Shirley Purdie & Ors on behalf of Yurriyangem Taam v True North Resources Pty Ltd and Another

[2021] NNTTA 12

NATIONAL NATIVE TITLE TRIBUNAL

Shirley Purdie & Ors on behalf of Yurriyangem Taam v True North Resources Pty Ltd and Another [2021] NNTTA 12 (30 March 2021)

Application No: WO2020/0221

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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

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

(native title party)

- and -

True North Resources Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:

Helen Shurven, Member

Place:

Perth

Date:

30 March 2021

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 not an act attracting the expedited procedure

Legislation:

Mining Act 1978 (WA) s 58

Native Title Act 1993 (Cth) ss 31, 32, 151, 237

Cases:

Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources)

FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182 (FMG v Yindjibarndi)

Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (Yurriyangem Taam v Western Australia)

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory)

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)

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208

Representatives(s) of the native title party:

Andrew Topfer, Kimberley Land Council

Representative(s) of the grantee party: Yvette Collins, Hopgood Ganim Lawyers

Representatives(s) of the Government party:

Anthony Civiello, State Solicitors Office

Angela Murphy & Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

1. The State of Western Australia (the State) gave notice of their intention to grant exploration licence E80/5414 (the proposed licence) to True North Resources Pty Ltd (True North), and included a statement in the notice that they consider the grant is an act attracting the expedited procedure. This would, subject to any successful objection, allow the licence to be granted without the requirement under s 31 of the Native Title Act1993 (Cth) (the Act) for the State and True North to negotiate in good faith with a view to obtaining the agreement of the relevant native title party to the doing of the act.

2. This is a decision under s 32 of the Act about whether the expedited procedure applies to the grant of the proposed licence to True North. The proposed licence size is just over 55 square kilometres, and located 122 kilometres South Westerly of Kununurra. The proposed licence is on land and waters where the Federal Court has ordered there will be a determination of native title in favour of the Yurriyangem Taam native title claimants, which will take effect immediately upon a prescribed body corporate being determined under s 56(1) or s 57(2) (see Yurriyangem Taam v Western Australia).  The registered native title rights and interests claimed relevantly include to:

   ·     access the Application Area;

   ·     move about on the Application Area; and

   ·     visit, maintain and protect places of importance under traditional laws, customs and practices in the Application Area.

3. Yurriyangem Taam lodged an objection with the National Native Title Tribunal (the Tribunal) to the State’s inclusion of the expedited procedure statement. The Tribunal must make a determination about whether the expedited procedure applies (s 32(4)). The President of the Tribunal appointed me to constitute the Tribunal for this purpose.

4. For the reasons outlined below, my determination is that the grant of the licence is not an act attracting the expedited procedure.

Issues for Inquiry

1. Under s 237, the grant of a licence is only 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 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)).

2. Yurriyangem Taam do not submit contentions or evidence regarding s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. As such, this inquiry is focused on s 237(a) and s 237(b).

Determination on the papers

1. The State provided a statement of contentions and evidence including mapping, tengraph quick appraisal tenure documents, search results from the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS searches), the licence application with the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act), and details of proposed endorsements and conditions to be imposed, including their Regional Standard Heritage Agreement.  The AHIS search shows one registered site overlaps the northern boundary of the proposed licence – Walangku, which is described as a mythological site with a restricted boundary.

2. True North provided contentions.

3. Yurriyangem Taam provided a statement of contentions and an affidavit of Andrew Topfer, Legal Officer for the Kimberley Land Council who represent Yurriyangem Taam in this matter.  Mr Topfer explains in his affidavit how evidence from Pauline Thomas, a traditional owner for the area, was gathered and provided for this inquiry, and the reasons why it was unsworn (due to logistical difficulties relating to geographical remoteness).  I accept Ms Thomas’s evidence, and note the cultural constraints on providing evidence for some areas of the licence, as outlined in the native title party reply and further affidavit of Mr Topfer. Ms Thomas provided some supplementary evidence in the Yurriyangem Taam reply materials which responded to the State and True North’s contentions.

4. No party sought to have a hearing on the matter, or adduce further evidence following the Yurriyangem Taam reply. I was satisfied this inquiry could be adequately determined without a hearing (s 151(2)). No party took exception to that course of action and I determined the matter on the papers.

The s 237 predictive assessment

1. As outlined in Silver v Northern Territory (at [21]), which I adopt for the purposes of this inquiry (emphasis in original):

   …section 237 requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences outlined in paragraphs (a) – (c) set out above. The proper approach to the application of section 237 was explained by French J in Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442. His Honour pointed out (at 450): "The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement." … [T]his approach was also endorsed by R D Nicholson J in Little v Western Australia [2001] FCA 1706 at [69].

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

1. 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]). I have also taken into account the exclusive nature of the rights and interests which the Federal Court have determined Yurriyangem Taam hold (currently on a conditional basis until the prescribed body corporate is finalised).

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

1. The Yurriyangem Taam contentions (at 7) note that Ms Thomas refers to an ‘important fishing spot’ at a gorge on the licence which is a ‘key part of life for the community of Crocodile Hole’.  State mapping shows Crocodile Hole community to be approximately 1 kilometre from the north-east boundary of the licence, alongside the Wilson River (which itself runs through the north of the licence).  Ms Thomas states (at 7) ‘We still live off the land, the fruit trees and fish’ and outlines (at 8) that this traditional protocol must be done ‘each time we go [to the waterhole]’.  Ms Thomas also asserts (at 6) ‘We live off the land and animals. We hunt in the gorge’.  The detail provided on hunting animals is sparse, but in relation to fishing, it is clear Ms Thomas knows and regularly visits a waterhole in a gorge on the licence which is important for the community activity of fishing, and that members of the community visit there regularly also.

2. The Yurriyangem Taam reply (at 7) explains how the map annexed to Ms Thomas’s affidavit (which I also note is consistent with mapping provided by the State) ‘clearly shows a dotted line going from the community of Crocodile Hole/Rugan into the Tenement Area before stopping at the Wilson River at what the contour lines indicate is a gorge like feature in the O’Donnell Range’.  Ms Thomas (at 4) asserts there ‘…is a waterhole in the gorge that is the traditional fishing spot for Traditional Owners from the area. It is at the end of the road there that goes from the community into the Tenement Area. The access road to the top of the Tenement Area goes through the community. If the company use that access road they will need to go through the community, and we don't give them the ok to go in there’.  The State contentions (at 25 and 32) argue the location of the area has not been made out – however, mapping from the State is consistent with this evidence, showing an access track in similar terms as described by Ms Thomas, leading to the waterway running through the proposed licence.  I accept that Ms Thomas’s evidence is consistent with the mapping and that the important fishing waterhole is on the licence.

3. The Yurriyangem Taam contentions (at 8) outline that fishing and hunting would be interfered with by exploration activities, and Ms Thomas supports that in relation to fishing, with her evidence emphasising a number of times that the community lives off the land there (at 5-7). That area for fishing is also intimately tied to two snakes, and Ms Thomas describes that (as outlined further in my consideration of s 237(b), and access protocols to the area (at [20] below, for example).

4. True North contentions and the statement provided for their application of the proposed licence (included in the State’s materials) outlines that while initial exploration will be limited to desk top review, reconnaissance, sampling and mapping, drill testing may be conducted (depending on those initial exploration activities). The contentions indicate (at 5) their exploration program will be undertaken ‘within limited timeframes’ and that ‘notification will be provided in advance to the traditional owners and rangers’.  It is also described (at 6) that True North ‘does not intend on exploring within any waterways or gorge areas within the Tenement. The Grantee Party intends on consulting with the traditional owners prior to accessing any waterways’.  The information provided in their licence application is limited – while I accept they may not intend to explore in the waterways or gorge areas, that is not a binding undertaking and no explanation is provided as to why those areas would not be subject to exploration, given that upon grant, the explorer can utilise the full suite of rights available to it.  In addition, True North appear to indicate they will be accessing the waterways – such access could be problematic for an area such as the waterhole.  True North outline they will consult with Yurriyangem Taam in relation to such access, but it is not clear what the consultation process would be. 

5. The State (at 27) and True North (at 5) both assert that community and social activities could co-exist with exploration activities.  However, I do not accept that argument if exploration activities were to occur near to the fishing waterhole – I consider that exploration activities in that area would be a direct and substantial interference with the community activity of fishing for Yurriyangem Taam.  My decision rests on having concluded that:  

   (a)The community is very close to the proposed licence, facilitating regular access to the waterhole area for the community activity of fishing;

   (b)The waterhole area within the licence is an important fishing area for the community, and is associated with the two snakes story;

   (c)Access to the area is tied to traditional protocols known to Yurriyangem Taam;

   (d)The evidence of the location of the gorge and waterhole is consistent with the mapping provided by the State.

6. I accept that exploration activities would be likely to be a direct and substantial cause of interference with the Yurriyangem Taam community accessing and fishing in that area.  

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

1. My assessment of s 237(b) turns on whether or not there are areas or sites of ‘particular significance’ – meaning of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). If an area or site is of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]).

What areas or sites have been identified and are any of particular significance?

1. The Yurriyangem Taam contentions (at 12) outline there are particular traditional laws and practices that govern access to the fishing place and explain them. As noted in my consideration of s 237(a), Ms Thomas confirms (at 4) there is a waterhole in the gorge that is the traditional fishing spot for the traditional owners. She goes on to outline (at 5) ‘People fish there all the time. I fish there nearly every day when living in the community. I last went 6 weeks ago’. The Yurriyangem Taam contentions (at 13) say that site is only known to members of the native title party. I accept this traditional fishing area (as described in my consideration of s 237(a)) is a site of particular significance, due to its connection to the two snakes and its importance for community activities.

2. Ms Thomas also outlines other dreaming stories within the proposed licence (at 9) but is unable to provide further detail about these due to cultural constraints (at 11) – as such I could not conclude those areas were of particular significance to Yurriyangem Taam.

Are the exploration activities likely to interfere with sites of particular significance to Yurriyangem Taam?

1. True North provides limited detail about their proposed exploration activity (as outlined in my consideration of s 237(a)). They have outlined that Yurriyangem Taam and rangers will be consulted, and the State make out a similar argument (at 36), however, there is no mechanism for such consultation. True North contentions (at 5) assert that their activities can co-exist with Yurriyangem Taam sites and that they intend to comply with the States regulatory regime (at 8-9).

2. I have examined the State’s regulatory regime, and the endorsements and conditions they intend to apply to this licence on grant.  I could see nothing in that regime which would protect an area such as the fishing hole. There are a number of endorsements and conditions relating to water use, including the storage of hazardous materials.  However, none of these require consultation with the Yurriyangem Taam – they all require consultation with various departments of the State government.  In addition, some of the endorsements and conditions focus on rehabilitation of an area, rather than prevention of interference.

3. Ms Thomas describes specific protocols which are undertaken by members of the community each time they go to the area for fishing (at 8), and notes ‘the mining mob can’t do that welcome’ (at 8).  The contentions emphasise that entry by strangers without permissions is likely to result in interference (at 14).  The State argue (at 35-36) that ‘With regards to how interference might occur, the NTP [Yurriyangem Taam] contends that mere presence is an interference. The NTP's Contentions state that not adhering to the practice of introducing oneself to Country at the gorge is an interference with the area under traditional laws and customs.  The NTP also contends that entry by strangers on country without consultation with the NTP is likely to result in interference with the area under traditional laws and customs. Given that the Grantee Party has stated that it intends consult with the traditional owners prior to accessing any waterways, there is no real chance or risk of interference with the area’. 

4. However, as noted above, the consultation mechanism has not been outlined, nor agreed with Yurriyangem Taam.  If the risk of interference rests on True North’s consultation with Yurriyangem Taam, then it would seem this was a matter where parties needed to negotiate such consultation mechanism, and the expedited procedure should not apply to the grant of the licence.

5. As McKerracher J outlined in FMG v Yindjibarndi (at [79]) to establish interference for the purposes of s 237(b) ‘the impact must be substantial or non-trivial. The meaning of these terms must be taken in the context of the particular site and the laws and customs in relation to that site’. At [75]-[76], McKerracher J clarified:

   That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) [of the Act], may be substantial having regard to the native title party’s traditions... It may follow that mere entry onto the site other than on supervised terms and conditions … may from the native title party’s perspective none the less be non-trivial interference...

6. I have concluded that given the particular significance of the fishing hole area on the licence, True North are likely to interfere with it in the course of their exploration activities by going near to it, even if they were to comply with the State’s regulatory regime.

Determination

1. The grant of the grant of exploration licence E80/5414 to True North Resources Pty Ltd is not an act attracting the expedited procedure.

Helen Shurven
Member
30 March 2021