Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others

[2021] NNTTA 65

NATIONAL NATIVE TITLE TRIBUNAL

Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others [2021] NNTTA 65 (4 November 2021)

Application No: WO2021/0561

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group (WC2019/002)

(native title party)

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Nexus Minerals Australia Pty Ltd (grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms H Shurven, Member
Place:	Melbourne
Date:	4 November 2021

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 – whether act likely to involve major disturbance to land or waters – expedited procedure does not apply

Legislation:

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA) s 66

Mining Regulations 1981 (WA) reg 20

Native Title Act 1993 (Cth) s 237

Cases:

Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21 (Cheinmora v Striker Resources)

FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi)

Nyalpa Pirniku v Robert John Anderson [2021] NNTTA 59 (Nyalpa Pirniku v Anderson)

Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Vaso Kos and Another [2021] NNTTA 32 (Nyalpa Pirniku v Kos)

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory)

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Coronet Resources Ltd and Another[2020] NNTTA 55 (Wanjina-Wunggurr v Coronet)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG Pilbara)

Representative of the native title party:

Paul Hill, Native Title Services Goldfields

Representative of the grantee party: Jacob Loveland, Lawton MacMaster

Representatives of the Government party:

Bethany Conway and Michael McMahon, Department of Mines, Industry Regulation & Safety

David Reger, State Solicitor’s Office

REASONS FOR DETERMINATION

1. This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E39/2185 to Nexus Minerals Australia Pty Ltd (Nexus Minerals). The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure. By including a statement in their notice of the proposed grant that the expedited procedure applies, the State asserts the activities permitted under the grant of the proposed licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act/NTA). That is, the State asserts the grant is not likely to, in summary:

   a)interfere directly with community or social activities carried on by members of the native title claims or determined areas;

   b)interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or

   c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

2. The proposed licence is approximately 20.8 square kilometres in size, and approximately 22.4 kilometres north-easterly of Edjudina in the Shire of Menzies, Western Australia.  The proposed licence sits within the area subject to the native title claim filed by the Nyalpa Pirniku Native Title Claim Group (Nyalpa Pirniku).  Nyalpa Pirniku claim the following native title rights and interests:

   (i) the right to access, remain in and use that area;

   (ii) the right to access, take and use the resources of that area for any purpose;

   (iii) the right to engage in spiritual and cultural activities on that area; and

   (iv) the right to maintain and protect places and objects of significance on that area.

3. Nyalpa Pirniku exercised their right to lodge an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion that the expedited procedure applies. Nyalpa Pirniku argued the expedited procedure should not apply as interference or disturbance in accordance with s 237(b) is likely to occur. Nyalpa Pirniku did not argue s 237(a) or s 237(c) applied, and on the available evidence, I conclude that interference in relation to the criteria in those limbs of s 237 is unlikely. This decision focuses on the criteria in s 237(b).

The requirements of s 237(b)

1. The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be interference (in the sense of a real risk) with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. For an area or site to be of ‘particular significance’ it needs to be of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at 34–35). The area needs to be known, able to be located and the nature of its significance explained (see Silver v Northern Territory at [91]). If there is evidence that areas or sites of particular significance exist on or in relation to a licence, I must proceed to consider whether interference is likely. If there is no such evidence about particular significance, I do not need to undertake consideration of interference in the inquiry (Yindjibarndi Aboriginal Corporation v FMG at [17] and [125]).

2. The decision is made in the context of what the grant entitles an explorer to do on the proposed licence, in context of the evidence about what they are likely to do. Looking at s 66 of the Mining Act 1978 (WA), an exploration licence, while it remains in force, authorises the holder (in accordance with any conditions to which the licence may be subject):

   (a)   to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;

   (b)   to explore, subject to any conditions imposed under section 24, 24A or 25, 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 to the extent necessary for the purpose in, on or under the land;

   (c)   to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;

   (d)   to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.

3. The Mining Regulations 1981(WA) outline the amount of material able to be removed from the exploration licence:

   20. Limit on amount of earth etc. that may be removed (Act s. 66(c))

   For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.

Contentions and evidence

The State’s materials

1. The State provided contentions and materials, including proposed endorsements and conditions they intend to impose on the licence on grant, mapping, tenure information, and information from the Aboriginal Heritage Inquiry System (AHIS), which records Aboriginal heritage places in Western Australia, as assessed under the Aboriginal Heritage Act 1972 (WA) (AHA). The site ‘Lake Reyside (Raeside)’ (site 2708) is registered under the AHIS, covering almost the entirety of the proposed licence. The site is registered as mythological and male access only. The State’s contentions (at 27) accept this area is a site of particular significance for the purposes of s 237(b) of the Act, however, they do not accept that site is likely to suffer from interference.

Nyalpa Pirniku’s materials

1. Nyalpa Pirniku provided contentions, together with statements from Ivan Forrest and Leo Thomas, and reply materials.  Mr Thomas is a senior Wongai (desert) person and a member of Nyalpa Pirniku. Mr Thomas outlines (at 2-3) that he has responsibilities for the area of the proposed licence including to protect country from harm, and he is authorised to speak for the area on behalf of the Nyalpa Pirniku claim group.   Mr Forrest is a Wangkayi (desert) person and Wati (senior Law man) in the Nyalpa Pirniku claim. He also explains (at 2-3) that ‘Being a Wati means that I have responsibilities to protect country from harm and to speak on behalf of country. I view it as my responsibility if anything bad happens to country’.

2. Both witness statements have mapping attached, with Mr Thomas describing the Wati Kutjara boomerang story (at 28 and 29) traveling around Hobble Gap, which is slightly to the West of the licence.  Mr Forrest describes, briefly, the boomerang story (at 17).   

3. Both witness statements also refer to the serpent story and describe the wonambi, which crosses through the south of the licence area, across and up through Hobble Gap.  Both witness statements are consistent with the direction and flow of these dreaming stories, and the significance of the wonambi to the native title holders and the relationship with the law men and their traditions.  Lake Raeside is connected to the serpent story, and Lake Raeside goes through the licence, both as an AHIS site and in a geographical sense, as Lake Raeside itself as a body of water traverses the proposed licence.  Mr Thomas (at 29) outlines the law men ‘go through the Hobble Gap and walk along the edge of Lake Raeside, they got their own road through there’.

Nexus Minerals’ materials

1. Nexus Minerals provided contentions and mapping, including a corridor of exploration interest in relation to the proposed licence.  Further detail is provided below.

Is the grant of the licence likely to interfere with areas or sites of particular significance to Nyalpa Pirniku?

Are there any sites of particular significance on or near the proposed licence?

1. Nyalpa Pirniku assert that Lake Raeside and Hobble Gap are sites of particular significance. 

Lake Raeside

1. The evidence provided by Mr Forrest and Mr Thomas is consistent with that provided by Mr Forrest for the inquiry in Nyalpa Pirniku v Kos, where I accepted the wonambi tjurkurrpa is associated with Lake Raeside.  I accept the Nyalpa Pirniku contentions (at 38) that Lake Raeside ‘is of high cultural significance with a story of creation’.  I do not repeat the information provided by Mr Thomas (at 13-14) or Mr Forrest (at 13) given that access to the site is characterised as male only, and other cultural sensitivities are outlined, save to say there is sufficient information for me to accept Lake Raeside is not an ordinary area – it goes beyond that, and it is a site of particular significance in accordance with Nyalpa Pirniku traditions.

Hobble Gap

1. Hobble Gap is where the wati (law men) go through, and I accept Mr Thomas’s evidence (at 28) that it is associated with Lake Raeside, and it also has its own story, the Wati Kutjara, whose meaning in accordance with the traditions of Nyalpa Pirniku is explained.  Mr Thomas’s evidence is consistent with Mr Forrest’s evidence (at 17) and he explains ‘it is very important to us’.  While the explanations are brief in relation to Hobble Gap, I accept the information is culturally sensitive, given the association with Lake Raeside and the wonambi dreaming story. I accept Hobble Gap is also a site of particular significance.

Is there likely to be interference with Hobble Gap or Lake Raeside by exploration activities associated with the grant of the proposed licence?

1. To establish that interference of the kind set out in s 237(b) is likely, a native title party must: provide sufficient evidence to show that an area or site exists on the proposed licence; explain its significance and distinguish it from other areas; and demonstrate it is of more than ordinary significance to the native title party in accordance with their traditions (Yindjibarndi v FMG Pilbara at [17]).

Lake Raeside

1. In Nyalpa Pirniku v Kos, I concluded Lake Raeside was a site of particular significance and the expedited procedure did not apply on the basis of likely interference with that site by prospecting activity. The evidence in that matter, which related to prospecting, is consistent with the evidence in this matter in terms of the pathway of the tjurkurrpa, the story of the tjurkurrpa, and the effects of interference on the relevant lands. In this present inquiry, I must look at interference in the context of exploration activity, rather than prospecting. Exploration activity allows a greater amount of ‘earth, soil, rock, stone, fluid or mineral bearing substances…to be excavated, extracted or removed during the period for which the licence remains in force’ (as outlined at [5]-[6] above), as compared with prospecting activity.

2. The Nyalpa Pirniku contentions (at 42) assert that ‘Protection of the lake is important to ensure the wonambi is not disturbed’.   The contentions also assert (at 33) that ‘destruction of any one site may have far-reaching consequences’ given the regional implications of the site of particular significance, and (at 44) that ‘Given the responsibility of the Wati, access to the site would have a significant cultural impact’.   These assertions are supported by Mr Forrest’s witness statement (at 2-5, 17, 20, 24, 26) and Mr Thomas’s witness statement (at 20-23, 25, 27-29). 

3. Nexus Minerals (at 11-12) and the State (at 54-60) argue that Lake Raeside has protections under the AHA. However, the explorer can apply to the relevant Minister for permission to disturb Lake Raeside under the AHA regime (see s 17 and 18). Nexus Minerals also note the site of Lake Raeside does not follow exactly the contours of the geographical area of the Lake, and that the site crosses the middle of the proposed licence. Nexus Minerals has focussed on some aspects of the interference, such as construction of a tailings dam, which they argue the grantee does not have permission to do under the grant (at 14-15), as well as asserting that their proposed activities would not change the water flow, damage or otherwise destroy Lake Raeside (at 15). Nexus Minerals argue that because these aspects of interference will not occur, then interference will not occur in the context of s 237(b) (at 15).

4. I do not accept that argument in the context of the evidence provided about Lake Raeside.  Nexus Minerals outlines that it will commence with low impact activities and then, depending on progress and findings, will use more advanced exploration techniques (at 19).  This is likely to including drilling (at 19-20).  Nexus Minerals explain in their contentions (at 20-22), and show on mapping, that their area of exploration interest is a small portion of the north-east corner of the proposed licence. Based on this argument, that would leave much of the nearly 21 square kilometres of the proposed licence untouched.  At this stage, that small corner is the proposed exploration target area, and it is not clear whether during the progress of the exploration, other parts of the proposed licence would be targeted.  It would be open to Nexus Minerals to explore other parts of the proposed licence once granted, and given the results of the initial exploration program.

5. The State argue (at 58-60) that I should take into account the grantee’s intentions to avoid the Lake Raeside site – they go on to say Nexus Minerals ‘intends to limit its proposed exploration activities to the Corridor of Interest, which is outside the boundary of the Lake [Raeside] Site’ (at 60).  However, the grantee has said the corridor of interest is its proposed target, not said it will limit its activities to that area, nor does it have to do so under the terms of the grant.  As Member Cooley noted in Wanjina-Wunggurr v Coronet (at [39]), such assertions are unenforceable. It would not be unreasonable for me to assume, given Nexus Minerals have maintained their grant application for the whole area of the licence, that over the period of years the grant is held, other parts of the licence are likely to be subject to exploration, even low impact activities such as accessing the corridor of interest from or through parts of Lake Raeside, particularly given the Lake covers much of the proposed licence.

6. The State assert (at 50-53) that previous interference has occurred and so this ‘may mean the grant of the proposed tenement is unlikely to cause substantial further interference with the Lake Reyside Site’.  The State provide evidence of expenditure from a previous explorer from a granted tenement that overlapped the proposed licence, which they say is in support of this argument.  The State outline (at 50) this suggests a ‘considerable amount of on-ground works previously conducted over the area’.  There is little information about where those works occurred from the State, although Nexus Minerals contentions (at 22-23 and annexures) suggests it was in the north-east of the proposed licence.

7. In addition, as I outlined in Nyalpa Pirniku v Anderson [at 16] (referred to in the Nyalpa Pirniku reply, at 7), it has long been understood that even if an area has been previously subject to exploration or mining activity, it does not mean the area has lost its traditional significance or that further disturbance would not constitute interference. The evidence in this matter provided by Mr Forrest and Mr Thomas suggests to me that the area retains its particular significance.

Hobble Gap

1. I accept the argument of the State and Nexus Minerals that Hobble Gap is not on the proposed licence – mapping shows it to be to the west of the area. I accept that there is a pathway from the licence to Hobble Gap which is used by the traditional owners, and there is a boomerang dreaming associated with Hobble Gap. However, I could not say based on the evidence that Nexus Minerals’ access to the proposed licence, or other exploration activities on or off site, will cause interference for the purpose of s 237(b) to Hobble Gap.

Conclusion

1. Given the evidence provided by Nyalpa Pirniku, mitigating interference with Lake Raeside will require the involvement of the wati, and it is appropriate for Nexus Minerals to negotiate with Nyalpa Pirniku as envisioned by s 31(1) of the Act.  As outlined by the Federal Court in FMG v Yindjibarndi (at [75]):

   …the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions.

2. Given what Mr Thomas and Mr Forrest have outlined about activities that would interfere with Lake Raeside and the serpent wonambi dreaming story, I conclude interference is likely to occur and the expedited procedure does not apply.

Determination

1. I find the grant of exploration licence E39/2185 to Nexus Minerals does not attract the expedited procedure.

H Shurven

Member
4 November 2021