Wajarri Yamaji Aboriginal Corporation RNTBC v Zebina Minerals Pty Ltd
[2022] NNTTA 57
•19 August 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC v Zebina Minerals Pty Ltd [2022] NNTTA 57 (19 August 2022)
Application No: | WO2021/0763 |
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 -
Zebina Minerals Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Melbourne |
Date: | 19 August 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application –whether act likely to interfere with sites or areas of particular significance – expedited procedure – the act is an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) s 66 Native Title Act 1993 (Cth) ss 29, 237 |
Cases: | Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti) Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545 (Hamlett v Western Australia) Delores Cheinmora v Striker Resources NL, Australian United Gold NL, Mark James Thompson and the State of Western Australia[1996] NNTTA 75 (Cheinmora v Striker Resources) 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) Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Russell Mining Pty Ltd and Another [2021] NNTTA 34 (Karajarri v Russel Mining) Moses Silver, Ishmael Andrews & Sammy Bulabul v Northern Territory and Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Wajarri Yamaji Aboriginal Corporation RNTBC v Black Raven Mining Pty Ltd and Another [2021] NNTTA 80 (Wajarri Yamaji v Black Raven) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17(WF v Emergent Resources) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Mr Marcus Holmes, Land Equity Legal |
| Representative of the grantee party: | Mr Scott Wilson |
| Representatives of the Government party: | Ms Bethany Conway, Department of Mines, Industry Regulation & Safety Mr Domhnall McCloskey, State Solicitor’s 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) that it intended to grant exploration licence E52/3902 (the proposed licence) to Zebina Minerals Pty Ltd (the grantee/Zebina). In the notice, the State asserted the proposed grants attracted the expedited procedure. As outlined in s 237 of the Act, the expedited procedure applies where the grant of a licence 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 licence is approximately 259 square kilometres, and located approximately 130 kilometres westerly of Peak Hill. At the time the s 29 notice was issued, the proposed licence area was entirely subject to the Wajarri Yamatji #1 (WC2004/010) native title claim. The Federal Court of Australia subsequently determined that non-exclusive native title rights and interests exist in relation to land and waters in the area covered by the licence (I.S. (Deceased) v Western Australia). Wajarri Yamaji Aboriginal Corporation RNTBC (Wajarri Yamaji) is the registered native title body corporate which holds the native title rights and interests in trust for the native title holders.
An objection was lodged on behalf of Wajarri Yamaji with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence. I have been appointed to decide whether the expedited procedure applies. I have found the expedited procedure applies, and so the proposed licence can be granted without negotiations between the parties.
My decision is based on addressing the criteria set out in s 237 and making a predictive assessment (Yindjibarndi v FMG at [15]). I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licence, evidence of the grantee’s intentions, and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
Wajarri Yamaji argue the expedited procedure should not apply, as the grant will interfere with sites of particular significance in accordance with s 237(b). They do not pursue their objection under s 237(a) or s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]-[28]), there is nothing before me which indicates the grant is likely to interfere with the native title holders’ community or social activities, or involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(a) or s 237(c) is unlikely. I focus this inquiry on s 237(b).
Party submissions
Wajarri Yamaji lodged contentions, supported by the affidavit of Kevin Peter Walley, and reply materials to those provided by the State and Zebina. Mr Walley’s affidavit provides (at 2-3) he is an initiated Wajarri Elder who has been given authority to speak for the country of the proposed licence. Mr Walley has not provided mapping with his evidence, and refers me to the Department of Mines, Industry Regulation and Safety (DMIRS) mapping provided for this inquiry.
Zebina lodged contentions.
The State provided contentions and materials, including searches of the Aboriginal Heritage and Inquiry System. Those searches indicate the proposed licence area contains no sites or other heritage place registered under the Aboriginal Heritage Act 1972 (WA) (AHA). The proposed licence is an exploration licence, a type of licence outlined in s 66 of the Mining Act 1978 (WA). Exploration licences are granted for a period of 5 years (with one further 5 year extension in specific circumstances).
Details of Zebina’s program of work (which accompanies an explorers application for an exploration licence, as per s 58 of the Mining Act), was also provided by the State for this inquiry. This program of work outlines that Zebina is likely to explore for ‘(primarily) gold and base metals’. The program proposes a surface exploration of the proposed licence including:
·geological mapping and soil sampling;
·rock chip geochemistry;
·general prospecting;
·accumulation of past exploration data;
·interpretation of aerial magnetics; and
·target generation.
Following this surface exploration, any target areas of interest will be further evaluated by:
·more intense geochemical work;
·aerial photography; and
·drilling at target areas (dependent on targets defined).
All parties submitted their view that a determination could be made on the papers and I saw no reason to hold a hearing in order to determine this matter.
Section 237(b): is the grant of the licence likely to interfere directly with areas or sites of particular significance to Wajarri Yamaji?
What sites or places are identified?
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]).
Wajarri Yamaji contentions (at 8) argue the ‘areas or sites of particular significance within the... [proposed licence] are a mix of creeks, possible burial sites, and rock formations’ and ‘Wajarri have traditional obligations and rights regarding these areas and sites’. Zebina does not appear to make any submissions concerning the existence or location of sites of particular significance on the application area, and instead focuses primarily on potential impacts. I only consider factors such as interference and impacts when I have concluded a site of particular significance has been established.
The State (at 24) accepts that Wajarri Yamaji has ‘sufficiently identified’ the creeks and rock formations, however, contends they have ‘not provided sufficient [evidence to] establish the existence and/or location’ of burial sites. The State (at 24) contends the material on this point is ‘equivocal’, noting the use of ‘possible’ in the Wajarri Yamaji contentions (at 8), and the number of creeks identified in the application area.
In their reply contentions (at 5(3)), Wajarri Yamaji contend that the State ‘accepts the creeks and rock formations as areas of particular significance and that they have been “sufficiently identified”’. However, while an inference may be drawn that some topographical shapes on the DMIRS mapping either represent or are associated with rocky outcrops, I find it is speculative to draw such a conclusion as such have not clearly been identified as such in the material before me (as outlined at [26] below).
I outline more on the arguments and evidence provided about the creeks, rock formations and burial sites below.
Creeks
Mr Walley’s affidavit provides (at 4) that the:
...land of the Application is particularly significant to us because it is part of the Yulga or floodplain. In this area of the Applications there are creeks and the creeks are of special and particular significance to us as special Aboriginal dreaming sites with spiritual significance. The creeks can be seen on the maps provided in this matter by the Mines Department [DMIRS].
The DMIRS Tengraph spatial inquiry system record shows that Bedaburra Creek, Glenburnie Creek and Gould Creek all cross through the proposed licence. Mapping shows Bedaburra Creek and Gould Creek clearly, with Glenburnie Creek not so apparent.
Mr Walley’s affidavit (at 8-9) discusses how the creeks were created by Wajarri ancestral beings and the active spiritual potency of barna, or Wajarri country. Mr Walley refers (at 11) to the bimarra, as discussed by Justice Griffiths in the Wajarri Yamaji determinations. Quoting from the determination of Justice Griffiths in Hamlett v Western Australia (see [26]-[29] of that determination) Mr Walley provides (at 11):
the term bimarra refers both to the waterhole which is the abode of the Spirit snake, gudgida, or to the snake itself, which is an avatar of the mythical Rainbow Serpent. The bimarra is the focus for Wajarri connection to country, spirituality of landscape, and knowledge and use of country ... each family has its own known bimarra which it takes care of and these bimarra collectively constitute what could be called a modern-day family "estate" within Wajarri society. The bimarra themselves are still focal points for the spirits of the 'old people' or mundungu – deceased Wajarri whose animating spirits inhabit the landscape. They maintain an interest in the life of their living relatives and can affect the lives of those living persons for good or ill. The gudgida, the snake who occupies the bimarra, may be openly aggressive to outsiders and in this respect the water-snake serves to police the area from unauthorised intrusion by outsiders.
In Hamlett v Western Australia, Justice Griffiths goes on to provide (at [17]) that most bimarra ‘are year-round water holes and most, but not all, are found near the Murchison River and attendant large rivers such as the Sanford and Thomas’. Mapping indicates the main course of the Murchison River lies approximately 25.5 km south of the licence area with both Bedaburra Creek and Gould Creek appearing to run from the river into the licence area.
Wajarri Yamaji contentions (at 10) reference the decision of Member Kelly in Karajarri v Russel Mining, drawing parallels between the bimarra discussed by Mr Walley and a spring discussed (at [50] and [55]) in that matter. Wajarri Yamaji contentions (at 11-14) also note a number of other governmental sources in support of their contention that ‘waterways are of particular significance to Aboriginal people’ being ‘intrinsically spiritually important’.
In addition, Mr Walley (at 14) refers to the risk of the bimarra ‘in the Application’ being disturbed. However, he does not outline why the bimarra in this proposed licence application are of particular significance. As discussed in the consideration of bimarra and yulga in Wajarri Yamaji v Black Raven (at [38] and [41]-[51] for example), assertions made in general terms do not explain the significance of the yulga or the reason the bimarra were said to be located in an area (see [50]-[51]).
I note and adopt Member Cooley’s comment in Wajarri Yamaji v Black Raven (at [35]) that there ‘is a distinction between the significance of the native title party’s country generally and areas or sites of particular significance within the meaning of s 237(b)’. I also adopt Member Cooley’s supporting comments made at [34]-[37] of that decision.
Member Cooley noted in Wajarri Yamaji v Black Raven (at [51]-[52]) that:
Mr Walley’s evidence intimates there is a special character attaching to the licences due to their location in a Yulga or floodplain. However, that evidence is brief and it is not clear whether it is for that reason that bimarra are said to be located in all of the waterways in this area or not. There is also no explanation of the significance of the Yulga or floodplain in accordance with the bimarra tradition.
However, apart from the general assertion that bimarra exist in all rivers, creeks and waterholes in the area of the licences, Mr Walley does identify a number of specific bimarra locations…
In Wajarri Yamaji v Black Raven, it was ultimately held that the expedited procedure did not apply, but this was because a number of specific bimarra locations were identified and their significance sufficiently explained to meet the threshold of the s 237(b) criteria. This can be contrasted with the present matter, where the evidence rests largely on broad assertions that creeks and other features on the proposed licence exist, without providing sufficient supporting information to establish that they are of particular significance for the purposes of s 237(b).
Rock formations
Mr Walley’s affidavit (at 5) provides there ‘are large rock formations in the north and northwest portions of the Application area’ that are ‘of particular significance to Wajarri people’. Mr Walley (at 16) states the rock formations were created by Wajarri ancestral beings and if ‘Zebina gets too close to the rock formations in the Application area, these are special sites, and it will upset the Mudinggurangu (little people) and could destroy their place’. Mr Walley (at 16) also outlines that the Mudinggurangu protect the country and out of respect for Wajarri culture, and for their own safety, explorers should not camp too close to those sites.
While Mr Walley (at 5) refers me to DMIRS mapping for evidence of the rock formations, I could not see markings related to a key or legend on that mapping which identified any rock formations as such (as outlined at [14-[15] above). On the basis of the material before me I cannot, therefore, be satisfied that the rock formations referred to by the native title party are able to be located for the purpose of this inquiry (see Silver v Northern Territory at [91]). Even were I to accept the shapes on mapping were rock formations, there is insufficient supporting information to establish they are of particular significance for the purposes of s 237(b).
Burial Sites
In relation to burial sites, Mr Walley (at 20) provides there ‘are may be burials of our ancestors along the creeks’ (emphasis added). This does not appear to be an unequivocal statement about the existence of burial sites or areas on the proposed licence. Mr Walley (at 20) states that burials were dug in the sandy ground above the flooding level of creeks and are ‘sacred places’ which Wajarri people ‘must protect… from being unearthed and destroyed by exploration activity in and around the creeks areas’.
Again, there is little but general assertions regarding burials on or near the area of the proposed licence.
Are these sites or places of particular significance?
As is noted in Barnes v AngloGold Ashanti (at [49]), the Tribunal:
has repeatedly found that in order to satisfy the requirements of s 237(b) of the [Act] in relation to the question of whether sites of particular significance exist in the area, the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance.
This approach is further outlined in WF v Emergent Resources (at [45]):
…the native title party is required to provide sufficient detail and specificity to allow the Tribunal to make the predictive assessment in accordance with s 237(b)... Mere reference to the existence of a…place without identifying the nature of its significance or its location does not provide an adequate basis for the Tribunal to make a finding about the existence of sites or areas of particular significance on the proposed licence…
I find the evidence provided regarding the asserted sites has insufficient detail for me to conclude they are of particular significance to the native title party in relation to the proposed licence, for the purposes of s 237(b). There is no doubt the country is important and significant to the native title party, as outlined in the Federal Court determination, however, the threshold for assessment of ‘particular significance’ for an expedited procedure inquiry has not been met.
Given I have not concluded there are any sites of particular significance, I do not need to consider interference with such sites.
Determination
My determination is that the grant of E52/3902 to Zebina Minerals Pty Ltd is an act which attracts the expedited procedure.
Helen Shurven
Member
19 August 2022
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