Peggy Patrick & Others on behalf of Yurriyangem Taam & Another v Oladipo Minerals Pty Ltd & Another
[2020] NNTTA 36
•1 April 2020
NATIONAL NATIVE TITLE TRIBUNAL
Peggy Patrick & Others on behalf of Yurriyangem Taam & Another v Oladipo Minerals Pty Ltd & Another [2020] NNTTA 36 (1 April 2020)
Application No: | WO2018/0808, WO2018/0809, WO2018/0810 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Peggy Patrick & Others on behalf of Yurriyangem Tamm (WC2010/013)
- and –
Benny Duncan & Others on behalf of Ngarrawanji (WC1996/075)
(native title parties)
- and –
Oladipo Minerals Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 1 April 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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 – act does not attract the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32(4), 151(2), 237 Mining Act 1978 (WA) ss 57, 58, 61, 66 Aboriginal Heritage Act 1972 (WA) |
Cases: | Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (‘Bunuba v Oladipo’) Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655 Gooniyandi Aboriginal Corporation RNTBC v Kimberley Granite Quarries Pty Ltd and Another [2016] NNTTA 1 (‘Kimberley Granite Quarries’) Maggie John and Ors on behalf of the Malarngowem People/Western Australia/Geological Resources Pty Ltd; and Jack Britten and Ors on behalf of the Purnululu People/Western Australia/Geological Resources Pty Ltd [2013] NNTTA 151 (‘Malarngowem v Geological Resources’) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (‘TMPAC v Lake Wells’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representatives of the native title parties: | Joe Heffernan, Chloe Thomas and Douglas D’Antoine, Kimberley Land Council |
| Representative of the grantee party: | Andrew Jones |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulations and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licences E80/5202 and E80/5203 (licences), located in the Kimberley region of Western Australia, to Oladipo Minerals Pty Ltd (Oladipo).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licences, with a notification day of 13 June 2018.
The notice included a statement that the State considers the grants of the licences are acts attracting the expedited procedure. This would, subject to any objection, allow the licences to be granted without negotiation under s 31 of the NTA.
E80/5203 is situated wholly within the area of the native title determination application made by the Yurriyangem Taam native title claim group (WAD44/2019). The majority (97.38%) of the area of E80/5202 is situated within the Yurriyangem Taam claim with the remaining 2.62% falling within the area of the native title determination application made by the Ngarrawanji native title claim group (WAD41/2019).
On 11 October 2018, the registered native title claimant for the Yurriyangem Taam claim (Yurriyangem Taam) lodged objections against the State’s inclusion of the expedited procedure statement with respect to both licences. On the same day the registered native title claimant for the Ngarrawanji claim (Ngarrawanji) lodged an objection in relation to E80/5202.
I note that, since the objections were lodged, the Federal Court has made determinations of native title in relation to both the Yurriyangem Taam and Ngarrawanji native title claims, however the determinations are conditional and therefore not yet entered on the Native Title Register under the NTA (see Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia and Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia).
I have been directed to constitute the Tribunal for the purposes of determining, under
s 32(4) of the NTA, whether the grant of each licence is an act attracting the expedited procedure.
For the reasons outlined below, my determination is that the grant of each licence is not an act attracting the expedited procedure.
Issues and approach
Under s 237 of the NTA, the grant of either licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. My task, in considering whether the expedited procedure applies, is to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licences. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.
The Tribunal takes a common sense approach to the evidence as discussed in Ward v Western Australia. In this matter, s 237(c) is not in issue as neither native title party has made contentions regarding the likelihood of major disturbance. However, both native title parties assert interference within the meaning of s 237(b) and Yurriyangem Taam makes contentions relevant to s 237(a) for E80/5203.
Determination on the papers
All parties have provided contentions in accordance with the Tribunal’s directions and both native title parties also provided a reply.
The State provided evidence for each licence including mapping, a Tengraph Quick Appraisal, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and details of proposed endorsements and conditions to be imposed on the grant of each licence.
For E80/5202, the native title parties have provided affidavits of Josephine Farrer, affirmed 25 November 2019, and Matt Dawson, affirmed 20 November 2019. Mr Dawson’s affidavit was subject to a request for non-disclosure directions, which no party opposed, and I made on 26 November 2019. Both Ms Farrer and Mr Dawson say they are Ngarrawanji and Yurriyangem Taam native title holders and that they have authority to speak for the licence area. I accept their evidence.
For E80/5203, the Yurriyangem Taam’s evidence consists of the affidavits of Wallace Midmee, affirmed 19 September 2019, and Michael Rivers, affirmed 9 October 2019. Both men say they are Yurriyangem Taam native title holders for the area of the licence and I accept their evidence.
Other than a map and tables set out in its contentions, Oladipo did not provide any evidence.
All parties agreed to the matters being determined on the papers as permitted by
s 151(2) of the NTA. Having regard to the information before me, I am satisfied that the inquiries can be adequately determined without a hearing.
The licences and Oladipo’s proposed exploration activities
The licences are exploration licences proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
In addition to the endorsements and conditions mentioned above, the State has also indicated that it intends to impose a condition relating to entry into a regional standard heritage agreement (RSHA condition).
The State’s evidence discloses the following information in relation to the area of each licence:
E80/5202
E80/5203
Size
17606.44 hectares
38816.32 hectares
Underlying tenure
100% Pastoral Lease:
· 2.62% Moola Bulla;
· 97.38% Bedford Downs
100% Pastoral Lease:
· 81.49% Lansdowne;
· 18.51% Bedford Downs
AHIS Search results
1 Other Heritage Place – Wunamal/Mueller Ranges (Named Place, lodged)
No recorded sites/places
Oladipo’s s 58 statement for each licence includes an outline of the proposed exploration activities and a budget for year 1 exploration. It has also provided additional information in its contentions, which relate to both licences.
Oladipo says that it has identified the project (presumably meaning both licences) primarily for vanadium mineralisation potential, but also considers it prospective for nickel-copper and precious metals. Oladipo’s contentions include a map showing the areas identified as prospective for vanadium. However, it reserves the right to explore the entire area of the licences “where exploration does not adversely impact social (i.e. community living areas/camps), cultural or heritage areas.” (Oladipo contentions page 3).
Oladipo says that it proposes to conduct exploration in two phases. The first phase is reconnaissance/target generation which is the proposed year 1 work program outlined in the s 58 statement with estimated costs of $55,000 (E80/5202) and $120,000 (E80/5203). Phase 2 would involve more detailed exploration, potentially including a series of targeted drilling programs, following the submission of work programs to the Department of Mines, Industry Regulation and Safety. Both phases contemplate heritage work being undertaken, with the allowance in the year 1 budget being $15,000 (E80/5202) and $25,000 (E80/5203). However, Oladipo does not explain what these amounts are intended to cover.
While Oladipo has provided a degree of detail about its intended activities over the full terms of the licences, much of the information is speculative and will depend on how exploration progresses. Further, as noted, Oladipo has reserved its rights in relation to exploration on the whole area of the licences.
Accordingly, for the purposes of undertaking a predictive assessment, I conclude that Oladipo may exercise all of the rights available to it under the licences.
Predictive assessment for E80/5202
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
The accepted approach to s 237(b) is summarised in Yindjibarndi v FMG at [17] – [18]. In particular, an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders. There must be a real risk of interference, but even slight interference may be unacceptable in the context of s 237(b).
What areas or sites are identified by Yurriyangem Taam and Ngarrawanji on the licence area?
Burial sites
The native title parties contend that there are burial sites of particular significance on the licence area. In her affidavit in this matter, Ms Farrer annexes and confirms the content of an affidavit she made in a previous inquiry in 1998. In both affidavits Ms Farrer identifies burial sites “close to the hill near Cerola Yard”. She says this site is a sacred place under the native title parties’ traditional customs and laws.
Ms Farrer says further that when she was growing up her mother told her that she was not permitted to go to that area (which I take to mean the burial sites). She was told she could go as far as Wyloo but only men could go north of Wyloo.
Both the map attached to Ms Farrer’s affidavit and the State’s mapping show “Carola” Yard towards the centre of the licence area. The State’s map entitled ‘E80/5202 Native Title and Aboriginal Interests’ also shows certain places named “Wyloo” to the south of the licence.
Oladipo has not made any contentions regarding the particular significance of the burial site.
I note that the State’s contentions at 32 make reference to an extract from the “Dann Affidavit 1”. The native title parties object to that reference as the affidavit mentioned has not been submitted by them in this inquiry. It is not at all clear where the reference to the Dann Affidavit 1 originates and I have not given it any weight. In any event, the State accepts that the burial site is one of particular significance to the native title parties (State contentions at 33).
Having regard to the evidence, I am also satisfied that the site described by Ms Farrer close to the hill near Cerola (Carola) yard is a site of particular significance to the native title parties for the purposes of s 237(b).
Emu and Rain Stone Dreaming
Mr Dawson identifies an area associated with the emu and rain stone dreaming that is located in the valley between the hills on the southeast corner of the licence area. His affidavit attaches a map with a circle showing the vicinity of the area. His affidavit also explains the story and its significance, describing it as a “special place”.
As with the burial site, Oladipo does not specifically address this area in its contentions, however, the State accepts it is a site of particular significance to the native title parties.
I am satisfied the area of the emu and rain stone dreaming is a site or area of particular significance to the native title parties.
Is the grant of the licence likely to interfere with these sites of particular significance?
The native title parties argue that interference with the sites of significance is likely, if there is no consultation with them.
Ms Farrer’s evidence is that the burial site is unmarked and a heritage clearance should be done to avoid disturbance to the burial site. Mr Dawson’s evidence explains the consequences that may arise from interference with the rain stones. He says Oladipo should only go to that area with the people who can speak for the country.
Oladipo contends there will be no interference because it will comply with all relevant laws and follow industry best practice. As noted, Oladipo’s work program contemplates heritage work but there is very minimal detail provided about how that would be undertaken. The work program set out in Oladipo’s contentions refers, at item 10, to heritage surveys for ground disturbing exploration such as drill pads, access tracks and temporary camp. I also note that the area of the burial site appears to coincide with one of Oladipo’s target exploration areas.
Oladipo also notes that it offered a version of the Regional Standard Heritage Agreement to the native title parties and has outlined in its contentions its issues with the native title parties’ heritage protection agreement.
The State disputes that interference is likely, relying on protections under the Aboriginal Heritage Act 1972 (WA) (AHA) and its proposed RSHA condition. The native title party disagrees, explaining why those measures are not adequate in this case (Reply at 8-19).
The arguments raised by the State mirror those considered in Bunuba v Oladipo and I adopt the same reasoning here. The State does not appear to have answered any of the issues raised with its arguments in that matter.
The State also argues, citing Gooniyandi v Kimberley Granite Quarries at [82], that the mere fact that native title holders may be anxious about strangers coming onto country and conducting exploration without consent is insufficient to preclude application of the expedited procedure. As the native title parties identify, this passage cited by the State related to s 237(c) not s 237(b).
In any event, I do not accept that characterisation of the native title parties’ evidence. As accepted by the State, areas or sites of particular significance have been identified and there is evidence of the specific consequences of interference with those areas, particularly the rain stones dreaming.
Having regard to the nature of the sites in this case and the extent of Oladipo’s exploration activities, I do not accept that the factors raised by the State are sufficient to mitigate the likelihood of interference within the meaning of s 237(b).
Predictive assessment for E80/5203
Section 237(a): Is the grant of the licence likely to interfere directly with the community or social activities of Yurriyangem Taam?
What community or social activities do Yurriyangem Taam carry on in the licence area?
Yurriyangem Taam contends that the licence area is accessed regularly, due to its proximity to the nearby community of Gudargie. In particular, it says rivers through the licence area are well known as a key fishing area and that there are “prawns unique to the waters running west towards the Fitzroy River which includes those waterways in the Tenement Area” (Yurriyangem Taam contentions at 8).
Mr Midmee states that he knows the licence area very well and that “[i]t’s part of Gudargie and Old Lansdowne station”. The State’s mapping shows the community of Gudargie approximately 3 kilometres south of the far western boundary of the licence. As noted above, the tenure of the licence area includes Lansdowne station.
Mr Rivers’ evidence provides some background to his association with the licence area and Gudargie. However, in relation to activities on the licence area, his evidence focusses on fishing. At paragraph 10 of his affidavit, Mr Rivers states:
There’s a river that runs right next to Gudargie. The river starts running at the highest point of the Kimberley and runs through the Tenement Area, in the direction towards Fitzroy. In that water there’s Cheribun, fresh water prawns. But you won’t find prawns in the water that runs in the other direction. The prawns only in that water running in the direction through the Tenement Area. Maybe it’s something to do with the stars or the sun, it’s always been one of the top places for prawns on our country. We go fishing for those prawns, we used to be out at Gudargie maybe once a month, my ex wife and the kids. I taught my kids how to fish there in that water. The mining company need to talk to us before they go out there, if they go out there without us, without being welcomed to that place it could interfere with the prawns.
In its contentions at 28, the State argues that the evidence appears to suggest the fishing activities are limited to Mr Rivers’ family, rather than members of the native title party generally, and further that there is no evidence the fish is shared with the Gudargie community. In reply, Yurriyangem Taam points to Mr Rivers’ evidence that the water running through the licence area has “always been one of the top places for prawns on our country”, and argues that I can infer from this that the area is known to, and utilised by, native title holders generally.
The State also asserts that there is insufficient evidence regarding the location, frequency and extent of fishing on the licence area, or why it is necessary for fishing to be carried out on the licence area, as opposed to other parts of the river. In that respect the State notes that only approximately two kilometres of the river is within the licence area.
In reply, Yurriyangem Taam says that the location of the fishing on the licence area is clear because there is only one river in the licence area. As to duration and frequency, Yurriyangem Taam notes that Mr Rivers identifies the area as one of the “top places” for fishing due to the high concentration of prawns. It also argues that I can infer fishing on the licence area is frequent and or intensive due to the proximity to Gudargie and year-round road access, although there is no evidence before me regarding the standard of road access. Yurriyangem Taam relies on Malarngowem v Geological Resources at [42] to support that contention.
However, while the Tribunal in that decision accepted that the proximity of a nearby community was likely to mean that social and community activities were undertaken more frequently on areas such as the proposed licence in that case, it found there was insufficient information on how frequently or where those activities took place, or whether or not they could be done elsewhere on the claim areas.
Similarly, in this case, even accepting that the fishing activities described by Mr Rivers are community and social activities for the purposes of s 237(a), the only information about the frequency of the activities is Mr Rivers’ evidence that “we used to be out at Gudargie maybe once a month, my ex-wife and kids. I taught my kids how to fish in that water.” This suggests the activity occurred in the past. It certainly does not support the contention that the activity is “frequent and intensive”. Further, while I can accept that fishing may occur in the part of the river in the licence area as well as other parts of the river near Gudargie, the evidence does not indicate that the fishing referred to by Mr Rivers occurs only in the licence area.
Overall the evidence of the fishing activities is limited and does not support a contention that the grant of the licence is likely to cause interference of the kind referred to in s 237(a), which requires the interference to be direct and substantial (see discussion in Yindjibarndi v FMG at [16]).
For completeness, I note that the State also addresses the activities of camping and intergenerational-teaching based on references in the affidavits of Mr Midmee and Mr Rivers. However, Yurriyangem Taam makes no contentions regarding these activities and it is not necessary to consider them further.
Based on the evidence before me, I find that the grant of the licence is not likely to cause interference within the meaning of s 237(a).
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Yurriyangem Taam?
What areas or sites are identified by Yurriyangem Taam on the licence area?
Yurriyangem Taam contends that the evidence establishes there is a site of particular significance on the licence area, being a sacred and sensitive rock site named Jarlunji. It says the area surrounding the rocks cannot be accessed without permission without causing disturbance under traditional law and custom (Yurriyangem Taam contentions at 11).
Both Mr Midmee and Mr Rivers refer to this site in their affidavits.
Mr Midmee describes the location of the rock as follows:
10.There is this place near Old Lansdowne and Gudargie. It is maybe twenty minute walk from Gudargie, it is not in those mountains but it is on the black soil plain, he not near the water but he on that black soil plain in the Tenement Area. I can see him, just in this Tenement Area, if you go out there in a chopper with me I can show them. I can see from Gudargie and where that black soil plain is and I can see where that rock would be on this map. That rock is called Jarlunji.
11.We went to Jarlunji with Tony Redmond and with those two uncles and myself a few years ago, with my son Denis Midmee as well, he’s named for Jarlunji. We call him Jarlunji. We cannot do anything about that rock, nobody can. He got him there in the Tenement Area, he got big Jarlunji and then all his babies, little rocks. It’s just sitting up there, right in the middle of the black soil plain.
Mr Midmee goes on at 12 and 13 to explain the significance of the rocks and the consequences of interference.
Mr Rivers also refers to this rock, although he doesn’t name it. He says Wallace (which I take to be a reference to Mr Midmee) would know the name. Mr Rivers’ evidence about the rock is as follows:
Just north of the Tenement Area, we tried to start a community called Yulumba station. When we went there we got permission from the old people. The old people gave us the knowledge not to go near this rock, a black rock, and keep the kids away from it. They said don’t go near that rock there, bad things will happen like rains. Or something could happen to you and your family. Wallace would know the name of the rock. So we set up the community there and them old people agreed so long as we would stay away from the rock.
The State accepts that the Jarlunji site, including the little rocks, is of special or more than ordinary significance to Yurriyangem Taam. However, it says that the location of the site and the extent to which it is situated on the licence area is not clear. In reply, Yurriyangem Taam argues that Mr Midmee clearly says that the rocks are located on the black soil plain in the licence area, away from the water.
As noted previously, the licence boundary appears to be about 3 kilometres from Gudargie, which is likely to be more than a 20 minute walk, depending on the pace, although Mr Midmee’s time estimate is approximate. Mr Midmee does clearly indicate that the rock is within the licence area, he identifies the terrain and says he can see where the rock would be on the map attached to his affidavit.
Mr Rivers’ evidence does not specifically indicate the location of the site, other than stating at 13 that it is in the licence area.
While the location is not marked on the map, I am sufficiently satisfied from Mr Midmee’s evidence that the Jarlunji site is a site of particular significance to Yurriyangem Taam and is located within the licence area.
Is the grant of the licence likely to interfere with this site of particular significance?
I have concluded above at [25] that Oladipo may exercise all of the rights available to it under the licence, and it is in that context that interference must be considered.
Both Mr Rivers and Mr Midmee explain the significance of the Jarlunji or rock site and the consequences for interference with the site. Mr Midmee indicates that only he and his brother are permitted to go to the site.
The State argues that interference is unlikely for a range of reasons, including the effect of previous exploration activity, noting that the tenement area has been subject to sixteen exploration licences. The State argues, at 57 of its contentions, that this prior activity may mean the grant of the proposed tenement is unlikely to cause substantial further interference. I addressed this argument in TMPAC v Lake Wells at [97] – [100] and adopt the same reasoning here. There is no evidence regarding the impact of any prior exploration activity on the licence area, relevant to the likelihood of interference with the Jarlunji site for the purposes of s 237(b). Yurriyangem Taam also addresses this issue in its reply at 9-11 and I agree with those contentions.
For the same reasons referred to above in relation to E80/5202, I also do not accept the State’s arguments that the AHA or possible entry into a RSHA will mitigate interference in this case.
Accordingly, I find that the grant of E80/5203 is likely to cause interference within the meaning of s 237(b).
Determination
I determine that the grant of each of E80/5202 and E80/5203 to Oladipo Minerals Pty Ltd is not an act attracting the expedited procedure.
Ms Nerida Cooley
Member
1 April 2020
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