Mervyn Councillor & Others on Behalf of Southern Yamatji v First Australian Mining Explorations Pty Ltd and Another
[2019] NNTTA 28
•28 May 2019
NATIONAL NATIVE TITLE TRIBUNAL
Mervyn Councillor & Others on Behalf of Southern Yamatji v First Australian Mining Explorations Pty Ltd and Another [2019] NNTTA 28 (28 May 2019)
Application No: | WO2018/0191 & WO2018/0192 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Mervyn Councillor & Others on Behalf of Southern Yamatji (WC2017/002)
(Native Title Party)
- and -
First Australian Mining Explorations Pty Ltd
(Grantee Party)
- and -
State of Western Australia
(Government Party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven, Member |
Place: | Perth |
Date: | 28 May 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 – expedited procedure – the act is not an act attracting the expedited procedure - the act is an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) ss 61, 66 Native Title Act 1993 (Cth) ss 155, 237 |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2011] NNTTA 107 (FMG v Yindjibarndi) Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (Silver v Northern Territory) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Ronald Crowe & Ors (Gnulli)/Charlie Lapthorne & Ors (Thudgari People)/Western Australia/Zhukov Pervan, [2008] NNTTA 71 (Crowe v WA) Rosas v Northern Territory (2002) 169 FLR 330; [2002] NNTTA 113 (Rosas v Northern Territory) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG Pilbara) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (Western Desert v Teck) |
| Representatives(s) of the native title party: | Robert Bitmead, Yamatji Marlpa Aboriginal Corporation |
| Representative(s) of the grantee party: | Hong-Jim Saw, Gold Valley Holdings Pty Ltd |
| Representatives(s) of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Gemma Mullins, State Solicitor’s Office |
REASONS FOR DETERMINATION
I have been appointed to decide whether or not the State Government of Western Australia can, using the expedited procedure, grant exploration licences E70/4996 and E70/4997 (the licences) to First Australian Mining Explorations Pty Ltd (First Australian Mining). The State has asserted the expedited procedure applies to a licence if the grant is not likely to offend s 237 of the Native Title Act 1993 (Cth) (the Act) – that is, the State assert the grant of the licence is not likely to:
(a)interfere directly with the carrying on of the community or social activities of the native title party;
(b)interfere with areas or sites of particular significance to the native title party in accordance with their traditions; and
(c)involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance.
The native title party in this inquiry is the Southern Yamatji registered native title claimants, whose native title claim wholly overlaps both proposed licences. E70/4996 includes 1.95 per cent of unallocated crown land, 93.3 per cent private/freehold land and is overlapped by 3.69 per cent of C class reserves - the entire licence covers approximately 27 square kilometres. E70/4997 includes 2.67 per cent of unallocated crown land, 95.41 per cent private/freehold land and covers approximately 132 square kilometres. Both licences are in the Geraldton City Shire boundary. Southern Yamatji lodged an objection with the National Native Title Tribunal against the State’s assertion that the expedited procedure applies to each of these licences.
Southern Yamatji argues the expedited procedure should not apply to these licences due to the proposed acts likely interfering with the carrying on of the community and social activities of Southern Yamatji pursuant to sub-section 237(a) of the Act. They also argue the acts are likely to interfere with sites of particular significance pursuant to sub-section 237(b) of the Act. Southern Yamatji has not made submissions in relation to s 237(c).
Parties submissions
Southern Yamatji submitted: contentions; a witness statement of Mr Leedham Papertalk Snr, an initiated Yamatji man; a witness statement of Mr Craig Allsop, an anthropologist employed by Yamatji Marlpa Aboriginal Corporation (YMAC) who represent Southern Yamatji; a map displaying the area around E70/4996 and E70/4997; and the extract for the Southern Yamatji claim from the Register of Native Title Claims. Southern Yamatji also provided contentions in reply to those submitted by the State, containing an additional map, labelled Annexure 1.
It is outlined that Mr Papertalk, who provides evidence on behalf of Southern Yamatji, is a senior Southern Yamatji man who is regarded as the spokesperson for his family group and who has a traditional connection to the area. I accept Mr Papertalk’s authority to speak for the licence areas. I also accept Mr Allsop’s qualifications and ability to outline evidence for this inquiry, which is uncontested by the other parties. Non-disclosure directions were issued for the evidence of Mr Papertalk and Mr Allsop, restricting the extent to which they could be referred to, including a map showing the location of sites of cultural significance. As such, I refer to that material only to the extent that my reasoning and conclusions are made clear.
The State lodged: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the licences; a report and plan from the Department of Indigenous Affairs Site Register; First Australian Mining’s Work Program; a copy of the licence applications and the proposed endorsements and conditions of grant; and tengraph quick appraisals.
First Australian Mining provided a short statement to note that ‘the applications are 95 per cent over areas of freehold grants – which will significantly, if not entirely reduce the scope and quanta of potential damage to sites of significance or importance’.
The inquiry directions required the parties to submit a statement of agreed statement of issues and facts, and to indicate whether the matters should be heard on the papers. These directions were vacated as it appeared there were no further issues parties wished to raise, and the matters could be determined on the papers.
Section 237(a): is the grant of the licences likely to interfere directly with the community or social activities of the native title holders?
Under s 237(a), (b) and (c) of the Act ‘the Tribunal is required to make a predictive assessment and look at what is likely to occur’ (FMG v Yindjibarndi at [15]). Whether a proposed future act is likely to directly interfere with the ability for community or social activities to go ahead was considered in Smith v Western Australia. In that case, French J stated at (450/[23]):
Consistently with the objects of the Act, the word ‘likely’ requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237.
In making this assessment the Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities to determine whether the activities can coexist without direct or substantial interference (Rosas v Northern Territory at [71]).
What will First Australian Mining’s activities be?
Documentation provided by the State contained a copy of the First Australian Mining’s Work Program for both licences. These documents indicate the metals/minerals that will be subject to the exploration activities. Under the heading Proposed Work Programme for both licences, the following steps and activities were listed for Stage 1:
i)Acquire data and initiate desktop reviews;
a. Utilise historical information to identify areas of interest;
b. Follow up identified possible mineralisation strike;
ii)Land Access negotiations including private land holder concerns.
iii)Reconnaissance trip to identify follow up desktop targets;
iv)Land Clearance Surveys (as required);
a. Complete initial reconnaissance trip;
b. Low level exploration activities including sampling and mapping.
The Work Program stated that the additional period and stages will be reviewed upon completion of Stage 1. First Australian Mining has not provided an outline of any additional stages. The State’s contentions (at 20) notes that First Australian Mining has not provided any information or evidence in relation to the exploration activities likely to occur on the proposed licences.
Based on the information provided, it is open to me to conclude it is the intention of First Australian Mining 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 include permitting the holder of an exploration licence to:
·enter and re-enter the land the with agents, employees, vehicles, machinery and equipment for the purpose of exploring for minerals in, on or under the land;
·to explore for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes and sinking bores and tunnels in, on or under the land;
·to excavate, extract or remove, earth, soil, rock, stone, fluid or mineral bearing substances;
·to take and divert, water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and to sink a well or bore.
What community or social activities do the Southern Yamatji community undertake?
Reference is given to community or social activities in the contentions provided by Southern Yamatji and the witness statement of Mr Papertalk. Evidence is lead that these are directly linked to some of the claimed native title rights and interests of Southern Yamatji. According to the Extract from the Register of Native Title Claims, those rights and interests relevant to s 237(a) of the Act are:
1. The right to access and to take resources (other than minerals, petroleum and gas) in the area for any purpose;
2. The right to access the area, to remain on or within the area and use the area for any purpose including to live, camp and erect shelters upon or within the area; and
3. The right to speak for and make decisions about the use of the area by members of the Aboriginal society to which the native title claim group belong.Mr Papertalk leads evidence that E70/4996 and E70/4997 are important areas for fishing, hunting, camping as well as for finding bush tucker and bush medicine. Mr Papertalk states ‘my father taught me how to cook bush tucker the traditional way, and what times of year and places to go hunting or looking for bush tucker’ (at 9). Mr Papertalk submits that ‘because a lot our country has been cleared and turned into farming areas, these areas where we can still get bush tucker and take our kids out to show them this traditional knowledge is very important and needs to be looked after’ (at 20).
Mr Papertalk leads evidence of the types of bush tucker and medicine that is collected from the licence areas (at 21). It is apparent there is a concentration of native produce sourced by South Yamatji along the rivers and pools on licence area E70/4996. Evidence is lead of mullet being caught in the permanent pools in licence E70/4996, along with yabbies. This evidence further elaborates mullet do not normally come this far inland and so this area is special (at 23). Evidence is also lead of flora being found particularly along the river; ‘you especially get the Biliya Bimba along the rivers like in E70/4996’ and that ‘Nimba is another type of Bimba medicine. Mainly found along rivers like in E70/4996’ (at 21). Mr Papertalk explains that visits to the licence areas are determined ‘by looking at the rain and the weather’ and to visits being frequent during good hunting time.
Evidence is also lead that the members of Southern Yamatji are responsible for caring for the land within the proposed licence areas. In his witness statement, Mr Papertalk states ‘my father took me all over our Yamatji country, to show me sites and teach me what they are for, places that need looking after and places that are dangerous that need to be respected’ (at 5). Mr Papertalk states that whenever he goes to these areas he always takes his family and his children’s families, to teach the young ones how to respect the land and maintain the sites.
It has previously been noted that the majority of both licence areas are private/freehold land. In the contentions submitted by the State (at 34), it is asserted that the evidence submitted by Southern Yamatji does not clearly identify whether the claim groups proposed social or community activities are conducted on the portion of the licence areas that are not freehold land. Southern Yamatji respond to this contention in their reply, and include a map which marks the location of some of the community or social activities submitted to take place by the claim group on E70/4996. This location is marked on the map, as ‘Springs – swimming, hunting, fishing, camping’ - it is contended that the location of these pools are on or near an area which is not subject to freehold.
It is stated in Southern Yamatji’s contentions that ‘the proposed Tenements are good for hunting because these areas have an abundance of food and haven’t been cleared for farming like much of the claim area’ (at 15). Southern Yamatji also contend (at 35) that the grant of the proposed licences will be likely to directly interfere with the groups carrying on of social and community and activities for following reasons:
· the unauthorised entry of “strangers” and their lack of knowledge of cultural protocols is likely to disturb spirits within the Proposed Tenements area…;
· the carrying out of proposed exploration activities without the permission of traditional owners will cause concern to the members of Southern Yamatji…;
· the carrying out of the proposed exploration activities is likely to impact Southern Yamatji’s ability to enjoy the area and visit the area… and;
· the carrying out of the proposed exploration activities will directly interfere with Southern Yamatji’s right to care for the area and protect it from physical harm.
These points are reiterated in the Southern Yamatji’s contentions in reply, adding that:
The Objector acknowledges that the majority of the area of the proposed tenements: are subject to grant of freehold and accordingly members of the Objector are prevented from visiting and enjoying the area. 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.
Mr Allsop confirms the river passing through E70/4996 is an important area for cultural practices of the claim group, and that while parts of the licence have been extensively farmed, the areas which have not been cleared and the areas near the river are a focal point for the claim group (at 10). He confirms he has personally witnessed ‘many instances of hunting, gathering and collecting bush medicines’ including in and around these licences, and ‘with so much cleared area for farming, areas of bushland to collect these resources are valued with increased weight (at 11). He also goes on to confirm families with connection to the area regularly conduct such social and community activities in this region, including looking after the remaining bushland in accordance with traditional law and custom.
Is interference with community or social activities likely on licence E70/4996?
I am mindful of several factors in reaching a conclusion in this inquiry. I have taken into account the social and community activities that are carried out by members of the Southern Yamatji claim group, and the limited ability for those activities to be carried out elsewhere due to the clearing of land for farming and the prevalence of freehold tenure over the licences. I have also taken into account the presumption that First Australian Mining is to exercise the full suite of rights available to them upon the grant of the licence under the Mining Act.
The witness statement evidence provided makes reference to specific bush tucker and medicine that is hunted, fished and collected by Southern Yamatji within the licence area. Southern Yamatji has indicated on a map the areas where these activities occur and that these locations are marked as being on or near the small portion of land that is not subject to freehold. I give consideration to the evidence lead in the witness statements of Mr Papertalk and Mr Allsop that due to the land cleared for farming these areas are important sources for the gathering of bush tucker and medicine for Southern Yamatji.
I also place consideration on the lack of evidence provided by First Australian Mining. The State submits that First Australian Mining has indicated a willingness to enter into a Regional Standard Heritage Agreement (RSHA) with Southern Yamatji, and that a willingness to enter into such an agreement is relevant in determining there is not likely to be interference with the social and community activities of the native title claimants. I do not consider this factor to be enough to conclude that interference is not likely. Based on the information and evidence provided in this inquiry, it is open to me to conclude that should First Australian Mining exercise their full suite of rights under the Mining Act there is a likelihood of Southern Yamatji’s community or social activities being interfered with.
Giving weight to Southern Yamatji’s contentions in reply and the evidence lead that indicates limited areas where traditional customs and activities such and hunting and collecting of bush tucker can take place, I am satisfied that First Australian Mining’s activities are likely to directly or substantially interfere with the activities undertaken by Southern Yamatji in relation to E70/4996.
Is interference with community or social activities likely on licence E70/4997?
In comparison with the material submitted in relation to the community or social activities undertaken by Southern Yamatji on E70/4996, that provided in relation to E70/4997 is considerably more general. In addition to the lack of detail regarding the frequency of the activities carried out on licences, the contentions and evidence provided also do not indicate the particular activities carried out specifically on E70/4997 and they do not indicate where these occur within the licence. In the absence of such evidence, I cannot conclude that First Australian Mining’s exploration activities would directly or substantially interfere with Southern Yamatji’s social or community activities that may take place on licence area E70/4997.
Section 237(b): is the grant of licences E70/4996 & E70/4997 likely to interfere with areas or sites of particular significance to the Southern Yamatji claim group?
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]).
What areas or sites are identified by the Southern Yamatji community on licence E70/4996 & E70/4997?
The witness statement evidence briefly outlines the following sites:
·The river passing through E70/4996 which is connected to the Greenough River system, and contains a number of fresh pools and waterholes, depending on the time of year and rains.
·Two permanent springs in a particular area of E70/4996.
·The area in and around E70/4996 was historically used as camp grounds before the town of Mullewa was populated, and it is contended these are important to Southern Yamatji historically. It is also stated there are areas relating to traditional law, but just outside of the licence.
·There are burial sites in E70/4997.
Is there evidence these sites are of particular significance in accordance with the Southern Yamatji claim group traditions?
The State contentions accept that within E70/4996 there are permanent waterholes relevant to the claim group traditions and that this has spiritual and cultural significance to Southern Yamatji. However, they also contend Southern Yamatji have not successfully made out s 237(b) under the Act, as they have not provided any evidence as to the location of these sites (at 57-59).
The construction of s 237(b) was outlined by the Tribunal in Yindjibarndi v FMG Pilbara (at 17) - one of the elements required in order for an area or site to be of particular significance is that ‘it must be known and must be able to be located and the nature of its significance explained to the Tribunal.’
In response to the State’s contentions, Southern Yamatji in their reply provide a map to identify the location of the permanent springs within E70/4996 (at 16 and Annexure 1). This map identifies two springs in part of that licence, the location which I won’t identify given the non-disclosure orders. Mr Papertalk outlines the importance of the two permanent waterholes/springs according to Southern Yamatji traditions, and that those springs form a focal point of connectedness with other areas of traditional importance around E70/4996. In their original contentions, Southern Yamatji outlined that specific areas of water contained within the river running through E70/4996 are sites of particular significance. They provide reasons for this (for example, at 41) but given the non-disclosure orders in place, I say only that I am satisfied the two permanent waterholes/springs are within this licence, they are tied to stories related to the traditions of the claim group, and that they are of particular significance to Southern Yamatji.
Southern Yamatji contend a previous Tribunal decision, Crowe v WA, has analogous facts to the one before me and that in making the decision in this inquiry I should give consideration the same factors as those considered in that decision. Southern Yamatji have not elaborated as to how Crowe v WA is analogous as to this present inquiry. I have considered the Crowe v WA decision, noting that the Tribunal found the evidence submitted by a witness for the native title party ‘…paints a picture of a country which is rich in both the physical and spiritual manifestations of traditional laws, customs and life in general.’
While I could not say the factual matrix in the present enquiry was entirely analogous to that in Crowe v WA, I do accept the information and evidence provided has created a picture of E70/4996 as containing at least two sites of particular significance for the purposes of s 237(b) - that being the two permanent waterholes associated with the river.
In relation to the river itself which passes through E70/4996, and the general reference to the camping areas and traditional law areas in and near that licence, I could not conclude they are areas of particular significance, based on the available evidence.
The reference to burial sites in E70/4997 (at 16) is contained in two brief sentences, indicating they are in this licence and they should not be disturbed. This is too broad for me to be able to conclude they are sites of particular significance. I appreciate such areas are important, and that there are undoubtedly sensitivities about providing further information about them. However, for the purposes of s 237(b), I could not conclude it has been established the burial sites are of particular significance (see for example, Western Desert v Teck (at 131)).
Is interference with the sites of particular significance likely?
As there is insufficient evidence to conclude there are areas or sites of particular significance on E70/4997, I do not need to consider the question of interference in relation to that licence.
In relation to E70/4996, I must consider whether the activities of the explorer are likely to interfere with the two permanent water holes which I have found to be of particular significance to Southern Yamatji. The State have indicated they intend to impose a number of endorsements and conditions on the grant of the licence, including the RSHA. I note the endorsements related to water make the explorer subject to approvals from the Department of Water for certain water related activities. The conditions do not appear to specifically relate to water.
The Southern Yamatji reply indicated the two permanent water holes, which I have found to be of particular significance, are not located on areas of freehold. Given the sensitivities outlined about these permanent water holes, in relation to the traditions of Southern Yamatji, I am satisfied it is likely that exploration activities allowed under a grant of a licence to First Australian Mining on E70/4996 will be likely to interfere with those sites of particular significance.
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?
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so. Southern Yamatji indicated they did not rely upon, or make any contentions about, s 237(c) of the Act. Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing in the materials provided in this inquiry which indicates the grant of the licences is likely to involve major disturbance to the land or waters concerned. Therefore, I find disturbance relevant to s 237(c) of the Act is unlikely.
Determination
The determination of the Tribunal is that:
1.the act, namely the grant of exploration licence E70/4996 to First Australian Mining Exploration Pty Ltd, is not an act attracting the expedited procedure; and
2.the act, namely the grant of exploration licence E70/4997 to First Australian Mining Exploration Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
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