Peggy Patrick & Ors on behalf of Yurriyangem Taam v Landsdowne Metals Holdings Pty Ltd and Another
[2018] NNTTA 51
•31 August 2018
NATIONAL NATIVE TITLE TRIBUNAL
Peggy Patrick & Ors on behalf of Yurriyangem Taam v Landsdowne Metals Holdings Pty Ltd and Another [2018] NNTTA 51 (31 August 2018).
Application No: | WO2017/0348 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Peggy Patrick & Ors on behalf of Yurriyangem Taam (WC2010/013)
(native title party)
- and -
Landsdowne Metal Holdings Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 31 August 2018 |
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 – the act is an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) s 237 Mining Act 1978 (WA) s 66 |
Cases: | Cheinmora v Striker Resources NL [1996] FCA 1147; (1996) ALR 21 (‘Cheinmora v Striker Resources’) Miriuwung Gajerrong 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd [2006] NNTTA 74 (‘Miriuwung Gajerrong #1 v Seaward Holdings’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representative of the native title party: | Tim Ognenis and Angela Booth, Kimberley Land Council |
| Representative of the grantee party: | Emma Brown, Hetherington Exploration & Mining Title Services (WA) Pty Ltd |
| Representatives of the Government party: | Matthew Pudovskis, State Solicitor’s Office Stacey Jackson, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E80/5046 to Landsdowne Metal Holdings Pty Ltd (Landsdowne Metal). The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The then President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The licence covers approximately 323 square kilometres and is located 109 kilometres north-west of Halls Creek. The Yurriyangem Taam registered native title claim covers the whole licence area. Yurriyangem Taam exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies, and argue the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely.
I must base my decision on the s 237 criteria. The issues I need to determine in relation to these criteria are:
(a)Is the grant of the licence likely to interfere directly with Yurriyangem Taam’s community or social activities?
(b)Is the grant of the licence likely to interfere with areas or sites of particular significance to Yurriyangem Taam?
(c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Yurriyangem Taam do not provide contentions or evidence in relation to s 237(c). As stated in Ward v Western Australia (at [26]), ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. Therefore, on the limited evidence provided, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned. I focus my inquiry on the questions listed at (a) and (b) above.
Preliminary evidentiary matters
Yurriyangem Taam and the State provided submissions in this matter. Landsdowne Metal did not submit any material directly to the inquiry. Yurriyangem Taam also provided the affidavit of Ms Helen Malo. Ms Malo identifies as a member of the Yurriyangem Taam native title claim and states she has connections to the county. I accept Ms Malo has the authority to speak for the licence area.
A listing hearing was held so that parties could make submissions regarding Yurriyangem Taam’s contentions in reply. At the hearing, the State noted it considered the reply had raised new issues. Parties discussed this view, and the issues. The State provided some supplementary comments, and parties aired and clarified their views particularly about the issue of interference in relation to s 237(b). At the end of the hearing, all parties confirmed they were content for me to proceed to make a decision on the papers.
(a) Is the grant of the licence likely to interfere directly with Yurriyangem Taam’s community or social activities?
To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native tile party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
What community or social activities do Yurriyangem Taam undertake on the licence?
Yurriyangem Taam has submitted contentions which focus on the evidence in Ms Malo’s affidavit. They contend a ‘particular type of kangaroo, hunted by the native title holders, can only be found within the tenement area’. The contentions state it can be inferred that without prior consultation with Yurriyangem Taam, the grant of the licence is likely to interfere with the hunting activities.
Ms Malo states the licence is located in ‘really good hunting and fishing country’ where fish, emu and turkey can be found. Ms Malo asserts kangaroo found in that ‘hill country’ are ‘special’ and different to ‘river kangaroo’ and can only be found in that area. Ms Malo states ‘our mob been always hunting that stuff up there and still do’.
What activities do Landsdowne Metal intend to undertake on the licence?
As part of its application for the proposed licence, Landsdowne Metal provided details of its exploration goals and proposed work programme to the State, and this information is included in the States contentions.
Landsdowne Metal identifies its exploration goals as including the review of ‘historical exploration information with a view to completing geological reconnaissance and land access negotiations in the initial period of grant’. Landsdowne Metal’s proposed work programme lists the steps and activities to be undertaken to achieve its exploration goals:
(a)Acquire data and initiate desktop reviews
i)Utilise historical information to identify areas of interest
ii)Follow up identified possible mineralisation strike
(b)Land Clearance Surveys
i)Two native title claimants – low impact activities not expected to require a heritage survey
(c)Reconnaissance trip to identify follow up drill targets
i)Complete initial reconnaissance trip
ii)Low level exploration activity including sampling and mapping
The steps and activities outlined in the application for the proposed licence appear to be cover the initial period of grant. Information about further activities after this period is not specified. I note that if the proposed licence is granted, Landsdowne Metal will be able to exercise the full suite of rights available to them upon the grant of the proposed licence, pursuant to s 66 of the Mining Act 1978 (WA).
Is the grant of the licence likely to interfere directly with Yurriyangem Taam’s community or social activities?
Yurriyangem Taam’s contentions argue that, in the absence of prior consultation with Yurriyangem Taam, the grant of the proposed licence will interfere with community and social activities. Yurriyangem Taam’s contentions state a particular type of kangaroo is only found in the area of the proposed licence and this is supported by Ms Malo’s affidavit. Ms Malo states hunting and fishing still takes place on the licence, and specifically refers to a certain type of kangaroo that can only be found in hill country. The contentions and affidavit evidence, however, lack further detail in terms of any social or community activities done in respect of hunting and fishing, and lacks specific examples of how the activities of Landsdowne Metals will interfere with any community or social activities.
The State accepts that hunting may be conducted on the licence and based on the evidence of Ms Malo, and the issues outlined at the listing hearing, I accept hunting, as well as fishing, takes place. For example, there are at least ten major watercourses on the licence, according to the States information. Having established that such activities do take place on the licence, I need to determine whether or not there is likelihood of the level of any interference with community and social activities being substantial rather than trivial (Silver v Northern Territory at [57]). As noted in Silver v Northern Territory, ‘the analysis is contextual, and not considered in isolation. In assessing the risk of interference the Tribunal is entitled to have regard to other factors’ (at [49]).
Limited information has been provided about the community and social activities of Yurriyangem Taam in relation to the proposed licence. While Ms Malo asserts Yurriyangem Taam still hunt and fishes in the licence area, no detail is provided about the frequency or specific location within the licence where these activities takes place.
While it is possible that community or social activities may be subject to some disturbance if Yurriyangem Taam and Landsdowne Metal are utilising the same area of the proposed licence at the same time, there is insufficient information for me be satisfied any disturbance would meet the threshold of being substantial interference. Given the size of the licence, and the nature of the activities as described, it is also reasonable to conclude any hunting or fishing could coexist in areas of the licence, at any one time. Based on the evidence in this matter, I cannot conclude the grant of the licence is likely to interfere directly with the carrying on of Yurriyangem Taam’s community and social activities.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to Yurriyangem Taam?
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]).
The licence does not contain any sites or other heritage places registered on the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS) Register. The AHIS Register does not purport to record all Aboriginal sites in Western Australia. That is, a site of particular significance for the purposes of s 237(b) does not need to be recorded on the AHIS Register. Regardless of whether or not a site is administratively identified on the AHIS Register, the Tribunal must consider whether there is evidence that establishes the existence of areas or sites of particular significance to a native title party, in accordance with their traditions.
What areas or sites of particular significance do Yurriyangem Taam identify on the licence?
Yurriyangem Taam’s contentions assert the King Leopold Range and its surrounds, is an area of particular significance. The contentions and evidentiary material identify two specific areas as particularly significant, yulumbu and jungurra. Ms Malo relates stories about these areas, their importance to Yurriyangem Taam, and the need for consultation with the traditional owners to avoid interference.
Yulumbu
Ms Malo states there is an ‘important emu story’ for the proposed licence area. I do not provide further detail due to potential sensitivities, save to say it travels through the area of the proposed licence and is associated with the King Leopold Range (which is to the north of the licence, largely outside the licence). Ms Malo indicates there is also a ‘songline and jumba for that emu too’ but indicates this is a men’s story and no further information is provided.
Jungurra
Ms Malo describes a rock, in specific terms, located just outside the north-west corner of the proposed licence. Ms Malo asserts the rock is very important to Yurriyangem Taam, with her father and other people telling her about the rock. Ms Malo states there is a dreaming associated with the rock, relating a story about a snake called jungurra which travels from Yulumbu and turns into the rock. I do not include specific details of the dreaming due to its sensitivity.
Ms Malo describes ‘many little rocks around jungurra’ as being the ‘kids and eggs, his family’ of the snake. Ms Malo states that people cannot touch or go close to the rocks unless there is a traditional owner. Ms Malo asserts only traditional owners can talk to and hug jungurra, identifying that one skin group, whose name comes from snakes, must be the last to speak to jungurra. It is not clear whether these little rocks are within or outside the licence, or both.
Are there sites of particular significance in accordance with Yurriyangem Taam’s traditions?
I must decide whether the King Leopold Range, Yulumbu and jungurra are of particular significance to Yurriyangem Taam in accordance with their traditions. This question is a precondition for inquiring whether the grant of the licence is likely to cause interference with areas or sites of this kind (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). It is important to note what ‘particular significance’ means in the context of a Tribunal inquiry, and I refer to Carr J in Cheinmora v Striker Resources who stated:
It is not enough that the site simply be of significance to the native title holders. That would leave the word "particular" with no work to do. It would also involve a notional transposition of that word from being in front of "significance" (as it appears in the subsection) to immediately after it. If Parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word "particular" out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions.
In the absence of any specific evidence about the particular significance of King Leopold Range and its relationship with the traditions of Yurriyangem Taam, I cannot conclude the range, in part or whole, is a site or area of particular significance.
Yulumbu
Ms Malo does not provide any additional information about where in the proposed licence area the emu travelled, or any further detail about the importance of this story and area, as compared with other areas significant to Yurriyangem Taam. As limited information is provided about this area, I am unable to conclude it is an area of particular significance.
Jungurra
Ms Malo describes the rock just outside the licence, as well as little rocks associated with that site. However, it is not clear how big the area is, or where the little rocks are located (either in broad terms or specifically). The State accepts jungurra is significant to Yurriyangem Taam and that it may be a site of particular significance but also suggests jungurra and its surrounds are located near, but not within, the licence. Based on the evidence provided, I accept the rock is of particular significance to the Yurriyangem Taam, and that it may have an area around it which is also important to the group. I also accept the main rock itself is outside of the licence.
Is the grant of the licence likely to interfere with areas or sites of particular significance to Yurriyangem Taam?
Yurriyangem Taam has stated that interference with jungurra is likely because: the site is not easily recognisable or identifiable by third parties; prior consultation is required to ‘show [Landsdowne Metal] where that rock is and make sure they stay away’; and interference in accordance with traditional law and custom can occur by accessing and viewing jungurra. There was much discussion on this point at the listing hearing.
Ms Malo states that to access the area of the licence in the ranges, Landsdowne Metal will need to ‘go past Landsdowne homestead and up through that road which is outside of the tenement area. If they do that they’ll bump into jungurra then’. Ms Malo also asserts that even if Landsdowne Metal do not use the road ‘they’ll still be too close’ to jungurra while on the licence.
The State’s contentions note there is no evidence Landsdowne Metal will use the road referred to in Ms Malo’s affidavit and state there are two main roads in the area as well as a number of tracks and minor roads which may be used to access the licence. Evidence submitted by the State shows four minor roads and two tracks overlap the licence. Yurriyangem Taam argue Landsdowne Metal is likely to use the road and point to the evidence of Ms Malo, based on her knowledge of the area.
In Yindjibarndi Aboriginal Corporation v FMG Pilbara, then President Raelene Webb QC (summarising Silver v Northern Territory) stated at [17]:
…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.
The rock site, jungurra, is located outside the licence, and it is not clear how near, or whether the little rocks associated with the site are within or outside the licence. To form part of the Tribunal’s consideration, there needs to be sufficient evidence that there is a satisfactorily close nexus between the site and the licence area (see Silver v Northern Territory at [35] and Miriuwung Gajerrong #1 v Seaward Holdings at [72]).
The State has indicated a condition will be placed on the grant of the licence requiring Landsdowne Metal to execute a Regional Standard Heritage Agreement (RSHA) with Yurriyangem Taam if requested within a specified period. Yurriyangem Taam state that they do not endorse the RSHA, as it does not adequately address their heritage concerns or appropriately cover exploration activities that are characterised as ‘low impact’ conduct. The Yurriyangem Taam reply notes what may be low impact for an explorer may not be considered low impact for the native title holders. I agree with this point, and it has been many times in previous Tribunal decisions, however, there must be evidence which clearly demonstrates how activities such as merely looking at the rock, or proximity to the rock, is interference for the purposes of s 237(b).
It is not clear on the evidence provided how any exploration activities of Landsdowne Metal, even assuming they were to exercise their full suite of rights available on grant, would interfere with the rock, or any little rocks associated with that site. While the evidence of Ms Malo establishes jungurra is a site of particular significance to Yurriyangem Taam, there is no evidence of the required nexus. It has also been established that the little rocks are part of a site of particular significance, including a dreaming, however, there simply is insufficient evidence to suggest there is a real chance of interference with that area by the activities of the explorer.
Determination
For the reasons stated above, I find the grant of exploration licence E80/5046 to Landsdowne Metal Holdings Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
31 August 2018
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