Shirley Purdie and Others on behalf of Yurriyangem Taam and Others v Samarai Pty Ltd and Another - [2020] NNTTA 53

NATIONAL NATIVE TITLE TRIBUNAL

Shirley Purdie & Others on behalf of Yurriyangem Taam & Others v Samarai Pty Ltd & Another [2020] NNTTA 53 19 August 2020

Application No:

WO2019/0932, WO2019/0933, WO2019/0934

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Shirley Purdie & Others on behalf of Yurriyangem Taam (WC2010/013)

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Giniyjawarrni Yoowaniya Riwi Aboriginal Corporation RNTBC (WCD2018/016)

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Barbara Sturt & Others on Behalf of Jaru (WC2012/003)

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Gooniyandi Aboriginal Corporation RNTBC (WCD2013/003)

(native title parties)

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Samarai Pty Ltd

(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:	Nerida Cooley, Member
Place:	Brisbane
Date:	19 August 2020

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – s 141(2) NTA – parties to inquiry – right to negotiate 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 – expedited procedure does not apply – the act is not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) Acts Interpretation Act 1901 (Cth) s 36 Native Title Act 1993 (Cth) ss 26, 28, 29, 30, 31, 32, 75, 76, 77, 139, 140,141,145, 233, 237, 253 Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Legislation Amendment Bill 2019
Cases:	Certain Lloyd’s Underwriters Subscribing to Contract No IHOOAAQS v Cross [2012] HCA 56, (2012) 248 CLR 378 (Certain Lloyd’s Underwriters v Cross) Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/ Ashburton Minerals Ltd/ Ripplesea Pty Ltd/Western Australia, [2004] NNTTA 31(Sharpe v Western Australia) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560; 233 FCR 96 (Hale) Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (Bunuba #2 v Mings) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha people [1999] NNTTA 361 (Placer v Western Australia) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (Yurriyangem Taam v Western Australia) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia [2018] FCA 2019 (Giniyjawarrni Yoowaniya Riwi v Western Australia) Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923 (Jaru v Western Australia) Wakamurru (Aboriginal Corporation) RNTBC and Another v Kalium Lakes Potash Pty Ltd & Another [2019] NNTTA 128 (Wakamurru v Kalium Lakes Potash Pty Ltd) Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, [2010] NNTTA 133 (Wanjina-Wunggurr v Braeburn) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Elderberry Resources Pty Ltd and Another [2018] NNTTA 73 (Wanjina-Wunggurr v Elderberry) Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452; (Ward v Western Australia) Wintawari Guruma Aboriginal Corporation v Yandan Gold Mines Pty Ltd and Another [2020] NNTTA 52 (WGAC v Yandan Gold Mines) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representatives of the native title parties:	Douglas D’Antoine, Chloe Thomas, and Ash Mumford, Kimberley Land Council; Shahzad Rind, Arra Group Pty Ltd

Representative of the grantee party:

Kevin Connell, Austwide Mining Title Management Pty Ltd

Representatives of the Government party:

Wanjie Song, State Solicitor’s Office;
Michael McMahon, Department of Mines, Industry Regulation 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 licence E80/5346 (licence) to Samarai Pty Ltd (Samarai).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licence, with a notification day of 5 June 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure (expedited procedure statement). If the expedited procedure applies, then the licence may be granted without first requiring negotiations in good faith under s 31 of the NTA.
The licence is located in the Kimberley region of Western Australia. At the time the State gave the s 29 notice, it was required, under s 29(2), to notify the following native title parties in relation to the licence area:
(a)the registered native title claimant for the Yurriyangem Taam native title determination application (WAD44/2019), which the licence would overlap by 3.21% (Yurriyangem Taam);
(b)the registered native title claimant for the Giniyjawarrni Yoowaniya Riwi native title determination application (WAD610/2017), which the licence would overlap by less than .01% (Giniyjawarrni Yoowaniya Riwi RNTC);
(c)the registered native title claimant for the Jaru native title determination application (WAD42/2019), which the licence would overlap by 24.15% (Jaru); and
(d)Gooniyandi Aboriginal Corporation RNTBC (Gooniyandi) which holds native title on trust for the Gooniyandi People in relation to 71.5% of the licence area.
On 4 October 2019, each of Yurriyangem Taam, Giniyjawarrni Yoowaniya Riwi RNTC and Jaru lodged an objection against the State’s inclusion of the expedited procedure statement in relation to the grant of the licence.
The Federal Court had earlier made determinations of native title in relation to the Yurriyangem Taam, Giniyjawarrni Yoowaniya Riwi and Jaru native title determination applications (see Yurriyangem Taam v Western Australia; Giniyjawarrni Yoowaniya Riwi v Western Australia (Giniyjawarrni Yoowaniya Riwi determination); and Jaru v Western Australia).
However, as at the date of this decision, only the Giniyjawarrni Yoowaniya Riwi determination has been entered on the Native Title Register under the NTA. This occurred on 28 January 2020. On that date the registered native title body corporate for the Giniyjawarrni Yoowaniya Riwi determination, now called Giniyjawarrni Yoowaniya Riwi Aboriginal Corporation RNTBC (Giniyjawarrni Yoowaniya Riwi RNTBC) became a native title party to this inquiry. Giniyjawarrni Yoowaniya Riwi RNTC ceased to be a native title party when it ceased to be a registered native title claimant (s 30(2) NTA) (see also discussion in Wakamurru v Kalium Lakes Potash Pty Ltd at [8]–[12]).
The Kimberley Land Council (KLC) represents each of Yurriyangem Taam, Giniyjawarrni Yoowaniya Riwi RNTBC and Jaru in this matter and they have helpfully provided joint evidence and contentions. For ease, I will refer to Yurriyangem Taam, Giniyjawarrni Yoowaniya Riwi RNTBC and Jaru collectively as the KLC parties.
In light of the objections against the expedited procedure statement, the Tribunal is required, under s 32(4) of the NTA, to determine whether the grant of the licence is an act attracting the expedited procedure. I have been directed by the President of the Tribunal to constitute the Tribunal for that purpose and, for the reasons outlined below, my determination is that the expedited procedure does not apply.

A preliminary issue – the parties to the inquiry

Four native title parties, three objections

As outlined at [3], there were four native title parties to whom the State was required to give notice of the proposed grant of the licence. The State’s giving of notice is not in issue in this case.
Under s 32(3) of the NTA, a native title party may lodge an objection against the inclusion of the expedited procedure statement within the period of four months after the notification day. In this case, the closing date for objections was 5 October 2019, although as that was a Saturday, a valid objection could have been lodged by 7 October 2019 (by application of s 36(2) of the Acts Interpretation Act 1901 (Cth)).
The objections mentioned at [4] were lodged within the relevant period, otherwise complied with s 76 of the NTA, and were accepted by the Tribunal in accordance with s 77 of the NTA.
On 15 October 2019, Gooniyandi also lodged an objection against the State’s inclusion of the expedited procedure statement. However, as Gooniyandi’s objection was lodged 10 days after the closing date for objections, it did not meet the requirements for a properly made objection under the NTA and could not be accepted.

Gooniyandi’s involvement in the inquiry

At the outset of the inquiry, an issue arose in relation to Gooniyandi’s participation in the inquiry, given that its objection had not been accepted.
I understand that, historically, the Tribunal and parties have approached each objection application as a separate proceeding, involving only the objector, the grantee party and the State (although where there is more than one objection application the Tribunal ordinarily decides them together). In part, this approach may have developed because individual native title parties and grantee parties often look to negotiate an agreement with a view to achieving the withdrawal of the native title party’s objection application to enable the act to be done (see ss 28(1)(e) and 32(6) NTA). As a result, objections appear to have been viewed as a dispute between those parties.
However, as a native title party under s 29(2), Gooniyandi is a party to any objection application by virtue of s 141(2) of the NTA, notwithstanding that its own objection was not accepted.
On 28 October 2019, the Tribunal informed Gooniyandi that its objection had not been accepted and inquired whether Gooniyandi wished to participate in the inquiry. On 30 October 2019, Gooniyandi advised the Tribunal that it did wish to participate.
On 31 October 2019, the Tribunal wrote to all parties as set out in Annexure A (excluding the attachments).
The State responded on 5 November 2019 to request a case management conference. The State said that, while it had no in principle objection to Gooniyandi’s participation, it was unclear how s 141(2) applied to entitle Gooniyandi to participate and wished to understand the basis of the approach.
On 11 November 2019, I convened a case management conference attended by all parties at which a number of the issues discussed below were canvassed. The State was again clear that it did not object in principle to Gooniyandi’s participation, but was concerned as to how that could be achieved, particularly as the State indicated that it did not necessarily agree with my interpretation of s 141(2). Ultimately, with the agreement of all parties, I made combined directions for the hearing of all three objection applications, which included Gooniyandi as a party. However, the State indicated that it would further consider whether it wished to test this approach (for example by requesting referral of a question of law to the Federal Court under s 145 of the NTA).
In the event, the State did not make any such request and the inquiry proceeded with the involvement of all native title parties, although, as explained below, Gooniyandi ultimately elected not to submit contentions and evidence.
In its contentions dated 3 March 2020, the State has reiterated its view of s 141(2) and stated as follows:
ROLE OF GOONIYANDI ABORIGINAL CORPORATION RNTBC
5.   Gooniyandi Aboriginal Corporation RNTBC (GAC) did not lodge an objection under s 32(3) of the NTA. The Tribunal has accepted GAC as a 'native title party' pursuant to s 141(2) of the NTA, which states:
Right to negotiate applications
(2) The parties to an inquiry in relation to a right to negotiate application are the Government party, the native title parties and the grantee parties.
6.   Under the Native Title Legislation Amendment Bill 2019, Schedule 6, clause 2, the proposed amended wording for s 141(2) is:
Right to negotiate applications
(2) The parties to an inquiry in relation to a right to negotiate application are the following:
(a) the Government party;
(b) the grantee parties;
(c) for an expedited procedure objection application – any native title party that has lodged an objection in accordance with subsection 32(3) and has not withdrawn the objection;
(d) for a future act determination application – the native title parties.
7.   The Explanatory Memorandum for the relevant item reads:
Item 2 – Subsection 141(2)
211. This item amends subsection 141(2) to clarify that only native title parties who object to an act attracting the expedited procedure process are party to the NNTT's inquiries into those objection applications. The expedited procedure is a streamlined approval process for acts done under Subdivision P, Division 3, Part 2 of the Native Title Act.
212. This amendment is intended to address stakeholder concerns that the current drafting of section 141 means that native title parties who do not object to the use of the expedited procedure process are nevertheless required to participate in an objection application lodged by another party.
8. The Government Party's view is that the Explanatory Memorandum confirms it is not the intention of s 141(2) to operate as if all native title parties are party to the inquiry into expedited procedure objection application lodged by another party, and the proposed amendment seeks to clarify the perceived ambiguity in the current provision.
In light of the State’s submission, and being conscious that the approach I have taken departs somewhat from previous practice, I have explained the basis of my approach below.

Principles of statutory construction

The State argues that “…it is not the intention of s 141(2) to operate as if all native title parties are a party to the inquiry into [an] expedited procedure objection application lodged by another party…”. A key part of the State’s argument is that the Native Title Legislation Amendment Bill 2019 (Amendment Bill) includes a proposed amendment to s 141(2) to change the parties to an expedited procedure objection application so that the only native title party to the application is the native title party which lodged the application. The State appears to put a great deal of stock in the use of the word “clarify” at 211 of the Explanatory Memorandum to the Amendment Bill.
However, the State has not explained in any detail why it says that it is not the intention of s 141(2) for all native title parties to be a party to the inquiry or how the language of the NTA supports that interpretation.
The principles of statutory construction were considered by the High Court in Certain Lloyd’s Underwriters v Cross. French CJ and Hayne J outlined a number of basic principles at [23]–[25] (footnotes have been omitted) which are pertinent here:
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority (24), “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.” (Footnote omitted)
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
Their Honours went on to note at [26] that:
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.

The relevant provisions of the NTA

The provisions relating to the Tribunal’s conduct of an inquiry into an expedited procedure objection application are contained in Part 6, division 5 subdivision B of the NTA, entitled ‘Inquiries – General’.
Section 139(b) provides that the Tribunal must hold an inquiry into an application covered by s 75 (a right to negotiate application). The term ‘right to negotiate application’ is defined in s 253 as having the meaning given in s 139(b).
The types of applications covered by s 75 (which are therefore right to negotiate applications) are an ‘expedited procedure objection application’ (such as the three applications in this case) and a ‘future act determination application’.
Under s 140 of the NTA, an inquiry may cover more than one matter, issue or application.
Section 141 of the NTA identifies the parties to inquiries conducted by the Tribunal. Subsection 141(2) relates to right to negotiate applications and provides as follows:
Right to negotiate applications
(2) The parties to an inquiry in relation to a right to negotiate application are the Government party, the native title parties and the grantee parties.

Each of these parties is defined in s 253 of the NTA as follows:
(a)Government party has the meaning given by subsection 26(1) – in this case the State, which proposes to grant the licence;
(b)grantee party has the meaning given by paragraph 29(2)(c) – in this case Samarai which applied to the State for the grant of the licence; and
(c)native title party has the meaning given in paragraphs 29(2)(a) and (b) and section 30 – this definition includes registered native title bodies corporate and registered native title claimants in existence at the time of the s 29 notice as well as certain parties who may later become registered.
In this case:
(a)
Gooniyandi, being a registered native title body corporate at the time of the

s 29 notice, is covered by s 29(2)(a);
(b)Yurriyangem Taam and Jaru, each being a registered native title claimant at the time of the s 29 notice, are covered by s 29(2)(b);
(c)Giniyjawarrni Yoowaniya Riwi RNTC was also covered by s 29(2)(b) until the claim was removed from the Register of Native Title Claims; and
(d)Giniyjawarrni Yoowaniya Riwi RNTBC became a party under s 30(1)(c) when the Giniyjawarrni Yoowaniya Riwi determination was entered on the Native Title Register.
Accordingly, by operation of s 141(2), each of the native title parties, including Gooniyandi, is (or was, in the case of Giniyjawarrni Yoowaniya Riwi RNTC) a party to each of the objection applications. That is so notwithstanding that Gooniyandi’s own objection was not accepted by the Tribunal. Section 140 permits the Tribunal to conduct an inquiry into more than one application, which is what has occurred here.
There is no apparent ambiguity in the relevant provisions. Importantly, s 141(2) applies to both types of right to negotiate applications, being expedited procedure objection applications and future act determination applications.
Section 141(2) does not draw any distinction between these two types of right to negotiate applications. There is nothing express or implied to justify applying s 141(2) differently depending on the type of application or ignoring parts of the definition of “native title party”. That definition clearly includes not just all of the native title parties existing at the time an objection application is made but persons who may later become native title parties under s 30. In particular, it is possible for a person to become a native title party under s 30(1)(c) well after the closing date for objections.
Section 141(2) was considered by the Tribunal in Placer v Western Australia, which concerned a future act determination application. At [19] the Tribunal notes that the State “…submitted that where s 141(2) uses the plural ‘native title parties’ it is referring to a plurality of native title applications.” That is also my view.
The State’s argument here seems to depend on a view that there should be a difference in the parties to each type of right to negotiate application and that the Commonwealth Parliament made a mistake in failing to distinguish between the parties to future act determinations applications and expedited procedure objection applications. If that is the case, it is for Parliament to amend the NTA accordingly (as appears evident from the need for the proposed amendment to s 141(2)). It is not for me to disregard the terms of the legislation and deny Gooniyandi’s right to participate in this inquiry (see s 152 NTA regarding a party’s right to appear).
However, aside from giving effect to the plain words of the NTA, the literal interpretation of s 141(2) is consistent with the NTA when read as a whole. In particular, it is consistent with the scope and nature of the Tribunal’s inquiry into an expedited procedure objection application as outlined by the Federal Court in Hale. To the contrary, the State’s interpretation could lead to a scenario where there is no native title party to the Tribunal’s inquiry. Each of these issues is explained further below.

The Tribunal’s inquiry concerns the whole of the licence area

Section 32(4) of the NTA provides as follows:
If one or more native title parties object against the inclusion of the [expedited procedure] statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.
[Emphasis added]
Section 32(4) was central to the Federal Court’s decision in Hale which held that the scope of the Tribunal’s inquiry in an expedited procedure application is the area of the proposed act as specified in the relevant s 29 notice (Hale at [119]). The Court in that case rejected the proposition that the only area in issue is the area relevant to a particular objector (Hale at [113]).
In Hale, Barker J also considered the nature of the Tribunal’s inquiry function, noting at [100] that unlike other bodies held not to labour under a general “duty to inquire”, the Tribunal “is set up, on this occasion, with the express obligation to conduct an ‘inquiry’ into the expedited procedure coming before it”.
His Honour observed at [98] that, while the Tribunal may not be able to compel parties to provide information relevant to the inquiry, it may at least ask them to provide information under their power and control, and also obtain information in the public domain.
Further, having considered the features of the Tribunal’s inquiry function in some detail from [84], the Court concluded at [101] that “they confirm the Tribunal’s inquiry function is not limited”.
It is difficult to see how the alternative interpretation the State now puts with respect to objection applications can be maintained without reading in words which do not appear in the statute and ignoring words which do. However, the State’s argument regarding the intention of s 141(2) is even less compelling when considered in the context of the scope of the Tribunal’s inquiry.
Given the inquiry concerns the whole of the area specified in a s 29 notice, there may be circumstances when it is appropriate or necessary for the Tribunal to request information from a non-objecting native title party. Limiting the native title parties to the Tribunal’s inquiry would appear to unnecessarily hinder the Tribunal’s ability to undertake the inquiry.
It is also important to remember that the Tribunal’s determination has consequences for all native title parties. Where the Tribunal’s decision is that the expedited procedure does not apply, then all parties, including all native title parties (whether or not they objected) are obliged to negotiate in good faith under s 31 about whether the tenement may be granted. Where the Tribunal’s decision is that the expedited procedure does apply, then the relevant future act (which, by definition in s 233 NTA, will affect native title) may proceed.
No doubt there may be an advantage to a native title party in lodging an objection because, as already mentioned, if all objections are withdrawn, then the proposed act may be validly done (ss 28(1)(e) and 32(6) NTA). The continuation of the proceeding before the Tribunal depends on at least one objection remaining on foot. However, for so long as any one objection does remain on foot, the Tribunal’s inquiry concerns the whole of the area of the proposed act.
I am not aware of the particular stakeholder concerns mentioned in the Explanatory Memorandum to the Amendment Bill (as extracted in the State’s contentions above). However, it is worth noting that the stated reason for the concern is not reflected in the Tribunal’s current practices. The Tribunal does not generally require native title parties who have not lodged an objection to participate in an inquiry. In this case the issue arose only because Gooniyandi had lodged an objection (which was not accepted) and otherwise wished to participate.

The State’s interpretation would exclude a registered native title body corporate covered by

s 30(1)(c) from becoming a party to the inquiry

Importantly, the definition of native title party also includes persons who later become native title parties under s 30.
Under s 30(1)(c), this includes any body corporate that becomes a registered native title body corporate after the end of the three month notification period, as a result of a claim whose details were entered on the Register of Native Title Claims before the end of that period. Such a body corporate may become a native title party at any time before the Tribunal’s determination is made, well after the four month period for objections to be lodged.
That is exactly what has occurred in this case with Giniyjawarrni Yoowaniya Riwi RNTBC. Once the Giniyjawarrni Yoowaniya Riwi determination was entered on the Native Title Register on 28 January 2020 it became a party to the inquiry by virtue of

s 141(2).
However, on the interpretation proposed by the State (and as contemplated by the proposed amendment to s 141(2) in the Amendment Bill), any registered native title body corporate in the position of Giniyjawarrni Yoowaniya Riwi RNTBC would not become a party to the inquiry, while the former registered native title claimant would have ceased to be a party due to the application of s 30(2). The Tribunal identified this as a significant adverse consequence of the proposed amendment to s 141(2) at paragraph 13 of its submission on the Amendment Bill to the Senate Legal and Constitutional Affairs Legislation Committee, dated 29 November 2019.
In my view all of these factors support giving s 141(2) its ordinary meaning. Whether or not a particular native title party in fact participates in an inquiry is an issue which can be adequately managed through practice and procedure. Section 140 also gives the Tribunal flexibility as to how to deal with multiple applications.

Issues relevant to whether the expedited procedure applies to the grant of the licence

Under s 237 of the NTA, the grant of the 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]. The Tribunal’s role 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 licence. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.

Determination on the papers

The State has provided contentions and evidence which includes maps, a Tengraph Quick Appraisal, a report and plan from the Department of Planning, Lands and Heritage Sites Register (AHIS report), 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 the licence. The State also proposes to include a condition requiring Samarai to enter into particular Regional Standard Heritage Agreements if requested by any native title party (although the proposed clause does not refer to Giniyjawarrni Yoowaniya Riwi RNTBC) (RSHA condition).
The KLC parties have provided joint contentions, an affidavit of Harold Cox, affirmed on 6 February 2020 and a reply. Mr Cox says that he is a Jaru, Yurriyangem Taam and Giniyjawarrni Yoowaniya Riwi determined native title holder for the licence area and that he knows the country very well. I accept his evidence.
Gooniyandi advised on 23 January 2020 that it would not be providing contentions and evidence and preferred to focus its attention on reaching agreement with Samarai.
Samarai has provided contentions but no evidence. It also supports the State’s contentions (Samarai contentions at 1).
The Tribunal takes a common sense approach to the evidence as discussed in Ward v Western Australia. Gooniyandi has not submitted any evidence and the KLC parties do not make any contentions in relation to the application of s 237(c) (contentions at 4). Therefore my consideration of the issues focusses on the likelihood of interference within the meaning of ss 237(a) and 237(b), having regard to the evidence and contentions that have been provided and material in the public domain. As there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned, I am satisfied disturbance under s 237(c) is unlikely.

The licence and Samarai’s proposed exploration activities

The nature of the licence and Samarai’s proposed activities are relevant to my consideration of both ss 237(a) and (b).
The licence is an exploration licence 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 outlines the rights conferred on the holder of an exploration licence, which include the right to ‘excavate, extract or remove… earth, soil, rock, stone, fluid or mineral bearing substances’ up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
According to the Tengraph Quick Appraisal provided by the State, the area of the licence is 64,892.34 hectares. The underlying land tenure consists primarily of pastoral lease (97.95%) as well as a number of small reserves and the Great Northern Highway.
Samarai’s s 58 statement reveals little about the proposed exploration other than the estimated expenditure (expected to be $200,000 per year) and the proposed year 1 work program.
Samarai’s contentions provide some additional information including that the licence area is considered geologically prospective for gold and base metals mineralisation. Samarai says that it plans to initially conduct low impact field exploration work comprising geological reconnaissance, mapping, rock and soil sampling over the entire licence. This would be followed by non-ground disturbing geophysics, likely to be an Electromagnetic Survey and further sampling to identify drill targets (Samarai contentions at 5).
The State contends at 34.1 that Samarai has stated that most of its proposed activities “will be low impact and non-intrusive”. From my reading of the material that is not what Samarai says. There is simply more detail provided in relation to its initial activities which it says will be low impact. Samarai clearly contemplates drilling and high impact exploration (Samarai contentions at 18).

Predictive assessment

Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the native title holders?

What community or social activities are carried out by native title holders?

Mr Cox’s evidence in relation to community and social activities is brief. At 15, he states:
15. Our people used the Tenement Area for hunting. There's a billabong in this area called kurniyan where we used to go and get food including bush potato and water lilies. A lot of the places we used to go for water have dried up now though because people have not taken care of country. Too many cattle have ruined the soil or the pastoralists have taken too much water.
16. My sons and other traditional owners go out to the country all the time during the different seasons. Sometimes a couple of traditional owners will go out by themselves. Other times, a big mob of traditional owners go out to country hunting. They hunt goanna, turkey and kangaroo and emu.
17. When we went on holiday after we had finished mustering, we would pack our things on the back of donkeys and make a bush camp down near Mary Pool. There are still sticks in the ground down there pointing up that mark out where to camp.
The KLC parties contend that there is a high probability the grant of the licence will interfere directly with the carrying on of hunting, resource collection and camping (contentions at 8).
However, the State argues that Mr Cox’s evidence lacks detail, particularly regarding the frequency and location of these activities. The State also highlights Mr Cox’s use of the past tense in paragraph 15 of his affidavit and questions whether Mary Pool is located in the licence area (State’s contentions 29-32).
The State has also mentioned the Tribunal’s previous decision in Sharpe v Western Australia which concerned proposed tenement E80/2899. The State’s material shows that the western portion of the area covered by the application for E80/2899 overlapped the southern part of the licence by 15.49%, covering area held by Gooniyandi (State’s contentions Annexures 2, 5-6).
In Sharpe v Western Australia, the Tribunal found that interference with community and social activities of Gooniyandi People was likely. The State argues that I should not rely on this previous finding due to the small overlap of E80/2899 within the current licence, the fact that the overlap is within the area held by Gooniyandi, the age of the case and the lack of any evidence or material from Gooniyandi in this inquiry.
Gooniyandi does hold native title to 71.5% of the licence area (including exclusive native title to 34.36%), so it may be that activities of the kind considered in Sharpe v Western Australia continue to be conducted in the licence area. However, in the absence of any evidence from Gooniyandi about its current activities in the licence area, I am inclined to agree with the State as to the relevance of the Tribunal’s previous findings in relation to s 237(a).
In reply to the issues raised in the State’s contentions, the KLC parties point to Mr Cox’s evidence at 16 to say that it is clear hunting takes place regularly on the licence area and is sustained throughout the year. They also note that Mr Cox identifies a specific location for camping and say that even if Mary Pool is outside the licence area, it does not necessarily follow that the camp site is outside the licence, which I accept. The KLC parties also argue that I should infer that camping takes place with the same frequency as the hunting, however, that does not necessarily follow. Mr Cox’s evidence at 17 refers to occasions when he camped in the past. The reference to the sticks remaining in the ground to mark the area to camp might suggest that camping still occurs at this location but there is no evidence that it does or how often.
In this case, the key evidence regarding the scale of current activities is paragraph 16 of Mr Cox’s affidavit, where he says that his sons and other traditional owners “go out to the country all the time during the different seasons”. While the evidence is limited, I can accept that community and social activities such as hunting and camping are carried out on the licence area and that they may occur regularly throughout the year. However, the scale of activities described here and level of specificity is in no way comparable to the evidence of ‘intensive and frequent’ activities before the Tribunal in Wanjina-Wunggurr v Elderberry on which the KLC parties rely.
Interference within the scope of s 237(a) must be direct and substantial and the exploration activities must be the proximate cause of the interference (see Smithv Western Australia at [26]). Even assuming community and social activities are conducted throughout the year, on a regular basis, it does not follow that there will be direct and substantial interference from the grant of the licence. Overall, the evidence here is insufficient for me to conclude that the grant of the licence is likely to cause interference as contemplated by s 237(a).

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to native title holders?

As discussed in Yindjibarndi v FMG at [17]-[18], 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.

What areas or sites have been identified?

The KLC parties have identified a number of areas and sites which they contend are of particular significance as follows:
(a)Burial sites
Mr Cox deposes that there are “burial sites all over the licence area”. He says that he is unable to show all of these sites on the map but could if he went to the licence. Mr Cox says the sites should not be disturbed and that he would like to see them marked out so that they are protected (Cox affidavit at 6).
(b)Paintings
Mr Cox deposes that there are a lot of paintings in the licence area and refers to some being in caves in the hills. He explains the significance of these sites in telling the KLC parties’ stories and history. Mr Cox says it is very important that these sites are not disturbed (Cox affidavit at 7-11).
(c)Bara sun dreaming
Mr Cox says that there is a Bara sun dreaming along the Margaret River, which runs through the middle and at the top right of the licence area. He says that the dreaming is very important to the KLC parties (Cox affidavit at 12-13).
(d)Turtle dreaming
Mr Cox also deposes that there is a turtle dreaming which goes through the licence area, which he says “left two rocks behind near the bridge”. Mr Cox explains the story associated with these rocks and has marked an area on the map annexed to his affidavit showing the location of the rocks (Cox affidavit at 14).
The KLC parties also contend that Mr Cox’s evidence in relation to the burial sites and paintings is supported by the AHIS report provided by the State.
In that respect, I note that the AHIS report reveals there are 21 registered Aboriginal sites and 7 other heritage places situated throughout the licence area. The site types listed in the AHIS report include ceremonial, mythological and skeletal material/burial sites, which appears consistent with Mr Cox’s evidence.
In Sharpe v Western Australia at [43] the Tribunal also made findings in relation to two sites of particular significance to Gooniyandi people. These were a men’s law site called Wonga described at [35] as “located close to the Jaru and Gigja people’s boundaries” and a dreaming site called Gorranda stated at [36] to be located in the eastern area of E80/2899.
Given that the Gorranda site is said to be located in the eastern part of E80/2899, it is not clear whether it is, to any extent, located in the part which overlaps the licence area.
The State repeats a number of its arguments mentioned at [72] above, regarding the relevance of Sharpe v Western Australia. In particular, it says there is no evidence about whether gatherings still occur at the Wonga site. However, the finding regarding that site was under s 237(b), not s 237(a), so I am not clear on the relevance of that point. There is nothing in the Tribunal’s decision to indicate that the particular significance of the site depended on its continued use. In any event, I accept that it is not a site identified by Mr Cox in this case and Gooniyandi has elected not to provide evidence. Further, the location of the site suggests that it may also have been located at the eastern end of E80/2899 and therefore outside the licence area. As there is no evidence to indicate that the sites found to be of particular significance in Sharpe v Western Australia are located in the licence area, I have not adopted those findings here.
On the evidence in this case, the State accepts that the turtle dreaming and Bara sun dreaming run through the licence area, but argues their particular significance has not been explained.
In relation to the location of the Bara sun dreaming, the State says that only the part of the Margaret River at the top right of the licence is within the areas held by the KLC parties, although the mapping suggests that the Jaru boundary does follow the river in part.
As to significance, the KLC parties argue in reply that there may be a number of reasons why the native title party is unable to provide specific details about a site including protocols around the dissemination of cultural information and fears regarding interference, although no particular reason is given here. They rely on Bunuba #2 v Mings at [88], however the issue there was the precise as opposed to general location of the site, not its significance.
The State mentions at 50 that the Margaret River is a registered site. Certainly, there is a registered site named Margaret River and there look to be a number of other registered sites which include parts of the Margaret River. However, it does not appear from the material that the whole of the parts of the Margaret River identified by the KLC parties as the path of the Bara sun dreaming are registered sites. The KLC parties have not identified any particular relevance of those registered sites to the Bara sun dreaming.
I accept that the path of the Bara sun dreaming is sufficiently located in the licence area. However, other than saying the dreaming is very important, Mr Cox has not explained why the Margaret River is of particular significance in the context of the dreaming. Accordingly, the evidence is not sufficient for me to conclude the specified parts of the Margaret River in the licence area are areas or sites of particular significance within the meaning of s 237(b).
However, I am satisfied of the particular significance of the turtle dreaming site. Mr Cox has given a clear description of the site and marked its location. He has also explained the significance of the site in the context of the dreaming story.
The State does accept the significance of the paintings and the general significance of the burial sites but argues that there is insufficient evidence to allow these sites to be located. It is not clear whether the State has taken account of the registered sites recorded as skeletal material/burial sites.
I am satisfied that the burial sites are sites of particular significance to the KLC parties. While the location of the sites is not particularised in detail, the list of registered sites together with Mr Cox’s evidence supports a finding that there are burial sites located in the licence area. Mr Cox clearly says that he can identify these sites. In that respect his evidence is not speculative.
The evidence of the painting sites is arguably less clear. Mr Cox says there are a lot of paintings “in this area” and refers to some of these sites being “in caves up in the hills”. However, the location of the hills is not marked or described in the material. Unlike the burial sites, the AHIS report does not clearly identify any sites as painting sites.
In their reply at 27 the KLC parties have referred to previous Tribunal decisions where a lack of specificity was overcome because the evidence was otherwise compelling. I have considered those decisions and also the decision in Wanjina-Wunggurr v Braeburn which they distinguished. I accept there may be painting sites in the licence area. However, I do not find the evidence of these sites so compelling as to overcome the lack of specificity as to their location. Accordingly, I am unable to conclude that the painting sites are sites of particular significance within the meaning of s 237(b).

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

As I have found there are areas or sites of particular significance to the KLC parties in the licence area, it is necessary to consider whether the grant of the licence is likely to interfere with those areas or sites. Mr Cox expresses concern at 6 regarding disturbance to the burial sites and a desire for them to be marked out to ensure their protection. At 20 he also refers to the risk of damage to sites in the absence of a survey which he says would “cause all of us a lot of pain”.
Samarai says that it will put measures in place to ensure that its activities do not cause interference or disturbance as contemplated by s 237. Much of its contentions relate to its intention to consult or negotiate with the native title parties, keep them informed and undertake surveys for high impact activities, which may be how it intends to achieve that end.
This is a matter where directions commenced as a matter of course, following the closing date for objections. Despite the directions, it does appear from various correspondence between the parties that Samarai has continued to negotiate with the native title parties as the inquiry has progressed. However, while it is not known the extent to which any agreement has been reached with Gooniyandi, the objections of the KLC parties have not been withdrawn, which indicates agreement has not been reached with them.
I do not doubt that Samarai is well intentioned and it appears to have shown a willingness to reach agreement. There are obvious advantages for all parties if agreement is reached. However, as the Tribunal has previously observed, “unenforceable good intentions and willingness alone” are not sufficient to mitigate the risk of interference within the meaning of s 237 (see WGAC v Yandan Gold Mines at [37]).
Similarly, I do not consider that the inclusion of the RSHA condition is adequate in this context (see Marputu v Gianni at [66]).
Aside from Samarai’s intentions and reliance on the RSHA condition, the State argues interference is unlikely because of the protection afforded by the Aboriginal Heritage Act 1972 (WA) (AHA) (State’s contentions at 49-53).
The material shows that there is a significant number of registered sites throughout the licence area to which the provisions of the AHA apply. The State points out also that the sites identified by the KLC parties “may” fall within the definition of “Aboriginal site” in s 5(b) of the AHA. The KLC parties in reply at 29-32 refute the State’s arguments and the relevance of any protections afforded by the AHA. Having regard to the evidence here I accept the KLC parties’ contentions on this issue.
In the context of the nature and extent of sites identified by Mr Cox, particularly the burial sites, I consider there remains a real risk of interference from the grant of the licence. This is a case where the parties should be required to negotiate in accordance with s 31(1) of the NTA.
Accordingly, I consider that the grant of the licence is likely to interfere with the areas or sites I have found to be of particular significance within the meaning of s 237(b).

Determination

I determine that the grant of E80/5346 to Samarai Pty Ltd is not an act attracting the expedited procedure.

Ms Nerida Cooley
Member
19 August 2020

ANNEXURE A

Dear Parties

WO2019/0932 Yuuriyangem Tamm (WCD2010/013)
WO2019/0933 Giniyjawarrni Yoowaniya Riwi Native Title Claim (WC2017/006)
WO2019/0934 Jaru (WC2012/003)

The Tribunal has accepted the above objection applications to the Government party’s statement that it considers the expedited procedure applies to the grant of tenement E80/5346 applied for by Samarai Pty Ltd. Accordingly, the Tribunal is required to conduct an inquiry in relation to whether the expedited procedure applies to tenement E80/5346. The tenement may be validly granted if the Tribunal determines the expedited procedure applies or the objections are otherwise resolved.

The overlap analysis (attached) shows that Gooniyandi Aboriginal Corporation RNTBC (WCD2013/003) (Gooniyandi) is also a native title party, being a registered native title body corporate in relation to the area of tenement E80/5346.

Gooniyandi has not lodged an objection against the grant of this tenement application satisfying all of the conditions of the Native Title Act 1993 (Cth) (NTA). However, pursuant to s 141(2) of the NTA, Gooniyandi is a party to the Tribunal’s inquiry, and Gooniyandi has advised the Tribunal that it wishes to participate in the inquiry.

In these circumstances, the Tribunal proposes to vacate the directions made by Member Nerida Cooley on 18 October 2019 in relation to objections WO2019/0932; WO2019/0933 and WO2019/0934 and make new directions which include all native title parties. The Tribunal notes that the Government Party has already provided its initial material to comply with direction 1 for directions made in relation to objection applications WO2019/0932 – 0934 against tenement E80/5346 (attached).

The proposed new directions are attached and parties are invited to provide any comments by COB Tuesday 5 November 2019. To take account of the time for parties to provide comments, the compliance dates for directions 2 onwards have been extended by a week.

Subject to the parties’ comments, the Tribunal may list these matters for a case management hearing before Member Cooley next week.

Kind regards
[Tribunal Officer]