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

NATIONAL NATIVE TITLE TRIBUNAL

Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Vaso Kos and Another [2021] NNTTA 32 (30 June 2021)

Application No:

WO2020/0774

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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Vaso Kos

(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:	Perth
Date:	30 June 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) s 18 Mining Act 1978 (WA) s 48 Mining Regulations 1981 (WA) reg 14
Cases:	Robinson v Fielding [2015] WASC 108 Rosas v Northern Territory & Anor [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG Pilbara)
Representative of the native title party:	Andrew Burke, Native Title Services Goldfields

Representatives of the grantee party:

Vaso Kos and Nicholas Steel

Representatives of the Government party:

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

Reywin Rico, State Solicitor’s Office

REASONS FOR DETERMINATION

This is a decision about whether or not the expedited procedure applies to the proposed grant of prospecting licence P31/2138 to Vaso Kos. 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.
The proposed licence is approximately 1.2 square kilometres in size, and 32 kilometres northerly of Edjudina in the Menzies Shire of Western Australia. The Nyalpa Pirniku Claim Group (Nyalpa Pirniku) claim native title rights and interests in the area of the licence. 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(a) and s 237(b) is likely to occur. Nyalpa Pirniku did not argue s 237(c) applied, and on the available evidence, I conclude that interference in relation to the criteria in that sub-section is unlikely. This decision focuses on the criteria in s 237(a) and s 237(b).

Contentions and evidence

The State’s materials

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 Reyside (Raeside)’ (site 2708) is registered under the AHIS, covering the entirety of the prospecting licence. The site is registered as a mythological site, male restricted, and boundary restricted. More is outlined about this site, and the geographical feature of Lake Raeside, at [21] - [24] below.

Mr Kos’s materials

Mr Kos provided a statement by Mr Nicholas Steel. No party took exception to that statement, and I accept it has been made on behalf of Mr Kos. Mr Steel’s statement (at 4) outlines evidence of drilling and exploration ‘just outside the boundary of P31/2138 to the north and south of same’. He also writes about a previously granted prospecting tenement which himself, Mr Kos and two others were equal shareholders (at 5), and it is ‘wholly within the current application and represents the area of the tenement which Mr Kos is most interested in’. Mr Steel states (at 6) Mr Kos will be ‘conducting simple prospecting with a detector and work will be low impact’, and that access will be by existing tracks. No detail is given about any existing tracks, and the State’s material shows one fence on the licence, but does not indicate any tracks. While tracks may exist on the licence, there is no evidence or information to support that contention. Mr Steel also states ‘All works will be of short “on ground” duration’, but again, no information is provided about how short, and the nature of any on ground activity – for example, whether the prospector would camp on the licence.

Nyalpa Pirniku materials

Nyalpa Pirniku provided a statement from Ivan Forrest, contentions, and reply materials. Mr Forrest is a Wati which means he has responsibilities to protect country from harm, and is authorised to speak for the area of this licence on behalf of the Nyalpa Pirniku claim group. 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 the argument in relation to these annexures was an inadequacy of the State’s heritage regulatory regime. Having reviewed these materials, I did not consider them for the purposes of this inquiry or use them to draw my conclusions, on the basis they were not directed specifically to the licence which is subject to this inquiry, and the other materials provided by Nyalpa Pirniku, Mr Kos and the State were sufficient for me to draw the conclusions I have made.
Nyalpa Pirniku claim the following non-exclusive 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.
Nyalpa Pirniku contend (at 59) that if the proposed licence is granted:
it is reasonably likely that the Grantee Party will conduct exploration activities that will physically disturb the land at and around Lake Raeside, such as:
a)   Drilling holes;
b)   Constructing surface pads; and
c)   Extracting up to 500 tonnes of material
Nyalpa Pirniku refer to these activities as being consistent with activities allowed under the Mining Act 1978 (WA) (Mining Act) for prospecting activities. For example, Nyalpa Pirniku make reference to 500 tonnes (which is the limit for prospecting activities). I note that 1000 tonnes is the limit for exploration activities, and that both prospecting and exploration licences are subject to approval from the Minister for extraction of larger tonnages in both instances – see s 48 of the Mining Act and regulation 14 of the Mining Regulations 1981 (WA).
While Mr Kos and the State take issue with the language used by Nyalpa Pirniku – who at times in their initial materials refer to ‘exploration’, Nyalpa Pirniku clarify their reference to exploration activities in their reply (at 10) outlining that:
…the fact that references to “exploration” rather than “prospecting” were made in the NTP [native title party] Contentions is of little consequence as the particular activities described by Nyalpa Pirniku which the Grantee Party would be permitted to carry out pursuant to the grant of the Proposed Tenement were those activities permitted pursuant to the grant of a prospecting license rather than an exploration license.
I am satisfied Nyalpa Pirniku mean prospecting when they refer to exploration in their materials, particularly given they refer to the relevant prospecting tonnage in the context of their contentions.

Is the grant of the licences likely to interfere directly with the community or social activities of the Nyalpa Pirniku Claim Group?

What activities do the Nyalpa Pirniku Claim Group undertake on the licence?

Section 237(a) deals with whether an act is likely to interfere directly with the community or social activities carried on by the relevant native title party. In my consideration of the s 237(a) criteria, I must balance a grantee party’s proposed exploration activities with any evidence of the native title claimant’s community and social activities, to determine whether the activities can coexist without direct or substantial interference (see for example Rosas v Northern Territory at [71]).
The Nyalpa Pirniku contentions (at 24-27), summarise Mr Forrest’s evidence as outlining how Nyalpa Pirniku:
·exercise the right to enjoy, maintain and pass down social and community activities and traditional culture
·frequently visit to participate social and community activities
Those contentions maintain prospecting activities will lead to disturbance of such activities in a real and significant way.
Mr Forrest goes into some detail (at 25-27, 29) about the collection of the chrysophrase stone, and its uses in the context of social and community activities, and refers broadly to Lake Raeside and specifically to Duck Hill in relation to that collection. Mr Steel argues those activities are conducted in an area not on the licence. I note Duck Hill is approximately 2 kilometres north of the licence in this inquiry. From the way Mr Forrest outlines his evidence, I accept it is likely the activity of collecting the stone is focused on Duck Hill, which given it’s distance from the proposed licence, is not likely to be impacted by prospecting activity on the licence. For example (at 27) Mr Forrest states:
I have been there other times at Duck Hill, and I could see where the old people broke up the chrysophrase stone in the shade of the tree to get the best pieces and take it away and use it on the top of their spears, or just take it to a camp to have ready. We have used that chrysophrase stone for a really long time, it’s really important to us that we can access and take it to use.
Reference is also made to another member of the claim group collecting the stone at Duck Hill (at 29).
As such, for the purposes of this inquiry, my focus is on Lake Raeside, rather than activities or sites at Duck Hill, which is outside the proposed licence area, and where no nexus has been established between Duck Hill and the proposed licence area for the purposes of my consideration of s 237(a).
Mr Forrest refers to Lake Raeside as being an abundant hunting area, as animals gather around the edge of the lake (at 17-19, 26 and 28), and camping area (at 23), but does not specifically mention the area of this licence as being a focal point for such activities.
I accept Mr Steel’s statement (at 15) that given the nature of prospecting activities, and also noting that hunting and camping are associated with Lake Raeside generally and not concentrated on this licence, there is likely to be negligible if any effect on the flora or fauna within the licence, nor any impediment to social and community activities as described for this inquiry. The State also raise the argument that social and community activities are cast generally in relation to Lake Raeside and not specifically in relation to this licence (at 24).

Conclusion

There is insufficient evidence in relation to community and social activities specifically related to this licence for me to conclude that proposed prospecting activities are likely to interfere with such community and social activities.

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

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]).
In his statement, Mr Forrest (at 15) states the Wonambi (great serpent) made Lake Raeside when it travelled from Lake Boonderoo in the South to the north west of Lake Raeside near Leonora. Due to the information provided, I accept the geographical location of Lake Raeside as a whole is associated with the great serpent Tjukurrpa, is a male access only mythological area, and is of more than general significance to Nyalpa Pirniku.
There is some argument in the materials between parties as to whether or not Mr Kos would need to apply for a s 18 permit under the AHA to do more than the most rudimentary prospecting on the licence area.
The State argue (at 43):
Even if the Grantee Party applied for consent under s 18 of the AHA, the Aboriginal Cultural Material Committee would need to be satisfied of the adequacy of consultation with any relevant Aboriginal persons (which likely includes the NTP [native title party]), prior to making a recommendation to the Minister.
Nyalpa Pirniku reject the contention that the Aboriginal Cultural Materials Committee (ACMC) would operate in such a way. I note the Supreme Court of Western Australia’s comments in relation to the operation of the ACMC in Robinson v Fielding (particularly at 102-103). Justice Chaney in that decision also clarifies the role of the ACMC (at 122-123, emphasis in original) as follows:
Under s 18(5), the owner of land who is aggrieved by a decision of the Minister made under s 18(3) is given a right to apply for a review of the Minister's decision by the State Administrative Tribunal. In Traditional Owners - Nyiyaparli People and Minister for Health Indigenous Affairs, the State Administrative Tribunal held that the right to seek a review of the decision was confined to the owner of land, and did not extend to Aboriginal persons to have an interest in the sites on the land the subject of the s 18 proposal.
There is nothing in the process set out in s 18 which expressly requires consultation with Aboriginal people with interests in sites on the land the subject of a s 18 notice.
The State provide mapping and argue only a portion of the geographical location of Lake Raeside actually encroaches over the licence (in the east of the licence). The State accept (at 33) that Nyalpa Pirniku have described the significance of the dreaming and briefly explained its story, but argue:
it has not provided sufficient evidence about the areas of the proposed tenement which are subject to the dreamings to enable them to be located with the requisite degree of specificity, or explained the particular significance of those areas.
I do not accept that argument.
The Nyalpa Pirniku contentions are very clear (at 42) that ‘Lake Raeside is a tjurkurrpa site of high cultural significance with an associated story of creation’ and (at 43) ‘Lake Raeside is a site of particular mythological, spiritual and cultural significance to Nyalpa Pirniku people, and is registered as being a mythological site’. These contentions are supported by the evidence of Mr Forrest, as outlined in this decision. As noted above, I accept Lake Raeside as a whole is an area of particular significance for the purposes of this inquiry, given the evidence provided. Looking at the criteria of s 237(b) in relation to sites of particular significance, I must consider whether any activities of the prospector are likely to cause interference to Lake Raeside such that the expedited procedure should not apply.
Mr Forrest refers to the importance of Lake Raeside (at 37) and that:
It is really important to us that this area is protected, so that the sites aren’t destroyed, the Wonambi story can be looked after, and we can continue to access this area and practice our culture there. If we lose these places it will be harder to teach our children and grandchildren about their history and culture.
Mr Forrest refers to a number of members of the claim group, and states (at 22) that ‘There’s a lot of us that are connected to the Proposed Tenement and to Lake Raeside. It would affect lots of us if anything bad were to happen there that damaged that country’. He also goes on to outline (at 35) in relation to Lake Raeside that: ‘…It’s a regional issue. The Tjun Tjuntjarra people, this impacts them too. If anything happened to Lake Raeside, we would have to answer to the people who it would impact. That’s what it means to be responsible for that area’. Mr Forrest explains (at 33) the interconnectedness of Lake Raeside with other named creeks and lakes nearby, and that (at 34) ‘If we don’t look after Lake Raeside…it will change its complexion completely’.
Mr Steel outlines (at 12) that Mr Kos has offered to protect heritage by executing the Regional Standard Heritage Agreement (RSHA). However, this agreement has been rejected by Nyalpa Pirniku as being inadequate for the purposes of heritage protection (as noted in their reply at 26). Mr Steel states Mr Kos understands his obligations under the AHA and intends to comply with them, and Mr Steel (at 3 and 16) also contends the grant of the licence is unlikely to cause any interference with sites and areas of Aboriginal significance, but no explanation is provided in relation to Lake Raeside, apart from stating Mr Kos is aware of identified registered heritage sites within the application and that ‘Sites will be protected under the Aboriginal Heritage Act’.
The State also argue that any sites of particular significance will be protected by the AHA, as well as by any conditions or endorsements the State intend to apply to the grant of the licence (at 11 for example and Annexure 4). However, these conditions and endorsements refer to eventualities after prospecting (such as rehabilitation) rather than the prevention of interference, and written approval is required from the Environmental Officer, Department of Mines, Industry, Regulation and Safety before any ground-disturbing activities are carried out – there is nothing requiring consultation with Nyalpa Pirniku for either non-ground disturbing works, or ground disturbing works.
I accept the Nyalpa Pirniku contentions (at 30) that prospecting activities, even if they appear to the prospector as being of low impact, and even were they not to require a s 18 AHA application, would interfere with the right to maintain and protect places and objects of significance on the area and interfere with the mythology of the area, which I accept is male only and registered as mythological on the States AHIS.
I also accept the Nyalpa Pirniku contentions (at 64) that ‘…It is possible for the Grantee Party to ‘interfere’ with a site without being in breach of the AHA’, and (at 69) that ‘…the Grantee Party’s compliance with the AHA is no guarantee that interference will not occur. There is no evidence to suggest that compliance with the AHA in this instance will protect Lake Raeside and the Wonambi from interference’.

Conclusion

The activities asserted to be conducted by Mr Kos (as outlined at [4] above]) are very broadly cast – I note that in the Nyalpa Pirniku reply (at 12), they: ‘respectfully contend that the Grantee Party have only indicated their ‘planned’ or ‘proposed’ activities and have not categorically stated that they will not exercise the full suite of rights available to them pursuant to the grant of the Proposed Tenement’. There is very little detail about the proposed prospecting activities, and the reality is that, in the face of no further information from Mr Kos, he is entitled to remove up to 500 tonnes of material from a relatively small sized licence (1.27 square kilometres). If such material was taken from the east side of the licence, that is likely to cause interference to Lake Raeside, given the information provided about its sensitive and gender specific nature. Even accepting Mr Kos was only intending to use simple prospecting with a detector, presumably something would be coming out of the ground at times - when the target entity was detected, for example. Mr Kos is also able to drive vehicles onto the licence, which it appears he intends to do by his reference to the proposed use of tracks, and which is open to him to do under s 48 of the Mining Act – that is, he is authorised ‘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’.
I am satisfied, given the evidence provided by Nyalpa Pirniku, that the mythological and male only site of Lake Raeside is so sensitive that even such activity as prospecting with a detector and driving over the area would be sufficient to cause interference for the purposes of s 237(b).
While I accept Mr Kos intends to act within the State’s regulatory regime, and has expressed the best intentions, when I weigh that up with the area of particular significance, I conclude interference is likely to occur and the expedited procedure does not apply. It is open to parties to reach agreement on the location and scope of prospecting activities to be conducted on the licence.

Determination

I find the grant of prospecting licence P31/2138 to Vaso Kos is not an act attracting the expedited procedure.

H Shurven

Member
30 June 2021