Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Coronet Resources Ltd and Another - [2020] NNTTA 55

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Coronet Resources Ltd and Another [2020] NNTTA 55 (14 September 2020)

Application No:

WO2019/1078

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2004/001)

(native title party)

- and -

Coronet Resources Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Nerida Cooley, Member
Place:	Brisbane
Date:	14 September 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 involve major disturbance to land or waters – the act is not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32(3), 32(4), 146(b), 151(2), 237
Cases:	Ben Ward; Clarrie Smith and Ors v Western Australia & Ors (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd (2002) 169 FLR 1; [2002] NNTTA18 (‘Silver v Northern Territory’) Neowarra v Western Australia [2004] FCA 1092 (‘Neowarra v Western Australia’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Metalicity Limited and Another [2019] NNTTA 15 (‘Wanjina-Wunggurr v Metalicity’) Wintawari Guruma Aboriginal Corporation v Yandan Gold Mines Pty Ltd and Another [2020] NNTTA 52 (‘Wintawari Guruma v Yandan’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 14 (‘Yindjibarndi v FMG’)
Representatives of the native title party:	Samuel Legge and Gemma Acland, Kimberley Land Council

Representative of the grantee party:

Janet Procak, All Mining Legal Pty Ltd

Representatives of the Government party:

Zachary Clifford and Lauren Italiano, State Solicitor’s Office

Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

This decision concerns whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the proposed grant of exploration licence E04/2646 (licence) to Coronet Resources Ltd (Coronet).
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 26 July 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, the licence may be granted without first requiring negotiation in good faith under s 31 of the NTA.
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (Wanjina-Wunggurr) holds native title in trust on behalf of the Wanjina-Wunggurr Community in relation to the licence area (see Neowarra v Western Australia). On 25 November 2019, Wanjina-Wunggurr lodged an objection against the inclusion of the expedited procedure statement (s 32(3) NTA).
In light of Wanjina-Wunggurr’s objection, the Tribunal is required, under s 32(4) of the NTA, to determine whether the grant of the licence is an act attracting the expedited procedure. I have been directed by the President of the Tribunal to constitute the Tribunal for that purpose and, for the reasons outlined below, my determination is that the expedited procedure does not apply.

The issues for the inquiry

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.
The Tribunal takes a common sense approach to the evidence, as discussed in Ward v Western Australia. In its objection application, Wanjina-Wunggurr raised issues relevant to each limb of s 237, but now argues only that the grant of the licence will result in interference within the meaning of s 237(b) (Wanjina-Wunggurr contentions at 5). Accordingly, there is no evidence before me to indicate the grant of the licence is likely to interfere with Wanjina-Wunggurr’s community or social activities or involve major disturbance to the land or waters concerned. I therefore find that interference, within the meaning of s 237(a), or major disturbance, under s 237(c), is unlikely.

Determination on the papers

The State has provided contentions and evidence which includes mapping, a Tengraph Quick Appraisal, a report from the Aboriginal Heritage Inquiry System (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. The State also proposes to impose a condition requiring Coronet to enter into a Regional Standard Heritage Agreement, if requested by Wanjina-Wunggurr within a specified period (RSHA condition) (State’s contentions at 11).
Wanjina-Wunggurr has provided contentions and a reply. It relies on the Tribunal’s decision in Wanjina-Wunggurr v Metalicity made on 21 March 2019, which determined that the grant of proposed tenement E04/2496 was not an act attracting the expedited procedure. The Tengraph Quick Appraisal provided by the State shows that the application for E04/2496, which was subsequently withdrawn with effect from 10 May 2019, covered 88.24% of the presently proposed licence area. Both Wanjina-Wunggurr and the State have provided mapping showing that the whole of the former E04/2496 falls within the boundary of the licence. Wanjina-Wunggurr also relies on the affidavits of Kevin Dann (affirmed 5 December 2018) and his brother Robin Dann (affirmed 14 December 2018), which formed part of the evidence in Wanjina-Wunggurr v Metalicity.
Coronet has provided contentions and an affidavit of Janet Procak, sworn 17 March 2020. Ms Procak is a lawyer with All Mining Legal Pty Ltd, which represents Coronet in these proceedings.
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.

About the licence area

The licence is located in the Derby-West Kimberley shire and comprises 5558.10 hectares. The underlying land tenure consists of the Napier Downs pastoral lease (92.85%) and a “C” Class Reserve for Government Requirements (7.15%). The whole of the licence area is subject to the West Kimberley National Heritage Listing.
The mapping shows that the licence includes a section of the Napier Range, including the majority of the Chedda Cliffs.
The AHIS report identifies 10 registered Aboriginal sites and three (lodged) ‘Other Heritage Places’ under the Aboriginal Heritage Act 1972 (WA) (AHA) located in the licence area. The site types include engraving, painting, mythological and skeletal material/burial and location information is restricted for four of the registered sites.

Predictive assessment for s 237(b) - is the grant of the licence likely to interfere with areas or sites of particular significance to Wanjina-Wunggurr?

The areas or sites of particular significance to Wanjina-Wunggurr

As discussed in Yindjibarndi v FMG at [17]-[18], 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.
In this proceeding, Wanjina-Wunggurr contends that the licence area contains “several determined sites of particular significance” (Wanjina-Wunggurr’s contentions at 5), relying on the findings in Wanjina-Wunggurr v Metalicity. In that decision, the Tribunal noted Wanjina-Wunggurr’s contention that the Napier Range and its surrounds were a centre of activity and that a number of features give the area its particular character (at [17]). Those features included burial sites, a cave, waterholes and Wanjina rock art, some of which were said to have been connected to dreamtime beings or associated with songlines.
Ultimately, the Tribunal was satisfied in Wanjina-Wunggur v Metalicity that the portion of the Napier Range in the area of E04/2496 was of particular significance to Wanjina-Wunggurr. In reaching that conclusion, Member Shurven stated as follows:
[20] …. In this matter, the licence overlaps a large portion of the Napier Range. The satellite and topographical mapping attached to the affidavits shows this part of the Range is geographically striking in that it encompasses almost all of the sheer Cheeda cliffs on the south-west side and most of the north-eastern side of the Range, opposite the cliffs. This geographical uniqueness is matched with the evidence in each affidavit of the spiritual uniqueness of the Range. Interspersed with the details of the interconnected stories and sites throughout the Range, the deponents consistently and clearly restate the Range’s importance: it is ‘a very significant place’; it ‘is everything for us’; it is sacred as a ‘whole’ (Robin Dann at 5, 11, 19; Kevin Dann at 5-7, 13, 19, 22).
[21] Based on the evidence, I find the portion of the Napier Range within this licence is of particular significance. I do not need to turn my decision to each of the areas within the Range which WNTAC [Wanjina-Wunggurr] have outlined, as they all in some way touch the Range (as outlined at [17]), and it is each of these areas which contribute to making the portion of Napier Range within this licence a site of particular significance in itself.
Coronet has not made any contentions regarding whether the sites or areas identified are of particular significance within the meaning of s 237(b). However, the State accepts that there are sites of particular significance in the licence area because the area of E04/2496 (considered in Wanjina-Wunggurr v Metalicity) falls wholly within the licence area.
It is open to me to adopt the Tribunal’s previous finding of particular significance with respect to the part of the Napier Range within the licence area (see s 146(b) of the NTA). Having regard to the evidence and the parties’ contentions, I consider that it is appropriate for me to do so, and I adopt that finding here.
The question which then arises is whether the grant of the licence is likely to interfere with the relevant portion of Napier Range.

The likelihood of interference from the grant of the licence

In Wanjina-Wunggurr v Metalicity, the Tribunal found that the proposed grant of E04/2496 was likely to interfere with the Napier Range and therefore determined the expedited procedure did not apply to the proposed grant.
Wanjina-Wunggurr argues that I should reach the same conclusion here and notes (reply at 6):
… the State’s decision to apply the expedited procedure to this matter is unfortunate given that the basis for such an assertion is clearly unfounded, due to the recent Tribunal decision in [Wanjina-Wunggurr v Metalicity].
The State has not explained its reasoning for including the expedited procedure statement in the s 29 notice for the licence. It is not known whether it had regard to the decision in Wanjina-Wunggurr v Metalicity in doing so, although the decision is mentioned in the State’s materials in this matter.
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 outlines the rights conferred on the holder of an exploration licence, which include the right to ‘excavate, extract or remove… earth, soil, rock, stone, fluid or mineral bearing substances’ up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister). It is not apparent that there is any substantive difference between the licence and E04/2496, in terms of the rights available upon grant under the Mining Act.
The State’s arguments in this inquiry as to why interference is unlikely are similar to those in Wanjina-Wunggurr v Metalicity, including the application of the AHA regime and the proposed RSHA condition.
Having regard to the evidence, Member Shurven considered and rejected those arguments (at [24] – [28]), noting, in particular, the nature of the sites in the Napier Range. Specifically, the example of unmarked burials was mentioned (at [25]), including that they were not readily identifiable and, therefore, susceptible to unintentional interference. The well and carvings were also described as being “indistinct to outsiders” (at [25]).
In this proceeding, Wanjina-Wunggurr also contends the evidence establishes there are restrictions related to accessing sites in accordance with traditional law and custom (reply at 16). There is evidence of such restrictions in the affidavits of Robin Dann (at 8 and 17) and Kevin Dann (at 6, 9, 17 and 19).
As Member Shurven recently observed in Wintawari Guruma v Yandan:
[38] Where the native title party’s evidence about interference with sites is broad and unspecific and where they express a general desire for consultation, then an RSHA condition, the AHA and a grantee party’s intentions might be sufficient to conclude interference is unlikely. However, these are not sufficient where the evidence raises specific concerns about interference under a native title party’s traditions.
In the context of both the nature of the sites in the Napier Range and the access restrictions under Wanjina-Wunggurr traditions, I agree with the reasons in Wanjina-Wunggurr v Metalicity that the State’s AHA regime or RSHA condition are unlikely to mitigate interference with the Napier Range (at [26] - [28]).
A key area of possible difference between this proceeding and Wanjina-Wunggurr v Metalicity is the evidence of the grantee party’s intentions - which may be relevant for the Tribunal’s predictive assessment about what is likely to occur under the licence (see discussion in Silver v Northern Territory at [25] - [30]).
Information regarding Coronet’s proposed activities is set out in its s 58 statement as well as in Ms Procak’s affidavit.
In its s 58 statement, Coronet states the licence area is “centred on the Napier Range”, noting that:
The Napier Range consists of an elongate complex of Devonian reef carbonates that are prospective for hosting base metal mineralisation. Overall NW-SE striking Devonian reef carbonates occupy the northern half of the area being applied for. Younger basin fill sediments lie over the south of the area. The main target commodities are base and precious metals (zinc, lead and silver) associated with Mississippi Valley Type (MVT) mineralisation, as discovered at the Narlarla mine and the Wagon Pass deposits, located nearby on directly adjacent leases. Both areas of known mineralisation are hosted within the Napier Range carbonate sequence.
The program of work included in the s 58 statement relates to the first three years of the term, and includes drilling of priority targets. The estimated expenditure is the range of $55,000 – $340,000 and Coronet expects to expand activities if initial results are positive.
Ms Procak’s affidavit gives further information regarding exploration activities (at 11-22), said to be based on instructions from Mr Martin Spivey, Coronet’s Manager Exploration and Mr Neal Culpan, Principal Geologist. The details include:
(a)exploration will occur on the Napier Range;
(b)access will be by established roads and tracks, where possible;
(c)infrequent access will be required for early stage exploration; and
(d)field operations prior to a decision to drill are unlikely to be extensive, it being estimated that field work will require 2-3 visits per year for a total site based time of 2-4 weeks, initially for the acquisition of low-impact geophysical or geochemical data sets.
In relation to impact on heritage, Ms Procak says she is instructed by Mr Spivey that Coronet:
(a)is aware of its obligations under the AHA and considers its proposed activities are not likely to impact Aboriginal sites;
(b)has previous experience in the area (although this is not outlined) and is aware there are sites;
(c)will at all times endeavour to avoid and respect sites of significance;
(d)wishes to work with the traditional owners, will give notice of its planned activities and will consult and exchange information as required; and
(e)will enter into an RSHA, if required.
As Wanjina-Wunggurr point out in reply (at 32), it is not clear why Mr Spivey and Mr Culpan could not give direct evidence in relation these matters. In any event, much of the information regarding the proposed exploration activities in the affidavit is consistent with the s 58 statement.
While there are some differences between the activities and work plan proposed in this case and those considered in Wanjina-Wunggurr v Metalicity, I do not consider the information regarding Coronet’s intentions is sufficient to mitigate the risk of interference under s 237(b).
The evidence is that Coronet will explore in the Napier Range, which is of particular significance to Wanjina-Wunggurr. While it has outlined a program of work for the first three years of the term, there is no detail beyond that time. Coronet says it considers its proposed activities are unlikely to impact sites, although it has not explained how it is in a position to form that view.
Coronet also says that it will “endeavour” to avoid sites, give Wanjina-Wunggurr notice of its activities and consult and exchange information with the traditional owners “as required” (Procak affidavit at 27-28). While they may be well-meaning, these sorts of broad, unenforceable statements of good intention are not, in my view, sufficient to mitigate interference on the facts of this case. Ultimately, the measures necessary to mitigate interference require the involvement of Wanjina-Wunggurr which is why it is appropriate for the parties to negotiate in accordance with s 31(1).
For the reasons outlined above, I consider that the grant of the licence is likely to cause interference within the meaning of s 237(b).

Determination

I determine that the grant of E04/2646 to Coronet Resources Ltd is not an act attracting the expedited procedure.

Nerida Cooley
Member
14 September 2020