Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Andromeda Resources Pty Ltd
[2021] NNTTA 64
•21 October 2021
NATIONAL NATIVE TITLE TRIBUNAL
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Andromeda Resources Pty Ltd and Another [2021] NNTTA 64 (21 October 2021)
Application No: | WO2021/0932 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC (WCD2005/002)
(native title party)
- and -
Andromeda 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 H Shurven, Member |
Place: | Melbourne |
Date: | 21 October 2021 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere substantially with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure is not attracted |
| Legislation: | Native Title Act 1993 (Cth) ss 31, 237 Mining Act 1978 (WA) s 66 Mining Regulations 1981 (WA) r 20 Aboriginal Heritage Act 1972 (WA) |
Cases: | Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 113 (Rosas v Northern Territory) Nyamal Aboriginal Corporation RNTBC & Gardner Mining Pty Ltd & Another [2021] NNTTA 48 (Nyamal v Gardner Mining) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Stanley Mervyn, Adrian Young, and Livingston West and Ors, on behalf of the Peoples of the Ngaanyatjarra Lands v The State of Western Australia and Ors [2005] FCA 831 (Stanley Mervyn v Western Australia) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Freddie v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Bryony Nicholson, Ngaanyatjarra Council |
| Representative of the grantee party: | Dasha Longley |
| Representatives of the Government party: | Bethany Conway and Michael McMahon, Department of Mines, Industry Regulation and Safety Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
This decision is about whether or not the expedited procedure applies to the grant of exploration licence E69/3812 (the proposed licence) to Andromeda Resources Pty Ltd. The State of Western Australia considers the grant of this licence is an act attracting the expedited procedure, and included a statement to that effect in the public notice which advertises the grant process.
By including the expedited procedure statement in their notice, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the grant is not likely to, in summary:
a)interfere directly with community or social activities carried on by members of native title claims or determined areas (s 237(a));
b)interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
Having been appointed to conduct the inquiry in this matter, these are the criteria on which I must base my decision as to whether or not the expedited procedure applies. The licence is approximately 90 square kilometres in size, and approximately 128 kilometres north easterly of Warburton.
The Ngaanyatjarra Council (Aboriginal Corporation), on behalf of the Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC (Yarnangu Ngaanyatjarraku Parna) lodged an objection with the National Native Title Tribunal to the inclusion of the expedited procedure statement. Yarnangu Ngaanyatjarraku Parna hold exclusive native title on trust in the area of the proposed licence for the common law native title holders, who are identified in the Federal Court native title determination Stanley Mervyn v Western Australia (referred to in the inquiry materials as the Ngaanyatjarra people). The native title determined area of Ngaanyatjarra Lands (Part A) overlaps all of the proposed licence.
In their materials to the expedited procedure objection inquiry, Yarnangu Ngaanyatjarraku Parna argue that interference or disturbance in accordance with s 237(a) or s 237(b) is likely. The objection in relation to s 237(c) is not maintained, and based on a common sense view, I conclude there is unlikely to be major disturbance with the relevant lands or waters. The focus of this inquiry is on s 237(a) and s 237(b).
I must decide whether the expedited procedure applies – if it does, negotiation between the parties under s 31 is not required. The State will be able to grant the licence and Andromeda Resources can proceed with their activities, without negotiating with the determined native title holders. A decision that the expedited procedure does not apply means all parties must negotiate in good faith with a view to reaching agreement with the native title holders about the grant of the licence (see s 31(1)(b)).
My conclusion in relation to s 237(a) is that given the brief evidence provided, I accept community and social activities take place on or near the proposed licence, but not to the extent they will be substantially and directly interfered with by Andromeda Resources activities.
My conclusion in relation to s 237(b) is that there are sites of particular significance to the Ngaanyatjarra people, and that exploration activities which are likely to be conducted by Andromeda Resources are likely to interfere with those sites. On that basis, I find the expedited procedure should not apply.
I provide reasons for my conclusions below.
Preliminary matters
Submissions
The State and Yarnangu Ngaanyatjarraku Parna submitted contentions and evidence to the Tribunal in this matter. Yarnangu Ngaanyatjarraku Parna provided the affidavits of traditional owner Alwyn Bates, and anthropologist Frances Bryony Nicholson, in support of their contentions. Both affidavits provided mapping which was referred to throughout the relevant evidence.
Mr Bates outlines he is a senior Ngaanyatjarra man, a traditional owner for the country northwest of Wanarn and Larrara in the Ngaanyatjarra Lands, and a senior knowledge holder and law man. I note Wanarn is approximately 30 kilometres from the licence. Mr Bates was born just to the west of the proposed licence. None of this was contentious and I accept Mr Bates’ evidence.
Ms Nicolson outlines she is the senior anthropologist for the Ngaanyatjarra Council and has been an anthropologist on staff since 2010. She holds a Bachelor of Arts, Anthropology (Honours) from the University of Sydney. She has worked in remote communities with Western Desert Aboriginal people since 2006, and currently lives in a community in the Ngaanyatjarra lands. Ms Nicholson goes on to outline her experience and understanding of the ways in which the Ngaanyatjarra people are associated with and maintain a connection to country, and their interactions with the exploration industry. None of this was contentious and I accept Ms Nicholson’s evidence.
Yarnangu Ngaanyatjarraku Parna requested non-disclosure directions be placed over parts of the evidence about dreaming tracks, as well as geographical features in and around the area and other aspects of the evidence which are culturally sensitive. Parties took no issue with me granting those directions, and I reference the sensitive and protected information only to the extent necessary so that my reasoning is clear.
Andromeda Resources did not provide any materials for the inquiry. Information about the explorers work program was provided with the State’s materials, and this indicated they intend to explore for a number of metals. There was only brief information included about their proposed activities, which included rock chip sampling, surveying and air core drilling.
The State raised some issues with the Yarnangu Ngaanyatjarraku Parna reply, mostly focused on reference to a Connection Material Report and preferred heritage agreement. Having read party materials, I confirmed to parties that I would not require a copy of, or consider, that report for the purposes of this inquiry. In relation to the reference to the Yarnangu Ngaanyatjarraku Parna preferred heritage agreement, I noted to parties that many native title parties do have a preferred agreement, and I did not intend to consider a copy of the Yarnangu Ngaanyatjarraku Parna agreement for the purposes of this inquiry.
I did not see any reason to conduct a hearing, as I had sufficient information to determine the matter on the papers, and informed the parties accordingly. No party took exception to that approach.
Ngaanyatjarra native title rights and interests
Decisions I make in relation to the limbs of s 237, and the application of the expedited procedure, must be done so in the context of the native title rights and interests which relate to the relevant licence. The native title rights and interests in relation to Ngaanyatjarra Lands (Part A) (WCD2005/002) are:
3.Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests held in relation to Reserve 24980 (Warburton Range Stock Route) [being an area where there has been partial extinguishment of native title] are:
(a)the right to enter and remain;
(b)the right to take fauna and flora;
(c)the right to take water for personal, domestic, or non-commercial communal purposes;
(d)the right to take other natural resources such as ochre, stones, soils, wood and resin; and
(e)the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the native title holders.
4.Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in each other part of the Determination Area [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] are:
(a)except in relation to flowing and subterranean water - the right of possession, occupation, use and enjoyment to the exclusion of all others; and
(b)the right to take flowing and subterranean water for personal, domestic, or non-commercial communal purposes.
5.The native title rights and interests described in paragraphs 3 and 4(b) do not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others.
Is the grant of the proposed licence likely to substantially and directly interfere with the carrying on of the Ngaanyatjarra people’s community or social activities (s 237(a))?
The Tribunal balances a native title party’s evidence of community or social activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference (see for example, Yindjibarndi v FMG at [16]). The test is outlined in Rosas v Northern Territory (at [67]):
The leading case on the proper interpretation of section 237(a) is Smith v WesternAustralia [2001] FCA 19; (2001) 108 FCR 442. French J made these observations about the proper interpretation of this paragraph (at 451):
"The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section."
If the evidence about the alleged activities is general and unspecific, then this is insufficient to find that the grant will create such direct or substantial interference (Freddie v Western Australia at [13]).
Brief information was provided regarding hunting by Mr Bates (at 7) and Ms Nicholson (at 24-26). The State argue (at 23-25) that the activities have not been sufficiently described, and it is likely hunting activities could co-exist with exploration activities. The Yarnangu Ngaanyatjarraku Parna reply (at 35-38) refer to the Aboriginal community, Wanarn, in relatively close proximity to the proposed licence and for hunting within that area, but there is little further detail. Similarly, there is brief reference to burning (Mr Bates at 7, for example), however, again there is little detail provided about that community or social activity.
Given the size of the proposed licence, and that the evidence does not indicate hunting or other activities are undertaken to any level of intensity on an area of the proposed licence, I accept that it is unlikely such activities would be substantially and directly interfered with by exploration activities.
Is the grant likely to interfere with sites or areas of particular significance to the Ngaanyatjarra people (s 237(b))?
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 (Silver v Northern Territory at [91]).
Mr Bates (at 8-15 and 19) goes into some detail about the dreaming tracks which run through and nearby the proposed licence, and refers to one of these tracks as ‘highly sensitive’. As Mr Bates describes the highly sensitive pathway, and the sites which mark the pathway, I understand this track runs through the proposed licence diagonally in the southern portion. I also understand one of the sites is in the south of the licence. Ms Nicholson (at 11-14) confirms that pathway runs through the proposed licence, and also confirms and explains the nature of the sites which mark the pathway, including the site which is in the proposed licence.
Mr Bates describes another site in the centre of the proposed licence (16-18) related to another important dreaming track. Ms Nicholson describes ‘The area is criss-crossed with dreaming tracks’ (at 27). This is borne out in Mr Bates’ evidence and description of the area and various sites and markers, which I do not repeat due to sensitivities which are covered by the non-disclosure directions.
I am satisfied the site in the south of the licence and the area covered by the dreaming track pathway, as well as the site in the centre of the licence, have been sufficiently explained and described for me to conclude they are of particular significance in accordance with the Ngaanyatjarra people’s traditions and are areas of particular significance for the purposes of s 237(b). I then must turn my mind to whether it is likely such areas will be interfered with.
Is it likely a site or area of particular significance will be interfered with by the exploration activities of Andromeda Resources?
Given that Andromeda Resources have not provided any information or evidence about their intended exploration should the licence be granted, I have assumed they will undertake the full scope of activity to which it is entitled as set out in s 66 of the Mining Act:
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)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.
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.
The State confirmed (at 18) that Andromeda had ‘not provided any further contentions or evidence as to how it intends to exercise rights granted under the proposed licence’, but argues that Andromeda’s activities ‘will be low-level and generally unobtrusive, at least in the short term’ (at 19). The Yarnangu Ngaanyatjarraku Parna reply (at 29) argues that in circumstances of high sensitivity, exploration activities which are generally considered to be low impact can cause interference of the kind contemplated in s 237(b). Ms Nicholson notes (at 18) that:
Accessing this country is to enter and impact upon a landscape that is an expression of Ngaanyatjarra law in relation to this taboo kinship relationship. To access this country without knowledge of the story and the landscape or without permission for those responsible for protecting this area, disturbs and disrespects the Tjukurrpa.
The Yarnangu Ngaanyatjarraku Parna contentions (at 14) argue that ‘unregulated movements of vehicles and mining machinery is likely to interfere’. Mr Bates (at 21-23) and Ms Nicholson (at 18-20) explain how accessing this country without knowledge of the relevant dreaming story or without permission from the right people disturbs and disrespects the Tjukurrpa including activities such as driving on the area soil and taking samples ‘from country that expresses a significant part of the story’ (Ms Nicholson at 19). The Yarnangu Ngaanyatjarraku Parna reply (at 51) refer to the ‘highly sensitive reciprocal kinship relationship’ which is described in the evidence of Mr Bates and Ms Nicholson, and I accept that is the case. The reply (at 20) also refers to the rights of the determined native title community ‘to maintain and protect places of importance under traditional laws, customs, and practices in the area’.
The State contentions (at 11-12) make a general assertion about previous licences which have been granted over the area of the proposed licence, in relation to interference with the area. However, the Yarnangu Ngaanyatjarraku Parna reply (at 12-13) notes that one of these previous licences was granted following an agreement being reached between the native title party and the grantee for that licence, and another previous licence was granted following a consent determination by the Tribunal. As such, activities on the area of those previously granted licences were undertaken under the auspices of communication and agreement between the relevant grantees and the native title party. The evidence from Mr Bates and Ms Nicholson supports a conclusion that areas within the proposed licence retain their particular significance.
The State contentions (at 34) argue their regulatory regime, including various endorsements and conditions to be applied to the area on grant, will provide protections to the native title party. The State contentions (at 35-37) also argue the Aboriginal Heritage Act (AHA) will provide protections. However, as has been canvassed in previous Tribunal decisions (for example, my comments in Nyamal v Gardner Mining [at 22]), the explorer may apply for Ministerial approval to access and explore on areas which may otherwise be covered by the AHA.
Given that Andromeda is intending to explore for metals, and their work program includes surveys and drilling, I conclude the activities they are likely to undertake are likely to cause interference to the areas of particular significance on this proposed licence.
Determination
The determination of the Tribunal is that the grant of licence E69/3812 to Andromeda Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
21 October 2021
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