Nyamal Aboriginal Corporation RNTBC vs Red Rock Australasia Pty Ltd and Anor
[2024] NNTTA 8
•23 February 2024
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation RNTBC vs Red Rock Australasia Pty Ltd and Anor [2024] NNTTA 8 (23 February 2024)
Application No: | WO2022/1094 |
IN THE MATTER of an inquiry into an expedited procedure objection application
Nyamal Aboriginal Corporation RNTBC (WCD2019/010)
(native title party/Nyamal)
– and –
Red Rock Australasia Pty Ltd
(grantee party/Red Rock)
– and –
State of Western Australia
(State)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Member Lisa Eaton |
Place: | Perth |
Date: | 23 February 2024 |
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 – amended Aboriginal heritage act in Western Australia – act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Cultural Heritage Act 2021 (WA) (ACHA) Aboriginal Heritage Act 1972 (WA) s 18 (AHA) Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) (Repeal Act) Mining Act 1978 (WA) (Mining Act) Native Title Amendment Act 1998 (Cth) (Native Title Amendment Act) Native Title Act 1993(Cth) ss 29, 30, 32, 237 (the Act) Rights in Water and Irrigation Act 1914 (WA) (Rights in Water and Irrigation Act) |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia[2019] FCA 1570 (Nyamal #1 determination) Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 131 (Griffiths v BHP) 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 (Ward v Western Australia) Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited & Another [2019] NNTTA 72 (Bunuba v Buxton) Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd [2013] NNTTA 86 (Cosmos v Croydon Gold) Daisy Lungunan on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (Lungunan v Geotech International) Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 (Dann v Western Australia) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147 (Cheinmora v Western Australia) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) George Champion, Darren Champion, Darren Indich, James Champion, Tobias Werz, Simon Champion and Lionel Champion/Western Australia/Heron Resources NL, [1998] NNTTA 116 (Champion v Western Australia) Hale on behalf of the Bunuba #2 Native Title Claim Group v Western Australia [2015] FCA 560; (2015) 233 FCR 96 (Hale v Western Australia) KEVIN PETER WALLEY AND OTHERS ON BEHALF OF THE NGOONORU WADJARI PEOPLE (WC01/179); ROBIN BODDINGTON AND OTHERS ON BEHALF OF THE WAJARRI ELDERS (WO01/180)/WESTERN AUSTRALIA/GIRALIA RESOURCES NL [2002] NNTTA 24 (WALLEY V WESTERN AUSTRALIA) Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (Little v Oriole Resources) Moses Silver, Ishmael Andrews & Sammy Bulabul v Ashton Exploration Australia Pty Ltd & Another [2002] NNTTA 18 (Silver v Northern Territory) Nyamal Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2021] NNTTA 6 (Nyamal v FMG) Nyamal Aboriginal Corporation RNTBC & Gardner Mining Pty Ltd & Another [2021] NNTTA 48 (Nyamal v Gardner) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Braeburn Resources Pty Ltd & Another [2010] NNTTA 150 (Wanjina-Wunggurr v Braeburn) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Lucky Break Operations Pty Ltd & Another [2019] NNTTA 125 (Wanjina-Wunggurr v Lucky Break Operations) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Alissa Bishop-Thorpe, Erin Flynn, and Grace Manning-Davis, Arma Legal |
| Representative of the grantee party: | Shelly Zhang, Aurora Tenement Consulting |
Representatives of the State: | Jake Lincoln, Department of Energy, Mines, Industry Regulation and Safety; Jasmine Kasbergen and Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
This is a decision about whether the expedited procedure described in s 237 of the Act applies to the grant of an exploration licence[1] to Red Rock.
[1] E45/5881.
Under s 29 of the Act, the State gave public notice of its intention to grant the licence and included a statement that it considers the proposed grant is a future act attracting the expedited procedure.
As explained by the Full Court:[2]
The mandatory application of the negotiation and arbitration processes may be avoided where the government party giving the s 29 notice asserts, at the time that it does so, that the act is one which attracts the expedited procedure. An objection to the inclusion of that statement in the notice can be lodged by a native title party as has occurred in the present case. Where no objection is lodged, the government party can proceed to do the act without having to go through the negotiation process. Where an objection is lodged, the arbitral body, here the tribunal, must determine whether the proposed act attracts the expedited procedure. If it so determines, then the government party may proceed to do it without having to go through the right to negotiate process. If the act is found to be one that does not attract the expedited procedure then the normal right to negotiate process applies.
[2] Little v Oriole Resources at [18].
The proposed licence falls wholly on land subject to the determination of native title made by the Federal Court of Australia in Nyamal #1 determination. As the relevant native title party in relation to land and waters that will be affected by the grant,[3] Nyamal lodged an objection to the State’s inclusion of the expedited procedure statement.
[3] See s 30 of the Act.
My task is to consider if the proposed grant satisfies s 237 of the Act.[4] This section provides that a future act is an act attracting the expedited procedure if:
a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
[4] See s 32(4) of the Act.
For context of this task, it is important to note that in 1998 the expedited procedure requirements set out in s 237 were amended. Prior to 1998 the expedited procedure provisions required the act ‘does not’ (rather than is ‘not likely to’) interfere or involve major disturbance under limbs (a), (b) and (c). This amendment to s 237, effected by the Native Title Amendment Act, was intend to clarify the function imposed on the Tribunal by s 237, with the Explanatory Memorandum for the amendments confirming that because it is not possible for the Tribunal to know the actual effect of a future act when deciding whether it attracts the expedited procedure, the arbitral body must undertake a predictive assessment, and look at what is likely to occur.[5]
[5] Little v Oriole Resources at [48], referencing the Explanatory Memorandum for the Native Title Amendment Bill 1997, at 20.39.
In conducting this predictive assessment, I essentially take a precautionary approach. If, based on the evidence before me, it appears likely the act will interfere with the carrying on of the community or social activities, areas or sites of particular significance, or involve major disturbance, I must determine the expediated procedure does not apply. Such a decision does not mean the act cannot be done, rather that given interference or disturbance appears likely, the parties must negotiate and further discuss the act. As noted by the Federal Court in Smith v Western Australia, the requirement for a predictive assessment does not require that interference or major disturbance of the kind contemplated by s 237 be established or negated on the balance of probabilities. Additionally, it is relevant in making such assessment to note that the Act is beneficial and the right to negotiate regime is an element of the protection of native title, one of the main objects of the Act.[6]
[6] Smith v Western Australia at [23].
A description of the legal principles applicable to s 237, which I adopt for the purpose of this determination, were set out in FMG v Yindjibarndi and are summarised below:[7]
1. the Tribunal was required to make a predictive assessment of what was likely to occur;
2.there must be a real chance or risk of interference with the area or site;
3.the interference must involve actual physical intervention;
4.slight interference to a relevant area or site may be unacceptable;
5.the presumption of regularity applies when making the predictive assessment required;
6.the Tribunal must consider the evidence provided in a particular matter to decide whether the protective regime is adequate in that case.
[7] FMG v Yindjibarndi at [13].
The proposed licence area is now overlapped by an existing exploration licence by 63.65%.[8] As the State notes, this reduces the land available for grant to Red Rock to the proposed licence area remaining and falling outside of this existing grant.[9] When considering s 237(b) the scope of the inquiry is the whole of the area specified in the s 29 notice, as set out in the matter Hale v Western Australia.[10] In making this determination I have considered all the evidence before me in relation to the area of the proposed licence as notified, however I have had regard to these updated circumstances where addressed in the evidence, as it may be relevant to my assessment as to the likelihood of interference.
[8] E45/5883 held by Mining Equities Pty Ltd.
[9] State contentions dated 9 February 2023 (State contentions) at [5]-[6].
[10] Hale v Western Australia at [119].
Nyamal do not make any contentions in relation to s 237(a) or (c) and there is no information or evidence before me supporting a conclusion that interference of the kind outlined in s 237(a) or s 237(c) is likely.
Nyamal do however contend that the grant is likely to interfere with areas or sites of significance and on that basis, it is not an act attracting the expedited procedure under s 237(b). As such, this decision focuses on s 237(b), that is; whether the grant of the licence is likely to interfere with areas or sites of particular significance to Nyamal in accordance with their traditions.
For the reasons outlined below, my determination is that the grant of the licence is not an act attracting the expedited procedure.
Section 237(a): Is the grant of the licence likely to interfere directly with the native title party’s community or social activities?
The interference contemplated in s 237(a) must be substantial in its impact upon community or social activities.[11] Trivial impacts or impacts which are not relevant to the carrying on of such activities, are outside the scope.
[11] See FMG v Yindjibarndi at [75].
I must also have regard to the context of any interference by considering constraints which may already be imposed on community and social activities by third parties and external regulation.[12]
[12] See Smith v Western Australia at [27] and Griffiths v BHP at [56].
In this matter Nyamal do not make any contentions in relation to s 237(a) and there is nothing before me which indicates the grant of the licence is likely to directly interfere with the native title party’s community and social activities.The Tribunal takes a commonsense approach to evidence and parties excising evidentiary choice.[13] In this matter, I am unable to find there is any likelihood of interference under s 237(a).
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to Nyamal, in accordance with their traditions?
[13] See Ward v Western Australia at [26]; Nyamal v Gardner at [5].
Are there areas or sites of particular significance to Nyamal in the licence area?
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.[14]
[14] See Cheinmora v Western Australia at 34-35.
An explanation of a site’s particular significance need not be lengthy; however, it does need to go beyond mere claim and the nature of the significance in accordance with the native title party’s traditions must be explained.[15]
[15] Wanjina-Wunggurr v Lucky Break Operations at [21].
The relevant principles for consideration of s 237(b) were summarised in Yindjibarndi v FMG:[16]
(a) the area or site must be of special or more than ordinary significance to the native title holders. In this regard I note it is well established that a site or area may be of particular significance without being recorded on the Government’s cultural heritage register;
(b) if an area or site is of particular significance, it must be known and must able to be located and the nature of its significance explained to the Tribunal;
(c) even slight interference to a relevant area or site may be unacceptable in the context of s 237(b) but the interference must involve actual physical intervention;
(d) generally the relevant area or site will be located within the proposed licence, in order for it to be directly affected by grant. It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site; and
(e) there must be a real chance or risk of interference with the area or site.
[16] Yindjibarndi v FMG at [17].
Nyamal’s evidence includes a joint witness statement of Mr Tony Taylor and Mr Barry Taylor Junior, both described as Nyamal traditional owners (Taylor Joint Statement). I accept Mr Tony Taylor and Mr Barry Taylor Junior have authority to speak for the licence area. This was not disputed by any of the parties.
The State’s evidence included searches of the Aboriginal Cultural Heritage Inquiry System (ACHIS).[17] The searches of the ACHIS show one Aboriginal Cultural Heritage Register site in the proposed licence area recorded as ‘Ripon Hills Road 05’ ID/ACH 403 (Site 403).
[17] ACHIS search dated 4 December 2023.
Nyamal contend that the proposed licence area is culturally rich with the native title party’s evidence focusing on three sites: the Boondul area, a men’s initiation site, and Site 403.
Boondul area
The native title party contend that the licence area is culturally rich and important due to the Boondul songline passing through it. Mr Taylor and Mr Taylor Jnr give evidence that the songline links areas and sites across Nyamal country, forming part of a ‘cultural map’, with the law and custom surrounding it still practiced today stating ‘… Boondal continues along from place to place, it is an important map for us using songs, it’s used as a survival tool. It is very relevant today’.[18]
[18] Taylor Joint Statement dated 21 November 2022 (Taylor Joint Statement) at [10]; See also [9], [19].
Mr Taylor and Mr Taylor Jnr give detailed evidence in relation to the Boondul site, also stating ‘[t]here is an important dancing ground at this site where women dance and men sing. We call this place a Boondul area, the next Boondul area along is near Skull Springs in Nyamal country’.[19] They also explain what makes the particular Boondul site located in the licence area significant:[20]
What makes this Boondul area particularly significant to the Nyamal people is another dance that is practiced at this Boondul area, it is called Wunada, only Nyamal women can do this dance. It’s different because it’s not a circular dance like the Boondul dance, in Wunada Nyamal women dance side to side, similar to a line dance. They don’t dance around the men like in Boondul dance. This dance comes from this Boondul area. There is also a significant Nyamal song that goes with that song. Only Nyamal men sing that song. The women only practice that dance on Nyamal country, where it originated. It happens at every law ceremony today.
[19] Ibid at [10].
[20] Ibid at [16].
Nyamal contend the exploration activities Red Rock propose to undertake will have a deep impact on culture, in effect, breaking the songline, disturbing the Boondul area, and preventing the Nyamal people practicing this particular ceremony at this particular Boondul place.[21] Nyamal refer to evidence given by Mr Taylor and Mr Taylor Jnr to support this contention:[22]
They say they are going to undertake rock chip sampling, this means there will be drilling. If there was drilling in this area, it would have a very significant impact, because it would wipe off that song. It would disturb the Boondul area. Wherever there is a significant place there is a song to it.
[21] Nyamal contentions dated 25 November 2023 (Nyamal contentions) at [17].
[22] Taylor Joint Statement at [24].
The mere assertion that an area or site has particular significance carries little weight. What is required is the nature of its significance must be explained to the Tribunal, and it must be known and able to be located. Significant detail or specificity is not required, however more than a superficial reading of the evidence must be undertaken.[23]
[23] Wanjina-Wunggurr vs Braeburn at [42]-[43].
In relation to the Boondul area, Red Rock contend that there is no evidence it is located within the licence area.[24]
[24] Red Rock contentions dated 6 January 2023 (Red Rock contentions) at [14].
The State concede that on the basis of Nyamal’s contentions and evidence they accept that the Boondul area is a site of special or more than ordinary significance to the native title party in accordance with their traditions. However, they contend, similar to Red Rock, that Nyamal have not provided sufficient evidence to demonstrate that the Boondul area is located within the licence area.[25]
[25] State contentions at [27]-[28].
Nyamal contend that the location of the Boondul area within the licence is clearly described in the Taylor Joint Statement, where Mr Taylor and Mr Taylor Jnr state[26] ‘[t]his Boondul area, within this tenement, was traditionally used and can still be used as Boondul area, it is a ceremonial site in the flats, on a plain. There are lots of yintas in this area and within the tenement’. I note geospatial mapping of the licence area shows several flats or plains and there is no evidence before me to contradict this description.
[26] Taylor Joint Statement at [19].
Nyamal also contend that the presence of the ACHIS recorded Site 403 being an artefact/scatter is evidence of Nyamal occupation in the area linked to the Boondul area. This contention suggests that the Boondul area is located in the vicinity of Site 403, which is recorded as being located on the eastern portion of the licence area.[27] Although not directly addressed in the evidence of any of the parties, I also note this portion of the licence area does not appear to be impacted by the existing grant. There is no evidence before me to indicate the Boondul site is located in the area now subject to the existing grant.
[27] Nyamal contentions at [12].
I accept that the location of the Boondul area has been sufficiently described. The evidence from the native title party is clear that the Boondul area is located within the licence area and sufficient detail has been provided as to the specific location. Precision is not what is required.[28]
[28] Wanjina-Wunggurr v Braeburn at [42]-[43].
Based on the evidence before me I accept that the Boondul area is known, able to be located, and of particular significance to the native title party in accordance with their traditions.
Men’s initiation site
Nyamal also give evidence in relation to a men’s initiation site linked to the Boondul place through the songline, with Mr Taylor and Mr Taylor Jnr describing it as ‘…a men’s law ground, not far from here but it might be just outside of the tenement area.’[29]
[29] Taylor Joint Statement at [18].
Nyamal contend that a site need not be within the licence area for the purposes of interference under s 237(b).[30] Whilst this contention is correct, they have failed to adduce evidence demonstrating how any relevant activities under the grant would directly and physically affect the men’s initiation site, or any other site located outside of the licence area. They make this contention without drawing a link between these places or sites, their traditions, and the likely activities of the grant, such that interference would likely be caused.
[30] Nyamal reply dated 26 February 2023 at [5].
The State point to the native title party’s evidence that the men’s initiation site might be just outside of the licence area. They contend, in summary, that the location of the site is not known, and particularly having regard to the reduced licence area due to the grant of E45/5883, it is open for the Tribunal to conclude it is possible the law ground is now located well outside of the proposed licence area.[31]
[31] State contentions at [33]-[34].
I accept that, generally, men’s initiation sites are of more than ordinary significance. However, based on the evidence before me in this matter, I am not satisfied that the men’s initiation site is located on the licence area or will be directly or physically affected by the grant.
Site 403
Nyamal also give evidence in relation to Site 403, with Mr Taylor and Mr Taylor Jnr stating:[32]
There are many artefacts, rock shelters and yintas nearby that need to be protected. We know about the Registered Aboriginal site 403 within the tenement. There are many artefacts here, Tony has seen spearheads and tools that can be used as knives. This Registered site is linked to the Boondul area because stone tools were traditionally brought here as part of the law ceremony. Nyamal women would bring them from the Braeside area and give them to the men. Nyamal men would then use these tools for hunting and skinning kangaroos.
[32] Ibid at [21].
The contentions of the State focus on Nyamal asserting the significance of the Boondul area, rather than Site 403. This is a fair focus given the evidence of Nyamal does not specifically contend Site 403 is of special, or more than ordinary significance to the native title holders.
The Tribunal has previously found that Nyamal have not provided sufficient evidence to conclude that Site 403 is of particular significance.[33] In this matter, I also find that Nyamal have failed to provide sufficient evidence to show that Site 403 is an area or site of particular significance to the native title holders in accordance with their traditions. That is not to say the site is not of particular significance to Nyamal, rather in this inquiry they have not provided sufficient evidence to support such a conclusion. I also note the fact that a site is recorded on the ACHIS, is not of itself enough to conclude its particular significance for the purposes of s 237(b).[34]
[33] Nyamal v FMG.
[34] See Yindjibarndi v FMG at [119].
The State contends that whilst Site 403 is located within the licence area and asserted by Nyamal as being linked to the Boondul area, Nyamal have failed to provide evidence that the Boondul area overlaps or is proximate to Site 403. The State contends, in summary, that Nyamal have not provided sufficient evidence to demonstrate that the Boondul area is located within the licence area.[35] I deal with this issue above at [26]-[31] and I am satisfied, based on the evidence before me, that the Boondul area is within the proposed licence area.
[35] State contentions at [36] and [37].
Nyamal also contend there are sites that are not recorded on the State’s heritage inquiry system located in the licence area, noting that a site does not have to be registered on the ACHIS to be determined a significant site in accordance with s 237(b).[36]
[36] Nyamal contentions at [12]; Taylor Joint Statement at [23].
I accept there may be other areas or sites that exist that are not recorded on the ACHIS, and that such areas or sites may be of particular significance in accordance with s 237(b). However, in the absence of specific evidence relating to such areas or sites and going to the matters I must consider under s 237(b), I am unable to make a conclusion that the grant of the licence is likely to interfere with such areas or sites.
If yes, is the grant likely to interfere with such areas or sites?
For the reasons outlined above, I have found the Boondul area is of particular significance to Nyamal in accordance with their traditions.
I am now required to make a predictive assessment as to whether other factors, including the heritage regime operating in Western Australia, will be sufficient to ensure that it is unlikely that such area or site will be interfered with by the conduct of the activities Red Rock will be entitled to undertake should the licence be granted.
Even slight interference to a relevant area or site may be unacceptable in the context of s 237(b), but the interference must involve actual physical intervention.[37] For the purpose of s 237(b), interference that may appear trivial to a person not a member of a native title party may be found to be substantial, having regard to the native title party’s traditions.[38]
[37] Yindjibarndi v FMG at [17].
[38] FMG v Yindjibarndi at [75].
Red Rock have only provided very brief contentions in this matter. They have not provided any contentions in relation to their proposed work program for the licence. However, the evidence provided by the State included a s 58 statement[39] from Red Rock, which provides me with some detail in this regard. From this evidence I note that Red Rock intends on exploring for economic grades and quantities of gold, manganese and other base metals, with field geological mapping, rock chip sampling, soil sampling and analysis planned for the first year, following which ‘should the first year review result be prospective, the project will proceed to assaying and drilling.’[40]
[39] See Mining Act.
[40] State initial compliance dated 14 October 2022, at page 20.
There is no evidence before me of Red Rock’s operations beyond year two, and the detail for year two itself is scant. Accordingly, the issue of likelihood in this inquiry must be assessed by reference to the regulatory regime in force and assuming that all legal rights given to Red Rock under the licence will be exercised to the maximum legal extent beyond the first year.
Section 66 of the Mining Act sets out the rights conferred by an exploration licence. Red Rock would, in summary, be granted the following rights:
(a)to enter the land with personnel and machinery to explore for minerals;
(b)to carry out operations and works to explore for minerals, including digging pits, trenches, holes, sinking bores and tunnels to the extent necessary (subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act);
(c)to excavate, extract or remove earth, soil, stone, fluid or mineral bearing substances not exceeding the prescribed limit of 1000 tonnes, unless approved by the Minister and subject to any conditions imposed; and
(d)subject to the Rights in Water and Irrigation Act, to take and divert water from any natural spring, lake, pool or stream in or flowing through the licence area or from excavations made and sink a well or bore from which to take water for domestic or mineral exploration purposes.
Red Rock’s contentions do not indicate their willingness to enter into a heritage protection agreement, however they do contend they will comply with the law, regulations and conditions applying to the grant, including the obligations set out in the AHA.[41]
[41] Red Rock contentions at [17].
Whilst the Tribunal, in undertaking its predictive assessment, can have regard to the attitude of a grantee party towards heritage protection, including willingness to enter into a heritage protection agreement, the weight to be given to those matters will depend on the overall circumstances.[42]
[42] See Champion v Western Australia at [29]-[35]; Yindjibarndi v FMG at [32].
Unless there is evidence to the contrary, the Tribunal will act on the basis that the State will exercise its powers, including making discretionary decisions, properly and in accordance with the law, and that a grantee party will not act contrary to the law and regulatory regime, including conditions imposed governing the exercise of any granted rights.[43]
[43] See Walley v Western Australia at [11].
It is well established that the presumption of regularity applies when making the predictive assessment required by s 237 of the Act and there is no evidence before me to displace that presumption of regularity in this matter.
Nyamal contend the grant of the licence will cause interference through drilling and other proposed works in the Boondul area and its vicinity, with Mr Taylor and Mr Taylor Jnr stating:[44]
They say they are going to undertake rock chip sampling, this means there will be drilling. If there was drilling in this area, it would have a very significant impact, because it would wipe off that song. It would disturb the Boondul area. Wherever there is a significant place there is a song to it. There has already been so much impact on Nyamal country and it destroys the song and our language.
It would create a riff in the songline, we could still sing about it but the songline would be broken, it would have a glitch, it wouldn’t be the same. Our law is centered around songlines, this is the foundation of our law.
[44] Taylor Joint Statement at [24]-[25].
It is well established that compliance with the heritage regime existing in Western Australia at the start of this inquiry, does not equate to unlikely interference for the purpose of s 237(b).[45] Indeed in previous decisions the Tribunal has found the use of the phrase ‘protection afforded by the AHA’ was apt to mislead, as the regime operates by way of offence provisions applying once damage is done, and avoidance of offences for damage via a s 18 process.[46]
[45] See Bunuba v Buxton; Nyamal v Gardner.
[46] Bunuba v Buxton at [72].
Over the course of this inquiry the heritage protection regime has changed, first with the introduction of the ACHA in July 2023, and then with the commencement of the substantive provisions of the Repeal Act in November 2023, amending the AHA and repealing the ACHA. All parties were afforded the opportunity to provide supplementary contentions addressing the impact of these changes to the heritage regime in Western Australia on the matters I must consider in this inquiry. Both the State and Nyamal did so.
Relevantly, the amended AHA reintroduced the section 18 consent process.[47] Under this process a landholder, which includes a grantee or tenement holder, can apply for consent to use land for a purpose that is likely to damage, alter or destroy Aboriginal cultural heritage. A landholder must give notice to the Aboriginal Cultural Heritage Committee (Committee), and the Committee will then consider, forming an opinion regarding the existence and significance of any sites, and make a recommendation as to whether the Minister should grant consent to use the land and impose any conditions.The Minister may grant the application for consent, subject to any conditions, or refuse it. There is evidence to suggest that under the previous section 18 consent process most applications were either determined as not having relevant Aboriginal heritage sites and therefore no consent was necessary, or alternatively consent to disturb, damage or destroy a site was issued by the Minster.[48]
[47] Department of Planning, Lands and Heritage (WA), ‘Aboriginal Heritage Act 1972 Guidelines’ (November 2023) ( (AHA Guidelines).
[48] For example, see: John Southalan, ‘Sorry, not sorry: the operation of WA’s Aboriginal Heritage Act’, AUSPUBLAW (Blog Post, 11 September 2020) < Joint Standing Committee on Northern Australia, Parliament of Australia, A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge (Final Report, October 2021), 80, [4.61].
The key changes to the section 18 process under the amended AHA include:
(a)section 18 consent decisions will be publicly available on the Department of Planning, Land and Heritage’s website;
(b)the right to apply to the State Administrative Tribunal to review the Minister’s decision now includes the native title party (it was previously only the landholder who had such a right);
(c)an agreement between a landholder and a native title party cannot prevent a native title party from appealing a decision, or making a submission in respect of a section 18 consent;
(d)landholders that hold section 18 consent are now required to notify the Minister, within 21 days, if they become aware of any ‘new information’ about an Aboriginal site the subject of the consent. The Minister has the power to amend, revoke, replace, confirm or suspend the consent;
(e)where there is a change in ownership of the land subject to a section 18 consent, the landholder must notify the Minister, the Committee and the native title party. The Minister may amend or revoke the consent if they believe the consent, or any conditions, no longer has its intended effect; and
(f)the Premier may determine an application, if the Premier considers that the application raises issues of State or regional importance that warrant the application to be determined by the Premier. The Premier may confirm, amend, revoke or replace the consent.
I note that s 62 of the AHA was not amended by the Repeal Act. This section provides for a lack of knowledge defence. A landholder can rely on this defence where they can establish that they ‘did not know and could not reasonably be expected to have known’ that the place or object damaged was one to which the AHA applies. It may be the case that a grantee is unfamiliar with the existence of, or the nature of, significant areas or sites and without some other mechanism to minimise the risk they may unwittingly cause harm.
The State’s supplementary submissions contend that page one of all ACHIS reports include the statement that ‘Aboriginal cultural heritage in Western Australia is protected, whether or not the ACH [Aboriginal cultural heritage] has been reported or exists on the Register’ and on that basis this statement will come to the attention of any landholder including proposed grantee parties making an application for consent under section 18 of the AHA.[49]
[49] State’s Supplementary Submissions dated 4 December 2023 (State supplementary submissions).
However, I note the State’s Department of Planning Lands and Heritage website currently states:[50]
On 15 November 2023, the Aboriginal Heritage Act 1972 was restored as the legislation that manages Aboriginal heritage in Western Australia with simple and effective amendments drawn from feedback over years of consultation.
Approval is only required where there is potential for any harm to an Aboriginal site.
Before undertaking any activities on your land, you should check for Aboriginal heritage.
To check if there is Aboriginal heritage on your land, undertake a search using the Aboriginal Cultural Heritage Inquiry System (ACHIS). If there is no risk of harm to Aboriginal heritage from your planned activity, no approval is required.
[50] Department of Planning, Lands and Heritage (WA), ‘Aboriginal Heritage Act in Western Australia’, Government of Western Australia (Web Page, 18 January 2024)This statement, read on its own, appears to suggest that the mechanism by which a landholder should check if there is Aboriginal heritage is by undertaking a search on the ACHIS. It fails to draw attention to the fact that Aboriginal cultural heritage may exist outside of what is recorded on the ACHIS. Relevantly, in this matter I note the Boondul place is not a site recorded on the ACHIS.
I do note that should landholders also refer to the Aboriginal Heritage Act 1972 Guidelines[51] further information regarding assessing the likelihood of a site being located on the land is provided. The separate consultation policy for section 18 applications has also been released. This policy requires a landholder consult with, or attempt in good faith to consult with, the relevant native title party or other Aboriginal people who have relevant knowledge and rights before submitting section 18 applications.[52] I accept the State’s contention that the guidelines require a degree of engagement between the grantee and the native title party. However, I do not accept, based on the evidence before me, that this will likely prevent interference with the Boondul area.[53]
[51] AHA Guidelines.
[52] Department of Planning, Lands and Heritage (WA), ‘Consultation policy for section 18 applications’ (November 2023) ( State supplementary submissions at [11].
Of course, each predictive assessment undertaken in relation to s 237 turns on the particular facts and evidence relevant to that inquiry. It may be that once the amended AHA regime has been operating in Western Australia for a period of time, and parties are able to direct the Tribunal to more detailed evidence regarding how it operates in practice to mitigate the likelihood of interference, a different assessment may be reached based on the particular facts and circumstances of another matter.
In this matter, having considered all the evidence, and the relevant legislation and guidelines, I am not satisfied that the heritage regime under the amended AHA will mean any interference for the purposes of s 237(b) is unlikely. A proponent may still apply for and be granted section 18 consent to disturb or destroy an area or place of particular significance to the native title party under the amended AHA, and although some engagement is now required, many of the provisions of the 1972 act remain in place.
Following grant of the licence, Red Rock will be entitled to conduct activities, including planned drilling, on the licence area which encompasses the Boondul area. Red Rock may also apply for and may be granted consent to disturb or destroy the Boondul area. Even having regard to the heritage regime in place, and particularly noting the limited evidence before me as to Red Rock’s proposed operations and access routes, I agree with the contentions of Nyamal that interference with the site is likely. This interference is particularly likely without comprehensive engagement with the native title party and/or the conducting of heritage surveys under a heritage protection agreement. There is no evidence before me that Red Rock proposes to undertake any such engagement to mitigate this likelihood.
As held by the Federal Court in FMG v Yindjibarndi,[54] even where there is ample explanation as to the procedure likely to be adopted in relation to exploration, or indicators that a grantee will adopt best practice to avoid difficulties arising, the Tribunal can conclude interference is likely in relation to areas or sites because of the nature of the sites and because of the nature of the exploration activities.
[54] FMG v Yindjibarndi at [55].
Further, interference that may be trivial in the context of s 237(a) may be substantial in the context of a site of particular significance. Interference that may appear trivial to a person not a member of a native title party, for the purpose of s 237(b) may be substantial having regard to the native title party’s traditions. Indeed, mere entry onto a site, other than on supervised terms and conditions, could be regarded as being physical and non-trivial interference.[55]
[55] FMG v Yindjibarndi at [75],[76].
Having regard the nature of the Boondul site, the nature of the proposed act, and weighing up all the evidence before me, I find that the grant of the licence is likely to interfere with the Boondul area, being an area or site of particular significance to Nyamal in accordance with their traditions.
Section 237(c): Is the grant of the licence likely to involve major disturbance to any part of the licence area?
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to whether there is a real chance or risk of major disturbance to land and waters. The relevant disturbance is understood to be a significant, direct physical disturbance to the land or waters concerned.[56]
[56] See Cosmos v Croydon Gold at [29]; Lungunan v Geotech International at [50].
As set out above, Nyamal do not make any contentions in relation to s 237(c) and there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to any of the land or waters concerned. On this basis I am unable to find major disturbance is likely.
Determination
The grant of exploration licence E45/5881 to Red Rock Australasia Pty Ltd is not an act attracting the expedited procedure.
Lisa Eaton
Member
23 February 2024
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