Widi Aboriginal Corporation (RNTBC) v Aurora Gold Mines Pty Ltd

[2022] NNTTA 72

NATIONAL NATIVE TITLE TRIBUNAL

Widi Aboriginal Corporation (RNTBC) v Aurora Gold Mines Pty Ltd and Another [2022] NNTTA 72 (25 November 2022)

Application No: QO2021/0057

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

- and -

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

Widi Aboriginal Corporation (RNTBC) (QCD2019/004)

(native title party)

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Aurora Gold Mines Pty Ltd

(grantee party)

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State of Queensland

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:

Ms H Shurven, Member

Place:

Melbourne

Date:

25 November 2022

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 applies

Legislation:

Native Title Act 1993 (Cth) ss 29, 32, 237

Cases:

Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti Australia)

Hale on behalf of Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale v WA)

Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Gamboola Resources Pty Ltd and Another [2018] NNTTA 10 (Ross v Gamboola Resources)

Nyamal Aboriginal Corporation v Onanong Perkin & Others[2020] NNTTA 10 (Nyamal v Perkin)

Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland (No 2) [2019] FCA 1159 (Pegler vQueensland (No 2))

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208

Representative of the native title party:

David Saylor, Saylor Legal

Representative of the grantee party: Edward Fry, Director, Aurora Gold Mines Pty Ltd

Representatives of the Government party:

Chris Rawlings, Department of Resources

Margot Clarkson, Special Counsel, Native Title, Resources and Dispute Resolution, Crown Law

REASONS FOR DETERMINATION

1. The State of Queensland gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence EPM27937 to Aurora Gold Mines Pty Ltd (Aurora Gold Mines). The notice for the licence included a statement that the grant is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts the grant of the licence 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)).

2. The proposed licence is approximately 40 kilometres southwest of Mackay, and just over 175 square kilometres in size.  It is on land subject to the Federal Court’s native title determination in Pegler v Queensland (No 2), and the non-exclusive native title rights and interests are held by the Widi Aboriginal Corporation (QCD2019/004) for the Widi People. The Widi Aboriginal Corporation (the Corporation) lodged an objection with the National Native Title Tribunal (the Tribunal), arguing the expedited procedure should not apply on the basis that the grant will likely cause the interference contemplated in sections 237(a), (b) and (c) of the Act.

3. In my approach to s 237 in this inquiry, I adopt the principles and reasoning I outlined in Nyamal v Perkin (at [4]-[8]). I also note, as explained by Carr J in Ward v Western Australia (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… where facts are peculiarly within the knowledge of a 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 common sense 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 common sense approach to evidence.

Submissions

1. All parties were advised I would determine this inquiry on the basis of the papers that had been submitted.  No party took issue with that approach.

2. The Widi Aboriginal Corporation provided their Caring for Country Policy Statement with their objection application, and for the inquiry process they provided contentions and a reply to the State and Aurora Gold Mines contentions.  The Widi Aboriginal Corporation contentions were supported by statements of evidence by Ken Dodd, James Sauney and Nino Tucci.  Mr Dodd and Mr Sauney are Widi elders, and Mr Sauney is a member and director of the Widi Aboriginal Corporation.  Annexed to Mr Dodd’s and Mr Sauney’s statement was mapping, and affidavits each had made for Federal Court native title claim determination applications. Mr Dodd’s statement also attached the Caring for Country Policy. Mr Tucci is an Archaeologist and technical advisor for the Widi People since 2019, and outlines his qualifications and experience, as well as annexing a map.

3. Aurora Gold Mines provided the statement of Mr Edward Fry, Director, together with mapping and reports regarding the proposed exploration program. Mr Fry describes (at 3, 11-15) that proposed activities included geological mapping, rock and soil sampling, geophysics, and drilling, which is consistent with the application for the proposed licence provided in the State’s materials. Mr Fry outlines (at 5-10) that the exploration activities are not likely to encroach on the parts of the licence which overlap the native title determination. However, the scope of an expedited procedure objection inquiry is not restricted to the area overlapped by the objector’s native title claim or determination, but the whole tenement application area specified in the s 29 notice (see Hale v WA at [103]-[113]). In any event, Mr Fry subsequently lodged documents with the State applying to relinquish those blocks of the proposed licence application which did not have prospectivity from the explorer’s initial investigations, and copied in all parties and the Tribunal to that application.

4. The State provided contentions and information including details of land tenure underlying the proposed licence, the application from the explorer for the proposed licence, the approved work plan and conditions, the resource authority public report, and mapping.

Consideration of s 237

Section 237(a)

1. An assessment of s 237(a) involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smithv Western Australia at 451 [26]).

2. The State accepts (at 5.15) that the Widi people conduct social and community activities on the proposed licence.  They argue that the way they are expressed as being conducted on the proposed licence means it is not likely exploration activities will cause substantial interference with those activities.  They also point to the notice provisions of the State’s regulatory regime, by which the explorer will need to communicate with the native title party when intending to conduct exploration on the proposed licence.

3. The Widi Aboriginal Corporation evidence, including the statements and the native title claim affidavits, refer broadly to social and community activities including hunting, gathering bush foods, fishing and performing traditional song and dance.  Dennison Creek is said to be an important area, and this runs through the proposed licence.  Mia Mia State Forest, and Blackwater Hole Creek are also said to be important areas for social and community activity.  Reference in the statements is also made to an area associated with koala bears as well as various plants on and around the proposed licence. 

4. However, the statements and the claim affidavits focus broadly on areas on and around the proposed licence, including the claim area as a whole, rather than being focused specifically on the proposed licence or activities conducted on or around that licence.  It does not appear community or social activity is centred around the areas referred to in the statements (such as Dennison Creek), or around other areas on the proposed licence, in such a way so that the activities of the Widi people would suffer from direct or substantial interference from exploration activity. 

5. On the basis of the information provided, I cannot conclude social and community activities would be likely to be interfered with substantially by the activities of the explorer.

Section 237(b)

1. The Widi Aboriginal Corporation contentions (at 26-36) outline concerns about the State’s regulatory regime in relation to protection of sites or areas of particular significance.  However, that goes more to the question of interference, rather than to the issue of establishing there are sites or areas of particular significance on or around the proposed licence.  The Corporation argue (at 34 for example) that there are likely to be such sites on the proposed licence, but do not name or identify such.

2. Looking at the statements of evidence, and the affidavits provided in the Federal Court claim proceedings, there is little information outlining the nature of the particular significance of any site or area on or near the proposed licence.  Mr Tucci refers broadly to the watercourses of Dennison Creek, Backwater Hole Creek and Pioneer Creek, and outlines various artefact and other sites some distance from the proposed licence. Other information from the statements of Mr Sauney and Mr Dodd outlines that the proposed licence area is an important one to the Widi people, and make reference to those same waterways and to areas such as Bora Rings (Mr Dodd at 13 and Mr Sauney at 8-9, for example). 

3. However, little information is provided as to why these areas are of more than ordinary significance to the native title party, or the traditions which relate to these areas.  In addition, general reference is made to the location of areas such as Bora Rings being related to Dennison Creek, which does pass through the proposed licence.  However, Dennison Creek extends many kilometres either side of the proposed licence, and the statements, including Mr Tucci’s statement, do not locate Bora Rings specifically on the proposed licence but rather refer to possible such sites outside of the proposed licence (at 12 for example).

4. The Creeks referred to are described as being important because of their ongoing freshwater, however, ‘importance’ does not necessarily equate to ‘particular significance’ for the purposes of s 237(b). Mr Tucci argues that modelling suggests access to water is a ‘fundamental and crucial ingredient to the cultural landscape’ and that artefacts are usually found within 100 metres of water, but little further detail is provided. There is nothing which describes areas within the proposed licence in such a way that could lead me to conclude they are sites of particular significance. Reference is also made by Mr Tucci to areas off the proposed licence, consistent with the statements of Mr Sauney and Mr Dodd. However, once again, these references are brief and do not provide information which would lead me to conclude any areas off the proposed licence are of particular significance, for the purposes of this inquiry.

5. The statement evidence also refers generally to customs related to coming onto country (Mr Dodd at 9 for example, Mr Dodd’s Widi #2 claim affidavit at 83-92, and Mr Sauney at 15-18) but this is in reference to the Widi country in general rather than the proposed licence specifically.  The list of Special Places in Mr Dodd’s Widi #2 claim affidavit (at 103-114) (which is consistent with places listed in Mr Sauney’s Widi #2 claim affidavit annexed to his statement) are described in such a way that they may be considered to be sites of particular significance, depending on the associated evidence in an inquiry proceeding – that would be up to the Member deciding a matter.  For the purposes of this current matter, I could not see that any of the Special Places were on or near to the proposed licence, and as such, did not consider that list as being relevant to this inquiry. 

6. Mr Dodd’s statement (at 19) refers to the importance of the porcupine as a totem for the Widi people.  The porcupine lives in dead hollow logs and they ‘live in different places on country including in and around the EPM area’. This is consistent with the Widi #2 claim affidavit (at 128-129).  Mr Sauney also refers to the importance of hollow logs in relation to bees (at 20 for example). Once again, the evidence is cast broadly and there is no specific area on the proposed licence which is said to hold the hollow logs or porcupine such that I could conclude that was an area of particular significance.  Areas outside a proposed licence can also be of particular significance, although for this present inquiry, areas which are said to be of importance outside the proposed licence are described in broad and general terms.

7. I understand that parties participating in an inquiry have limited resources, and may refer to previously gathered information such as claim affidavits in support of argument and contentions in an inquiry.  It is important that where such resources are used, they are relevant and targeted toward the relevant tenure being considered.

8. As the Tribunal reaffirmed in Barnes v AngloGold Ashanti Australia at [49] (referring also to WF (deceased) v Emergent at [45]):

   in order to satisfy the requirements of s 237(b) of the NTA in relation to the question of whether sites of particular significance exist in the area, the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance

9. Taking a common sense approach to the information provided, I cannot conclude sites of particular significance exist for the purposes of s 237(b) in this inquiry. The Corporation reply largely addresses issues of interference, and as I did not conclude there were sites of particular significance, I do not need to turn my mind to the issue of interference.

Section 237(c)

1. The Corporation provided brief contentions in relation to s 237(c) (at 39-42). The Corporation refer to the Tribunal decision of Ross v Gamoola Resources. In that inquiry, a report referring to cultural and environmental characteristics of the relevant area, and an existing conservation agreement, were tendered by the native title party in support of their argument that s 237(c) interference was likely. These on their own were not sufficient to support a finding of such interference. However, a scientific report, also tendered by the native title party in that matter, outlined evidence in support of interference occurring – that evidence was not countered by other parties in the inquiry. The Member for that inquiry concluded there was a real risk drilling would disturb the underlying hydrology of the area, which would in turn affect sensitive springs.

2. In the present inquiry, no reports or scientific evidence was tendered. I appreciate that the statements from Mr Dodd and Mr Sauney are made on the basis they are experts in their own cultural heritage. However, the assertions in the contentions that the forest area on the proposed licence would suffer from interference were supported by broad statements about the area and its features, rather than on issues relating to major disturbance as outlined in s 237(c). Based on the limited evidence before me, I find the grant of the proposed licence is not likely to involve major disturbance to the land or waters concerned.

Determination

1. My determination is that the grant of EPM27937 to Aurora Gold Mines Pty Ltd is an act which attracts the expedited procedure.

Helen Shurven
Member
25 November 2022