Wajarri Yamaji Aboriginal Corporation RNTBC v Terrence Harold Little and Lucas Ronald Marcinowski Menzel
[2022] NNTTA 34
•9 May 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC v Terrence Harold Little and Lucas Ronald Marcinowski Menzel and Another [2022] NNTTA 34 (9 May 2022)
Application No: | WO2021/0483 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)
(native title party)
- and -
Terrence Harold Little & Lucas Ronald Marcinowski Menzel
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 9 May 2022 |
Catchwords: | Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – evidence provided from other inquiry matters – reliance on previous National Native Title Tribunal decisions – expedited procedure does not apply |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) s 48 Native Title Act 1993 (Cth) ss 29, 30, 31, 32, 151, 237 |
Cases: | Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182; 324 ALR 580(FMG v Yindjibarndi) IS (Name withheld for cultural reasons) and Others on behalf of Wajarri Yamatji v Terrence Harold Little and Another [2016] NNTTA 24 (Wajarri Yamatji v Terrence Little) IS (Name withheld for cultural reasons) and Others on behalf of Wajarri Yamatji v Weld Range Metals Limited and Another [2011] NNTTA 172 (Wajarri Yamatji v Weld Range Metals) IS (Name withheld for cultural reasons) and Others on behalf of Wajarri Yamatji v Alchemy Resources (Murchison) Pty Ltd and Another [2010] NNTTA 151 (Wajarri Yamatji v Alchemy) I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (I.S. (Deceased) v Western Australia) Robin Boddington and Others (Wajarri) v Bacome Pty Ltd and Another [2003] NNTTA 62 (Boddington v Bacome) Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Raina Savage, Ethical Engagement Consultancy Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation |
| Representative of the grantee party: | Terrence Little |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Chen Da Tan, State Solicitors Office |
REASONS FOR DETERMINATION
Background
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act/NTA) of its intention to grant prospecting licence P20/2429 (the proposed licence) to Terrence Harold Little and Lucas Ronald Marcinowski Menzel (collectively, the grantee party). The notice for the licence included a statement that the State considers the grant is an act attracting the expedited procedure (see s 32 of the Act).
The National Native Title Tribunal (the Tribunal) must determine whether or not the expedited procedure applies to the grant of the proposed licence. In determining whether the expedited procedure applies, the Tribunal must consider whether the grant of the proposed licence is likely to, in summary:
a)interfere directly with the community or social activities of the holders of native title in relation to each licence area (s 237(a));
b)interfere with areas or sites of particular significance, in accordance with their traditions (s 237(b)); or
c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of each licence area (s 237(c)).
The proposed licence is approximately 0.27 square kilometres in size, situated approximately 70 kilometres north-westerly of Cue. The Wajarri Yamaji native title holders (Wajarri Yamaji) lodged an objection with the Tribunal in response to the State’s assertion that the expedited procedure applies to the grant of the proposed licence. Wajarri Yamaji had status to make this objection, being a registered native title claimant in respect of their native title determination application at the time the s 29 notice was given (ss 29(2)(b) and 30(1) of the Act). At the time of this inquiry decision, the proposed licence now falls within the Wajarri Yamatji Part A determination area, which came in to effect on 29 July 2021 (see I.S. (Deceased) v Western Australia), and the Wajarri Yamaji Aboriginal Corporation RNTBC is the native title party for the purposes of this decision. The proposed licence is on land subject to non-exclusive native title rights and interests, as outlined in I.S. (Deceased) v Western Australia.
The inquiry process and submissions
The President of the Tribunal initially appointed Member Kelly, and then subsequently myself, to conduct an inquiry into the objection application, and determine whether the expedited procedure applies. The parties were content for the Tribunal 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).
Wajarri Yamaji submissions
Wajarri Yamaji provided: contentions; the affidavit of Mr Colin Hamlett; and contentions in reply to the State and grantee party submissions. Mr Hamlett is an elder and Wajarri Yamaji native title holder. Mr Hamlett states (at 3 and 4) he has been shown a map of the proposed licence, it is ‘located within the Weld Range pink box area’, and he is ‘responsible for looking after the Weld Range because it was my father’s Law ground’. Mr Hamlett states (at 3) this ‘is an area identified as being of high cultural significance and full of sites and cultural material’.
This ‘pink box’ is described in earlier Tribunal decisions (such as Wajarri Yamatji v Weld Range Metals at [12]) as follows:
Weld Range is a series of roughly parallel hills, ridges and valleys that extend for approximately 60 kilometres long from south-west to north-east and which is approximately four kilometres wide…
The National Heritage Listing Report Application area (NHL Report area) is a rectangular area of 40 by 70 square kilometres (280,000 hectares, 2,800 square kilometres) and was the area originally submitted to the Commonwealth Minister in the application by the WY People [Wajarri Yamaji] for inclusion on the NHL. During the proceedings it was also referred to as the Weld Range Complex Area or the pink pin/pink box area (which referenced how it was marked out on various maps). This area encompasses the whole of the Weld Range.
Grantee party submissions
Mr Terrence Little submitted a 47 page portable document format (PDF) on behalf of the grantee party (which I will refer to by reference to the relevant Electronic Page (EP)). The grantee party contentions acknowledge (at EP 2) the proposed licence is in the Weld Range area. Mr Little provides contentions in support of his claim that he is a member and traditional owner of the Wajarri Yamaji claim group, and appears to dispute the ability of Colin Hamlett to speak regarding the proposed licence area (at EP 2, 11, 24, 26 to 28). However, I do note he accepts that in 2012 ‘Colin formally got given by YMAC responsibility for all my native title cultural heritage in his area’ (at EP 11). The grantee party contentions provide very little information about the proposed licence, or proposed activities on the licence, but do refer to previous tenements Mr Little has applied for (P20/2252, P20/2253 and P20/2247) and the prospectivity for gold in the general area (at EP 46, for example). The tenement P20/2247 was considered in Wajarri Yamatji v Little, where I held that the pink box area was of particular significance, but that the expedited procedure applied because interference was unlikely – I outline more on this decision below in my consideration of s 237(b) for this inquiry.
In terms of the inquiry process, Member Kelly did not accept a 5 page PDF statement from Mr Little on behalf of the grantee party which was submitted in response to the Wajarri Yamaji reply. The statement was not accepted on the basis that it did not include any additional material relevant to the inquiry. It certainly is not usual for a grantee party to have the opportunity to respond following a native title party reply – directions and compliance dates are set to ensure a fair and efficient inquiry process. I concur with Member Kelly’s assessment that the 5 page statement should not be accepted, as the grantee party initial submissions were lengthy, and given in some detail, including photographs and extracts of various reports.
In addition, I consider that the statement lodged by the grantee party after the Wajarri Yamaji reply re-states assertions in the grantee party contentions about Mr Little’s status as a traditional owner for Wajarri Yamaji, refers to the photographs initially provided (which I have considered), and generally re-states the arguments already raised. The only additional information provided is a brief reference that the Tribunal should consider damage already done to the area. As this is an argument already made by the State in their materials (at 30 for example), and responded to in the native title party reply, I did not see it would prejudice the grantee party for me to not accept the late statement, as it was an argument I would be considering in any event. I considered the original 47 page PDF from the grantee party in full.
Mr Hamlett accepts (at 17) that Mr Little is a Wajarri Yamaji traditional owner, and argues that Mr Little speaks for another area of the determination. He goes on to state (at 17-18) that given the proposed licence application has been made jointly by Mr Menzel, who is ‘not an Aboriginal person and not Wajarri’, Mr Menzel ‘should not be treated differently or be given extra rights to go onto our country’.
The State submissions
The State provided contentions and materials, including mapping, a Tengraph Quick Appraisal and searches of the Aboriginal Heritage and Inquiry System (AHIS), a copy of the grantee party’s application for the proposed licence and details of the proposed endorsements and conditions the State intended to be imposed on the grant of the licence. The AHIS searches indicate the proposed licence area contains no sites or other heritage places recorded under the Aboriginal Heritage Act 1972 (WA) (AHA). The objection in this inquiry focuses on s 237(b), and an area or site need not be recorded on the AHIS to be of particular significance in accordance with s 237(b) of the Act, as the Tribunal must consider the evidence provided in each matter on its merits (see Yindjibarndi v FMG at [119]-[120], [126] and the cases therein). For a site to be of ‘particular significance’ under s 237(b), it must be known, able to be located and the nature of its significance explained to the Tribunal (Yindjibarndi v FMG at [120]). This is considered further in the remainder of this decision.
Considerations
In conducting this inquiry I must look at what is likely to result from the grant of the proposed licence and decide whether there is a real chance or risk of the interference or disturbance outlined in s 237 of the Act and, therefore, whether it is an act that attracts the expedited procedure (Smith v Western Australia at [23]). The legal principles are outlined in Yindjibarndi v FMG at [15]-[21]). If I find there is such a real chance or risk, then the expedited procedure does not apply and the parties must negotiate in good faith to seek Wajarri Yamaji’s agreement to the grant of the proposed licence (s 31(1)(b) of the Act).
The proposed licence and the proposed activities
The proposed licence is a prospecting licence, a type of licence outlined in s 48 of the Mining Act 1978 (WA). Prospecting licences are granted for a period of four years (with up to four year’s extension in specific circumstances). Prospecting licences limit the holder to excavating, extracting or removing mineral bearing materials up to 500 tonnes (although further amounts can be approved by the Minister).
As noted at [7] above, the grantee party refers to prospecting for gold, however, does not provide any further material in respect to its proposed work program or its intended activities on the proposed licence.
Predictive assessment for s 237
Section 237(a): is the grant of the proposed licence likely to interfere directly with Wajarri Yamaji’s community or social activities?
In its contentions, Wajarri Yamaji confirms (at 15) that it does not press the original objection made on the basis of s 237(a) of the Act. As such, there is no factual material before me which indicates the grant of the proposed licence is likely to involve interference with the carrying on of Wajarri Yamaji’s community or social activities as contemplated in s 237(a). Therefore, applying the common-sense approach outlined in Ward v Western Australia (at [26]), I find that disturbance under s 237(a) is unlikely.
Section 237(b): is the grant of the proposed licence likely to interfere directly with areas or sites of particular significance to Wajarri Yamaji?
Parties rely heavily on four previous decisions of the Tribunal in their submissions for this inquiry, as outlined in the table below:
Party relying on previous decisions
Previous decision that the act must not be done
Previous decision that expedited procedure does apply
Wajarri Yamaji
Wajarri Yamatji v Weld Range Metals
Wajarri Yamatji v Little
State
Wajarri Yamatji v Alchemy
Boddington v Bacome
What sites or places are on the proposed licence and are they of particular significance?
Wajarri Yamaji place reliance on two Tribunal decisions to argue the expedited procedure should not apply, namely Wajarri Yamatji v Weld Range Metals and Wajarri Yamatji v Little. Wajarri Yamaji contend (at 20) the Tribunal should adopt its finding in Wajarri Yamatji v Little (at [19]) that the ‘pink box area’ and the Weld Range area as a whole is of particular significance to Wajarri Yamaji.
Mr Hamlett argues (at 6) the ‘Weld Range is one of the most important and sacred cultural places in Australia. There are so many critically important sites there that must be protected and preserved for future generations. We have been documenting them with the University of Western Australia through the Weld Range Web of Knowledge project’.
The State contends that the Wajarri Yamatji v Weld Range Metals decision concerned a mining lease application in relation to a proposal to open pit mine chromium and nickel, and the related infrastructure and logistics were significant as compared with the prospecting licence in the present inquiry. The State (at 23) contends there ‘is no parallel between the interference caused by those activities and the prospecting activities that would occur on the present proposed tenement’. However, this goes to the issue of interference, rather than whether or not there are sites or places on or near the proposed licence that are of particular significance to Wajarri Yamaji.
The State contends (at 33-43) that the present inquiry is comparable to two decisions in which it was determined that the expedited procedure did apply: Wajarri Yamatji v Alchemy and Boddington v Bacome. However, as I noted in Wajarri Yamatji v Little (at [16]), both of these decisions were made prior to the ventilation of the evidence regarding the significance of the Weld Range area in Wajarri Yamatji v Weld Range Metals. In addition, in Wajarri Yamatji v Alchemy, the Tribunal accepted the Weld Range area is an area of particular significance to Wajarri Yamaji, and the decision to apply the expedited procedure was made on the basis that it was determined it was unlikely there would be interference such as to offend s 237(b). In Boddington v Bacome, I note the Tribunal determined that there were no sites of significance on the exploration tenement, and so the decision maker did not turn his mind to the question of interference.
On the basis of the overwhelming amount of evidence in relation to the Weld Range pink box area, I accept it is an area of particular significance to Wajarri Yamaji. I now consider the issue of interference in relation to the proposed licence and activities of the grantee party.
Is there likely to be interference to these sites or areas of particular significance?
In FMG v Yindjibarndi (at [76]), the Federal Court made it clear how the word ‘interference’ in s 237(b) of the Act should be interpreted:
There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
Mr Hamlett (at 15) outlines that:
Many of the activities that are considered 'Low Impact Exploration' under the Regional Standard Heritage Agreement could still interfere with areas or sites of particular significance. For example, rock chip sampling could interfere with areas or sites of significance, because of the large number of artefacts spread all around the pink box area, including the area of the Tenement.
The State submits that, in the event the Tribunal finds there are any sites or areas of particular significance in the proposed licence area, interference with those areas or sites is not likely for the below reasons. My comments, in italics, follow each of the State’s arguments:
(a)(At 56-57) - Wajarri Yamaji has not produced any evidence to establish there would be direct interference with any areas or sites of particular significance on the proposed licence, and that mere presence in an area does not cause direct interference – I note Wajarri Yamaji does not only argue that mere presence will cause interference, they assert prospecting activities such as rock chip sampling could cause such interference.
(b)(At 58-61) - The nature of the prospecting licence and that the Tribunal has previously accepted that a prospecting licence provides a narrower range of rights than an exploration licence (see Wajarri Yamatji v Little at [26] and [37]) – while a prospecting licence does allow a grantee a narrower suite of activities than an exploration licence, I must consider those activities allowed under a prospecting licence for the purposes of this inquiry. Each inquiry turns on its own facts. A prospecting licence allows for at least 500 tonnes of material to be taken from a licence area, and a further amount may be approved by the Minister. It also allows a prospector to do activities such as to enter and re-enter the land with vehicles, machinery and equipment.
(c)(At 62-65) - Mr Little is aware of the existence of any sites of particular significance because of his knowledge as a member of Wajarri Yamaji – this has been addressed at [7], [10], [27], [29]-[30] of this decision.
(d)(At 70) - In the absence of evidence to the contrary, the Tribunal should assume that a grantee party will not act in breach of the relevant statute law, regulations or conditions imposed upon them citing (see Ward v Western Australia) – the question I must consider is whether or not a grantee party, acting in accordance with the State’s regulatory regime and relevant legislation, would be likely to cause interference as contemplated by the terms of s 237(b). This is addressed further below.
The State also submits (at 77-82) that the protection regime under the AHA is sufficient in this case, and asserts there has been previous interference with the area (at 30). In Wajarri Yamatji v Little, I reached the conclusion that interference was unlikely for the following reasons (at [37]):
Factors central to my decision are: the limited rights afforded to the holder of a prospecting licence; the underlying pastoral lease and the previous and continuing exploration activity in the area; the evidence of previous disturbance of the licence; and the State’s proposed RSHA [Regional Standard Heritage Agreement] condition. I also take into account Mr Little’s status as a member of the Wajarri Yamatji people. Although not determinative of the question of likely interference, this position nevertheless appears to afford him a rare insight, for a grantee party, into relevant heritage protection issues for the area.
Each inquiry turns on its unique facts and evidence, and this current matter may be distinguished from that previous conclusion for the reasons outlined below. In addition, this current matter may also be distinguished from Wajarri Yamatji v Little on the basis that no RSHA condition was proposed for this tenement, nor are any of the State’s proposed endorsements and conditions require consulting with the native title party in relation to work to be undertaken on the proposed licence. The endorsements and conditions relate to the grantee party requiring various permissions from State departments.
Wajarri Yamaji argue (at 18) that without ‘proper Aboriginal heritage site avoidance procedures being taken, it is likely that any activity permitted’ pursuant to the grant of the proposed licence will interfere with areas or sites of particular significance. Further (at 18), Wajarri Yamaji argue that consultation between the native title party and the grantee party is necessary to ensure areas or sites of particular significance are not likely to be interfered with. Mr Hamlett argues (at 13) that the grantee party needs ‘to enter a Weld Range Agreement … [i]t doesn’t matter who you are – Aboriginal or non-Aboriginal – Wajarri or not’.
Much of Mr Little’s statement on behalf of the grantee party argues against the contention that he, as a native title holder, should be made to enter into such an agreement. However, that is not the test I must apply for consideration of s 237(b) – I must consider whether there are any sites or areas of particular significance, and if so, then consider whether there is likely to be interference to such sites or areas.
Whilst Wajarri Yamaji accept that Mr Little has communal native title rights in relation to the entire Wajarri Yamaji area, including the right to visit the Weld Range area, their reply (at 7) asserts those rights ‘do not extend to authority to speak for that area as a recognised custodian and to protect or manage Aboriginal cultural heritage within that area’. The Wajarri Yamaji reply (at 18) contends that as the grantee party has refused to enter into a heritage agreement and refuses to facilitate a heritage survey over the proposed licence, the Tribunal can have ‘no assurance that the grant of the Tenement will not result in damage to sites of significance’.
The Wajarri Yamaji reply (at 16) contends:
Mr Menzel is not an Aboriginal person nor a member of the Wajarri Yamatji native title group. The Grantee has not contended that Mr Menzel has any special knowledge in relation to Aboriginal cultural heritage or will take any actions to identify cultural heritage and ensure it is not damaged, during the exercise of rights which he jointly holds in relation to the tenement.
Conclusion
The proposed licence is in the pink box Weld Range area, and there have been no specific comments or assertions from the grantee party about how they will mitigate any likely interference, apart from membership of one of the grantee party to Wajarri Yamaji. There is also little information about the prospecting activities which are intended to be undertaken – I note that the rights granted under a prospecting licence would allow the grantee party to extract up to 500 tonnes of material from the proposed licence which is 0.27 square kilometres in size.
In Wajarri Yamatji v Little, the prospecting licence was 1.88 square kilometres and Mr Little was the sole grantee. In the present inquiry, the proposed licence is 0.27 square kilometres and Mr Little is not the sole grantee. I am satisfied that taking up to 500 tonnes of material from that size licence, even assuming only activities such as rock chip sampling and accessing the area with vehicles were undertaken, is likely to be sufficient to cause interference for the purposes of s 237(b), particularly given the particular significance of the pink box area in the Weld Range and the Federal Court’s comments in FMG v Yindjibarndi (referred to at [22] above).
Section 237(c): is the grant of the proposed licence likely to involve major disturbance?
In its contentions (at 59), Wajarri Yamaji states it ‘does not contend that the future act is likely to involve major disturbance to lands or waters, and accordingly does not direct its contentions to section 237(c) of the NTA’. Nor does Wajarri Yamaji provide evidence in relation to this subsection. There is no factual material before me which indicates the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance as contemplated in s 237(c). Therefore, applying the approach outlined in Ward v Western Australia (at [26]) I find that major disturbance under s 237(c) is unlikely.
Determination
I find the grant of licence P20/2429 to Terrence Harold Little and Lucas Ronald Marcinowski Menzel is not an act which attracts the expedited procedure.
H Shurven
Member
9 May 2022
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