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

[2021] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others [2021] NNTTA 59 (12 October 2021)

Application No: WO2021/0558

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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Robert John Anderson and Anthony Brian Bastow (grantee parties)

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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:	Perth
Date:	12 October 2021

Catchwords:

Native title – future act – proposed grant of prospecting 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:

Native Title Act 1993 (Cth) s 237

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA) s 48

Mining Regulations 1981 (WA) reg 14

Cases:

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

Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Forrest v Aruma Exploration)

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

Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (Western Desert Lands v Teck Australia)

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

Representative of the native title party:

Jeremy Brown, Native Title Services Goldfields

Representative of the grantee party: Robert John Anderson

Representatives of the Government party:

Bethany Conway and Andrea Wyles, 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 prospecting licence P28/1391 to Robert John Anderson and Anthony Brian Bastow (the grantee parties). 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 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 just under 1.9 square kilometres in size, and approximately 40 kilometres southerly of Edjudina in 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 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).

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). The site ‘Lake Rebecca’ (site 19142) is registered under the AHIS, covering almost the entirety of the prospecting licence. The site is registered as a mythological site. The State contentions (at 22) accept this area is a site of particular significance for the purposes of s 237(b) of the Act.

Nyalpa Pirniku materials

1. Nyalpa Pirniku provided a statement from Leo Thomas, contentions, and reply materials.  Mr Thomas is a senior Wongai (desert) person and a member of Nyalpa Pirniku. Mr Thomas outlines (at 2-3), and I accept, that he has responsibilities for the area of the proposed licence including to protect important sites, including Lake Rebecca, and he is authorised to speak for the area on behalf of the Nyalpa Pirniku claim group.  

2. Nyalpa Pirniku also provided two annexures to their reply titled ‘Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia: Questions on Notice – Public Hearing Friday 20 November 2020’ and the ‘Western Australian Government submission to the Joint Standing Committee on Northern Australia inquiry into the destruction of Indigenous heritage sites at Juukan Gorge’.  The thrust of Nyalpa Pirniku’s argument in the reply (at 17-18), in relation to these annexures, is that the State’s heritage regulatory regime does not adequately protect heritage. Having reviewed the annexures provided, I did not consider them for the purposes of this inquiry or use them to draw my conclusions, on the basis they were predominantly extracts of information, and not directed specifically to the licence which is subject to this inquiry. Other materials provided by parties were sufficient for me to draw the conclusions I have made.

3. Nyalpa Pirniku contend (at 16-17, and emphasise in their reply at 10-13) that if the proposed licence is granted, the prospectors will be able to conduct activities allowed under the Mining Act 1978 (WA) (the Mining Act) such as drilling holes; constructing surface pads; and extracting up to 500 tonnes of materials (as outlined in s 48 of the Mining Act and regulation 14 of the Mining Regulations 1981 (WA)).  The grantee parties did not provide any materials or evidence in relation to their likely activities, nor was any information included about such activities in the States materials.

4. The State note (at 13) that, given the grantee parties have not provided any information about their likely activities, it is open to me to infer they will operate under the full suite of rights available to them. I agree with this, and my reasons are given in the context that Mr Anderson and Mr Bastow will be likely to prospect under all of the relevant provisions of the Mining Act and associated regulations.

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

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]).

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

1. Nyalpa Pirniku contends, and the State accepts, that Lake Rebecca is a site of particular significance for the purposes of s 237(b). I must examine the relevant information and make up my own mind in relation to the particular significance or not of a site or area.

2. Mr Thomas explains he was taught the tjurkurrpa story associated with Lake Rebecca when he was a child (at 11). Mr Thomas has provided a substantial amount of information about the nature and extent of Lake Rebecca, its connection to the tjurkurrpa of the Great Serpent (wonambi), and why it is a site of particular significance in accordance with the Nyalpa Pirniku traditions (at 12-18).  Mr Thomas specifically refers to the importance of the edge of the lake to the animal associated with the story (at 15), and the trajectory of the tjurkurrpa through the proposed licence and to surrounding areas (at 12 and 14). Mr Thomas also provides a map showing surrounding sites and areas in context of the proposed licence, and describes how these sites relate to the tjurkurrpa (at 20).  Based on the evidence provided, I conclude that Lake Rebecca is a site of particular significance. 

3. I also accept the wonambi tjurkurrpa is associated with another nearby lake, Lake Raeside, which was the subject of my recent decision in Nyalpa Pirniku v Kos.  In that matter, Mr Forrest was authorised on behalf of Nyalpa Pirniku to speak for the area of Lake Raeside. Lake Raeside is just to the north of Lake Rebecca, according to mapping provided with Mr Thomas’s statement.  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. Mr Thomas’s evidence is consistent with Mr Forrest’s evidence in terms of the pathway of the tjurkurrpa, the story of the tjurkurrpa, and the effects of interference from prospecting activity on the relevant lands.

Is there likely to be interference with Lake Rebecca by prospecting activities on the proposed licence?

1. Looking at the criteria of s 237(b) in relation to a site of particular significance, I must consider whether activities of the prospectors are likely to cause interference to Lake Rebecca such that the expedited procedure should not apply.

2. Mr Thomas explains (at 22) that ‘walking out on the lake and digging around could disturb the wonambi and make him leave’.  Mr Thomas outlines the impact of prospecting activity on Lake Rebecca (at 21, 24), and how it would affect the wider native title party community (at 24-25).

3. The State (at 26-35) raises similar argument to that which it raised in Nyalpa Pirniku v Kos, in relation to relying on its regulatory regime to mitigate any likely interference.  Rather than restate the information, I adopt my reasoning and comments from [20], [22], and [26] of Nyalpa Pirniku v Kos for this decision.

4. In this current matter, the State also argue (at 36-40) there has been previous interference in the form of an exploration licence and pastoral lease over the proposed licence. However, 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 (Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]). Mr Thomas’s evidence suggests to me that the area retains its particular significance.

5. Even if prospecting activities appear to a prospector as being of low impact, the grant of the proposed licence would entitle Mr Anderson and Mr Barlow to remove up to 500 tonnes of material from the area, which is substantially covered by Lake Rebecca.  As I noted in Nyalpa Pirniku v Kos (at [29]), s 48 of the Mining Act authorises a prospecting grantee, among other things ‘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 prospecting for minerals in, on or under the land’. Mr Thomas has made it clear that such activity would be interference in relation to Lake Rebecca and the wonambi, and that such interference is likely to have regional consequences (as outlined also in the native title party reply at 19, the native title party contentions at 46, and Mr Thomas’s statement at 24).

6. 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.

7. Given what Mr Thomas has outlined about activities that would interfere with Lake Rebecca in relation to the Nyalpa Pirniku traditions and custom, I conclude interference is likely to occur and the expedited procedure does not apply.

Determination

1. I find the grant of prospecting licence P28/1391 to Robert John Anderson and Anthony Brian Bastow is not an act attracting the expedited procedure.

H Shurven

Member
12 October 2021