Patricia Lewis & Others on behalf of Nyalpa Pirniku v FMG Resources Pty Ltd and Another
[2022] NNTTA 30
•12 April 2022
NATIONAL NATIVE TITLE TRIBUNAL
Patricia Lewis & Others on behalf of Nyalpa Pirniku v FMG Resources Pty Ltd and Another [2022] NNTTA 30 (12 April 2022)
Application Nos: | WO2021/0166 & WO2021/0167 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Patricia Lewis & Others on behalf of Nyalpa Pirniku (WC2019/002)
(native title party)
- and -
FMG Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 12 April 2022 |
Catchwords: | Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – acts are likely to interfere with sites or areas of particular significance – expedited procedure does not apply |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 151, 237 Aboriginal Heritage Act 1972 (WA) Mining Regulations 1981 (WA) reg 20 |
| Cases: | 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; (1996) 69 FCR 208 (Ward v Western Australia) Delores Cheinmora v Striker Resources NL, Australian United Gold NL, Mark James Thompson and the State of Western Australia[1996] NNTTA 75 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182; 324 ALR 580(FMG v Yindjibarndi) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Freddie v Asia Investment) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal v Gianni) Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond [2013] NNTTA 113 (Lungunan v Richmond) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Forrest v Aruma Exploration) Moses Silver, Ishmael Andrews & Sammy Bulabul v Northern Territory and Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Nyalpa Pirniku v Robert John Anderson [2021] NNTTA 59 (Nyalpa Pirniku v Anderson) Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others [2021] NNTTA 65 (Nyalpa Pirniku v Anderson 2) Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Vaso Kos and Another [2021] NNTTA 32 (Nyalpa Pirniku v Kos) Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Coronet Resources Ltd and Another [2020] NNTTA 55 (Wanjina-Wunggurr v Coronet) 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) |
| Representative of the native title party: | Jeremy Brown, Native Title Services Goldfields |
| Representatives of the grantee party: | Abbey Shillingford, FMG Resources Pty Ltd Wendy Treasure, Fortescue Metals Group Ltd |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety David Reger, State Solicitors Office |
REASONS FOR DETERMINATION
Background
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licences E31/1254 and E31/1255 (the proposed licences) to FMG Resources Pty Ltd. The notice for the licences included a statement that the State considers the grants are acts attracting the expedited procedure (see s 32 of the Act).
I was appointed to determine whether or not the expedited procedure applies to the grant of each licence. In determining whether the expedited procedure applies, I must consider whether the grant of each licence is likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to each licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of each licence area (s 237(c)).
The proposed licences are adjacent to each other, located approximately 32 kilometres southeast of Edjudina on land subject to the Nyalpa Pirniku (WC2019/0002) registered native title claim. E31/1254 is approximately 116 square kilometres. E31/1255 is directly south of E31/1254 and is approximately 36 square kilometres. Nyalpa Pirniku exercised their right to lodge objection applications with the National Native Title Tribunal in response to the State’s assertion that the expedited procedure applies to the grants of the licences. Nyalpa Pirniku has status to make the objection applications because, at the time the s 29 notice was given, they were a registered native claimant over the licence areas and therefore a native title party (see ss 29(2)(b)(i) and 32(3) of the Act).
Considerations
I must undertake a predictive assessment of what is likely to result from the grant of each licence, decide whether there is a real chance or risk of the interference or disturbance as outlined in s 237 of the Act, and consider whether the act attracts the expedited procedure (Smith v Western Australia at [23]). The legal principles for this assessment are summarised in Yindjibarndi v FMG (at [15]-[21]). For this inquiry, I have concluded there is a real chance or risk of such interference in relation to s 237(b), and the expedited procedure does not apply. The parties must accordingly negotiate in good faith to seek Nyalpa Pirniku’s agreement to the grant of the proposed licences (s 31(1)(b) of the Act).
The Inquiry
FMG Resources and Nyalpa Pirniku indicated through the course of the inquiry that they were negotiating and hopeful of reaching an agreement. Ultimately, an agreement was not reached prior to the outcome of this inquiry. All parties agreed to the matters being determined on the papers as permitted by s 151(2), and having regard to the materials, I was satisfied the inquiry could be determined without a hearing. Member Kelly had conduct of the initial stages of the inquiry.
Nyalpa Pirniku provided contentions, a summary of their arguments, a list of authorities, a reply to the State and to FMG Resources, and the signed statements of Mr Leo Thomas and Mr Ivan Forrest, together with mapping. Both Mr Thomas and Mr Forrest explain their authority under Nyalpa Pirniku traditions to speak for the area of the proposed licences.
The State provided contentions and evidence which included mapping, reports from the Aboriginal Heritage Inquiry System (AHIS) showing one registered site (Lake Raeside), Tengraph quick appraisals, the licence applications along with the accompanying statements required by s 58 of the Mining Act 1978 (WA) (Mining Act, s 58 statement) and the Draft Tenement Endorsement and Conditions extracts outlining conditions and endorsements to be imposed on each licence.
Information provided by the State indicates that parts of both licences are located over the geographical area of Lake Raeside and its clay pans. The proposed licences are also located partly on the AHIS registered site of Lake Raeside. The site is recorded as being mythological, restricted to men and its exact boundary is also restricted – mapping indicates the AHIS registered site appears to encompass the geographical area of Lake Raeside and some of its clay pans.
I note that information provided by the State indicates that since 1997, there have been 8 decisions made by the Tribunal that the expedited procedure did not apply over areas of E31/1254. In 1998, there were 2 uncontested decisions made by the Tribunal that the expedited procedure did not apply over areas of E31/1255. The later 6 decisions (which I refer to below) were contested and the Tribunal found the expedited procedure did not apply. The 8 decisions (particularly the later 6 decisions) do lead me to query the utility of asserting the expedited procedure in areas where the Tribunal has consistently determined the expedited procedure does not apply.
FMG Resources provided contentions and the affidavit of their Principal, Native Title, Ms Wendy Treasure, together with mapping, and supporting annexures.
Section 237(a): is the grant of the licences likely to interfere directly with Nyalpa Pirniku’s community or social activities?
What community or social activities do Nyalpa Pirniku undertake on the licences?
While the objection applications were focused on s 237(a) and (b), Nyalpa Pirniku’s contentions and materials were largely directed towards s 237(b). For s 237(a) the evidence was limited, including:
·Getting swan eggs and eating the ducks from Lake Raeside (Mr Thomas at 24);
·Mr Thomas goes shooting in the area (Mr Thomas at 28);
·Mr Forrest and Nyalpa Pirniku claim members (including named persons) regularly go ‘hunting and gathering’ at Lake Raeside because there is ‘a lot of game in the area’ (Mr Forrest at 15-18);
Is the grant of the licences likely to interfere directly with Nyalpa Pirniku’s community and social activities in a substantial way?
To meet the threshold of interference, it ‘must be substantial in its impact upon community or social activities. That is to say trivial impacts … are outside the scope of the kind of interference contemplated by this section’ (Smith v Western Australia at [26]).
From the limited evidence provided, it appears there are some community and social activities are conducted in the area of Lake Raeside generally. Overall, the evidence of community and social activities is not specific enough in terms of being located on the licences explicitly, or with such intensity or frequency for me to conclude there is a likelihood of interference.
As the Tribunal has found in previous inquiries, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see for example Freddie v Asia Investment at [13], and Lungunan v Richmond at [29]). The evidence provided in this present inquiry is not sufficiently specific for me to conclude there will be interference of the kind contemplated by s 237(a).
Section 237(b): is the grant of the licences likely to interfere directly with areas or sites of particular significance to Nyalpa Pirniku?
What sites or areas are identified?
In their statements, both Mr Thomas and Mr Forrest identify Lake Raeside and its edges as an important area created by a spiritual being on its travels through a specified area of interconnected lake systems. It is clear from their statements that the expression ‘Lake Raeside’ covers an area greater than the geographical area of Lake Raeside as shown on the topographical mapping provided by the State. It includes the overflow clay plans around the Lake because the Lake is subject to seasonal flooding (Mr Thomas at 17-18; Mr Forrest at 14 and 20).
Is Lake Raeside an area of particular significance according to Nyalpa Pirniku’s traditions?
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 (see Cheinmora v Striker Resources at [34]–[35]). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
In Nyalpa Pirniku v Kos (at [22] for example), I concluded Lake Raeside was an area of particular significance. Nyapla Pirniku contentions (at 29) refer to my findings as described in that determination (at [17], [23]-[24]), and the information and evidence provided in that inquiry by the native title party is consistent with the evidence in this inquiry. I also note that on the basis of Nyalpa Pirniku v Kos and Nyapla Pirniku’s evidence and contentions in this inquiry, the State contentions (at 37) accept Lake Raeside is an area of particular significance for the purposes of s 237(b). The evidence regarding Lake Raeside is also consistent with my more recent decision in Nyalpa Pirniku v Anderson 2 (at [13]).
FMG Resources argue in their contentions (at 5.2-5.6 for example), that the evidence and materials in relation to the significance of Lake Raeside is insufficient for me to conclude the area is of particular significance. However, I find the evidence provided by Mr Forrest and Mr Thomas to be consistent and clear as to why Lake Raeside is of particular significance. As I did in Nyalpa Pirniku v Kos and Nyalpa Pirniku v Anderson 2, I conclude Lake Raeside and its clay pans are an area of particular significance because it is known, able to be located and its significance is explained.
Both Mr Thomas and Mr Forrest describe the story of the spiritual being who created Lake Raeside on its travels, identify the Lake’s significance within part of a ‘major tjurkurrpa’ and explain their specific responsibility to ensure they protect the area because of its significance both to Nyalpa Pirniku people and to other people (including the ‘Martu mob’ and the Tjun Tjuntjarra people) (Mr Thomas at 13-15, 25-26; Mr Forrest at 13, 23 and26). Their descriptions of Lake Raeside sets the lake apart from other waterways in the area and I am satisfied it can be considered ‘of special or more than ordinary significance’ (see Cheinmora v Striker Resources at 34–35) sufficient to meet the threshold of ‘particular significance’ in s 237(b) of the Act.
Is there likely to be interference to these sites or places of particular significance?
The proposed licences and FMG Resources proposed activities
The proposed licences are exploration licences as outlined in ss 56C-70 of the Mining Act 1978 (WA) (Mining Act). Exploration licences are granted for five years (with up to seven years’ extension in specific circumstances). Section 66 of the Mining Act and Regulation 20 of the Mining Regulations 1981 (WA), set out the rights conferred by an exploration licence, in summary, as the right:
(a)to enter the land with the personnel and machinery necessary for exploring for minerals;
(b)to explore and 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 under ss 24, 24A and 25 of the Mining Act; and,
(d)subject to the Rights in Water and Irrigation Act 1914, 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.
According to the FMG Resources s 58 statements (as noted at 7 above), they propose broad based exploration for various iron deposits, precious metal mineralisations and base metal mineralisations. The first year’s activities will include desktop research as well as onsite gridding, access and sampling to identify targets. The second year’s activities will include reverse circulation drilling, diamond drilling and metallurgical testing. There is little further information provided in their materials, and so I have assumed FMG Resources will exercise the full suite of rights available to them under the grants.
FMG Resources contentions (at 6), and the affidavit provided by Ms Treasure (at 14-17, 20 and 23), assert that FMG have processes and policies which will be sufficient to avoid interference – for example, a policy not to undertake ground disturbing activities without first undertaking heritage surveys, and being willing to negotiate a heritage protection agreement. The State contends (at 42-43) these intentions mean there is unlikely to be interference with Nyalpa Pirniku’s community and social activities or sites of particular significance. However, these intentions are not enforceable and are no substitute for the kind of binding agreements that can be negotiated under s 31 of the Act (see Nyamal v Gianni at [61]; Tjiwarl v Gianni at [106]; Wanjina-Wunggurr v Coronet at [39]). In addition, I need to consider whether activities, other than those which FMG Resources consider to be ground disturbing, will likely cause interference in the context of s 237(b) and the native title party traditions.
In FMG v Yindjibarndi (at [76]), the Federal Court made it clear how the word ‘interference’ in 237(b) of the Act should be interpreted:
There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
Both FMG Resources and the State assert that the Aboriginal Heritage Act 1972 (WA) (AHA), endorsements and conditions to be imposed, the State’s regulatory regime in general, and the policies and procedures adopted by FMG Resources, will provide protection against interference to Lake Raeside under s 237(b). Nyalpa Pirniku raise concerns about the State’s regulatory regime in their reply (at 15-17 and throughout), and I note that FMG Resources, in exercising their rights under the grant of each licence, can apply to the relevant Minister for permission to disturb Lake Raeside under the AHA regime (see s 17 and 18). In addition, there is nothing in the endorsements or conditions to be imposed on the licences which mitigate the interference outlined by Mr Forrest and Mr Thomas, which includes interference from non-ground disturbing activity such as entry onto the area.
The State contentions argue (at 11) that not all of the proposed licence area is available for grant (as other tenements overlap part of each licence). They also outline (at 20-22) that previous tenements have been granted on or near the areas of these proposed licences, which would have caused interference. However, there is little information provided in relation to such interference, and 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 further interference under a native title party’s traditions (Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]).
I adopt my findings in Nyalpa Pirniku v Kos (at [30]-[31]), where I outlined ‘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)’. Nyalpa Pirniku’s evidence described in that determination (at [17], [23]-[24]) is consistent with the evidence provided in this inquiry (it is also consistent with Nyalpa Pirniku v Anderson at [16]). There is nothing before me to suggest I should depart from previous Tribunal findings, particularly given that this inquiry concerns exploration licences which permit a higher level of impact on the Lake than the prospecting licences considered in Nyalpa Pirniku v Kos and Nyalpa Pirniku v Anderson.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area?
Nyalpa Pirniku neither make contentions nor provide evidence related to this subsection. As such, there is no factual material before me which indicates the grant of the proposed licences are likely to involve, or create rights whose exercise is likely to involve, major disturbance as contemplated in s 237(c). Therefore, applying the common sense approach outlined in Ward v Western Australia (at [26]), I find that disturbance under s 237(c) is unlikely.
Determination
The determination of the Tribunal is that the grants of licences E31/1254 and E31/1255 to FMG Resources Limited are not acts attracting the expedited procedure.
H Shurven
Member
12 April 2022
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