Wajarri Yamati Aboriginal Corporation RNTBC v Sandfire Resources Limited
[2022] NNTTA 12
•22 February 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamati Aboriginal Corporation RNTBC v Sandfire Resources Limited and Another [2022] NNTTA 12 (22 February 2022)
Application Nos: | WO2020/0794 & WO2021/0436 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection applications
Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)
(native title party)
- and -
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 E51/1970 and E51/1992 to Sandfire Resources Limited (Sandfire). The proposed licences are approximately 55 and 46 square kilometres in size, respectively. Both licences are approximately 30-40 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 /NTP).
Yamatji Marlpa Aboriginal Corporation (YMAC) lodged an objection for each proposed licence, on behalf of Wajarri Yamaji, with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure (as YMAC were the representative at the relevant time). 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’ for the purposes of s 237(b) 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 [10]-[12] and [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.
The President of the Tribunal appointed me to conduct an inquiry into these objection applications, 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 matters 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 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 and the State of Western Australia and Zebina Minerals Pty Ltd.
I note that E51/1970 and E51/1992 are approximately 80 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). In addition, I recently concluded the inquiry of Wajarri Yamaji v Lawes, where I was satisfied Mr Walley had identified two areas of particular significance related to water in respect of the tenement in that inquiry – drawing that conclusion, included considering the proximity of the tenements 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 [8] above, together with some evidence provided by teleconference specifically for the present inquiry (as outlined in this decision).
In this present inquiry, neither E51/1970 or E51/1992 are near the Hope River, or the other waterways which were emphasised in the Black Raven or Zebina matters. An affidavit of Mr Walley does mention the Murchison River (at 8), but only to the extent that the Hope River ‘feeds into’ it. Mr Walley also mentions initiations at Peak Hill (at 22), and pathways to Peak Hill, however nothing is made of this for the purposes of this inquiry. There are general statements about water in the evidence Mr Walley has given for the Zebina matter (at 11 for example), however, again, there is nothing related to the area of these proposed licences. Some evidence has been provided by teleconference in this current inquiry, according to the Wajarri Yamaji contentions (at 7-8), but this is also limited (as outlined below).
I accept the way Wajarri Yamaji have provided the evidence, as they have explained the mechanism of the teleconference with Mr Walley (including in their reply submission), 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.
Consideration of E51/1970
The Wajarri Yamaji contentions (at 8(3)) argue that in relation to E51/1970, ‘the evidence about the particular importance of the Hope River…applies equally to the Murchison River’ and that the Murchison River travels through the proposed licence. I accept the Murchison River travels through part of this proposed licence. However, it is not sufficient to say certain evidence applies to another place, without explaining how or why that is the case.
The contentions go on to outline the:
Murchison River is directly associated with the Wilgie Mia red ochre site on Wajarri country in that the Dreaming story for that site is that a kangaroo speared by other traditional owners at a hill on the north bank of the Murchison River bled out at Wilgie Mia so creating the sacred red ochre there traded and used across Australia for traditional ceremony…
and also refers to another hill on the proposed licence ‘that is a location of the Mudinggurangu’. Again, I do not find this persuasive, as there is no indication of where the Wilgie Mia area is in relation to the proposed licence or the Murchison River, or the location of the relevant hill.
Both the State and Sandfire are critical of the lack of detail provided in terms of evidence relating to this proposed licence. The Wajarri Yamaji reply attempts to address this criticism, by adding information (for example, at 6(5) and 7(6)). However, this in effect re-states what is in the contentions, apart from asserting that Gum Well Pool, which is recorded as being on this licence, is part of the Murchison River. The reply itself adopts a somewhat scattergun approach to the materials, drawing in various arguments and assertions which are not cohesive or directed to the facts and circumstances of this inquiry.
Consideration of E51/1992
In relation to E51/1992, the evidence provided by teleconference simply outlines that ‘This tenement application has the Murchison River traversing it and has creeks. These are clearly indicated on the State's tenement map. The evidence cited above at paragraphs 8(1) and (3) applies’. Once again, I do not find this persuasive, or give the evidence much weight in terms of my consideration of the elements of s 237(b), given the lack of detail about how that evidence relates to this inquiry. While the Tribunal may accept evidence provided in different ways, including evidence which has been presented in other inquiries, that evidence must be shown to relate to the matter being considered, rather than just general assertions that it does so.
Conclusion in relation to s 237(b) for E51/1970 and E51/1992
There is nothing in the Black Raven or Zebina materials, nor in the evidence provided by teleconference for this inquiry, on which I could conclude there are sites or areas of particular significance on or near E51/1970 or E51/1992. 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 E51/1970 and E51/1992 to Sandfire Resources Limited does attract the expedited procedure.
H Shurven
Member
22 February 2022
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