Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Lucky Break Operations Pty Ltd & Another
[2019] NNTTA 125
•19 December 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Lucky Break Operations Pty Ltd and Another [2019] NNTTA 125 (19 December 2019)
Application No: | WO2019/0872 |
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 -
Lucky Break Operations Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 19 December 2019 |
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 – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) ss 58, 66 Mining Regulations 1981 (WA) r 20 Native Title Act 1993 (Cth) ss 31, 32, 151(2), 237 |
Cases: | Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Daisy Lungunan and Others on behalf of Nyikina and Mangala/ Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (Geotech International) Gooniyandi Aboriginal Corporation RNTBC v Kimberley Granite Quarries Pty Ltd and Another [2016] NNTTA 1 (Gooniyandi v Kimberley Granite) Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd [2001] NNTTA 42 (Young v South Coast Metals) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Central East Goldfields v Aruma) Neowarra v Western Australia [2004] FCA 1092 Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v MDR (Thomsons) Pty Ltd [2014] NNTTA 91 (Western Desert Lands v MDR (Thomsons)) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Ltd and Another [2019] NNTTA 119 (WNTAC v Buxton) Yindjibarndi Aboriginal Corporation v FMG Pilbara [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Ania Maszkowski and Samuel Legge, Kimberley Land Council |
| Representative of the grantee party: | Julie Gilbert, UTM Global Pty Ltd |
| Representatives of the Government party: | Michael McMahon and Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision under s 32 of the Native Title Act1993 (Cth) (the Act) about whether the expedited procedure applies to the grant of exploration licence E80/5349 to Lucky Break Operations Pty Ltd (Lucky Break). All references to legislation are to the Act unless stated otherwise.
The State of Western Australia (the State) gave notice of their intention to grant the licence and included a statement that they consider the grant is an act attracting the expedited procedure. This would, subject to any successful objections, allow the licence to be granted without the normal negotiation required by s 31.
The licence is located over land and waters where the Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WNTAC) hold non-exclusive native title in trust for the Ngarinyin People (see Neowarra v Western Australia). WNTAC lodged an objection with the National Native Title Tribunal (the Tribunal) to the State’s inclusion of the expedited procedure statement. The Tribunal must make a determination about whether the expedited procedure applies (s 32(4)). The President of the Tribunal appointed me to constitute the Tribunal for this purpose.
For the reasons outlined below, my determination is that the grant of the licence is not an act attracting the expedited procedure.
Issues for Inquiry
Under s 237, the licence grant is only 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 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)).
WNTAC do not submit contentions or evidence regarding s 237(a) and 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve direct interference with community or social activities or major disturbance to the land or waters concerned. As such, I conclude interference of the kind outlined in those sub-sections is not likely from the grant of the licence, and this inquiry focuses on s 237(b).
My assessment of s 237(b) turns on whether or not there are areas or sites of ‘particular significance’ – meaning of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35).
If an area or site is of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]). There must be a real risk of interference to the site or area of particular significance, but even slight interference may be unacceptable in the context of s 237(b).
Determination on the papers
The State provided a statement of contentions and evidence including mapping, tengraph quick appraisal tenure documents and search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS). The State also provided the licence application along with the accompanying statement provided by Lucky Break under s 58 of the Mining Act 1978 (WA), as well as details of proposed endorsements and conditions to be imposed on the grant of the licence. This included a Regional Standard Heritage Agreement (RSHA) condition, as follows:
In respect of the area covered by the licence the licensee, if so requested in writing by the Wanjina-Wunggur (Native Title) Aboriginal Corporation RNTBC (the "native title party"), such request being sent by pre-paid post to reach the licensee's or agent's address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the native title party any Regional Standard Heritage Agreement ("RSHA") nominated by the native title party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading "Regional Standard Heritage Agreement.
Lucky Break did not provide any contentions or materials for the inquiry.
WNTAC provided contentions, an affidavit from Mr Matthew Martin, and a reply to the State’s contentions. Mr Martin states he is a Ngarinyin traditional owner and can speak for the area of the licence. I accept that authority. A map was annexed to the affidavit and Mr Martin has marked clearly on the map three areas which he outlined in his affidavit as being sites and areas of particular significance. Those areas related to the grey kangaroo dreaming, the red kangaroo dreaming and a rock painting of a named being which I will call GG for the purposes of this decision, given the sensitive nature of the feature. More on these areas is outlined below.
All parties agreed to the matter being determined on the papers and I am satisfied the inquiry can be adequately determined without a hearing (s 151(2)).
The licence and Lucky Break’s proposed activities
The licence extends over 31,000 hectares. In Lucky Break’s application for the licence, their statement made under s 58 of the Mining Act contemplates the first year of exploration undertaking ‘desktop studies and data evaluation to assess the work completed by previous explorers within and adjacent to the tenement application area’. The statement gives a summary of exploration activities which includes ‘reconnaissance trenching/pitting and drill programs (auger and/or air core) leading to more detailed program as required’, as well as ‘detailed and infill drilling of mineralised areas’.
The first and second year of exploration contemplates field work to validate previous work. This includes geological mapping together with rock chip and soil geochemical surface sampling and assaying, as well as ‘geological analysis and target area generation and ranking’. Year three to five envisages drilling of targeted areas, including ‘large sample collection’ in year five. No further explanation is provided about where the exploration work would likely be undertaken.
Lucky Break’s application statement also notes ‘Prior to commencing the work program, landholders or pastoralists will be notified of the Company's proposed work program and consulted about timing, access and duration. Aboriginal heritage clearances will be sought before ground disturbing activities are undertaken’. It is not clear whether the reference to landholders includes the native title holders. It is clear that only ground disturbing activities will trigger Aboriginal heritage clearances.
In the absence of any further information, I consider Lucky Break are likely to use the full extent of rights to which they are entitled under s 66 of the Mining Act. Those rights allow that, upon grant, Lucky Break can:
(a)enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d)take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 (WA) outline the amount of material able to be removed from each exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
The s 237 predictive assessment
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance?
Are there areas or sites of particular significance on the licence?
The State contentions accept (at 28 and 39 respectively) the rock painting of GG and the grey kangaroo dreaming area are of particular significance to the native title holders. I find that sufficient evidence and information has been provided about the rock painting and the grey kangaroo dreaming area for me to conclude they are both areas of particular significance. I am clear on their location and the explanations of the nature of their significance.
The State contentions (at 32-36) do not accept the red kangaroo dreaming area is of particular significance. The information provided by Mr Martin includes identifying the area which is the start of the red kangaroo dreaming. That area is also an AHIS site on the licence, which is described as a mythological site. The State argues (at 31) that just because a site or area is so registered does not mean it is a site of particular significance (referring to Gooniyandi v Kimberley Granite at [59]-[63]). I agree with this, as the decision as to whether or not a site or area is of particular significance turns on the facts presented in the relevant inquiry.
The State acknowledges the area has been identified as being in the licence, however, argues ‘the NTP [native title party] has not explained the particular significance to the NTP, as distinct from other sites which may be of general significance’. I do not agree the explanation is insufficient, as Mr Martin has: named the dreaming story using its English and Ngarinyin lore name; explained that this dreaming story is connected with Ngarinyin lore; described how it is similar to the grey kangaroo dreaming in its importance; described the actions of the red kangaroo dreaming and its pathway within and outside the licence, which are interconnected.
An explanation does not need to be lengthy to establish a site or area is of particular significance – it does need to go beyond a mere claim that it is so, and the nature of the significance in accordance with the native title party traditions be explained. The State contentions (at 32) refer to Yindjibarndi v FMG (at [130]) to argue that a distinction is ‘to be made between general cultural significance, specific cultural significance and sites of particular significance’. However, this argument was put in a broader context in Western Desert Lands v MDR (Thomsons) (at [73]-[74]):
In Yindjibarndi Aboriginal Corporation v FMG Pilbara at [130], President Webb placed this distinction on a wider footing, noting that s 237(b) requires the Tribunal to distinguish between areas and sites which are generally culturally significant and specific culturally significant areas and sites which are of particular significance.
Depending on the evidence presented in a particular matter, songlines or dreaming tracks may be regarded as sites or areas of particular significance (see Freddie v Western Australia at [45]-[47]; Lungunan v Geotech International at [41]). In Freddie v Western Australia, Deputy President Sumner suggested that specific parts of a dreaming track might be considered sites of particular significance whereas other parts might not (at [47]). That, of course, is subject to the general requirement that the location of an area or site and the nature of it significance must be identified before it can be accepted as an area or site of particular significance (see Western Australia v McHenry; Silver v Northern Territory at [91]; WF v Emergent Resources at [68]).
In this inquiry, I am satisfied the location of the red kangaroo dreaming has been described, and the nature of its significance has been identified, and it is an area of particular significance.
In summary then, I conclude the red kangaroo dreaming, the grey kangaroo dreaming and the rock painting of GG are sites or areas of particular significance to the Ngarinyin People.
There is some further broad and generalised evidence provided with respect to other rock painting sites being located in the licence, which the State argues cannot be relied upon to established they are sites or areas of particular significance (at 27). I agree there is insufficient evidence with respect to the paintings (other than of the GG painting) to conclude how many exist, where they are located with respect to the licence, and their significance to the native title holders.
Is the grant of the licence likely to interfere with areas or sites of particular significance?
I have accepted there are three areas of particular significance to the native title holders on the licence, which are strongly associated with an important role in ceremonial ritual and Ngarinyin lore. The red kangaroo dreaming is associated with an AHIS registered site, which is recorded as being a mythological site. From the evidence, I do not believe the AHIS site is the full extent of the area of particular significance, but rather, the AHIS site forms only part of the area of particular significance. AHIS sites may be considered under the AHA, however, it would be open to Lucky Break to apply for a permit from the relevant State Minister to cause disturbance to such a site (see s 17 and s 18 of the AHA).
The differences between the scope of the AHA and the concept of interference in relation to s 237(b) was canvassed in depth in Young v South Coast Metals. For example, in that decision (at [57]) the Tribunal noted that:
…the concept of “interference” in section 237(b) is of potentially wider import than the proscribed activities in section 17. For example, the driving of vehicles, including heavy machinery…may not result in a breach of section 17, but it could result in interference pursuant to section 237(b) depending on the circumstances.
Lucky Break will be permitted to conduct exploration activities across the licence which are considered non-ground disturbing, even were the native title holders to sign and execute the RSHA. Mr Martin has made it clear in his affidavit that the level of importance and particular significance of the three areas he has identified means that even non ground disturbing activity would cause interference with those sites and areas. Mr Martin has outlined the cultural protocols in relation to each area, and the consequences to the sites and to the traditions of the native title holders should such interference occur.
There is nothing from Lucky Break in relation to their exploration, in the context of the information and evidence provided by WNTAC and Mr Martin. I do not mean to say that Lucky Break has an onus of proof, but I do refer to Carr J in Ward v Western Australia, who summed up the evidentiary choice as follows (at [26]):
In administrative matters such as these, any party (not just the native title party) has what might be termed an evidentiary choice. They might choose not to lead any evidence on a particular issue. But that does not necessarily mean that they must fail on that issue ie that they have an evidential onus of proof… However … where facts are peculiarly within the knowledge of 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 commonsense approach to evidence. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the commonsense approach to evidence.
As the Tribunal noted in (Geotech International (at [43]))
To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstances, in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely.
I have also considered the endorsements and other conditions the State intends to impose on the grant of the licence, and I could not conclude any of these would mitigate interference with either of the three sites or areas of particular significance, for the purposes of s 237(b).
In the recent matter of WNTAC v Buxton (at [26]), the State and WNTAC ventilated an argument regarding the effect of previous interference. This argument is replicated in the present inquiry. That is, the State argue there is a sufficient basis for the Tribunal to infer there has been previous interference because of prior exploration activity. In reply (at 7 in this present inquiry), WNTAC point to Central East Goldfields v Aruma at [64] and correctly state the Tribunal’s jurisprudence is ‘clear’ that former tenement grants and previous disturbance to sites does not preclude a finding of interference per s 237(b). The reply outlines that the ‘critical evidentiary factor’ is whether the particular act under inquiry will cause interference according to the native title party’s traditions. I agree with that argument, and I find in this present inquiry that WNTAC have established that the three sites of particular significance contain such sensitivities that even low level, non-ground disturbing exploration activities will cause interference for the purposes of s 237(b).
Conclusion
I conclude that given the nature of the sites and areas of particular significance identified, the State’s regulatory regime will not sufficiently mitigate the real risk of interference with the red kangaroo dreaming, the grey kangaroo dreaming or the rock painting of GG.
Determination
The grant of exploration licence E80/5349 to Lucky Break Operations is not an act attracting the expedited procedure.
Helen Shurven
Member
19 December 2019
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