Shirley Purdie & Ors on behalf of Yurriyangem Taam v WA Mining Resources Pty Ltd and Another
[2020] NNTTA 4
•17 January 2020
NATIONAL NATIVE TITLE TRIBUNAL
Shirley Purdie & Ors on behalf of Yurriyangem Taam v WA Mining Resources Pty Ltd and Another [2020] NNTTA 4 (17 January 2020)
Application No: | WO2018/0872 |
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 -
WA Mining 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: | 17 January 2020 |
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: | Native Title Act 1993(Cth) ss 31, 32, 56(1), 57(2), 237 |
Cases: | Atkins on behalf of Gingirana v Drillabit Pty Ltd [2016] NNTTA 17 (Gingirana v Drillabit) Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (Bunuba Dawangarri v Oladipo Minerals) 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) Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (Hale v Mings Mining Resources) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Forrest v Aruma Exploration) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 Silver v Northern Territory of Australia[2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v PVW Resources NL and Another [2019] NNTTA 106 (Tjurabalan v PVW Resources NL) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (Walalakoo v Boadicea Resources) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (Western Desert Lands v Teck Australia) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Globe Uranium Ltd [2007] NNTTA 37 (Freddie v Western Australia) |
| Representative of the native title party: | Chloe Thomas, Kimberley Land Council |
| Representative of the grantee party: | Hong-Jim Saw, Tenement Manager, WA Mining Resources Pty Ltd |
| Representatives of the Government party: | Reywin Rico, State Solicitor’s Office Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision under s 32 of the Native Title Act1993 (Cth) (the Act/ the NTA) about whether the expedited procedure applies to the grant of exploration licence E80/5218 (the licence) to WA Mining Resources Pty Ltd (WA Mining). All references to legislation are to the Act unless stated otherwise.
The State of Western Australia (the State) gave notice of their intention to grant the licence and included a statement 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 to negotiate as per s 31.
The licence comprises 20 graticular blocks (approximately 65.6 square kilometres) located 96 kilometres south of Wyndham on the Doon Doon Aboriginal Corporation Pastoral Lease. It is located over land and waters where the Federal Court has ordered that there will be a determination of exclusive 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 Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia).
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.
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
Under s 237, the licence grant 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)).
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 [1996] FCA 1452; (1996) 69 FCR 208 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
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), and details of proposed endorsements and conditions to be imposed.
WA Mining provided contentions and annexures in support of the State’s contentions (see [14]-[15] and [17] below).
Yurriyangem Taam provided a statement of contentions, the affidavit of Rebecca Sampi and a reply to the State’s and WA Mining’s submissions.
The directions contemplated an agreed statement of facts and a hearing, but the parties requested these directions be vacated and the matter be determined on the papers. I was satisfied the inquiry could be adequately determined without a hearing (s 151(2)).
The s 237 predictive assessment
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].
What activities will WA Mining likely undertake on the licence?
The State’s papers for this inquiry included the statement WA Mining provided with their application for the licence. That statement outlines WA Mining intends to evaluate a number of target commodities, commencing with a ‘desktop evaluation in order to plan an initial field reconnaissance trip [and then] investigate the identified targets’. Much of the statement has been redacted and so little information can be gleaned. Further detail is provided in WA Mining’s contentions (at 2-15). That material indicates WA Mining:
i)‘will spend less than 10 days per annum on the tenement and on-ground activity will not start until the second year of grant’.
ii)intends to conduct heritage surveys with ‘the NTP’ [native title party].
iii)believes the licence ‘may be carefully accessed by vehicle and then foot without abrogating the NTPs rights’.
iv)contends that previous exploration on the licence has disturbed the area, in particular the grant of previous tenements E80/3317 and E80/4708 and the activities conducted under those grants (more on this at [13]-[15] below).
v)states that any camping associated with exploration work would be done off the licence in public areas.
vi)envisages that heritage survey work would be done in year 3 of the exploration program (following desktop reviews of information and the reconnaissance field trip) and that the cost of the heritage survey will be offered ‘at a cost equivalent to a regional standard heritage agreement [RSHA]’ (see [32]-[37] below for more on an RSHA).
vii)will ‘notify the NTP about proposed on-ground works (whether ground disturbing or not) and provide detailed information about those works before commencing them’.
viii)will access the licence ‘by vehicle only on the roads and will limit any reconnaissance attendance to close proximity to the roads’ and ‘limit the use of motor vehicles where possible’ – ‘where no specific heritage clearance has been completed, the Grantee Party will only access the tenement via the road’.
ix)will ‘avoid any sites of significance that can be identified’.
x)‘where possible invite and organize the attendance of traditional owners to attend or monitor the Low Impact Activity’.
WA Mining attached to their contentions the surrender report for the previous tenement E80/3317 (which overlapped the licence at 100 percent), which outlines the activity conducted by the holder of that tenement. WA Mining notes that another previous tenement (E80/4708, which also overlapped the licence at 100 percent) ‘was held by a sister company of WA Mining and that the tenement was governed by the KLC’s [Kimberley Land Council’s] preferred agreement (in 2012) and the Grantee Party would be willing to sign this identical heritage protection agreement again’.
In relation to E80/3317, the surrender report (dated 2009) notes (at page 8) that:
At present, no Native Title Claim is registered in the tenement area proposed for exploration activities. However, the area sits within Doon Doon Pastoral Lease L 3114 953, which is managed by the Department of Indigenous Affairs (DIA). Ground disturbing activities need to be approved by the Kimberley Land Council (KLC) before approval will be granted by the DIA … Negotiations between the KLC, traditional owners and Northern Star Resources Ltd were completed. Clearances were given by the traditional owners through the KLC for drilling in specific areas and constructing associated access tracks.
The report also notes the rock chip sampling and drilling program undertaken.
It is apparent then, that exploration under both these previous tenements were governed by some form of agreement through the representative of current or potential native title holders. In relation to the licence subject to this inquiry, it appears no form of agreement was able to be negotiated between WA Mining and Yurriyangem Taam. In addition, even if an area has been previously disturbed, this does not necessarily mean the area has lost its particular significance or that further disturbance would not constitute interference according to the native title holders’ traditions (see Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]).
In relation to accessing the licence by existing roads, the State’s mapping and tengraph document does not indicate any existing roads or tracks on the licence. The Great Northern Highway runs outside but near to the south east corner of the licence. WA Mining has provided a map of the prospective area, which appears to be in the mid-western portion of the licence). In addition, the surrender report for E80/3317 (which covers 100 percent of the licence) indicated the area was ‘extremely rugged’ and there were no existing tracks ‘traversing to and within the tenement’ (at page 4).
Section 237(a): is the grant of the licence likely to directly interfere with Yurriyangem Taam’s community or social activities?
The Tribunal is required to make a predictive assessment of whether the grant of the licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). The assessment involves an evaluative judgment about whether the grant of the licence is likely to be the proximate cause of the interference which must be substantial and not trivial (Smith v Western Australia at [26]). On numerous occasions, the Tribunal has balanced a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities and has concluded exploration and social or community activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
What activities do Yurriyangem Taam undertake on the licence?
Evidence in relation to social and community activities is relatively brief. The affidavit material describes collecting and teaching children to collect sugar bags from the anthills in the ‘cold season’, during trips travelling along the Great Northern Highway between Kununurra and Crocodile Hole Community (the latter is approximately 18 kilometres from the licence). Ms Sampi outlines how ‘we pull up at the side of the road near the south eastern side of the Tenement area … because that’s where the sugar bags are most plentiful’ (at 5). There is a general description of collecting bush plums from the area around Christmas time: ‘we can leave the car parked up on the highway and walk down to the creek there’ (Ms Sampi at 6).
WA Mining assert they will not cause interference with such activities as, for example, they will spend less than 10 days per annum on the licence. I am not clear whether that is throughout the life of the licence, or only during the initial years of review and reconnaissance.
The State contend I cannot determine interference is likely because there is no specific evidence of the ‘number of participants, frequency and duration of each of the activities’ nor ‘the extent to which each of the activities occurs within the proposed tenement area or whether they are exercised to a greater degree … are unique or restricted to this area’ (at 26, 28, and 28.1-28.4 citing a number of Tribunal decisions in support, including Walalakoo v Boadicea Resources at [22] and Tjurabalan v PVW Resources NL at [57]).
In reply, Yurriyangem Taam states the ‘evidence establishes the activities take place year round’ in particular during the cold season and Christmas time, and that the ‘location of the proposed tenement, being directly between Kununurra and Crocodile Hole Aboriginal Community, as well as the year-round access … via the Great Northern Highway, further indicate that the community or social activities are of a frequent or intensive nature’ (at 7). They contend the evidence of Ms Sampi ‘could not be clearer’ that the licence area is ‘where the sugar bags are most plentiful’ (at 8).
Conclusion: are WA Mining’s activities likely to interfere or coexist with Yurriyangem Taam’s activities?
I accept that the sugar bags are most plentiful around the area of the licence, that bush plums also occur in the area, and that social and community activities in relation to that vegetation take place all year round. However, it appears that WA Mining is likely to be on the licence for a limited period each year. Even if exploration activity did increase over the life of the licence grant, given the nature of the social and community activities described, I could not conclude interference from the explorer would be likely to be substantial given the sugar bags and plums are plentiful and around the licence area.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance?
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 do Yurriyangem Taam identify?
I focus my attention on the evidence in relation to a massacre site. Ms Sampi outlines (at 7-11) details of a massacre on the licence where police ‘poisoned and burned’ prisoners including the ancestor of a named person. The location is described, as well as a song and dance that contains details of the story. The spiritual danger of the place and the correct protocols to ensure safety are also explained. I do not provide those details due to the sensitivity of the site.
The State argue the massacre site may be the same site as an AHIS recorded site, outside of the licence. However, the Yurriyangem Taam reply argues that is not the case, and these are different sites. I am satisfied the site is within the licence as Ms Sampi has sworn it is so, and provided information which supports that conclusion. I am also satisfied it is not the same as the AHIS recorded site, given the details Ms Sampi provides about the massacre site location.
Is the massacre site of particular significance for the purpose of s 237(b)?
The State accept the evidence is likely to establish the massacre site is of particular significance for the purposes of s 237(b) (at 47). WA Mining do not comment on the massacre site specifically, but make general comments (as outlined at [13]) about sites and their proposed exploration work.
Given the detail provided by Yurriyangem Taam, I accept the massacre site is a site of particular significance according to the native title holders’ traditions.
Is interference with the massacre site likely?
Ms Sampi and the Yurriyangem Taam contentions note the spiritual danger of the massacre site and the protocols for the area ‘because they weren’t buried in the proper way’. This danger presents to Yurriyangem Taam and to those who access the area without proper guidance and ceremony from them beforehand (at 10-11).
As McKerracher J outlined in FMG v Yindjibarndi (at [79] ‘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’. Thus, 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) NTA, 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...
The State argue WA Mining ‘has expressed its willingness to negotiate and enter into a Heritage Protection Agreement prior to the commencement of exploration activities, undertake any necessary survey and avoid any sites or areas of significance to the native title party (if they are willing to provide notice and provide an accurate location of such sites)’ (at 59). From the materials provided by WA Mining, I could not see that this was what WA Mining has specifically expressed. Their commitments are summarised at [13] above.
The State cite Freddie v Western Australia at [51] that ‘the Tribunal’s position is that the AHA [Aboriginal Heritage Act] and its protective regime will normally be sufficient … but there will be circumstances where this is not the case taking into account the nature of any sites…’. The State say the massacre site may fall within the meaning of ‘Aboriginal site’ under s 5 of the AHA such that s 17 makes it an offence to excavate, destroy, damage, conceal or in any way alter that site without Ministerial consent under s 18 of the AHA. They say that even were WA Mining to apply for consent under s 18, the Aboriginal Cultural Material Committee ‘would need to be satisfied of the adequacy of consultation with any relevant Aboriginal persons (which likely includes the Native Title Party), prior to making a recommendation to the Minister’ (at 57-60). The State also note they will place a Regional Standard Heritage Agreement (RSHA) condition on the grant of the licence, whereby WA Mining must execute an RSHA in favour of Yurriyangem Taam within a certain period after the grant of the licence if requested to do so by Yurriyangem Taam (at 63-64).
Similar contentions were raised recently in Bunuba Dawangarri v Oladipo Minerals at [49]-[53]. I adopt the reasoning from that decision, in that even if Yurriyangem Taam are afforded procedural fairness and are consulted prior to the Minister’s decision, ‘the State does not explain how that mitigates the likelihood of interference under s 237(b) of the NTA on the facts of the present case. Interference that is sanctioned under s 18 of the AHA may nonetheless be interference within the meaning of s 237(b) of the NTA’.
Yurriyangem Taam address these arguments in their reply, asserting that the ‘AHA provides no protection to the massacre sites … as it does not address the need to observe ritual in accordance with the traditional law and custom of the NTP … - if the Grantee party were to access the area of the massacre site without the permission and guidance of the NTP there may be significant spiritual repercussions’ (at 28).
Yurriyangem Taam cite Hale v Mings Mining Resources to argue that despite a grantee’s willingness to enter into an agreement such as an RSHA, interference with sites of particular significance will remain likely if the nature of sites means that precise boundaries are not readily identifiable by a grantee, as they assert (at 32) is the case in this matter. I accept reasoning such as at [84] and [90] of that decision supports Yurriyangem Taam’s argument in this inquiry.
Yurriyangem Taam also cite Gingirana v Drillabit to argue that RSHAs do not require a heritage survey or consultation for ‘low impact’ activities and, in this matter such activities ‘would undoubtedly interfere with, in the absence of prior consultation with the NTP, with sites of particular significance in accordance with the NTP’s traditions’ (at 32). I accept Yurriyangem Taam’s contention that the State’s submission ‘an RSHA condition affords adequate protection … does not give proper regard to the above authorities [as outlined at [36]-[37]] and the evidence’ (at 33).
I am satisfied that non-ground disturbing activities would be sufficient to cause interference with the massacre site, according to the traditions described by Yurriyangem Taam. I agree with the assertions of Yurriyangem Taam in relation to the massacre site, and accept that activities WA Mining are likely to undertake on the grant of this licence will cause interference with that site. I could not see that an RSHA condition, or any other any endorsements or conditions intended to be applied by the State in this matter, would mitigate such interference.
Determination
The grant of the grant of exploration licence E80/5218 to WA Mining Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
17 January 2020
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