Shirley Purdie & Others on behalf of the Yurriyangem Taam Native Title Claimants v Ellendale South Pty Ltd & Another - [2020] NNTTA 60

NATIONAL NATIVE TITLE TRIBUNAL

Shirley Purdie & Others on behalf of the Yurriyangem Taam Native Title Claimants v Ellendale South Pty Ltd & Another [2020] NNTTA 60 (15 October 2020)

Application No:

WO2019/1063

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 & Others on behalf of the Yurriyangem Taam Native Title Claimants (WC2010/013)

(native title party)

- and -

Ellendale South Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Nerida Cooley, Member
Place:	Brisbane
Date:	15 October 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 – the act is not an act attracting the expedited procedure
Legislation:	Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 109, 151, 237
Cases:	Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd, [2012] NNTTA 48 (‘Campbell v Murchison Metals’) Ben Ward; Clarrie Smith and Ors v Western Australia & Ors (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’) Madigan Thomas & Others (WC99/37)/Western Australia/Biscay Resources Pty Ltd [2000] NNTTA 71 (‘Madigan Thomas/Western Australia/Biscay Resources’) Marputu Aboriginal Corporation RNTBC v Element 25 Limited & Another [2020] NNTTA 58 (‘Marputu v Element 25’) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (‘Yurriyangem Taam v Western Australia’) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd [2016] NNTTA 29 (‘Walalakoo v Boadicea’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, [2010] NNTTA 150 (‘Wanjina-Wunggurr v Braeburn Resources’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)
Representative of the native title party:	Chloe Thomas, Kimberley Land Council

Representative of the grantee party:

Paul Tolcon, Austwide Legal Pty Ltd

Representatives of the Government party:

Reywin Rico & Lauren Italiano, State Solicitor’s Office
Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

This decision concerns whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E80/5354 (licence) to Ellendale South Pty Ltd (Ellendale).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice that it may grant the licence, specifying the notification day of 17 July 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure. If the expedited procedure applies, then the licence may be granted without first requiring negotiation under s 31 of the NTA.
The licence is located in the Kimberley region of Western Australia, wholly within the area of the native title determination application made by the Yurriyangem Taam native title claim group (WAD44/2019). On 15 November 2019, the registered native title claimant for the Yurriyangem Taam claim (Yurriyangem Taam) lodged an objection against the State’s inclusion of the expedited procedure statement.
After the objection was lodged, the Federal Court made a determination of native title in relation to the Yurriyangem Taam native title determination application (see Yurriyangem Taam v Western Australia). However, the determination has not yet taken effect, so Yurriyangem Taam remains the relevant native title party in this matter.
In light of Yurriyangem Taam’s objection, the Tribunal is required to determine whether the grant of the licence is an act attracting the expedited procedure (s 32(4) NTA). I have been directed to constitute the Tribunal for the purposes of making that determination and for the reasons outlined below, my determination is that the expedited procedure applies.

Determination on the papers

In accordance with the Tribunal’s directions, the State has provided contentions and evidence which includes a map, a Tengraph Quick Appraisal, a report 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’s material also includes a list of previous determinations relating to the licence area and indicates there are no such determinations. However, as noted by Yurriyangem Taam in reply (at 4), the Tribunal has previously determined, by consent, that the expedited procedure did not apply to a tenement application which covered part of the licence area (see Madigan Thomas/Western Australia/Biscay Resources). The Tribunal’s overlap analysis provided to the parties on notification of the objection application also includes a reference to this previous determination and reveals that it relates to 39.33% of the licence area. Yurriyangem Taam argues the previous determination gives an indication that there are areas or sites in the licence area of a kind that require engagement between the parties. However, as no reasons are given for the previous decision, other than it was by consent, there is nothing I can usefully draw from it for the purposes of this inquiry.
Ellendale provided contentions together with various documentation relating to the licence and a letter from its parent company Enegex Limited to the Kimberley Land Council dated 7 April 2020 regarding a draft heritage agreement.
Yurriyangem Taam provided contentions and a reply. Its evidence includes an affidavit of Chloe Thomas, affirmed 27 March 2020, which attaches a signed (but not sworn or affirmed) affidavit of Mr Johnny Echo, and a memorandum explaining the background to the signing of Mr Echo’s affidavit. Mr Echo says he is a Yurriyangem Taam native title holder and that the licence area is in his country. The Tribunal is not bound by technicalities or the rules of evidence (s 109 NTA) and, as the State and Ellendale have not raised any issue with Mr Echo’s evidence, I accept it for the purposes of this inquiry.
All parties considered the matter suitable to determine on the papers as permitted by

s 151(2) of the NTA. Having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.

The issues in the inquiry

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 established 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.
In its Form 4 objection application, Yurriyangem Taam raised issues relevant to each limb of s 237, however it now says it does not make any contentions regarding the application of ss 237(a) and (c) (contentions at 3).
Mr Echo’s affidavit (at 14) does make reference to hunting and camping in the licence area when mustering in the area with his father near Maude Creek Yard, which he says is near the centre of the licence area. He also outlines the types of food found in the licence area. However, the context of this evidence is historical and there is no evidence regarding the extent to which Yurriyangem Taam continues to carry on community or social activities in the licence area relevant to s 237(a). Similarly, there is no evidence before me regarding the likelihood of major disturbance under s 237(c).
The Tribunal takes a common sense approach to the evidence as discussed in Ward v Western Australia. As there is nothing before me to indicate the grant of the licence is likely to cause interference within the scope of s 237(a) or major disturbance under contemplated by s 237(c), I do not consider those consequences are likely.
Accordingly, the focus of this inquiry is the risk of interference within the meaning of

s 237(b) as contended by Yurriyangem Taam.

The licence and Ellendale’s proposed exploration activities

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 prescribes the activities which may be undertaken by the holder of an exploration licence.
The Tengraph Quick Appraisal provided by the State reveals that the licence area is 37363.62 hectares in size. The underlying tenure is pastoral lease (63.3%) and unallocated crown land (UCL) (36.7%). The State’s proposed endorsement 4 on the licence also mentions the existence of a licence for walking and horse trekking on Doon Doon pastoral lease shown as FNA9003 on the Tengraph Quick Appraisal.
The Federal Court’s determination in Yurriyangem Taam v Western Australia mentioned above recognises exclusive native title rights to the UCL as well as the areas subject to the Doon Doon and Bow River pastoral leases (totalling 82.36% of the licence area), and non-exclusive native title rights and interests to the balance of the licence area.
Ellendale’s s 58 statement identifies the goal of the work program as determining whether vanadium is present in the licence area. The work program is to be carried out in a number of stages. The first year of the work program is outlined with a budgeted expenditure of $114,000. However, the statement indicates that “the progress of exploration will accelerate rapidly and budgets increased significantly should a discovery be made during that time”.

Predictive assessment for s 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Yurriyangem Taam?

The accepted approach to s 237(b) is summarised in Yindjibarndi v FMG at [17]–[18]. In particular, an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders. There must be a real risk of interference, but even slight interference may be unacceptable in the context of s 237(b).

Law grounds

Yurriyangem Taam contends there are sacred, gender-restricted law grounds in the licence area. Mr Echo’s evidence specific to the law grounds is brief. He says at 23-25:
23. In the Tenement Area there are important law grounds. People from all over would meet in these areas. Bunuba people, Jaru people, Kija, Ngarinyin people all met and did their law here. They put their own kids all through law, and went back to their own country afterwards. The law grounds are there in the Tenement Area because that's near where Kija, Jaru, Bunuba, Ngarinyin, Wadamulla, Putcase people and Kununurra mob joined together from everywhere, they would all come to the same place. My father helped bring people together.
24. I can't tell the person interviewing me where those law grounds are on the map because that's our business and those places are very special to us. We need to protect those places.
25. During law time, there are different types of law and some of that was secret. Men would do their business. The women would stay home, while the men went out. The old people took my brothers and me through law there. One of the laws shows you how to be a good parent, take care of people and look after your kids.
Mr Echo also explains his knowledge of the licence area generally. He says he was shown a map of the area and knows it very well (at 5). He speaks of his time working as a stockman in the area. At paragraphs 15-22 of his affidavit, Mr Echo outlines welcoming protocols for the licence area. He says “the mining mob can’t go to the Tenement Area without talking to us. We have got to welcome them to country, otherwise they could get hurt or sick”. Mr Echo says the law grounds need to be protected under traditional law and that a heritage survey is required to ensure all areas or sites are protected (at 28).
Ellendale has not provided any comment on this evidence. However, the State contends the evidence is insufficient, particularly in relation to the location of the law grounds in the licence area, noting that non-disclosure directions could have been made to protect sensitive information. It also submits the evidence regarding significance is of a very broad and general nature and that there is insufficient evidence regarding what would constitute interference with the law grounds. The State relies on statements in the Tribunal’s decision in Walalakoo v Boadicea regarding issues with broad and imprecise statements and the possible use of non-disclosure directions for sensitive sites.
In reply Yurriyangem Taam argues that precise identification of a site’s location is not required where the evidence is “otherwise compelling” (at 7), relying on the Tribunal’s findings in Campbell v Murchison Metals and Wanjina-Wunggurr v Braeburn Resources. I note that in both of those decisions the evidence provided some indication of the general location of the sites within the relevant tenement by reference to other identified features, which is not the case here.
Yurriyangem Taam says (reply at 8) that the location of a gender-restricted law ground would not usually be precisely located due to the cultural sensitivity and secret nature of the site. It also says that non-disclosure directions would not have assisted, given Mr Echo would not disclose the location to his own representative (reply at 13). I do not accept that is necessarily the case. The Tribunal regularly receives sensitive gender-restricted evidence under non-disclosure directions. Mr Echo’s view might also have been different if he had a male representative. Further, Mr Echo does not specify gender restrictions as the reason why he is unable to identify the law grounds on the map. He says it is “because that's our business and those places are very special to us” (at 24). Whatever the reason, Mr Echo may have been able to provide some further detail or supporting information under non-disclosure directions, even if not the exact location.
Yurriyangem Taam also seeks to distinguish Walalakoo v Boadicea because the deponents in that case could not say where the sites were located and it was not clear why, and whether it was due to cultural sensitivities (as in this case). However, that is only true for one of the sites considered in that case. There were other sites considered which the Tribunal accepted were or may have been in the tenement area, but where the evidence as to location or significance was still insufficient (at [33], [36], [39], and [43]).
Yurriyangem Taam says that Mr Echo’s general knowledge and familiarity with the licence area supports his statement regarding the law grounds. In particular, it draws on his specific evidence about Maude Creek Yard and his reference to a track that runs through the licence which he says “goes all the way to Landsdowne” (Mr Echo’s affidavit at 10). Yurriyangem Taam has attached a map to its reply which shows Maude Creek Yard towards the centre of the licence as indicated by Mr Echo. There is also one visible track which runs from the licence area to Landsdowne Station, although this track only traverses a small portion of the southern part of the licence.
I can accept from the evidence that Mr Echo is familiar with the country in which the licence is located and I agree that precise identification of an area or site of particular significance is not necessarily required. However there is still some degree of specificity required in order to adequately assess the likelihood of interference. For example, a witness may give an indication of the location of a site by reference to landscape features, markings on a map or a particular part of the tenement area without describing its precise location (as occurred in Walalakoo v Boadicea, Campbell v Murchison Metals and Wanjina-Wunggurr v Braeburn Resources) or the evidence might be corroborated by another witness or supported by material such as an AHIS report. The discussion of this issue in Marputu v Element 25 at [107] and [108] also assists.
In this case however, nothing in Mr Echo’s description of the law grounds assists to place them in the licence area, which is relatively large. There is also no other evidence which assists in locating the law grounds within the licence area.
I also agree with the State that the evidence regarding the particular significance of the law grounds and the risk of interference is lacking in detail. The welcoming protocols relied on by Yurriyangem Taam as evidence of the nature of likely interference (reply at 22) are expressed to apply to the country in the licence area generally, not the law grounds specifically.
Yurriyangem Taam says there is “ample detail” in Mr Echo’s description of the law grounds to show it is of more than ordinary significance (reply at 16). It argues that the evidence establishes the law grounds have been used for generations in accordance with traditional law and custom (reply at 9), however that appears to overstate the evidence somewhat. There is also no explanation of why the law grounds are of particular significance in accordance with Yurriyangem Taam’s traditions, although I can infer from Mr Echo’s description of law time business that law grounds would hold significance to Yurriyangem Taam.
Overall, I consider the evidence as to the location and significance of the law grounds is insufficient for me to find they are an area or site of particular significance within the meaning of s 237(b) in the licence area.

Burial sites

Mr Echo’s evidence refers to burial sites in the licence area and explains the need to protect these sites. He states “[w]e need to show the mining mob where the burial sites are so they aren’t disturbed” (at 26).
Again, there is no indication from Mr Echo of the location of any burial site or sites, or any other evidence sufficient for me to be satisfied burial sites are located in the licence area such that they are of particular significance for the purposes of s 237(b).
As I have not found there are areas or sites of particular significance within the meaning of s 237(b) in the licence area, it is not necessary for me to further consider the question of interference from the grant of the licence.

Determination

I determine that the grant of E80/5354 to Ellendale South Pty Ltd is an act attracting the expedited procedure.

Nerida Cooley
Member
15 October 2020