Mervyn Councillor and Others on behalf of Southern Yamatji v Rango Pty Ltd and Another
[2019] NNTTA 61
•9 August 2019
NATIONAL NATIVE TITLE TRIBUNAL
Mervyn Councillor and Others on behalf of Southern Yamatji v Rango Pty Ltd and Another [2019] NNTTA 61 (9 August 2019)
Application No:
WO2018/1048
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection application
Mervyn Councillor and Others on behalf of Southern Yamatji (WC2017/002)
(native title party)
- and -
Rango Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal:
Helen Shurven, Member
Place:
Perth
Date:
9 August 2019
Catchwords:
Native title – future act – proposed grant of exploration licence – expedited procedure objection application – non-disclosure directions – 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 applies – the act is an act attracting the expedited procedure
Legislation:
Native Title Act 1993(Cth) ss 29, 32, 109, 142, 151, 155, 162, 237
Mining Act 1978 (WA) ss 61, 66
Aboriginal Heritage Act 1972 (WA)
Cases:
Atkins and Others on behalf of Gingirana v Drillabit Pty Ltd and Another [2016] NNTTA 17 (Gingirana v Drillabit)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (Cherel v Faustus Nominees)
Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (2005) 142 ALR 21 (Cheinmora v Striker Resources)
Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 (Fejo v Northern Territory)
Mervyn Councillor & Others on Behalf of Southern Yamatji v First Australian Mining Explorations Pty Ltd and Another [2019] NNTTA 28 (Southern Yamatji v First Australian Mining)
Raymond Ashwin on behalf of Wutha/Western Australia/Kubwa Iron Ore Holdings Pty Ltd [2013] NNTTA 44 (Ashwin v Kubwa Iron Ore Holdings)
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)
Southern Yamatji v First Australian Mining Explorations Pty Ltd[2019] NNTTA 28 (Southern Yamatji v First Australian Mining)
Walley v Western Australia, [2002] NNTTA 24, (2002) 169 FLR 437 (Walley v Western Australia)
Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (Yindjibarndi v FMG)
Representative of the native title party:
Robert Bitmead, Yamatji Marlpa Aboriginal Corporation
Representative of the grantee party:
Jacob Wotherspoon, All Mining Legal Pty Ltd
Representatives of the Government party:
Michael McMahon, Department of Mines, Industry, Regulation and Safety
Angelyn Seen, State Solicitor's Office
REASONS FOR DETERMINATION
[1] This is a decision under s 32(5) of the Native Title Act 1993 (Cth) (the Act) that the expedited procedure applies to the State of Western Australia’s proposed grant of exploration licence E70/5190 to Rango Pty Ltd. The licence comprises 68.7 square kilometres and lies over the Midlands Road between Yandanooka and Three Springs. The licence is situated over land and waters where the Southern Yamatji Group claim native title rights and interests.
[2] The State’s notice about the proposed grant included a statement that it considered the grant is an act attracting the expedited procedure (ss 29 and 32 of the Act). Southern Yamatji lodged an objection with the National Native Title Tribunal (the Tribunal) to the inclusion of this statement in the notice.
[3] I have been appointed to determine whether the grant attracts the expedited procedure. To make this decision, I examine the three criteria in s 237 of the Act. In summary, s 237 states that the expedited procedure applies if the grant is ‘not likely’ to, in summary:
(a) interfere directly with the native title holders’ community or social activities;
(b) interfere with areas or sites of particular significance, in accordance with their traditions;
(c) involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
[4] The phrase ‘not likely’ in sections 237(a), (b) and (c) of the Act requires me to make a predictive assessment (Yindjibarndi v FMG at [15]).
The parties’ submissions
[5] Southern Yamatji provided contentions, mapping and the signed statements of Leedham Papertalk Senior, Michael Taylor and Natalie Smith. Mr Papertalk Senior states he is a fully initiated Yamatji man and Mr Taylor states he is a fully initiated Amangu man. They both state they have authority to speak for the area of the licence under their laws and customs. I accept their authority. Ms Smith outlines her qualifications and states she is an anthropologist who conducted a field trip with Mr Papertalk Senior and Mr Taylor over the licence area in March 2019. I accept her statement.
[6] At Southern Yamatji’s request, I agreed to make directions under s 155 of the Act to prohibit disclosure of particular sections of the statements and the mapping. The directions restrict disclosure of those sections and the mapping to Rango and the State (including their officers, employees, contractors and legal representatives), and to myself and my supporting staff for the purpose of these proceedings only (or any related appeal). Section 162(2) of the Act requires me to state any findings of fact in this determination and nothing in the directions prohibits me from doing so. Where possible, I have avoided setting out any details that might disclose the restricted evidence identified in the directions.
[7] The State lodged a statement of contentions and supporting documents. Rango lodged a brief statement and Southern Yamatji lodged a reply.
[8] The Tribunal’s geo-spatial unit provided aerial photography mapping overlayed with tenure to assist me. The mapping was circulated to parties for their inspection and comment (s 142 of the Act). No party objected to my use of it in my consideration of this matter.
[9] The inquiry directions required parties to submit a statement of agreed facts and contemplated a listing hearing and hearing. The parties conferred and requested these directions be vacated. I agreed, being satisfied the issues could be determined on the papers without a hearing (s 151(2)(b) of the Act).
Section 237(a): is the grant of the licence likely to interfere directly with Southern Yamatji’s community or social activities?
[10] The Tribunal balances a native title party’s evidence of community or social activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference (see for example, Yindjibarndi v FMG at [16] and Rosas v Northern Territory at [71]).
[11] The level of interference with community and social activities must be substantial rather than trivial (Silver v Northern Territory at [57]). The decision in Ashwinv Kubwa Iron Ore Holdings also outlines the need for specific evidence of the substantial impact (at [38]).
What community and social activities do Southern Yamatji carry out on the licence?
[12] Southern Yamatji submit there are places within the licence area, and to the north and to the east of the licence area, which are of great cultural and historical significance to them. This evidence is expressed broadly, describing activities associated with hunting, camping, controlling entry of visitors, caring for places and transmitting cultural knowledge between generations. Mr Taylor states, ‘[w]e come back to these places, sit and have a feed there. We go hunting kangaroos in that area. We bring our kids and tell them the songs and stories about these places’ (at 22).
[13] Mr Papertalk Senior describes cultural initiation trips ‘to the area two or three times a year with ten to fifteen boys and other traditional men’ as well as camping trips ‘every second or third weekend … with five to eight family members, sometimes up to thirty’ (at 11).
[14] The State argues that the community or social activities have been described too generally. In reply (at 7-8), Southern Yamatji refer to paragraphs in the statements of Mr Taylor and Mr Papertalk Senior which provide the details of activities conducted on the licence. These paragraphs refer to the Arrowsmith River (a portion of which intersects with the southern part of the licence) and the waterways that run through the licence generally, as well as three other areas:
(a) An area about mid-way between the River and the eastern border, which I will not name due to sensitivities.
(b) The area inside the eastern border of the licence around a heritage place recorded on the on the State’s Aboriginal Heritage Inquiry System (AHIS) kept under the Aboriginal Heritage Act 1972 (WA) (AHA).
(c) A place to the north of the licence, which I will not name due to sensitivities.
What will Rango’s activities be?
[15] In its statement, Rango provide no information about their proposed activities. There is also limited information in their application for the exploration licence (provided with the State’s contentions). The information relates only to the Year 1 proposed exploration activities for exploration of certain metals. There is no more detailed information other than the intention to conduct mapping, reconnaissance and fieldwork, rock chipping and geochemical sampling.
[16] Rango provides a general statement that they ‘will notify the Native Title Party prior to any exploration activity that is likely to restrict the gathering of bush tucker, medicines and hunting game and will consult … on ways of minimising any disturbance’ (at 9). However, Rango also submits that they ‘will not restrict access … except where safety concerns prevail’ (at 22).
[17] In the absence of any evidence to the contrary, it is open to me to conclude Rango intend to exercise the full suite of rights available to them upon the grant of the licence under sections 61 and 66 of the Mining Act 1978 (WA). These rights allow them access to the licence with their agents, employees, motor vehicles and other machinery for up to twelve years if renewal options are exercised. The rights include setting up camps, leaving machinery or equipment, digging pits, trenches and holes, sinking bores and tunnels, and removing up to 1000 tonnes of material per licence (or more if the Minister approves).
Are there ‘other factors’ affecting Southern Yamatji’s community or social activities?
[18] The evaluation of interference is always contextual: ‘the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial’, for example ‘constraints already imposed … by third parties’ (Smith v Western Australia at [27]).
[19] There are ‘other factors’ already affecting the exercise of Southern Yamatji’s community and social activities over the area of the licence and the State raises these factors directly in their contentions. The State documents that: 93.44 percent of the licence contains 112 private/freehold land parcels; the High Court has held that freehold grants of fee simple irreversibly extinguish native title (Fejo v Northern Territory at [112]); and Southern Yamatji’s native title claim expressly excludes ‘areas in relation to which native title rights have otherwise been wholly extinguished’ (at 25-31). I accept the State’s contention that this must be taken into account in my factual inquiry regarding interference. However, as the State correctly contends, the decision as to what is an area of extinguished native title rights and interests is a decision for the Courts and not the Tribunal. My focus, simply put in terms of s 237(a), is what community or social activities are conducted on the licence, and whether the exploration activities allowed on grant are likely to substantially interfere with those activities.
[20] In reply, Southern Yamatji acknowledge they are ‘prevented from visiting and enjoying the [freehold] area’ (at 15). In reply to the State’s assertion that Rango’s activities will not cause interference for the purposes of s 237, Southern Yamatji contend (at 15):
The very limited extent of the proposed tenement areas that are not subject to freehold grants increases the likelihood that activities undertaken by the Grantee Party will adversely impact the ability of members of the Objector to enjoy and visit the area and increase the particular significance of the area as there are limited areas in which [they] can enjoy and exercise their rights and interests…
[21] However, it is not clear the extent to which the areas where community and social activities are conducted are covered by freehold, nor is it asserted they are not so covered. The reply also outlines activities such as hunting occurs ‘on and around’ the licence (at 7), so not exclusively on the licence, or on a part of the licence.
Conclusion
[22] I must consider whether exploration activities likely to be undertaken on grant will substantially interfere with the community and social activities said to occur on the licence. Specifically, in this inquiry, the areas outlined at [14] above are said to be where social and community activities are focused.
Arrowsmith River and waterways; area mid-way between the River and eastern border; area around the heritage place
[23] In relation to the Arrowsmith River, the waterways, and the areas described at [14a-b], I find that general information is given about the community and social activities that occur on the licence and in the surrounding area, with some descriptions about frequency, purpose and locations. However, there is not enough specific evidence about activities conducted on the licence to enable me to conclude Rango’s proposed exploration will substantially interfere with those activities. I am also entitled to conclude that the freehold tenure would have likely caused interference with such activities, and this is borne out by Southern Yamatji’s acknowledgment that their members are ‘prevented from visiting and enjoying the [freehold] area’ (at 15). That is a substantial interference which already exists (per Smith v Western Australia at [27]). Combined with the broad nature of the information about Southern Yamatji’s activities on the licence, I cannot conclude Rango’s activities would be substantial interference. I find interference with social or community activities in these areas is unlikely.
The area north of the licence
[24] I find there is insufficient information about how the area (described at [14c]), which is not on the licence, is likely to be interfered with by exploration activities on the licence. I find interference with social or community activities in this area is unlikely.
Overall
[25] I find the grant of the licence is unlikely to interfere substantially or directly with the community or social activities of Southern Yamatji.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Southern Yamatji?
[26] An area or site of ‘particular significance’ is one 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 one 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]). Each matter must be considered on its own facts (Cherel v Faustus Nominees at [81]-[91]).
What sites do Southern Yamatji identify as being of particular significance in accordance with their traditions?
[27] Mr Papertalk Senior and Mr Taylor refer to four main areas, as outlined at [14].
Arrowsmith River and waterways
[28] I note the Arrowsmith River is recorded in the AHIS as a registered Aboriginal site under the AHA with the descriptions, ‘mythological, water source’. However, Mr Taylor and Mr Papertalk Senior explain how the Arrowsmith River and its tributaries are all interconnected and ‘registered in our mind’ (Mr Taylor at 11-12, 16; Mr Papertalk Senior at 16-24). They broadly explain the spirit that resides in these interconnected waterways and how they communicate and give respect to the waterways so as to avoid spiritual and physical ‘consequences’. Ms Smith’s evidence corroborates the descriptions in Mr Taylor’s and Mr Papertalk Senior’s statements (at 11-15). I do not repeat the information here, due to the sensitivities.
[29] I have no doubt that waterways are important to Southern Yamatji culture and traditions. However, the difficulty I face in this matter is that, in order for the waterways to be an area of particular significance under s 237(b), I must be satisfied a site or area ‘stands out in some way and distinguishes itself as particularly significant’ (Gingirana v Drillabit at [53]). The State raises this in their contentions (at 54-57) and Southern Yamatji’s reply was simply that ‘all waters in the Proposed Tenement … are of particular significance’ (at 17). The State’s Tengraph quick appraisal shows 24 watercourses throughout the licence area including the Arrowsmith River, and Southern Yamatji’s mapping shows there are very few parts of the licence without watercourses running through. Mapping also shows the Arrowsmith River extends many kilometres to the west of the licence, and Mr Papertalk Senior states ‘the water in this area connects a long way north and right through to the coast’ (at 22).
[30] In my view, there is insufficient evidence in the material before me showing the waterways have ‘a quality which means it “clearly stands out in some way from the general background of other sites and the country as a whole’ (Yindjibarndi v FMG at [130]). I contrast this matter with Southern Yamatji v First Australian Mining, where Southern Yamatji named particular springs/waterholes that ‘tied to stories related to the traditions of the claim group’ (at [31]). These provided me with a ‘focal point’ to be satisfied about the ‘particular significance’ threshold of s 237(b).
Area mid-way between the Arrowsmith River and eastern border; Area around the heritage place; Area north of the licence
[31] These places are located in the middle area of the licence on Southern Yamatji’s mapping, between the Arrowsmith River and the AHIS heritage place ([14a]), the area around the AHIS heritage place on the licence ([14b]) and the area to the north of the licence, which is not actually on the licence ([14c]).
[32] These areas are described as important ritual and cultural sites for Southern Yamatji as well as other groups. In her statement, Ms Smith provides support for the significance of these areas to Southern Yamatji traditions, based on the field trip taken with Mr Taylor and Mr Papertalk Senior in March 2019.
[33] Mr Papertalk Senior and Mr Taylor give details of the activities that were undertaken in these areas in the past and how they continue to visit the areas and teach their children ‘the songs and stories about these places’ (Mr Papertalk Senior at 11-14). Southern Yamatji contend there is evidence these areas hold a ‘deep connection to law and culture’ (contentions at 37 and 40). I accept these areas stand out from the landscape and are distinguished from other areas within the licence. I am satisfied they are areas of ‘particular significance’ to Southern Yamatji as required by s 237(b).
Other Sites
[34] The evidence suggests there are other places located within the licence (see for example, Ms Smith at 18) which are important to Southern Yamatji. Mr Taylor refers to a lawground ‘nearby’ (see for example at 10 and 14), as does Mr Papertalk Senior (at 12), but it is not clear exactly where that area is in relation to this licence. However, I can only consider sites that are described and outlined, and not sites which may exist or which are described generally.
Is the grant of the licence likely to interfere with these areas of particular significance?
[35] There is sufficient evidence about how the three areas outlined at [30]-[32] are deeply rooted in Southern Yamatji culture and history to support a finding that these are areas of ‘particular significance’ as required by s 237(b). Having established this, the focus of my analysis of s 237(b) is whether these areas are likely to be interfered with, in accordance with the native title holder’s traditions.
Area mid-way between the Arrowsmith River and eastern border; Area around the heritage place
[36] In relation to these two areas of particular significance on the licence ([14a-b]), I outline my conclusions below.
[37] The State outlines its regulatory regime, which I have considered. For example, they intend to impose a condition requiring Rango to enter into a Regional Standard Heritage Agreement (RSHA) if Southern Yamatji request it within 90 days of grant. I note that an RSHA would require consultation with Southern Yamatji when higher impact physical interference is contemplated, and that low impact sampling and surveying could occur without consultation. There are also various endorsements and conditions which will be imposed at the time of grant, which largely focus on limiting exploration activities near the waterways on the licence. Rango is also on notice from Southern Yamatji that there may be sites and areas on the licence which are not currently recorded or registered on the AHIS.
[38] The Southern Yamatji reply (at 27) refers to ‘mere unauthorised entry’, or restricting the group’s access to the licence area, as being sufficient to cause disturbance that is non-trivial. There is no onus of proof on any party in these Tribunal proceedings (see for example Walley v Western Australia at [10]). However, I require information that is more than general assertions about interference.
[39] Reference is made to interference in general terms, and implicitly, but not to these areas of particular significance specifically or explicitly in accordance with Southern Yamatji traditions. For example, Ms Smith (at 20) speaks about ‘the land’ being spiritually alive, there being restricted areas, and cultural protocols. It is also noted that ‘safe access’ should be negotiated, however, this is not specifically related to these sites. Mr Taylor speaks about needing to ‘avoid these areas’ (at 23) which may refer to the area mid-way between the Arrowsmith River and eastern border ([14 a]) and the lawground, but this is not clear. Mr Papertalk Senior outlines the importance of worshipping and preserving ‘places’ (at 21). Such is the general nature of the evidence provided regarding interference of sites or areas.
The area north of the licence
[40] In relation to the area to the north of the licence ([14c]), I am not satisfied there is a sufficient nexus established between that area and Rango’s likely activities on or near the licence. Therefore, I cannot conclude there would be interference with this area which is off the licence, as a result of likely exploration activities on the licence, following the grant.
Overall
[41] In this inquiry, I have concluded there are areas of particular significance, but there is little specific information about the nature and extent of any likely interference to those areas, in accordance with Southern Yamatji traditions. I cannot conclude there is likely to be interference with areas of particular significance to Southern Yamatji for the purposes of this inquiry.
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?
[42] Southern Yamatji state they do not pursue their objection under 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
[43] The grant of exploration licence E70/5190 to Rango Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
9 August 2019
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