Wintawari Guruma Aboriginal Corporation RNTBC v Maria Resources Pty Ltd
[2019] NNTTA 57
•1 August 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wintawari Guruma Aboriginal Corporation RNTBC v Maria Resources Pty Ltd & Another [2019] NNTTA 57 (1 August 2019)
Application No: | WO2018/0355 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wintawari Guruma Aboriginal Corporation RNTBC (WCD2007/001)
(native title party)
- and -
Maria 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: | Helen Shurven, Member |
Place: | Perth |
Date: | 1 August 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: | Aboriginal Heritage Act 1972 (WA) s 5 |
Cases: | Delores Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Strike Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 324 ALR 580 (FMG v Yindjibarndi) Harvey Murray on behalf of the Yilka Native Title Claimants v Goldphyre WA Pty Ltd [2013] NNTTA 101 (Yilka v Goldphyre WA) Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 (Hughes 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; (2002) 169 FLR 437 (Walley v Western Australia) Marputu Aboriginal Corporation RNTBC v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of the Wajarri Yamatji [2011] NNTTA 172 (Weld Range Metals v Western Australia) |
| Representatives(s) of the native title party: | Aaron Rayner, Wintawari Guruma Aboriginal Corporation RNTBC |
| Representative(s) of the grantee party: | Yvette Collins, Hetherington Exploration & Mining Title Services Pty Ltd |
| Representatives(s) of the Government party: | Tom Ledger, State Solicitor’s Office Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
[1] The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E47/3757 (the licence) to Maria Resources Pty Ltd (Maria Resources). The notice included a statement that the grant of the licence is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts the grant is not likely to, in summary:
a.(a) interfere directly with the native title holders’ community or social activities (s 237(a));
b.(b) interfere with areas or sites of particular significance, in accordance with their traditions (s 237(b));
c.(c) involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned (s 237(c)).
d.[2] The licence is approximately 88.38 square kilometres in size, located in the Shire of Ashburton. The licence is partially overlapped by the native title determination of the Eastern Guruma People (WCD2007/001) (as determined in Hughes v Western Australia). The Wintawari Guruma Aboriginal Corporation (WGAC) holds non-exclusive native title rights and interests on behalf of the Eastern Guruma People in the area of the licence.
e.[3] WGAC lodged an objection application with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence. Having been appointed to determine this matter, I must look at what is likely to result from the grant of the licence and decide whether there is a real chance or risk of the interference outlined in s 237 (see FMG v Yindjibarndi). I must have regard to the rights conferred by the grant, the nature of the proposed grant and the applicable regulatory regime (see Walley v Western Australia).
f.[4] For the reasons outlined below, I find the expedited procedure does not apply to the grant of the licence.
Preliminary Matters
a.[5] WGAC provided contentions and a reply to the State’s materials, as well as relying on the affidavit of Mr Roy Smith. Mr Smith describes himself as an ‘Eastern Guruma lore man’ and native title holder for this area (Mr Smith’s affidavit at 1). Mr Smith describes how the lore and stories associated with the area of the licence have been passed on by the old people (at 4). Having been given this knowledge by his father, Mr Smith advises he has the cultural authority to speak on behalf of the native title holders in relation to the licence area (at 5-7). I accept Mr Smith’s authority to speak for this area.
b.[6] WGAC also provided and relies on the transcript of a preservation evidence hearing conducted by the Federal Court (the transcript), in which the evidence of Mrs Eva Connors has been cross-examined. A Member of the Tribunal is entitled, as an administrative decision-maker, to have regard to evidence that has been given in another proceeding, provided the evidence is relevant (see s 146 of the Act, and also, for example, Weld Range Metals v Western Australia at [148]-[149]). WGAC seeks to rely upon the transcript in the present inquiry to the extent it relates to the site of particular significance known as Jarri (WGAC contentions at 3.3). Having considered the transcript in the context of the evidence in this matter, I am satisfied it is relevant to this inquiry. Mrs Connors’ authority to speak for the area of the licence is outlined, and I accept that authority. No party has taken issue with this approach.
c.[7] WGAC argued the expedited procedure should not apply to this licence on the basis that the grant will likely cause the interference contemplated in s 237(b) of the Act. WGAC did not make submissions in relation to ss 237(a) or 237(c) of the Act. As such, I find there is no evidence to support a conclusion the grant of the licence will likely interfere directly with the community or social activities of the Eastern Guruma People or involve, or create rights whose exercise will likely involve, major disturbance to land or waters.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders on or related to the area of the licence?
a.[8] 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 be able to be located, and the nature of its significance explained (see Silver v Northern Territory).
What areas or sites of particular significance have been identified by WGAC in relation to the licence?
a.[9] WGAC has identified there is a site known as Jarri located within the area of the licence and that it is a ‘highly significant’ site for Eastern Guruma people (Mr Smith’s affidavit at 10-11). Mr Smith explains that Jarri means a camp or where someone stays in both the ‘physical and spiritual’ world (at 14). The site is described as a place where objects and materials used in ceremonies and other lore business are kept (at 15). Mr Smith recounts watching his father dance and sing about Jarri and believes these were passed on to his father by the old people (at 16). Finally, Mr Smith outlines that Jarri is protected by two ancestral beings but is not permitted to name them (at 17). Mr Smith also indicates that ‘all Aboriginal people in this part of the Pilbara know about this Jarri’ and who it belongs to (at 18).
b.[10] Mrs Connors has also outlined the location and importance of Jarri (for example at [25]-[40] on page 163 of the transcript; and page 190-191 of the transcript), which is consistent with Mr Smith’s evidence.
c.[11] The State’s contentions (at 22) accepts that Jarri is ‘likely to be considered a site of particular significance’.
d.[12] I am satisfied the evidence demonstrates that Jarri is a site of particular significance to the Eastern Guruma People. Further, I am satisfied that the location of the site has been sufficiently identified, particularly by Mr Smith who has attached a marked map to his affidavit (Annexure RS2). That marking of the map has been of considerable assistance to my assessment of the evidence in this matter.
Is the grant of the licence likely to interfere with any of the identified areas or sites of particular significance?
a.[13] 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).
b.[14] I rely on the laws and traditions of the Eastern Guruma People as expressed in the evidence before me. In relation to the Jarri site, Mr Smith and Mrs Connors have outlined certain protocols, and ramifications for the native title holders (and visitors to the country) if these are not followed. For example, the transmitting of knowledge about the site is subject to cultural restrictions (Mr Smith’s affidavit at 17 and 21). Access is also said to be restricted to those ‘trained by the old people’ (page 195 of the transcript) and ‘to all but a few senior Eastern Guruma and Yinhawangka men’ (Mr Smith’s affidavit at 10). It appears that even amongst Eastern Guruma People, some people are too frightened to go to Jarri (Mr Smith’s affidavit at 18 and 23).
c.[15] Mr Smith outlines that if Jarri was damaged or disturbed ‘in any way’ Eastern Guruma people would get sick or even die (at 20). Mr Smith explains this danger extends to ‘the mining company’ too (at 20). Likewise, Mrs Connors outlines an instance when people were told not to go to Jarri but they disobeyed and ‘got burnt’ and nearly died (page 193 of the transcript). Finally, it is clear that Mr Smith feels a personal responsibility to protect people from suffering this fate by protecting and preserving Jarri from damage or disturbance (at 19-20, 22).
d.[16] Given the above traditions and protocols, the question is then whether the exploration activities of Maria Resources is likely to interfere with Jarri. After seeking a number of extensions to the Tribunal’s direction requiring contentions be provided, Maria Resources advised it will rely on the contentions and evidence of the State (email of 20 June 2019).
e.[17] The State provided Maria Resources exploration program statement, which outlines brief information about their exploration goals and program. This includes the possibility of drilling. In the absence of any further materials from Maria Resources, I have assumed it will undertake the full scope of activity to which it is entitled under the grant of the exploration licence (as per Silver v Northern Territory). These activities are set out in s 66 of the Mining Act 1972 (WA):
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
a.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.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.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.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.
a.[18] The Mining Regulations 1981 (WA) outline the amount of material able to be removed from the 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.
a.[19] The State’s contentions (at 22) asserts interference with the Jarri site within the meaning of s 237(b) is not likely. The first basis of this position appears to be that the site is likely to fall within the s 5 definition of ‘Aboriginal Site’ of the Aboriginal Heritage Act 1972 (AHA) and, therefore, benefit from the protection afforded by that Act. In relation to this assertion, I adopt the recent findings in Marputu v Gianni (at [62]):
As to the AH Act, its operation is no doubt relevant to the extent of any risk [of interference]. When a traditional owner fails to identify, with sufficient precision, sites said to be of particular significance, the Tribunal might well infer that the Act may offer a sufficient degree of protection against any adverse impact such as that contemplated by s 237(b). Where, as here, the sites and concerns are particularized, one would expect that the State, or the proposed grantee would identify the way in which the AH Act is said to apply so as to reduce the risk of adverse impacts. There has been no real attempt to do so.
a.[20] I find the State and Maria Resources, have not identified ways in which the AHA would reduce the risk of interference with Jarri.
b.[21] The State’s second basis of asserting there will be no interference with Jarri relies on the fact that the area of the licence has been subject to a number of previous exploration tenements, including one which overlapped the licence by over 96 per cent (State’s contentions at 27). I note that, according to the Tengraph Quick Appraisal results, the previous tenement being referenced, E47/987, was a withdrawn application and appears not to have been granted.
c.[22] Putting that aside, the State asserts the previous tenements provide a sufficient basis for the inference that prior ground disturbance has occurred and this means the present proposed grant is unlikely to cause ‘substantial further disturbance’ (State’s contentions at 28). I do not accept that submission. As WGAC has noted, particularly in their reply which analyses the issue of interference in some detail, the existence of previous tenements does not constitute evidence that sites of particular significance have been affected (WGAC’s reply at 5.17 citing Yilka v Goldphyre WA). I note that no evidence has been provided outlining previous activities undertaken pursuant to any previously granted tenements.
d.[23] The State further asserts the grant ‘will not result in interference’ due to the proposed Regional Standard Heritage Agreement (RSHA) condition. In response, WGAC notes that certain ‘low impact’ activities are permitted under the RSHA without requiring Aboriginal heritage surveys to be conducted (WGAC’s reply at 5.15-5.16). Based upon the evidence of Eastern Guruma traditions in the material before me (particularly those related to the restricted access to Jarri), I am satisfied that even ‘low impact’ activities would constitute interference.
Conclusion
a.[24] I must consider, based on the facts presented in an inquiry and the nature and extent of sites of particular significance, whether the State’s protective regime is sufficient to make it unlikely there will be interference with a site of particular significance, which in this inquiry is Jarri. In making the predictive assessment for s 237(b) of the Act, I can take into account information from a grantee, and none has been provided in this inquiry.
b.[25] I am satisfied that in doing lawful exploration activities, Maria Resources is likely to interfere with Jarri. There is nothing in the endorsements and conditions to be imposed by the State which is likely to mitigate that interference. In addition, while the RSHA would provide some protection, it allows for non-ground disturbing work to occur on the licence. There is sufficient evidence provided by Mr Smith and Mrs Connors to satisfy me that such non-ground disturbing work would be sufficient to cause interference for the purpose of s 237(b) of the Act.
Determination
a.[26] My determination is that the grant of E47/3757 to Maria Resources Pty Ltd is not an act that attracts the expedited procedure.
Helen Shurven
Member
1 August 2019
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