Wajarri Yamaji Aboriginal Corporation RNTBC v Sandfire Resources Limited
[2022] NNTTA 13
•22 February 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC v Sandfire Resources Limited and Another [2022] NNTTA 13 (22 February 2022)
Application Nos: | WO2020/0792 & WO2020/0793 |
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection applications
Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)
(native title party)
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Sandfire Resources Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven | |
Place: | Melbourne | |
Date: | 22 February 2022 | |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether act likely to interfere with sites or areas of particular significance – evidence provided from other inquiry matters – further evidence provided by teleconference – expedited procedure attracted | |
Legislation: |
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Cases: |
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| Representatives of the native title party: | Sharon McGuire, Wajarri Yamaji Aboriginal Corporation RNTBC Marcus Holmes, Land Equity Legal |
| Representatives of the grantee party: | Katherine Perincek, DLA Piper Adam Groeneveld, Sandfire Resources Limited |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Domhnall McCloskey, State Solicitors Office |
REASONS FOR DETERMINATION
Background
This is a decision about whether the expedited procedure applies to the proposed grant of exploration licences E51/1967 and E51/1968 to Sandfire Resources Limited (Sandfire). The proposed exploration licences are both approximately three square kilometres in size and sit near to each other, 42 kilometres southerly of Peak Hill in Western Australia.
By including an expedited procedure statement in their notice of the proposed grant under s 29 of the Native Title Act 1993 (Cth) (the Act), the State of Western Australia asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Act. That is, the State asserts the grants are not likely to, in summary:
·interfere directly with community or social activities carried on by members of native title claims or determined areas (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders(s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c).
The proposed licence falls within the Wajarri Yamatji Part A determination area, which came into effect on 29 July 2021 (see I.S. (Deceased) v Western Australia). The Federal Court determined native title existed, on a non-exclusive basis, over the 68,000 square kilometres (approximately) of the determined area. The Wajarri Yamaji Aboriginal Corporation RNTBC holds the determined native title in trust for the Wajarri Yamaji common law holders (the native title party/Wajarri Yamaji).
Yamatji Marlpa Aboriginal Corporation (YMAC) were the representative for Wajarri Yamaji at the time the objections were lodged with the National Native Title Tribunal against the inclusion of the expedited procedure. Wajarri Yamaji did not maintain their original assertion in the expedited procedure objection applications that interference was likely under s 237(a) or s 237(c), and accordingly provided no evidence for these limbs in the inquiry. As stated in Ward v Western Australia (at [26]):
where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence.
Therefore, on the limited evidence provided on those limbs, I find the grant of the licences are not likely to interfere with Wajarri Yamaji’s community or social activities (s 237(a)), or involve major disturbance to the land or waters concerned (s 237(c)).
The remainder of this decision is focused on the issue of whether the grant of the licences are likely to interfere with areas or sites of particular significance to Wajarri Yamaji (s 237(b)). An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
It is important to note that, apart from the comments provided by Wajarri Yamaji as taken from Mr Walley during a teleconference (as outlined at [12] - [15] below), the bulk of the evidence relied upon by the native title party is material provided for other inquiries. Member Cooley has determined a number of those inquiries recently in Wajarri Yamaji v Black Raven. I accept the way Wajarri Yamaji have provided the evidence, as they have explained the mechanism of the teleconference with Mr Walley, and they have attached the evidence from the other inquiry matters in Appendix A to their contentions. Given that all parties have limited resources as a general rule, I accept that materials and evidence may relate to more than one expedited procedure inquiry. Whether or not the evidence is persuasive, and the weight I give such evidence, is part of my consideration.
The President of the Tribunal appointed me to conduct an inquiry and determine whether the expedited procedure applies. The parties were content for me to make a determination ‘on the papers’ without holding a hearing, and I considered it was appropriate to do so (s 151(1) of the Act).
The Inquiry
Wajarri Yamaji provided contentions, which attached contentions and evidence from other expedited procedure objection inquiries, as follows:
(a) Contentions filed on 7 July 2021, in the matter of WO2020/0790-091; WO2020/0708-0709 between Colin Hamlett and Others on behalf of Wajarri Yamatji, the State of Western Australia and Black Raven Mining Pty Ltd;
(b) Affidavit of Kevin Peter Walley sworn on 5 July 2021 in the matter of WO2020/0790-091; WO2020/0708-0709 between Colin Hamlett and Others on behalf of Wajarri Yamatji, the State of Western Australia and Black Raven Mining Pty Ltd;
(c) Contentions of Native Title Party filed on 6 September 2021, in the matter of WO2021/0763 between Wajarri Yamatji Aboriginal Corporation RNTBC ICN 7878 and the State of Western Australia and Zebina Minerals Pty Ltd; and
(d) Affidavit of Kevin Peter Walley sworn and filed on 6 September 2021, in the matter of WO2021/0763 between Wajarri Yamaji Aboriginal Corporation RNTBC ICN 7878 and the State of Western Australia and Zebina Minerals Pty Ltd.
I note that E51/1967 and E51/1968 are approximately 70 kilometres north-east of the Black Raven matters (described at 8(a) and (b) above). They are also over 80 kilometres south-east of the Zebina matter (described at 8(c) and (d) above). I recently concluded the inquiry of Wajarri Yamaji v Lawes, where I was satisfied Mr Walley identified two areas of particular significance related to water on the relevant tenement. Part of me drawing that conclusion was the proximity of the tenement in that inquiry to the Hope River (see Wajarri Yamaji v Lawes at [20]-[21] and [30]), and the cohesiveness of the evidence in relation to the waterways in that area.
The Hope River was emphasised in the evidence provided for the Black Raven matters, in particular. In Wajarri Yamaji v Lawes, the native title party presented the same evidence as outlined at [9] above, together with some evidence provided by teleconference specifically for this present inquiry, as outlined in the Wajarri Yamaji contentions (at 7-8), as outlined below at [12]-[15]. In this present inquiry, neither E51/1967 or E51/1968 are near the Hope River, or the other waterways, such as the Murchison River which were referred to in the Black Raven and Zebina matters.
Wajarri Yamaji evidence and materials
The Wajarri Yamaji contentions (at 8(1)-8(2)) argue that both E51/1967 and E51/1968 contain creeks and are located in hill country, which they assert are evidenced on the State mapping. I accept the State’s mapping, and the Tengraph information the State provided, show unnamed waterways. In relation to ‘hills’, mapping does refer to ‘Peak Hill’, and the overlap analysis of the proposed licences shows they are some 42 kilometres from ‘Peak Hill’ as a discrete place. I take the reference to Peak Hill on the mapping to refer to the broader mapsheet area of ‘SG5008 PEAK HILL’, which overlaps the licences entirely according to the States tengraph. I could not say I found evidence of any hills as such. Even if I accepted that hills are located on either of the licences, I find the evidence and reference to hills in the Wajarri Yamaji materials to be so broad and general as to be of no assistance in drawing any conclusions as to whether there are hills on the licences, or whether they are sites of particular significance.
The Wajarri Yamaji materials (at 8(1)) assert that:
Both creeks and hill country are of particular significance as areas and sites to the Wajarri. The creeks have direct connection to the bimarra rainbow serpent and the hill country is inhabited by the little people or Mudinggurangu who will get upset by un-guided exploration activity, with such guidance only able to be given by Wajarri teams through heritage surveys under the terms of a yet-to-be agreed section 31 Native Title agreement.
Given I am not satisfied there is hill country of particular significance on these proposed licences, I do not further consider Mudinggurangu, and in any event, the evidence and information about Mudinggurangu is also broad and general.
Wajarri Yamaji draw my attention in respect of the significance of creeks and waterways to Mr Walley’s Black Raven affidavit (at paragraphs 4, 6, 8 to 12, 16 and 17) and his Zebina affidavit (at paragraphs 4, 8, 11, 13, 15, 17 and 18). Regarding the significance of Mudinggurangu, they draw my attention to Mr Walleys’ Black Raven affidavit (at paragraphs 8, 13, 22 and 23) and his Zebina affidavit (at paragraphs 12 and 16). I find that while there is some reference to the bimarra and impacts on waterways, these references are really assertions, and do not outline in any detail how the creeks and waterways specific to these proposed licences are of particular significance.
As Member Cooley noted in her examination of bimarra in Wajarri Yamaji v Black Raven (at [41]-[44] and [50], for example), waterways containing bimarra are likely to be of particular significance to a native title party. However, I have not found the information or evidence provided in this matter have established there are any waterways or creeks with bimarra on the proposed licences. This is contrasted with Wajarri Yamaji v Lawes, where I concluded Mr Walley had identified two separate areas on the proposed licence and explained how those areas related to bimarra and the traditions of the native title party (see for example, at 20, 22 and 34).
The only conclusion I can draw in this present inquiry is that there are waterways on the proposed licences, but I could not say how they are connected to bimarra in accordance with Wajarri Yamaji traditions.
Sandfire Resources materials
Sandfire Resources note (at 5) that they intend ‘to continue [the] negotiations with a view to obtaining agreement with the Native Title Party, regardless of the outcome of these proceedings’. They assert (at 18.3) that the information and materials provided by Wajarri Yamaji in these matters has insufficient detail to locate areas or sites of particular significance, and I accept that argument.
The State’s evidence and materials
The State argue, among other things, that there is insufficient evidence for me to conclude there are sites of particular significance on the proposed licences (at 29). Once again, I accept that argument.
Overall Conclusion
There is nothing in the Black Raven or Zebina materials, nor in the evidence provided by teleconference, on which I could conclude there are sites or areas of particular significance on or near E51/1967 or E51/1968. I do not, therefore, go on to consider the possibility of interference in relation to those two proposed licences, for this inquiry.
Determination
I find the grant of exploration licences E51/1967 and E51/1968 to Sandfire Resources Limited does attract the expedited procedure.
H Shurven
Member
22 February 2022
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