Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Coronet Resources Ltd
[2019] NNTTA 117
•10 December 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Coronet Resources Ltd and Another [2019] NNTTA 117 (10 December 2019)
Application Nos: | WO2019/0811 & WO2019/0812 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WCD2004/001)
(native title party)
- and -
Coronet Resources Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 10 December 2019 |
Catchwords: | Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites or areas of particular significance – whether acts likely to involve major disturbance to land or waters – expedited procedure – the acts are not acts attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) 29, 31, 32, 151, 237 Mining Act 1978 (WA) 57, 58, 61, 66 |
Cases: | Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (Bunuba v Oladipo) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Kenny Oobagooma, Jack Dann and Patricia Goonack/Western Australia/Waterford Bay Pty Ltd; Marine Terrace Management Services; Mavia Pty Ltd [1996] NNTTA 53 (Oobagooma and Others v Western Australia) Neowarra v Western Australia [2004] FCA 1402 Silver v Northern Territory of Australia[2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Wanjina-Wunggurr Aboriginal Corporation v Macallum Group Limited and Another [2017] NNTTA 58 (WNTAC v Macallum) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Metalicity Limited and Another [2019] NNTTA 15 (WNTAC v Metalicity) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Globe Uranium Ltd [2007] NNTTA 37 (Wiluna v Western Australia) |
| Representative of the native title party: | Sam Legge, Kimberley Land Council |
| Representative of the grantee party: | Janet Procak, All Mining Legal Pty Ltd |
| Representatives of the Government party: | Aisyah Ishak, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
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 licences E04/2606 and E04/2607 to Coronet Resources Ltd (Coronet). 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 licences and included a statement that they consider the grants are acts attracting the expedited procedure. This would, subject to any successful objections, allow the licences to be granted without the requirement to negotiate as per s 31.
The licences are 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 (with the exception of 4.9 percent of E04/2606, where exclusive native title is held) (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 for each licence. 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 each licence is not an act attracting the expedited procedure.
Issues for Inquiry
Under s 237, the licence grants are only acts attracting the expedited procedure if they are 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 licences 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 licences 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]).
Determination on the papers
The State provided a statement of contentions and evidence including mapping, tengraph quick appraisal tenure documents, search results from the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS searches), the licence applications with the accompanying statements under s 58 of the Mining Act 1978 (WA) (Mining Act) and details of proposed endorsements and conditions to be imposed on the grants of the licences.
Coronet provided contentions and an affidavit from their legal representative, Ms Janet Procak.
WNTAC provided contentions, an affidavit from Mr Kevin Dann for each licence, as well as a reply to the State and Coronet’s contentions. Mr Dann states he is a Ngarinyin traditional owner and can speak for the area of the licences through his father’s side. I accept his authority. While the affidavits are brief, they provide clear and targeted evidence in relation to sites and areas on each licence, and their significance to Ngarinyin People.
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 licences and Coronet’s proposed activities
E04/2606 and E04/2607 comprise 12100 and 4580 hectares respectively and are located on either side of the north portion of the Napier Range from south of Hawkstone Creek, travelling south along Mt Lesley. E04/2606 is on the western side of the Range, and extends alongside the Range, with a portion overlapping the Range, and ending near Chedda Cliffs. The Windjingayr Community is adjacent to that licence. E04/2607 lies on the eastern side of the Range and overlaps the Range in part.
The affidavit evidence of Ms Procak, and Coronet’s application for each licence provided by the State, outlines that Napier Range will be part of the target area for exploration (see for example the affidavit at 11, 15-18). The Napier Range is described as being prospective for certain mineralisation.
The affidavit evidence of Ms Procak indicates quad bike and walking access to the licences may be needed for collecting geophysical data (at 17). The affidavit evidence (at 13) also outlines that access to the licence areas will be by established roads or tracks ‘where possible’. Whilst the State’s quick appraisal shows 12 tracks on E04/2606, the appraisal for E04/2607 shows no tracks or roads. There is nothing before me which indicates there are any more established roads and tracks than those noted on the appraisal. Further evidence or information is needed in relation to Coronet’s contention that such existing features will be used, particularly for E04/2607.
Coronet’s licence applications, provided by the State, note that work within the first three years will include data review, on ground field assessment, mapping, sampling and drilling of priority targets. The proposed drilling types are described as RC (reverse circulation), diamond or air core, depending on the mineral targeted. As I understand it, each of these drilling types is different, but fundamentally they involve using a drill on a rig, to drill holes through the prospective area to desired depths and at certain intervals, extracting rock from the ground and bringing it to the surface for analysis and further work, as needed. There is nothing in Coronet’s materials outlining further detail of the drilling work, apart from the estimated cost of each type of exploration phase, including the drilling phase (estimated at $25,000 to $150,000).
Coronet’s contentions indicate exploration activity will include areas previously covered by exploration. I accept much of the focus will be on the Napier Range because of its unique geography and because Coronet refer to a ‘project area’ which is focussed on the Range area. Section 66 of the Mining Act outlines that, upon grant, each exploration licence will authorise a grantee party:
(a)to 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)to 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)to 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)to 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.
In addition, 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 State argue (at 17-18) that I should not presume Coronet will exercise the full suite of rights available to it on grant, based on the evidence contained in Ms Procak’s affidavit. The affidavit (at 10) states ‘I am instructed by Mr Martin Spivey, Manager Exploration, of Coronet Resources and by Mr Neal Culpan, Principal Geologist, of the following details in respect of the proposed exploration activities’. Various exploration activities are then outlined, which are consistent with the exploration licence application statements provided by the State. The affidavit notes (at 18) that following collection and evaluation of data, ‘any anomalous responses may require drill testing’. In the licence application statements, Mr Culpan, outlines that ‘should initial exploration be successful the most prospective target areas identified will be drill tested’. The drilling methods described above (at [15]) are then noted. The licence application statements go on to outline that ‘work activities are expected to be expanded and total exploration increased if initial results are positive’.
Given the information in the affidavit and the exploration licence applications, it is open to me to conclude Coronet intend to exercise the full suite of rights available to them under the Mining Act.
The s 237 predictive assessment
Section 237(b): is the grant of the licences likely to interfere with areas or sites of particular significance?
Are there areas or sites of particular significance on the licences?
In their submissions, the State refer to determinations made previously by the Tribunal about tenements in proximity to these licences. This includes Oobagooma and Others v Western Australia, an early inquiry matter where the Tribunal held that the expedited procedure did not apply. In that matter, it was noted (at 1) there was ‘evidence of listed sites throughout the area and it is clear from reading the three affidavits that this is an area of considerable activity and importance in terms of the traditional beliefs of the Native Title parties in this area’. The affidavit evidence in this present inquiry is consistent with that evidence, in that a number of areas and sites have been described, including their importance in terms of Ngarinyin People’s traditions. The evidence in this present inquiry is also consistent with evidence in the previous decisions of WNTAC v Metalicity and WNTAC v Macallum, which are decisions referred to by the State, and are outlined below.
The State argues ‘general evidence that there are or may be places on or near a tenement that are said to be “important”, “special” or “significant” is not sufficient to establish that an area or site is of “particular significance” under s 237(b)’ (at 42, emphasis in original). However, as described in more detail below, I am satisfied there are sites and areas of particular significance in each of the licences which are the subject of this inquiry.
Napier Range
In affidavits for each licence (at 4-5), Mr Dann explains that the Windjingayr community (which was established by his father) has a ‘strong history of protecting cultural sites’ along the Napier Range and notes the great significance of the Range to Ngarinyin People. In his E04/2606 affidavit, Mr Dann refers to the responsibility ‘to ensure the protection of the Napier Range right up from the Barker River to North of the Windjingayr community’ (at 10). As noted above, the community is adjacent to E04/2606. The community is also very close to E04/2607, and both licences in this inquiry include land which is north of that community and which overlaps the Napier Range. Mr Dann outlines (at 5 of each affidavit) that the Napier Range is a ‘very significant place for us’.
The State argue the licences overlap ‘only a small portion of the Napier Range’ and that although ‘the Tribunal recently found in WNTAC v Metalicity that the entire portion of the Napier Range within the licence was of particular significance, that finding arose as a result of the licence overlapping a large portion of the Range’ (at 33-34). It is more accurate to say my finding in that matter arose because of the material before me in that inquiry, and not because of the extent of the overlap with the Range (see WNTAC v Metalicity at [19]-[21]).
The State contrasted the finding in WNTAC v Metalicity with WNTAC v Macallum and argue ‘it is open to the Tribunal to find that the segment of the Range which is within the Proposed Tenements is not a site of particular significance, as it did in WNTAC v Macallum’. Once again, that decision was made based on the evidence presented in that matter, and does not mean other parts of the Range, or the Range itself, cannot be assessed as being a site or area of particular significance for the purposes of s 237(b). The WNTAC reply makes the point that ‘the Range’s particular significance should not be determined by the percentage overlap with the Tenement but rather by its particular significance to members of the NTP [native title party]’ (at 2-3). I agree with that contention. Each assessment of s 237(b) must be undertaken on the relevant facts and materials before the Tribunal. Section 146(b) of the Act allows the Tribunal to ‘adopt any report, findings, decision, determination or judgement of any court person or body … that may be relevant to the inquiry’. It is on that basis I refer to WNTAC v Metalicity and WNTAC v Macallum as containing relevant facts and materials (and which were also cases raised by parties in their submissions).
I am satisfied the material before me in this inquiry supports a conclusion that the Napier Range, including the sites and areas within these licences, are of particular significance to the native title holders.
Paintings
In both affidavits, Mr Dann states (at 5) that all through the Napier Range are ‘rock art, artefacts and burials’. He outlines the type of paintings which are found, and that they are connected to the creator beings and to the Ngarinyin People’s traditional law. Mr Dann describes a place, which is named and on E04/2606, where a particularly significant rock painting is – the type of rock painting is also described, and its importance and connection to the law and dreaming is briefly explained.
The State refer to their AHIS searches which record Aboriginal sites and other heritage places under the Aboriginal Heritage Act 1972 (WA) (AHA). They suggest (at 40) the Tribunal can infer the painting on E04/2606 is the registered Aboriginal site 12583 Mt Leslie Valley. I accept that contention (I also note the geographical feature is spelled ‘Mt Lesley’ on mapping).
For E04/2607, Mr Dann refers to two rock paintings and gives approximate locations for them within the licence (at 6). It is likely these are AHIS site 14122 (Napier Range Area 2) and AHIS site 14123 (Napier Range Area 3) which are described as painting sites and in the same approximate locations as described by Mr Dann.
I am satisfied, on the material before me, that the paintings are of particular significance for the native title holders.
Burials in the Napier Range
Mr Dann outlines there are burial sites throughout the Napier Range, including in each licence (at 5 and 8-9 for E04/2606 and at 5 for E04/2607). This is consistent with the evidence provided in WNTAC v Metalicity and WNTAC v Macallum. For example, in WNTAC v Macallum, I noted ‘the materials provided establish that the area of the Napier Range has numerous burial sites. Their location has been described sufficiently so I know they are within the licence area and there is no doubt they are connected to the dreaming story, which runs along Napier Range’ (at [26]).
In relation to E04/2606, Mr Dann has indicated there are burials located in that licence, and I accept they are sites of particular significance as he has explained the connection and responsibilities of the native title holders in relation to these. I note the AHIS records site 14124 (Napier Range Area 4) as being a skeletal burial site on E04/2606. In relation to E04/2607, the evidence is more general and based on the information provided there is no material to conclude there are burial sites on that licence.
Is the grant of the licences likely to interfere with areas or sites of particular significance?
If I decide there are areas or sites of particular significance in a licence area, I must consider whether the grant of the licence is likely to interfere with those areas or sites. I must consider the State’s regulatory regime, including the AHA, and any endorsements and conditions the State intend to apply to the grant of the licence. In this inquiry, this includes the intention to impose a condition requiring Coronet to enter into a Regional Standard Heritage Agreement (RSHA) if WNTAC request it within 90 days of the grant of a licence.
Coronet, in the affidavit evidence, state they will ‘endeavour to avoid and respect and Aboriginal sites’ (at 24) and sign an RSHA ‘if required’ (at 26). Coronet also state ‘the Grantee Party is familiar with and understands its obligations to comply with the requirements set out in the AHA prior to conducting any exploration activities within the vicinity of an Aboriginal site’.
The Aboriginal Heritage Act 1972 (WA) permits the destruction of sites upon application, with the approval by the Minister under s 18. The State contend it must be presumed Coronet will not contravene s 17 of the AHA and excavate, destroy, damage, conceal or in any way alter an Aboriginal site without authorisation from the Minister under s 18. The State argue the Tribunal should adopt the ‘normal conclusion’ that the ‘protection’ under the AHA regime is adequate because ‘there are no factors’ to suggest otherwise (at 54, citing Wiluna v Western Australia). Similar contentions were raised recently in Bunuba v Oladipo (at [50]-[53]). I adopt Member Cooley’s analysis in that matter for this inquiry: even if Ngarinyin People are afforded procedural fairness and are consulted prior to the Minister’s decision, ‘the State does not explain how that mitigates the likelihood of interference under s 237(b) of the NTA [Native Title Act] on the facts of the present case. Interference that is sanctioned under s 18 of the AHA may nonetheless be interference within the meaning of s 237(b) of the NTA’.
The WNTAC reply (at 11) outlines that Coronet ‘identifies that exploration will occur on the Napier Range, the area which has been identified as a site of particular significance … and where the majority of individual Aboriginal sites are found within the Tenements’. Coronet have indicated they intend to explore over areas of the licences, which will include a focus on the Napier Range – there are AHIS sites on and near the intersection of each licence and the Napier Range. In addition, I have considered the endorsements and other conditions the State intend to impose on each licence. Overall, I find the regulatory regime of the AHA is insufficient for the purposes of this inquiry. I conclude that interference with sites or areas of particular significance would be likely.
The WNTAC reply (at 15) notes that ‘RSHAs do not necessarily require any consultation in relation to “low impact” activities’ and that such activities ‘would cause interference in accordance with the traditional laws and customs … [which] include simple presence at some locations, taking of rock (including for soil sampling); attending and viewing paintings; chipping, or weathering paintings by touching them; or any physical disturbance of burials’. I accept the latter point in relation to burials is relevant to E04/2606, and the other observations relate to both licences.
An RSHA would require consultation with Ngarinyin People when higher impact physical interference is contemplated, such as drilling. Low impact activities as outlined in the WNTAC reply (at 15) would not require consultation. I am satisfied, based on the evidence, that this would be substantial interference with areas of each licence, particularly the Napier Range, burial sites (for E04/2606) and paintings, because of the associated spiritual dangers and cultural prohibitions. As McKerracher J outlined (at [75]-[76]) in FMG v Yindjibarndi:
....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...That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions.
I conclude interference with sites and areas of particular significance is likely, and that the licences should not be granted without the normal negotiation required by s 31.
Determination
The grants of exploration licences E04/2606 and E04/2607 to Coronet Resources Ltd are not acts attracting the expedited procedure.
Helen Shurven
Member
10 December 2019
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