Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v Topia Resources Pty Ltd
[2019] NNTTA 12
•19 March 2019
NATIONAL NATIVE TITLE TRIBUNAL
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v Topia Resources Pty Ltd [2019] NNTTA 12 (19 March 2019)
Application No: | WO2018/0284 & WO2018/0285 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalikunu) RNTBC (WCD2002/002)
(Native Title Party)
- and -
Topia Resources Pty Ltd
(Grantee Party)
- and -
State of Western Australia
(Government Party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven, Member |
Place: | Perth |
Date: | 19 March 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – non-disclosure directions - 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: | Native Title Act 1993 (Cth) ss 142, 155, 237 |
Cases: | Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/ Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia [2004] NNTTA 31 (Sharpe v Ashburton Minerals Ltd) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (James v Western Australia) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL [2002] NNTTA 24 (Walley v Western Australia) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd[2002] NNTTA 18 (Silver v Northern Territory) WF (deceased) on behalf of the Wiluna People v State of Western Australia[2013] FCA 755 (Wiluna v Western Australia) WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (WF v Emergent Resources) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG Pilbara) |
| Representatives(s) of the native title party: | Ms Kate Holloman, Yamatji Marlpa Aboriginal Corporation |
| Representative(s) of the grantee party: | Ms Claudia Bertone, Austwide Legal Pty Ltd |
| Representatives(s) of the Government party: | Mr Domhnall McCloskey, State Solicitor’s Office Ms Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
I have been appointed to decide whether or not the expedited procedure applies to the proposed grant of exploration licences E45/5000 and E45/5001 (the licences) to Topia Resources Limited (Topia Resources). The State of Western Australia (the State) considers the grant of the licences are acts attracting the expedited procedure. By including the expedited procedure statement in their notice of the proposed grants, the State asserts the activities permitted under the licences are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (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 licences cover approximately 637.79 square kilometres (E45/5000) and 143.41 square kilometres (E45/5001) in the Shire of East Pilbara. Both licences overlap the Percival Lakes system, which is the focal point of much of the material provided in this inquiry.
The Western Desert Lands Aboriginal Corporation (WDLAC) holds exclusive native title rights and interests over the whole area of the licences, on behalf of members of the Martu and Ngurrura native title claims (as determined in James v Western Australia). The contentions and evidence provided by WDLAC in this matter refer to the native title holders as the Martu People and I have adopted that approach in this decision.
WDLAC lodged an objection against the State’s assertion the expedited procedure applies to the licences. WDLAC argues the expedited procedure should not apply to either licence, as interference or disturbance with one or more of the criteria in s 237 of the Act is likely. Topia Resources and the State argue the expedited procedure should apply.
In determining whether the expedited procedure applies or not, I must make a predictive assessment. I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance. I must have regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
If I find the expedited procedure applies, the licences can be granted without parties being required to negotiate with each other. If I find it does not apply, Topia Resources and the State must negotiate in good faith with a view to reaching an agreement with WDLAC about the proposed grant of the licences.
For the reasons outlined below, my determination is that the expedited procedure does not apply to either licence.
Preliminary evidentiary matters
WDLAC material
WDLAC provided and relies on the following evidence in support of its objections:
(a)the witness statement of Barker Lane and Grant Judson, undated (the Joint Statement);
(b)the witness statement of Melvin Farmer dated 19 September 2018 (Mr Farmer’s Statement); and
(c)an anthropological report authored by Zsuzsanna Gonda dated September 2018 (the Gonda Report).
Mr Lane and Mr Judson identify themselves as Martu men and, with others they name, are senior native title holders and knowledge holders for Percival Lakes. Mr Farmer identifies himself as an initiated Martu man, a native title holder and knowledge holder for Percival Lakes, and the Chairperson of WDLAC. I accept that Mr Lane, Mr Judson and Mr Farmer have authority to speak for the native title holders in relation to the licence areas.
I also note the author of the Gonda Report is ‘an anthropologist employed at YMAC [Yamatji Marlpa Aboriginal Corporation]’. Given this, I have inferred Ms Gonda has adequate anthropological expertise, and no party has contested this, however, it is helpful for witnesses to state their experience or basis for authority. I note the Gonda Report was constructed using sources which included the Department of Planning Lands and Heritage’s (DPLH) restricted site files, and also other published and unpublished sources, including the statement of Mr Farmer and the Joint Statement. I rely on the sources and documents to which all parties have had access to.
Non-disclosure directions
WDLAC applied for non-disclosure directions under s 155 of the Act in relation to the materials listed above at [8]. There was no resistance to this request from other parties, and I was satisfied that the material is culturally sensitive. On that basis, I made directions restricting the use of that information. I have had due regard to the cultural and customary concerns of the deponents and the broader community of native title holders regarding the dissemination of information which would not otherwise be disclosed, in accordance with traditional laws and customs. I refer to that information in this decision only to the extent necessary to ensure my reasons are explained and supported.
Anthropological evidence: Department of Planning, Lands and Heritage site files
As noted at [8] and [10], WDLAC has provided and sought to rely on the Gonda Report. The Tribunal has frequently noted that anthropological evidence may assist in contextualising or elucidating matters raised in the evidence of Aboriginal witnesses (see Wiluna v Western Australia).
The Gonda Report cites a number of sources, including restricted site files held by DPLH and a report titled Jigalong Community Traditional Lands Reserve Proposal: Survey of Sites of Traditional Significance to Aborigines of Jigalong, also held by DPLH and closed to public access. At the time of requesting non-disclosure directions, WDLAC noted it had access to these materials, however, in accordance with DPLH policy it was unable to provide copies to third parties. As such, WDLAC requested the Tribunal and parties request their own access to these materials through DPLH.
After some communication between parties and DPLH, it became clear that access to the restricted materials was not able to be granted to all parties, or if the material was able to be released to all parties, there was no certainty that all parties would be provided with the same materials (given the various restrictions which applied). As noted at s 142 of the Act, parties to an inquiry must have the opportunity to inspect, and make submissions on, any document to which the Tribunal proposed to have regard to in making a decision.
My view is that the effect of the inaccessibility of any documents relied upon or the weight to be given will depend on the nature of the evidence. In this instance, the restricted DPLH site files are related to those sites that appear on the State’s public register and, as such, there can be no uncertainty as to whether the sites exist or can be located. Further, I find the Gonda Report has probative value in this matter as it is consistent with the evidence provided by the traditional owner statements in this matter (see, for example, WF v Emergent Resources at [44]).
Parties made various submissions on the use of the DPLH site files. Having considered those, I advised parties of my intention to proceed with the inquiry without having regard to the DPLH site file restricted material. No party voiced concern with this course of action.
(a) Is the grant of the licences likely to interfere directly with the native title holders’ community or social activities?
To find section 237(a) interference is likely, there must be direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara). The Tribunal must balance a grantee party’s proposed exploration activities with any evidence of community and social activities, to determine whether the activities can coexist without direct or substantial interference.
WDLAC has broadly identified the following three ‘community and social activities’, which are recorded as native title rights and interests in the Martu People’s native title determination (see James v Western Australia):
(a)the right to make decisions about the use and enjoyment of the determination area;
(b)the right to control access to, and activities conducted by others on the land and waters of the determination area; and
(c)the right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs. I note because of the manner in which this activity has been framed, some of the submissions and evidence provided more appropriately support WDLAC’s assertion in relation to section 237(b). Where this is the case, I have taken those matters into consideration.
WDLAC has provided very little information about specific social or community activities. There is reference to the importance of the licence areas, the Percival Lake system in general, and to the traditional law and custom of the native title holders (see for example the Joint Statement at (7)-(11)). This relates generally to the fact that dreaming tracks cross through these licences. However, there is little specifically about the social or community activities themselves.
Specific evidence is led regarding the practice of a certain type of ceremony (in the Joint Statement). I will not go into detail about this, given the sensitivity. While conducting such ceremonies can be a relevant community activity (see for example Sharpe v Ashburton Minerals Ltd at [26]), the Joint Statement (at 17) also suggests this activity isn’t limited to the licence area. The WDLAC reply outlines that community and social activities of singing dreaming songs at law time and transferring cultural knowledge are directly linked to the land and waters subject to the proposed licences and ‘are not transferrable to other parts of the Determination Area’ (at 5), however no detail is provided in that regard.
I find there is insufficient evidence provided to be satisfied the grant of the licences is likely to interfere directly with the community or social activities of WDLAC.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
In relation to section 237(b) of the Act, 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 (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). These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara).
Again, noting the non-disclosure directions, I will limit my references to the evidence to that necessary to explain my reasons.
What areas or sites have WDLAC identified?
Parties have lodged search results from the publically available DPLH Aboriginal Heritage Inquiry System (AHIS). These results show, within the area of the licences, there are 10 registered sites and one other heritage place. Nine of the registered sites have restricted DPLH files (as discussed at [13]-[16]).
WDLAC has identified the following areas and sites within or near the licence areas:
(a)The Percival Lakes area (which contains AHIS sites);
(b)Yimiri (registered site 10511);
(c)Winpa/Wirnpa (registered site 10512);
(d)Wayin Karangu (registered site 10505);
(e)Talyji (registered site 10506);
(f)Warla-Martaji (registered site 10507);
(g)Jawuju (registered site 10508);
(h)Yurlpui (registered site 10509);
(i)Kurturarra (registered site 10515);
(j)Ngurtu-Kurangu (registered site 10516); and
(k)Purnanpa (registered site 10517).
Are any of the identified areas or sites of particular significance to WDLAC?
The Percival Lakes area
The affidavit and anthropological evidence submitted by WDLAC describes the Percival Lakes area as being of central importance to the Martu People. WDLAC’s contentions identify the Percival Lakes as a ‘cultural landscape…inextricably linked to three Tjukurrpa stories’ (at 43). Further, the Joint Statement (at (5)) notes:
The Percival Lakes area is important to all Martu people because there are significant Tjukurrpa (dreamings) in this country.
The Gonda Report (at 9) outlines that:
The Percival Lakes region is a centre of dreamtime activity where various Tjukurrpa (dreaming tracks) and songlines diverge. The system and sites which are contained within it are regarded by Martu people as the heartland or 'main place' of Martu country which people feel strong bonds of attachment and responsibility towards.
WDLAC’s evidence outlines a number of traditions associated with these areas, which supports a finding that the whole Percival Lakes area is of particular significance to the native title holders. This includes information about the spiritual significance of the Tjukurrpa (discussed further below); restrictions regarding the transmission of knowledge about the area (see (7) of the Joint Statement); rituals and songs associated with the area which are performed during ‘Law business’ or ‘ceremony time’ every year (see (7) – (11) of the Joint Statement); and traditional laws and customs which exist around the accessing the area (see (19)-(20) of the Joint Statement). It is clear that if laws and customs are not followed, the Martu People believe ‘there will be trouble for the Martu People’ and it could lead to ‘real trouble’ for outsiders accessing the area improperly (see (20) of the Joint Statement). I have refrained from providing further detail about this information, noting the non-disclosure directions made in these inquiries.
There is also evidence provided in relation to the three Tjukurrpa related to this area, with detailed evidence provided in relation to one of these. Mr Farmer’s statement, in particular, outlines that while one Tjukurrpa story is associated with cultural activities performed during law time, these activities are still taught and that the area requires the Martu People’s protection. While there is little information about the activity itself specifically in relation to the licences, there is no doubt that the dreaming tracks cross into and across the licences, and they are associated with the Percival Lakes and important traditions of the Martu people.
Given the abundance of evidence before me, and without reference to the DPLH restricted site files, I find the whole Percival Lakes area to be of particular significance to the Martu People in accordance with their traditions.
Yimiri (registered site 10511)
The Yimiri site is sufficiently described as a site of particular significance to the Martu People. In the evidence before me, the site is described as the area where the abovementioned three Tjukurrpa stories meet resulting in a further story about a particular creature. The details of the creature’s creation, its importance as a caretaker of the Percival Lakes and the Martu People’s traditional laws and customs have been sufficiently described in the Joint Statement (see paragraphs (12) to (15)). Noting the cultural protocols surrounding accessing the site and the evidence provided in both statements, which are consistent, I find it is a site of particular significance to WDLAC.
Winpa/Wirnpa (registered site 10512)
The Winpa (also referred to as Wirnpa) site, is noted as being nineteen kilometres north of the licence areas. The Tribunal has found on numerous occasions that sites or areas outside the licences may be relevant to an inquiry if the evidence shows a clear nexus between the sites or areas and the issues being considered under s 237(b) (see Silver v Northern Territory).
The evidence provided indicates that Winpa is part of a broader Tjukurrpa, which I do not identify due to sensitivities relating to that dreaming. That Tjukurrpa is said to be ‘all across’ and ‘spanning the whole of’ the lakes. The WDLAC reply asserts that there is sufficient information to support the nexus. I have examined this information, and whilst I do not question that the Winpa site is an important site to the Martu People, I accept the assertion put forward by Topia Resources that there is insufficient evidence before me to show a clear nexus between the site, the related Tjukurrpa, any associated exploration activities and the licence areas, particularly given the distance of the site from the licence areas.
Other sites referred to in the evidence
I acknowledge there are cultural considerations, including gender-restrictions, surrounding the sites and areas subject to this inquiry in relation to other sites and areas on and near the licences. Nonetheless, there is insufficient evidence provided to support a finding that the sites listed at (25)(d) to (k) are of particular significance to the Martu People for the purposes of s 237(b).
Is the grant of the licences likely to interfere with any of the identified areas or sites of particular significance to WDLAC?
When evaluating the degree of interference for the purposes of s 237(b), the Tribunal must consider the nature of the site, the nature of the potential interference and the laws and traditions of the native title holders (see Silver v Northern Territory).
I rely on the laws and traditions of the Martu People as expressed in the evidence provided. I do not repeat the evidence here, due to sensitivities, however, I accept there are certain protocols, and ramifications for the native title holders if those are not followed. The geographical area known as the Percival Lakes system stretches through both licences in this inquiry. The question then is whether the exploration activities of Topia Resources is likely to interfere with Percival Lakes or Yimiri as sites of particular significance.
The Yimiri site is of ‘mythical and spiritual significance’. I appreciate the sentiment contained in the Joint Statement regarding that strangers do not understand the important places and that the laws and traditions cannot be learnt from a map (at 19). Yimiri is situated on E45/5000, and part of the site rests on Percival Lakes.
Topia Resources’ contentions state:
At all material times, [Topia Resources] was and remains willing to enter into the RSHA [Regional Standard Heritage Agreement] and is committed to the terms of the RSHA, including conducting a Heritage Survey prior to commencing any works over the Tenements.
I note the State’s contentions indicate it will include an RSHA condition on the grant of the licences, as well as a number of conditions and endorsements. In their contentions and evidence, WDLAC is sceptical as to the extent to which the RSHA, and the State’s regulatory regime, will protect these sites of particular significance. I note that apart from one previously granted tenement, which overlapped E45/5000 by 2.5 per cent, there appears to have been no other exploration grants made over these licences.
Topia Resources contentions outlined that all AHIS registered sites and places which fall within the licences will be avoided by them in conducting their activities (at 67). The Percival Lakes themselves encroach on both of these licences, and not all of the area of the lakes are covered by AHIS registered sites. I note Topia Resources has indicated that while in its view some of its activities will be low impact, it does intend to conduct drilling as part of the exploration program, as well as wet sample collection on lake beds. This suggests to me that exploration activities are likely to be conducted on the Percival Lakes area. As noted above, part of Yimiri rests on Percival Lakes.
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.
Given the great sensitivities and importance which has been demonstrated in the WDLAC evidence, I find it is likely that the Percival Lakes area will be interfered with by the exploration activities of Topia Resources on both licences.
(c) Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
In pursuing its objection, WDLAC has not made submissions in relation to the s 237(c) criteria, relating to major disturbance to land and waters. There is no evidence to support a conclusion that the grant of the licences are likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
Determination
My determination is that the grant of E45/5000 and E45/5001 to Topia Resources Limited are not acts that attract the expedited procedure.
Helen Shurven
Member
19 March 2019
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