Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Metalicity Limited
[2019] NNTTA 15
•21 March 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Metalicity Limited and Another [2019] NNTTA 15 (21 March 2019)
Application No: | WO2018/0037 |
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 (WCD2004/001)
(native title party)
- and -
Metalicity Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 21 March 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 – expedited procedure does not apply |
Legislation: | Native Title Act 1993 (Cth) |
Cases: | Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Freddie v Western Australia [2007] NNTTA 37; (2007) 213 FLR 247 FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Gooniyandi Aboriginal Corporation v Inventum Resources Pty Ltd and Another[2018] NNTTA 4 (Gooniyandi v Inventum Resources) Josephine Forrest on behalf of Yi-Martuwarra Ngurrara; Butcher Wise on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 100 (Forrest v Brockman Exploration) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Forrest v Aruma Exploration) Rosas v Northern Territory[2002] NNTTA 113; (2002) 169 FLR 330 Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 Wanjina-Wunggurr Aboriginal Corporation v Macallum Group Limited and Another [2017] NNTTA 58 (WNTAC v Macallum) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (Western Desert Lands v Teck Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Samuel Legge, Kimberley Land Council |
| Representative of the grantee party: | Graham Castledine, Castledine Gregory |
| Representatives of the Government party: | Jeff O’Halloran, State Solicitor’s Office Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
I have been appointed to decide whether the State Government of Western Australia can, using the expedited procedure, grant exploration licence E04/2496 (the licence) to Metalicity Limited (Metalicity). Under s 237 of the Native Title Act 1993 (Cth) (the Act), the State can assert the expedited procedure applies to a licence if the grant is not likely to:
(a) interfere directly with the native title holders’ community or social activities; and
(b) interfere with areas or sites of particular significance, in accordance with their traditions; and
(c) involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The native title party in this inquiry is the Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WNTAC), who hold non-exclusive native title in trust for the Wanjina-Wunggurr community over the whole licence. WNTAC lodged an objection against the State’s assertion that the expedited procedure applies to the licence. The licence is located in the Derby-West Kimberley Shire and approximately 93 per cent is covered by Napier Downs pastoral lease. The licence is approximately 4904 hectares in size and encompasses a large portion of the Napier Range between Wagon Pass (to the north-west) and Barker Gorge (to the south-east). The licence also includes almost all of Chedda Cliffs, located on the south-west side of the Range, and includes portions of Black Soil Plain located at the base of Chedda Cliffs. The Windjingayr community, where members of the Wanjina-Wunggurr community reside, is approximately two kilometres north-west of the licence.
If the expedited procedure applies, the State can grant the licence to Metalicity without negotiations with WNTAC. My decision on whether this can occur must rest on the above three criteria set out in s 237 of the Act. I have determined that the expedited procedure does not apply.
The parties’ submissions
WNTAC submitted contentions and the affidavits of Mr Kevin Dann and his brother Mr Robin Dann, with annexures. The deponents state they are determined native title holders and are senior people who can speak for the licence area. I accept their authority. WNTAC also provided contentions in reply to the State’s and Metalicity’s materials.
The State lodged: a statement of contentions; Metalicity’s licence application with the accompanying work program statement; mapping; a Tengraph Quick Appraisal form; search results and mapping from the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS search results); and a list of proposed endorsements and conditions intended to be imposed on the grant of the licence. Metalicity provided a short statement.
The inquiry directions required the parties to submit a statement of agreed facts and contemplated a listing hearing and hearing. The parties requested these directions be vacated and I agreed, being satisfied the issues could be determined on the papers without a hearing (s 151(2)(b)).
Other Tribunal proceedings
WNTAC refer to the Tribunal’s expedited procedure determination WNTAC v Macallum, which relates to an exploration licence that directly abuts the licence in this matter to the south-east and covers a small southern part of the Napier Range (contentions at 15). In that matter, the expedited procedure was held not to apply. I refer to that previous decision, where relevant, below.
Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the Wanjina-Wunggurr community?
The phrase ‘not likely’ in sections 237(a), (b) and (c) of the Act require the Tribunal ‘to make a predictive analysis’ or assessment (FMG v Yindjibarndi at [39]). The Tribunal balances a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
What will Metalicity’s activities be?
In their short statement, Metalicity say they undertake to ‘provide notice before carrying out any activities’ on the licence and ‘will seek to minimise any impacts … on the conduct of community and social activities by members of the Native Title Party … as reasonably practicable’. They provide no information indicating the areas they wish to target, the extent of their intended activities, or their proposed exploration timeframes.
The State include Metalicity’s licence application and accompanying work program statement, in which Metalicity state ‘it is the intention of the Applicant to systematically explore the entire area applied for’ in order ‘to locate and exploit commercial quantities of minerals’. Only the first year’s work programme expenditure is recorded.
Based on the above information it is open to me to conclude Metalicity intend to exercise the full suite of rights available to them upon the grant of the licence under sections 61 and 66 of the Mining Act 1978 (WA). These rights allow Metalicity access to the licence area with their agents, employees, motor vehicles and other machinery for up to twelve years if renewal options are exercised. The rights include setting up camps, leaving machinery or equipment, digging pits, trenches and holes, sinking bores and tunnels, and removing up to 1000 tonnes of material (or more if the Minister approves).
What community or social activities do the Wanjina-Wunggurr community undertake?
The evidence is that members of the Wanjina-Wunggurr community care for country by monitoring and maintaining rock art and burial sites, building and repairing fences to protect these sites and have also repatriated the remains of ancestors to some of these sites (Kevin Dann at 6, 7, 10, 15; Robin Dann at 4, 7, 13, 14, 16). This includes areas on the licence, as outlined in more detail below.
In their reply, WNTAC contend ‘the close proximity of the aboriginal community [at Windjingayr] … indicates that the Tenement Area is used more frequently than other areas further away from the community’ (at 8). Indeed, proximity and ease of access from Aboriginal communities can suggest frequent and intensive use of the area (Forrest v Brockman Exploration at [43]). However, as I noted in Gooniyandi v Inventum Resources (at [29]), there does need to be information and evidence supporting assertions that social and community activities are conducted on the relevant licence, and will suffer interference from the explorer’s activities.
Is interference with community or social activities likely?
The evidence of community and social activities provided by WNTAC is general. There is no evidence about the frequency or intensity of the activities the Wanjina-Wunggurr community undertake on the licence area, or how the activities will be interfered with by Metalicity’s activities. In the absence of such evidence, and taking into account the occasional nature of the activities that are described (maintenance, monitoring, fencing and repatriation), I cannot conclude that Metalicity’s exploration activities would directly or substantially interfere with these social and community activities.
I compare this matter to WNTAC v Macallum – an exploration licence directly to the southeast. In that matter, WNTAC provided similar, general and limited evidence and in that matter I concluded there was insufficient evidence to find s 237(a) disturbance likely (at [22]-[23]).
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the Wanjina-Wunggurr community?
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 (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 (Silver v Northern Territory at [91]). Explaining its significance includes distinguishing it from other areas (Yindjibarndi v FMG at [17] and [125]).
What areas or sites are identified by Wanjina-Wunggurr community on the licence?
WNTAC contend the evidence establishes that the Napier Range and its surrounds is an area of particular significance as a ‘centre of activity’ and because the following features ‘give the area its particular character’ and show the area of the Range ‘is a sensitive one under traditional law and custom’(Contentions at 7-8):
Burial sites – located in Cheeda Cliffs on the south-western side of Napier Range, and throughout the Range within the licence area (Kevin Dann at 7-13, 19, 22; Robin Dann at 12-14, 19)
Cave – ‘in the side of the Range’ created by a dreamtime being located near the ‘streams running off the range into black soil plain’ and containing burial sites, rock art, carvings and a well ‘made by our old people’ (Kevin Dann at 15-17; Robin Dann at 9, 5-18)
Waterholes – located along Golara (Napier Range) and created by dreamtime beings (Kevin Dann at 20; Robin Dann at 6)
Wanjina rock art – located on the north-eastern side of the Range opposite Chedda Cliffs (Robin Dann at 7-8; supported by Kevin Dann at 19)
In the alternative, WNTAC contend all of the above are sites of particular significance under s 237(b) (Contentions at 7; Reply at 16). The State accepts the Cheeda Cliffs, a waterhole and the cave area are ‘likely’ to be considered sites of particular significance (at 45). They contend there is ‘insufficient evidence that the Napier Range as a general region, is a site or area of particular significance’ (at 43.1).
Is there evidence these sites are of particular significance in accordance with the Wanjina-Wunggurr Community’s traditions?
In WNTAC v Macallum, WNTAC made the same contention that Napier Range was an area of particular significance. In that matter, the exploration licence overlapped a small portion of the southernmost part of the Range (directly to the south-east of that licence). On the basis of the evidence in that inquiry, I concluded ‘I do not find that the whole segment of the Napier Range which is within the licence, is a site of particular significance’ per s 237(b) (at [37]). However, I found that certain sites within the licence were of particular significance - and I found that interference was likely with some of those sites.
WNTAC contend ‘the materials before the Tribunal in this matter are distinguishable from the Macallum matter, and do give rise to a finding that the [Napier] Range is an area of particular significance’ (Reply at 19). 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).
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 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.
Is interference with these sites of particular significance likely?
Part of the predictive assessment of the likelihood of interference can include a consideration of previous mining or exploration in the area. The State argues there has been previous exploration activity over the area but they do not provide any evidence of the exploration or other activity, apart from their Tengraph Quick Appraisal which lists dead tenements with various overlaps over the licence area (a number of which were withdrawn prior to grant or granted before the Act came into force).
The State’s Quick Appraisal notes the licence contains two ‘undeveloped mines and mineral deposits’ described as ‘Chedda Cliffs 3’ and ‘Chedda Cliffs 4’. Further, WNTAC’s evidence notes an awareness of previous mining activity and that the community continue to regard the places described as sites or areas of particular significance. WNTAC contend this evidence demonstrates that any previous disturbance, if it has occurred, ‘has not been at a level or scale which has diminished the significance of the sites’ (at 23). I accept their contention. The Tribunal has held that just because an area has previously been disturbed, it does not mean the area has lost its traditional significance or that further disturbance would not constitute interference (see for example Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]).
Another part of the predictive assessment is whether the regulatory regime of the Aboriginal Heritage Act 1972 (WA) (AHA) is sufficient to ensure that s 237(b) interference is unlikely (Freddie v Western Australia at [51]). Section 17 of the AHA makes it an offence to excavate, destroy, damage, conceal or alter an Aboriginal site. The State contends the AHA regime is sufficient to protect Aboriginal sites, whether registered or not. They also contend that, in the absence of contrary evidence, the Tribunal should assume Metalicity will not breach the AHA (at 48-52, citing Ward v Western Australia at 228-230).
WNTAC contend there is contrary evidence in this matter which ‘indicates that the protective regime of the AHA would not adequately ensure interference under s 237 (b) is unlikely’ (at 18-20). I accept this contention. Despite Metalicity’s best intentions to avoid sites, the nature of some of the sites would mean that Metalicity is likely to unintentionally breach the AHA. For example, some of the areas on the Napier Range are not readily identifiable by persons outside the Wanjina-Wunggurr community – I accept there are numerous unmarked burials: ‘Ngarinyin people know where those bones are … kartiya might be standing on top of them … they wouldn’t know they were destroying it but we’d feel it’ (Kevin Dann at 9). The well and carvings near the cave are indistinct to outsiders who ‘might not know what they are unless we are there’ (Kevin Dann 16).
Further, s 18 of the AHA allows Metalicity to apply for Ministerial consent to disturb sites. Given the extent of the Napier Range on the licence, and Metalicity’s intention to ‘systematically explore the entire area’, it is reasonable to infer that Metalicity will make such applications. They also state they seek ‘commercial quantities of minerals’ and I note the Cheeda Cliffs contains two undeveloped mineral deposits. Finally, in their brief statement, Metalicity provide no guarantee that they will avoid sites - they state they will ‘minimise any impacts … [on] sites or areas of particular significance as reasonably practicable’ (my emphasis). Overall, I find the regulatory regime of the AHA is insufficient in this inquiry to mean I could conclude that interference with sites of particular significance would be unlikely.
Enhancements to the regulatory regime via additional conditions also form part of the predictive assessment (eg Champion v Western Australia at [23], [30] & [34]). The State intends to impose a condition requiring Metalicity to enter into a Regional Standard Heritage Agreement (RSHA) if WNTAC request it within 90 days of grant. However, an RSHA would only require consultation with the Wanjina-Wunggurr community when higher impact physical interference is contemplated. Low impact sampling, reconnaissance in vehicles, camping and surveying would not require consultation. I am satisfied, based on the evidence, that this would be substantial interference with the Napier Range – in particular walking over burials (Kevin Dann at 9), walking in or near the cave because of its associated spiritual dangers (Robin Dann at 17) and being near the Wanjina paintings because of their cultural prohibitions (Robin Dann at 7-8). 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.
Because of the nature of the sites, I am not satisfied the State’s regulatory regime, including the RSHA, would be sufficient to mitigate interference with the Napier Range within the licence. I conclude interference is likely. The full right to negotiate under s 31 should apply to ensure that Metalicity consults with the Wanjina-Wunggurr community before they undertake any exploration in the area.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
WNTAC did not make contentions or provide evidence for s 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 major disturbance to the land or waters concerned. Therefore I find disturbance under s 237(c) is unlikely.
Determination
The grant of exploration licence E04/2496 to Metalicity Limited is not an act attracting the expedited procedure.
Helen Shurven
Member
21 March 2019
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