Shirley Purdie & Others on behalf of Yurriyangem Taam v Peter Romeo Gianni & Another
[2020] NNTTA 43
•30 April 2020
NATIONAL NATIVE TITLE TRIBUNAL
Shirley Purdie & Others on behalf of Yurriyangem Taam v Peter Romeo Gianni & Another [2020] NNTTA 43 (30 April 2020)
Application No: | WO2019/0427 |
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 Yurriyangem Taam (WC2010/013)
(native title party)
- and -
Peter Romeo Gianni
(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: | 30 April 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 cause major disturbance to land or waters – expedited procedure attracted |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 109, 146, 151, 237 |
Cases: | Gooniyandi Aboriginal Corporation RNTBC v Kimberley Granite Quarries Pty Ltd and Another [2016] NNTTA 1 (‘Gooniyandi v Kimberley Granite’) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (‘Nyamal v Gianni’) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (‘Marputu v Gianni’) Nyamal Aboriginal Corporation v West Australia Resource Development Pty Ltd & Anor [2019] NNTTA 127 (‘Nyamal v WARD’) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (‘TMPAC v Lake Wells’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, [2010] NNTTA 150 (‘Wanjina-Wunggurr & Braeburn’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) Yurriyangem Taam and Others v Baibao Resources Pty Ltd and Another [2015] NNTTA 47 (‘Yurriyangem Taam v Baibao’) |
| Representative of the native title party: | Chloe Thomas, Kimberley Land Council |
| Representative of the grantee party: | Peter Gianni |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulations and Safety Jeff O’Halloran & Reywin Rico, State Solicitor’s Office |
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 E80/5283 (licence) to Peter Romeo Gianni (Mr Gianni).
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 16 January 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 wholly within the area of the native title determination application made by the Yurriyangem Taam native title claim group (WAD44/2019). On 16 May 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.
I note that, since the objection was lodged, the Federal Court has made a determination of native title in relation to the Yurriyangem Taam native title claim, however the determination is not yet entered on the Native Title Register under the NTA (see Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia). Therefore Yurriyangem Taam remains the native title party in this matter.
I have been directed to constitute the Tribunal for the purposes of determining, under
s 32(4) of the NTA, whether the grant of the licence is an act attracting the expedited procedure. For the reasons outlined below, my determination is that the expedited procedure applies.
Issues and approach
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.
The Tribunal takes a common sense approach to the evidence as discussed in Ward v Western Australia. Yurriyangem Taam does not make any contentions in relation to the application of ss 237(a) and (c) (Contentions at 4) and therefore my consideration of the issues is limited to the likelihood of interference within the meaning of s 237(b).
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.
Mr Gianni provided contentions which include a map showing the licence area and a number of nearby features.
Yurriyangem Taam provided contentions and a reply. Its evidence consists of:
(a)an affidavit of Chloe Thomas, affirmed 2 December 2019, which attaches an unsigned affidavit of Rusty Peters, who is a Yurriyangem Taam native title holder; and
(b)an affidavit of Matt Dawson, affirmed 18 March 2015, which related to a previous inquiry in relation to the grant of E80/4851 (see Yurriyangem Taam v Baibao).
Yurriyangem Taam says that because E80/4851 wholly overlapped the area of the licence, Mr Dawson’s evidence is relevant to the inquiry. In his affidavit Mr Dawson explains that he is a senior person and a member of Yurriyangem Taam and has authority to speak for Kija land matters.
Mr Gianni raises a number of issues regarding the relevance or applicability of Mr Dawson’s evidence to this inquiry, particularly having regard to the relatively small size of the licence compared to E80/4851 and the location of the sites or areas identified (Gianni contentions at 8). In its reply at 3-6, Yurriyangem Taam characterises Mr Gianni’s contentions as disputing that Mr Dawson’s evidence is sufficiently reliable to identify sites and areas of particular significance for this inquiry and as asserting that Mr Dawson’s evidence should be disregarded. Yurriyangem Taam says that Mr Gianni has provided no legal basis for that assertion and argues that reliance on existing evidence is entirely appropriate and consistent with the Tribunal’s way of operating in s 109 of the NTA. Under that section, the Tribunal is required to carry out its functions in a fair, just, economical, informal and prompt way and is not bound by technicalities, legal forms or rules of evidence.
I agree that, consistent with s 109, reliance on existing materials is a legitimate means of providing evidence in an inquiry. Certainly, it is likely to assist in minimising the costs and time associated with an inquiry. The nature of exploration and the expedited procedure are such that the same areas of land or waters, and the same sites or areas of significance to native title parties, can, and do, arise in multiple inquiries. In that context, avoiding the need to ‘reinvent the wheel’ time and again is to be encouraged. In the same vein, the Tribunal is able to adopt previous findings and decisions (s 146 NTA).
Ultimately, however, the usefulness of any such evidence will depend on its relevance to the issues at hand. In this case, I do not apprehend Mr Gianni to be asserting that Yurriyangem Taam is not entitled to rely on Mr Dawson’s affidavit. Rather, Mr Gianni’s contentions appear to be directed at the extent to which the evidence supports Yurriyangem Taam’s contentions in relation to the area of the licence.
In any event, I accept both affidavits provided by Yurriyangem Taam as evidence in this inquiry. However, I have taken account of any specific issues raised by Mr Gianni or the State in my consideration of s 237(b) below.
All parties agreed to the matter being determined on the papers as permitted by
s 151(2) of the NTA. Having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
The licence and Mr Gianni’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.
In addition to the endorsements and conditions mentioned above, the State has also indicated that it intends to impose a condition relating to entry into a regional standard heritage agreement (RSHA condition) as follows:
In respect of the area covered by the licence the licensee, if so requested in writing by Yurriyangem Taam, the native title applicants in the Federal Court application No. WAD268/2010 (the "native title party"), such request being sent by pre-paid post to reach the licensee's or agent's address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the native title party any Regional Standard Heritage Agreement ("RSHA") nominated by the native title party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading "Regional Standard Heritage Agreement".
According to the Tengraph Quick Appraisal the licence is 8129.27 hectares. The land tenure in the licence area is primarily pastoral lease (99.72%) with a small area of road reserve.
Mr Gianni’s s 58 statement sets out his year one work programme which has a budget of $24,500 and includes drill target generation. Some indication is also given of the work in year 2, but, as might be expected, activities in later years are stated to be dependent on the initial exploration results.
In his contentions, Mr Gianni refers to himself as a “small individual prospector”. He does give a further description of the initial work proposed, which includes undertaking detailed heritage surveys prior to commencement of drilling if required. Mr Gianni also states that “if no early favourable indications are present, the Tenement will be relinquished very quickly”. As I have previously noted in Nyamal v Gianni, the difficulty with this statement is that it does not address what will occur if the area proves to be prospective.
Given the information provided relates only to the initial exploration work, I conclude, for the purposes of the predictive assessment, that Mr Gianni may avail himself of the full suite of rights available under the licence.
Predictive assessment
Section 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).
What areas or sites are identified by Yurriyangem Taam on the licence area?
Yurriyangem Taam contends that the evidence establishes the existence of a number of areas or sites, which it says are of particular significance. Each is discussed in turn below.
Badawa place at Fish Hole Yard
Mr Dawson’s affidavit at 17 refers to “special badawa places at Fish Hole Yard, Blackfellow Spring and Blackfellow Creek where Kija and Gooniyandi people used to meet and do trading”. He says this would occur every year in the wet season after the station work was finished and during law business time. Mr Dawson further says that these places are very special and no one person or tribe can make a decision about them.
Mr Gianni points out that Blackfellow Spring and Blackfellow Creek are not within the area of the licence and he has marked these areas on the map attached to his contentions, showing them outside the licence area. I gather that so much is accepted by Yurriyangem Taam because, of the badawa places mentioned by Mr Dawson for E80/4851, its contentions in this matter refer only to Fish Hole Yard.
Mr Gianni’s contentions and map refer to Fish Hole Well which he says is just on the boundary of the licence. However, I take that reference to be in error as the map in the AHIS report shows the same location as ‘Fish Hole Yard’. The map attached to Mr Dawson’s affidavit clearly identifies Fish Hole Yard, however as that map relates to E80/4851, it is not clear where the location lies in relation to the licence. While I agree that reliance on previous evidence is a legitimate approach, its efficacy may be limited without adequate explanation of its relevance to the area under consideration.
However, when viewed in conjunction with the maps attached to Mr Peters’ unsigned affidavit and the AHIS report, it seems clear that Fish Hole Yard is located within the licence area. It appears to be shown on all of these maps as a circle at the end of a road. Accordingly, while the name appears to be written on the boundary of the licence, I am satisfied that the site itself is located within the licence area.
Mr Gianni does not make any contentions regarding the significance of Fish Hole Yard. The State argues that there is insufficient evidence of the particular significance of the site as required for s 237(b). However, somewhat surprisingly, no party has mentioned that in Yurriyangem Taam v Baibao, the Tribunal was satisfied that this site was of particular significance to Yurriyangem Taam. I adopt that finding for the purposes of this matter.
Special man’s place near the licence area
Yurriyangem Taam relies on Mr Dawson’s evidence at 18 which refers to “a special man’s place near Mt Amhurst and Black and Gliddon Mine, towards Mueller Range where men meet up”. Again, this site was found to be a site of particular significance in Yurriyangem Taam v Baibao. However, in that case, as Mr Dawson explains at 16, the site was located within the area of the relevant tenement.
In this case, on Yurriyangem Taam’s own contentions at 8, the site is not located within the licence area. As shown on the map attached to Mr Peter’s affidavit, the locations mentioned appear to be approximately 10 kilometres east of the south-east corner of the licence.
The State has raised issues both in relation to the particular significance of this site and the likelihood of interference (State’s contentions at 32, 39). While I can adopt the Tribunal’s finding of the particular significance of this site in Yurriyangem Taam v Baibao, the question of interference in the context of this licence remains.
In Yindjibarndi v FMG at [17], the Tribunal observed:
(d) generally the relevant area or site will be located within the proposed licence, in order for it to be directly affected by grant. It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. Examples given in Silver v Northern Territory at [89] are ‘construction of roads, truck movements to and from the proposed licence etc’
In its reply at 20, Yurriyangem Taam accepts the general proposition put by the State, that proximity of a site to a tenement alone does not lead to a conclusion that interference is likely. However, it does not explain why this site is likely to be subject to interference from the grant of the licence, which it has done for the dreaming, as discussed below.
Accordingly, on the evidence provided, I am unable to conclude that the special man’s place located outside the licence area is likely to be subject to interference from the grant of the licence.
Living water sources along the Mueller Ranges
In his affidavit at 19, Mr Dawson states that there are places along the Mueller Ranges “where you can go if you can’t find water anywhere else” and where “you can dig and get a good soak”. Mr Dawson states that it is important to protect these areas and expresses concern that “if a company drills in the wrong place they could kill the water”, noting “you can’t get that back”.
Once again, while it may be convenient and expeditious (and arguably good practice) for Yurriyangem Taam to rely on Mr Dawson’s previous affidavit, it is still necessary for the evidence to be relevant to the issues in this case. According to Yurriyangem Taam v Baibao at [4], the tenement E80/4851 considered in that case was 533 square kilometres in size, compared to the licence which, at 8129.27 hectares, is approximately 81 square kilometres. I note that Mr Gianni’s calculations as to the size of the area are different, however his point is the same, i.e. that there is a significant difference in the size of the tenements.
The issue which therefore arises is, where in the Mueller Ranges are the areas identified by Mr Dawson and are they in the licence area? From the State’s mapping, the Mueller Ranges clearly run through the licence area and the AHIS report shows a lodged site ID 12566 called Wunamal/Mueller Ranges. This appears to be a very large site which extends, to only a relatively minor degree, into the western side of the licence.
I also note that in Yurriyangem Taam v Baibao, these water sources appear to have been considered only in the context of s 237(c), not s 237(b).
Mr Gianni observes that the Mueller Ranges do not appear to be on the licence, however that observation seems to be based solely on the location of the name of the ranges on the map provided. Despite Yurriyangem Taam’s contention that the State does not dispute that these sites are in the licence area (Reply at 13), the State argues that Mr Dawson’s evidence about these sites is too broad and general (State’s contentions at 30-31).
I agree with the State’s contention in that respect. Mr Dawson’s evidence in relation to these soaks is general and was provided in relation to a much larger tenement. Its relevance to the area of the licence is not sufficiently clear for me to be satisfied these sites are located in the licence area.
Ngarrangarni (also spelt Ngarrangani) dreaming
Mr Peters says that he knows the area where the licence is very well. He says his father taught him the country, including where to go and not go. Mr Peters states at 5 “[m]y grandfather knew where the Ngarrangani country is and my father taught me about it. That’s how I know where it is.”
Mr Peters states at 6 that near the licence area, “near the big hill by Mt Amhurst is a sacred place. That’s part of the Ngarrangarni side”. He says it is Snake dreaming country, which is a very sacred dreaming for Kija people about how the country was made, and which he cannot say any more about.
He says further that the licence area is “very close to Ngarrangani” and explains the possible consequences for people who go to that area (Peters affidavit at 7-8).
The State contends at 33 that Yurriyangem Taam has not provided sufficient evidence to enable this site to be located, nor explained its particular significance. As with the special man’s place discussed above, the State also questions the nexus between this area and the activities proposed by Mr Gianni.
In reply at 16, Yurriyangem Taam says that the site is clearly described as being near Mt Amhurst which is shown on the map attached to Mr Peters’ affidavit and, as noted above, appears to be approximately 10 kilometres from the licence area.
On the issue of the particular significance of this site, Yurriyangem Taam contends this is clear, noting it is a very sacred dreaming about how the country was made and Mr Peter’s evidence regarding the applicable cultural protocols and the consequences for people who interfere with this site (Reply at 10). I agree there is some evidence of the significance of the dreaming. However, the particular significance of the site near Mt Amhurst is not explained.
In relation to interference, Yurriyangem Taam raise the need for a welcoming ceremony due to the proximity of the site to the licence (Reply at 21). I do not accept that is relevant for s 237(b). As the Tribunal noted in Yindjibarndi v FMG (extracted above at [34]) the interference should be physical.
However, Yurriyangem Taam also raises the risk of interference from Mr Gianni’s access to the licence area. While noting that Mr Gianni has not given any evidence of his proposed access route, Yurriyangem Taam says that the maps in its materials clearly indicate that one of the only road access points directly traverses the area of the dreaming.
There are a number of difficulties with this submission. Firstly, as Yurriyangem Taam notes, there is no evidence of Mr Gianni’s proposed access route. Secondly, on Yurriyangem Taam’s own contention, the location of the dreaming site (being “near Mt Amhurst”) is not particularised sufficiently to conclude that the road “clearly traverses the area of the dreaming”. Thirdly, and importantly, the road appears to be an established route to the licence, which differs from the situation considered in Gooniyandi v Kimberley Granite, cited by Yurriyangem Taam. Any interference from the use of the road would not be caused by the grant of the licence (see also Nyamal v WARD at [30]-[31])
It follows from the above that I am not satisfied that the dreaming site area near Mt Amhurst, which is outside the licence area, is a site of particular significance to Yurriyangem Taam relevant to the application of s 237(b) in this matter.
Is the grant of the licence likely to interfere with the badawa site at Fish Hole Yard?
Of the sites identified by Yurriyangem Taam, I have found that only the badawa site at Fish Hole Yard is a site of particular significance relevant to the grant of the licence.
In relation to the consequences of interference, Mr Dawson’s evidence is brief. He says at 17 “these places are special” and “no one person or tribe” can make a decision about them. Mr Dawson also states at 20 that “bad things might happen” if a company (or in this case Mr Gianni) goes to the wrong place.
Yurriyangem Taam contends (Contentions at 10) that consultation with it is required to avoid this interference, particularly as only members of Yurriyangem Taam know the precise boundaries.
In his contentions, Mr Gianni says that he understands his obligations under the Aboriginal Heritage Act 1972 (WA) (AHA) and expresses a willingness to avoid any significant sites. He also says that he believes entry into a RSHA and a heritage survey will provide protection, and that he will give notice to Yurriyangem Taam prior to any exploration (Gianni contentions 4, 11-14).
The State argues that the grant of the licence is not likely to result in interference for a range of reasons including:
(a)the nature of Mr Gianni’s activities and his intentions, as mentioned above;
(b)evidence of previous potential interference from the history of mining and exploration in the area;
(c)protection afforded by the AHA; and
(d)protection afforded through the RSHA condition and the other endorsements and conditions to be imposed on the licence.
In reply, Yurriyangem Taam disputes the adequacy of these measures and I agree with a number of its contentions, particularly in relation to the relevance of any previous exploration activity to this case (see also my comments in TMPAC v Lake Wells at [99] – [100], which are similarly applicable in this matter).
The State’s arguments in relation to the AHA also fail to take account of recent decisions regarding the limitations of that scheme (see for example Marputu v Gianni) and the State has not explained how the AHA would specifically apply to protect the badawa site at Fish Hole Yard.
I have already found that Mr Gianni may exercise all rights under the licence, given the limited information available about his proposed activities, and while they may be well intentioned, his positive statements alone are not sufficient to mitigate the risk of interference.
Yurriyangem Taam also raises a number of issues in relation to the RSHA condition. It argues that the RSHAs offered by the State do not allow for the specific cultural and heritage concerns in the Kimberley region. It cites Wanjina-Wunggurr v Braeburn as authority for the proposition that requiring entry into an RSHA applying in other regions is of little significance (Reply at 32). However, that decision concerned a clause which simply referred to the RSHA “endorsed by peak industry groups offered by the Kimberley Land Council”, of which there was none. The RSHA condition here is quite different.
Yurriyangem Taam also submits (Reply at 33) an RSHA is of limited benefit to sites and areas that are vulnerable to interference from non-ground-disturbing activities. The examples it cites are “the special man’s place, to which access is gender-restricted and the Ngarrangarni dreaming, to which access is prohibited under traditional law and custom unless the welcoming protocol is followed.” No similar concern is raised for the badawa site.
Further, Yurriyangem Taam rely on the comments by President Dowsett in Marputu v Gianni at [66] regarding the potential for further disputes arising from entry into an RSHA. In that case President Dowsett stated “[a]s I have previously observed, protection of that general kind may be appropriate where the traditional owners’ concerns are unparticularized, but that is not the present case.”
In this case Mr Dawson’s evidence regarding the risk of interference to the badawa site is broad and general in nature. He simply refers to the need for consultation with the relevant communities.
In Yurriyangem Taam v Baibao, Member Shurven considered, in some detail, the opportunity for consultation offered in the various RSHAs relevant to that case and ultimately considered at [34], that the concern raised was “not specific enough … to conclude that interference is likely, especially given there is an opportunity for consultation … under an RSHA”. Member Shurven was satisfied (at [35]) that an RSHA would ensure there was consultation with the Kija community regarding the badawa places.
As I have previously observed (see Nyamal v Gianni at [64]) there appears to be an inherent limitation on the application of any RSHA which requires a particular representative body to be a party. However, the Goldfields RSHA referred to in the RSHA condition is not such an agreement and, as noted by Member Shurven, requires parties to consult with each other to decide which areas require a survey.
Therefore, having regard to the limited evidence and the general nature of the concern expressed by Mr Dawson, I agree with the conclusion reached by Member Shurven in Yurriyangem Taam v Baibao.
I am satisfied that the grant of the licence is unlikely to cause interference within the meaning of s 237(b).
Determination
I determine that the grant of E80/5283 to Peter Romeo Gianni is an act attracting the expedited procedure.
Nerida Cooley
Member
30 April 2020
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