, apart from the s 58 statement which is limited to the initial phase of works. Accordingly, there is no reasoned basis to think that Beau will not avail itself of the range of rights available under the licence.
In the circumstances of this matter and the risk of interference identified by Mr Williams, bald statements of good intention by Beau, however well meaning, do not mitigate the risk of interference. In that respect I agree with Marputu v Great Western Exploration at [82]-[83].
One evident distinction with Marputu v Great Western Exploration is that one of the rock holes is located outside the licence area. Although it is not entirely clear, Marputu appears to contend (at paragraph 10.2(f)) that interference with the rock hole adjacent to the licence is likely based on Mr Williams’ evidence (at paragraph 7) that “places where the tjukurrpa travel and sit down are all connected. If you hurt one part of it, you can hurt the other parts too”. However, there is no evidence of any activities proposed by Beau in the adjacent area and there is, in my view, no basis on which to conclude that the grant of the licence is likely to interfere with the adjacent rock hole. In any event, the risk of consequential harm that is of concern to Mr Williams does not arise given my conclusion regarding the rock hole within the licence area.
I conclude that the grant of the licence is likely to interfere with the rock hole located within the licence area.
The expedited procedure in s 32 of the NTA is designed to enable tenements unlikely to have the consequences listed in s 237 to proceed directly to grant. However, where any of those consequences are likely, the parties must proceed to negotiate in accordance with s 31(1)(b) of the NTA with a view to obtaining each native title party’s agreement to the grant. The Tribunal decided in late 2018 that the expedited procedure did not apply to E69/3499 because it was likely to interfere with the rock holes identified by Mr Williams. It would follow from that conclusion that the grant of any other tenements likely to affect the rock holes should also be subject to the negotiation requirements in s 31 rather than be ‘expedited’.
I have reached the same conclusion as the Tribunal in Marputu v Great Western Exploration based on the (largely identical) evidence in this matter. It is not apparent whether the State took the previous determination into account in electing to include the expedited procedure statement in its s 29 notice for the licence, but the facts do not give rise to any compelling distinction between the Tribunal’s determinations. It seems that the parties have been required to expend what are no doubt limited resources to achieve the same end, which is, to say the least, a less than desirable situation.
Determination
I determine that the grant of exploration licence E52/3869 is not an act attracting the expedited procedure.
Nerida Cooley
Member
22 December 2021
Marputu Aboriginal Corporation RNTBC v Beau Resources Pty Ltd [2021] NNTTA 77
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