Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Strategic Energy Resources Ltd
[2022] NNTTA 29
•11 April 2022
NATIONAL NATIVE TITLE TRIBUNAL
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Strategic Energy Resources Ltd and Another [2022] NNTTA 29 (11 April 2022)
Application No: | WO2021/1188 |
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 -
Strategic Energy Resources Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Member H Shurven |
Place: | Melbourne |
Date: | 11 April 2022 |
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 – dreaming tracks – expedited procedure is not attracted |
Legislation: | Native Title Act 1993 (Cth) ss 31, 237 Mining Act 1978 (WA) ss 58, 66 Mining Regulations 1981 (WA) r 20 Aboriginal Heritage Act 1972 (WA) |
Cases: | Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24(Nyikina and Mangala v Geotech) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) 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) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia[2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) 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) WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (WF v Emergent Resources) |
| Representative of the native title party: | Bryony Nicholson, Ngaanyatjarra Council (Aboriginal Corporation) RNTBC |
| Representative of the grantee party: | Mark Gregory, Castledine Gregory |
| Representatives of the Government party: | Bethany Conway and Jake Lincoln, 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 E38/3564 (the proposed licence) to Strategic Energy Resources 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 229 square kilometres in size, and approximately 211 kilometres south westerly 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 majority of 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(b) is likely. The initial objection also included s 237(a) and s 237(c) but these sub-sections were not pursued, and from a common sense view, I conclude there is unlikely to be interference with social and community activities, or major disturbance with the relevant lands or waters. The focus of this inquiry is on 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 Strategic Energy 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(b) is that there is an area of particular significance to the Ngaanyatjarra people, and that exploration activities which are likely to be conducted by Strategic Energy Resources are likely to interfere with that area. On that basis, I find the expedited procedure should not apply.
I provide reasons for my conclusions below. 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 in the context of the native title rights and interests which relate to the proposed 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.
Party submissions
Yarnangu Ngaanyatjarraku Parna Submissions
Yarnangu Ngaanyatjarraku Parna submitted contentions and evidence to the Tribunal in this matter, as well as a reply to the materials provided by Strategic Energy Resources and the State. Yarnangu Ngaanyatjarraku Parna provided the affidavits of traditional owner Fred Ward, and anthropologist Frances Bryony Nicholson, in support of their contentions. Both affidavits provided mapping which was referred to throughout the relevant evidence. Yarnangu Ngaanyatjarraku Parna requested non-disclosure directions be placed over parts of the evidence about Tjukurrpa (dreaming tracks), as well as geographical features 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.
Mr Ward outlines he is a traditional owner for the country on and around the proposed licence, and he was taught by the old people, including knowledge about the Tjukurrpa. He outlines that he knows the country and the law for the country.
Ms Nicolson outlines she is the General Manager of the Land and Culture Unit and Senior Anthropologist for the Ngaanyatjarra Council Aboriginal Corporation. She 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. Ms Nicholson goes on to outline her consultation and field trips with Mr Ward in relation to the evidence for this inquiry.
The State’s Submissions
The State provided an initial set of information which included mapping, a report from the Aboriginal Heritage Inquiry System (AHIS) setting out details and maps of recorded Aboriginal sites, a Tengraph quick appraisal, the licence application along with the accompanying statement required by s 58 of the Mining Act 1978 (WA) (Mining Act, s 58 statement) and the Draft Tenement Endorsement and Conditions extract outlining conditions the State proposes to impose on the licence on grant. The State also provided contentions.
The States materials indicated no current live tenements over the proposed licence area, one historical tenement application that was withdrawn prior to grant, and one historical granted tenement over twelve percent of the proposed licence (which was surrendered the same year it was granted (in 2006)). The majority of the proposed licence tenure is unallocated crown land.
Strategic Energy Resources Submissions
Strategic Energy Resources provided contentions and the affidavit of David Alan DeTata, who outlines he is the Managing Director of the company. Information about the explorers work program, together with mapping, was provided by Mr DeTata and also provided with the State’s materials, and this indicated Strategic Energy Resources intend to explore for gold.
The information provided describes that the proposed licence is adjacent to another application by the same explorer (E38/3508, which is to the west of the proposed licence). The explorer’s work program provided to the State indicates:
The exploration strategy is to thoroughly and efficiently explore the proposed ground with the objective of identifying and defining an economically viable mineral resource…Prior to any exploration, Strategic Energy Resources (SER) will conduct consultation with landowners (if required) and a detailed review of historic exploration in the area.
Target areas for drilling will be identified from the initial assessment of the area, and the explorer ‘will focus on identifying the geophysical datasets which are most effective at mapping the buried basement geology and infilling the data coverage to allow interpretations which best map the geophysical expression of the basement’.
Mr DeTata explains those target areas:
will then be tested through systematic geochemical and drilling campaigns to test the geology for alteration, textures and geochemical signatures which indicate and vector towards a mineralised system. If successful, this would lead to more expansive drilling campaigns to identify and define any mineralised bodies.
Details are provided in the s 58 statement for year one activities, but no detail is provided in that statement for further years, apart from estimated expenditure for each year. Mr De Tata clarifies that site reconnaissance will likely include taking soil samples and will use existing tracks ‘where possible’.
Mr De Tata goes on to outline that:
The second year may involve geochemical surveys and/or geophysical surveys. Geochemical surveys involve the collection of numerous soil samples using a more targeted sampling regime which is designed based on the results of the first year's exploration activities. Geophysical surveys involve a device the size of a small bag being placed on the ground to record a measurement, then moving to the next location on the grid to take the next reading. Grid spacing would typically be a few hundred metres apart at this stage and cover many kilometres. These activities are necessary to refine anomalies/drill targets.
Year three may involve further geochemical surveys or a drill program depending on the results from year two. The drill program would first involve the identification of an area where the Grantee Party wants to obtain a core sample. A drill rig will only be placed in targeted areas, if at all, based on the outcomes of the initial exploration activity.
No information is provided about the likely depth of drilling, or issues such as access to the proposed licence.
As the State notes (at 20), it is open to me to assume the explorer will undertake the full scope of activity to which it is entitled as set out in s 66 of the Mining Act, and I do so make that assumption:
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.
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]) – as French J outlined in Smith v Western Australia (at 450):
The Tribunal is…required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement.
Mr Ward describes a Tjukurrpa (at 6-16) which he variously refers to as a ‘forbidden/highly sacred’ Tjukurrpa (at 6), and a ‘big story’ (at 16). The pathway of the Tjukurrpa is shown on mapping, and through Mr Ward’s description, as crossing through the proposed licence, and being anchored (if I may use that term) by sites on either side of the proposed pathway. Mr Ward (at 18) states the area of that dreaming is ‘the highest law’.
Ms Nicholson describes the dreaming pathway (at 10) as a ‘major travelling Tjukurrpa’, and expands that the Tjukurrpa is considered to be of the highest order and the story and knowledge is gender restricted (at 11). Ms Nicholson outlines the pathway is ‘highly sensitive’ (at 13) and also outlines the field trips she took with Mr Ward and senior men which mapped the pathway (and which is then shown on the mapping annexed to the affidavit of Mr Ward and Ms Nicholson).
Strategic Energy Resources (at 6, 12-13) refer to WF v Emergent Resources (at [39]), arguing that, as in that previous case, the evidence in this inquiry suggests unspecified dreaming tracks are generally significant (rather than of particular significance) and it is the sites which are of particular significance. Strategic Energy Resources argue there is little evidence of manifestation of the dreaming track through the proposed licence, and that the dreaming track is unspecified. They point to the sites which are referred to in this present inquiry as being located outside the proposed licence (at 14-15), and argue the dreaming track is a pathway of general significance rather than of particular significance. It is important to note, however, that s 237(b) refers to both sites and areas of particular significance – for a site or area to be of particular significance it must be shown to be of special or more than ordinary significance to the native title holders in accordance with their traditions, be known and able to be located, and the nature of its significance explained – I am satisfied the area of the dreaming track in this inquiry is such an area of particular significance for the reasons outlined below.
The State argue (at 26-28) that the direction of the pathway is unclear, the evidence is general and so should be given reduced weight, and there is no ‘action or event’ associated with the pathway. As noted in the Yarnangu Ngaanyatjarraku Parna reply (at 27), there is no requirement for such an action or event in relation to an area being of particular significance for the purposes of s 237(b).
As noted in the Yarnangu Ngaanyatjarraku Parna reply (at 11), the Tribunal’s consideration in WF v Emergent Resources turned on the quality of the evidence, and that the evidence in that matter was general and the dreaming tracks were unspecified. In the present matter, I am satisfied the dreaming track passes through the proposed licence and is an area of a highly significant nature to Ngaanyatjarra people. The evidence provided includes mapping showing a clear pathway, the description of field trips which enabled the mapping, descriptions of the dreaming itself and its significance to Ngaanyatjarra people according to their traditions.
Strategic Energy Resources contentions (at 5) also refer to Nyikina and Mangala v Geotech (at [41]), which outlines that ‘The Tribunal has found that Dreaming tracks can be regarded as sites of particular significance for the purpose of s 237(b) although that will depend on the evidence presented in any particular case’. In that matter, the evidence regarding dreaming tracks was ‘vague and imprecise’ (at [44]), which contrasts to the evidence in this current inquiry.
Ms Nicholson also notes (at 13 and 23) that it is the dreaming pathway, and not only sites associated with the dreaming pathway, which is of high importance, particularly to men, in terms of cultural heritage. I accept that certain features of the dreaming pathway, including the way it interacts with the ground, and how it travels through the ground, support a conclusion that the pathway is an area of particular significance for Ngaanyatjarra people.
Is it likely a site or area of particular significance will be interfered with by the exploration activities of Strategic Energy Resources?
The State contentions (at 14-16 and 25-30) and Strategic Energy Resources contentions (at 16-34) argue the State’s regulatory regime, including various endorsements and conditions to be applied to the area on grant, will provide protections to the native title party and any areas of particular significance. These contentions also argue the Aboriginal Heritage Act (AHA) will provide protections. However, as has been canvassed in previous Tribunal decisions (for example, adopting my reasoning from 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. In addition, I could see no endorsements or conditions which dealt with the issues as raised by the native title party in relation to mitigating interference with an area of particular significance.
Strategic Energy Resources (at 11) argue the evidence does not show there are sites of particular significance on the proposed licence (which I have addressed at [21]-[27] above), and also argue the evidence does not show how a site of particular significance is likely to be interfered with. The emphasis from the explorer is on sites, rather than on areas of particular significance, and as noted, I am satisfied there is an area of particular significance across the proposed licence which is a manifestation of a mythic being. In terms of interference, as noted at [15]-[16] above, the exploration activities will include soil samples in the early stages, and then likely drilling in target areas. Given the evidence provided by the native title party, there is nothing which addresses the issues raised of access to the proposed licence, or how deep drilling is likely to go, the type of drilling, movement of people and vehicles on and around the proposed licence, and other information which would assist me assess the argument that interference was unlikely to occur.
Mr DeTata’s affidavit evidence (at 12) notes Strategic Energy Resources ‘strongly wishes to enter into a written agreement with the Native Title Party to cover the planning, conduct and reporting of such surveys and monitoring’ - parties have not yet been able to reach agreement. Strategic Energy Resources also note they will not conduct ground disturbing activities until a heritage survey is conducted, and their contentions (at 37) note their activities will ‘involve no or very low ground disturbance geophysical activities over the first two years of the tenement’. However, the arguments raised by Yarnangu Ngaanyatjarraku Parna (as outlined at [31]-[36] below) persuade me that activities the explorer would consider as non-ground disturbing (such as accessing the area or soil sampling) are such that they would constitute interference for the purposes of s 237(b).
The Yarnangu Ngaanyatjarraku Parna contentions rebut the arguments of the State and Strategic Energy Resources. For example, the Yarnangu Ngaanyatjarraku Parna contentions (at 5.8) summarise the traditional obligations in relation to the Tjukurrpa story and tracks associated with that story:
The reason that traditional law imposes responsibilities on certain persons to care for country is to ensure that these sites and areas of significance are not disturbed, innocently or deliberately, by persons accessing the land. The evidence of Fred Ward and Frances Nicholson detail the concerns of Traditional Owners regarding the interference with this responsibility that the granting of the tenement.
The Yarnangu Ngaanyatjarraku Parna contentions expand on this (at 6):
Under traditional Ngaanyatjarra law and culture, unauthorised persons are prohibited from accessing these sites and areas as described. The information associated with the sites and areas is particularly sensitive in nature under traditional law and custom and is known only to Ngaanyatjarra people of a certain gender or status. Interference with sites and areas of significance may result in severe consequences for the custodians of those sites and areas, including physical punishment, sickness and shame. Persons accessing the land should firstly make contact with the Traditional Owners whose responsibility it is to care for that land so that those persons can be shown areas on the tenement that should be avoided. Meaningful consultation and negotiation are required on issues such as access and the impact of exploration in order to avoid interference and ensure the impact on the area is managed in accordance with the laws and customs of the Native Title Party.
Ms Nicholson (at 16, 18-24) provides information about the native title party traditions associated with this Tjukurrpa, which I do not repeat here given the cultural sensitivities and the non-disclosure orders covering certain information.
Mr Ward (at 16) emphasises in a number of places in his affidavit that you can’t ‘play around’ with the area, and that the area is so sensitive unauthorised people ‘can’t go there’ (at 19). In addition, the Yarnangu Ngaanyatjarraku Parna reply (at 33-35) summarises the evidence that:
Any exploration or even presence of the Grantee Party on this sacred dreaming track would interfere with an area of high cultural significance…and potentially cause damage to this area…The evidence is that the physical substance of the earth itself is highly sensitive.
As outlined by McKerracher J in FMG v Yindjibarndi (at [66-67]), the Tribunal’s task under s 237(b) is evaluative in the sense identified by French J (as noted at [20] above). McKerracher J went on to outline (at [79]) the ‘meaning of these terms must be taken in the context of the particular site and the laws and customs in relation to that site.’ Mc Kerracher J (at [76]) also outlined that:
There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that 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.
I accept the argument in the Yarnangu Ngaanyatjarraku Parna reply (at 53) that:
As is shown in the affidavit evidence of Mr Ward and Ms Nicholson, the present case is an example of a time where ‘mere entry’ onto this sacred dreaming track would constitute a cultural interference in accordance with Ngaanyatjarra tradition.
I am satisfied that failure to adequately consult with the native title party, and mere entry onto the proposed licence, is likely to lead to interference for the purposes of s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licence E38/3564 to Strategic Energy Resources Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
11 April 2022
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