Yinhawangka Aboriginal Corporation RNTBC v Thomas Peter Sander
[2022] NNTTA 14
•24 February 2022
NATIONAL NATIVE TITLE TRIBUNAL
Yinhawangka Aboriginal Corporation RNTBC v Thomas Peter Sander & Another [2022] NNTTA 14 (24 February 2022)
Application No: | WO2021/0009 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yinhawangka Aboriginal Corporation RNTBC (WCD2017/003)
(native title party)
- and -
Thomas Peter Sander
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Glen Kelly, Member |
Place: | Perth |
Date: | 24 February 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 – expedited procedure – the act is an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) Mining Regulations 1981 (WA) Native Title Act 1993 (Cth) |
Cases: | Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Daniel v State of Western Australia [2003] FCA 666 (Daniel v WA) Delores Cheinmora v Striker Resources NL, Australian United Gold NL, Mark James Thompson and the State of Western Australia[1996] NNTTA 75 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182; 324 ALR 580(FMG v Yindjibarndi) Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 (Yinhawangka v Western Australia) Kalman Murphy and others on behalf of Waturta v Piper Preston Pty Ltd [2020] NNTTA 74 (26 November 2020) (Waturta v Piper Preston) Moses Silver, Ishmael Andrews & Sammy Bulabul v Northern Territory and Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Ngarluma Aboriginal Corporation v Kalamazoo Resources Limited & Another [2021] NNTTA 2 (22 January 2021) (Ngarluma v Kalamazoo) Oriole Resources Ltd/State of Western Australia /Albert Little and Ors on behalf of Badimia [2004] NNTTA 37 (3 June 2004) (Little v Oriole Resources) Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Ms Kate Holloman, Yamatji Marlpa Aboriginal Corporation Ms Rhee Gerard and Mr Alex Ihanimo, Yamatji Marlpa Aboriginal Corporation |
| Representative of the grantee party: | Mr Thomas Sander |
| Representatives of the Government party: | Mr Michael McMahon, Department of Mines, Industry Regulation & Safety Mr Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
On 13 November 2020, the State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licence E47/4357 (proposed licence) to Thomas Peter Sander (grantee). The notice for the licence included a statement that the State considers the grant is an act attracting the expedited procedure (see s 32 of the NTA).
The licence comprises 1 graticular block (approximately 3.15 square kilometres) located approximately 21 kilometres west of Paraburdoo on Rocklea pastoral lease and is subject to the Yinhawangka native title determination WCD2017/003 (see Yinhawangka v Western Australia). The Yinhawangka Native Title Aboriginal Corporation RNTBC (Yinhawangka) holds non-exclusive native title over 100% of the licence area in trust for the Yinhawangka People.
On 6 January 2021, Yinhawangka lodged an objection application with the National Native Title Tribunal (Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence.
I have been directed by the President to constitute the Tribunal to determine whether or not the expedited procedure applies to the grant of the proposed licence. For the reasons set out below, I have determined the expedited procedure does apply.
Considerations
In determining whether the expedited procedure applies, the Tribunal must consider whether the grant of the licence is 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 (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)).
In doing this, I must undertake a predictive assessment of what is likely to result from the grant of the licence, decide whether there is a real chance or risk of the interference or disturbance outlined in s 237 of the NTA and therefore whether it is an act that attracts the expedited procedure (Smith v Western Australia at [23]). The legal principles for this assessment are summarised in Yindjibarndi v FMG at [15]-[21] and I adopt these principles for the purposes of this inquiry and determination.
The proposed licence and the proposed activities
The proposed licence is an exploration licence, a type of licence outlined in ss 56C-70 of the Mining Act 1978 (WA) (Mining Act). Exploration licences are granted for five years (with up to seven years’ extension in specific circumstances). Section 66 of the Mining Act sets out the rights conferred by an exploration licence, in summary, as the rights:
(a)to enter the land with the personnel and machinery necessary for exploring for minerals;
(b)to explore and carry out operations and works to explore for minerals including digging pits, trenches, holes, sinking bores and tunnels to the extent necessary, subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act;
(c)to excavate, extract or remove earth, soil, stone, fluid or mineral bearing substances not exceeding the prescribed limit of 1000 tonnes[1] unless approved by the Minister and subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act; and,
(d)subject to the Rights in Water and Irrigation Act 1914, to take and divert water from any natural spring, lake, pool or stream in or flowing through the licence area or from excavations made and sink a well or bore from which to take water for domestic or mineral exploration purposes.
[1] Mining Regulations 1981 (WA), Regulation 20.
The grantee states he is a sole-trader and full-time gold prospector who has applied for ‘the smallest possible size exploration licence available’ in order to cover the ‘old Ballery Prospect’ (Prospect) which is accessible via an existing station track (at grantee contentions [2], [10]-[12]). The Prospect comprises 150 square metres ‘of existing disturbed ground’ with ‘[p]iles of surface soil’ left by bulldozers (grantee contentions [13]).
The grantee seeks to extract any remnant alluvial gold from the piles within the Prospect, potentially explore for the source of gold and states ‘it is anticipated that any future ground disturbance would fall within the footprint of the existing disturbance’ (grantee contentions [14]-[15]). The grantee’s s 58 statement attached to his licence application confirms the year 1 proposed works as ‘prospector reconnaissance’ of one week of soils sampling and metal detecting by two prospectors followed by 20 days ‘utilisation of a 22t excavator, 15t wheel loader and dryblower to excavate and process material … in areas defined by prospector reconnaissance.’
While activities required for the exploration of the source of gold that may be found in the prospect are not provided, it could be assumed this will require a broader suite of ground disturbing activities away from the area of the prospect itself, if it occurs. Given this potential, I am assuming the grantee may at some point exercise further (or all) rights granted through an exploration licence as is established in Silver v Northern Territory at [30] in making this determination.
The Inquiry
On 21 January 2021, I made directions for the conduct of an inquiry into this matter which included specified dates for the parties to provide contentions and other supporting material. On 19 April 2021, I amended directions as Yinhawangka sought a four week extension to prepare their submissions on the basis that, until 15 April 2021, the parties had been negotiating, but an agreement was not reached. On 18 May 2021, I amended directions as Yinhawangka sought a two week extension due to the unavailability of one of their witnesses for medical reasons. On 1 June 2021, I amended the directions a final time for the same reasons.
The State provided contentions and evidence which included mapping, a report from the Aboriginal Heritage Inquiry System (AHIS) showing no registered 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 to be imposed on the licence.
The grantee provided contentions in the form of a statement.
Yinhawangka provided contentions (Yinhawangka contentions), a reply to the State and the grantee (Yinhawangka reply contentions) and the unsigned statements of Mr Darren Injie (DI statement) and Mr Halloway Smirke (HS statement). Yinhawangka requested that certain paragraphs of these statements[2] be subject to directions limiting their disclosure (s 155 of the NTA) and on 16 June 2021 I made these directions.
[2] Darren Injie statement paragraphs [2]-[7], [10]-[18] and [21]-[23] inclusive. Halloway Smirke statement paragraphs [8]-[10] inclusive.
Mr Smirke’s statement was signed on 13 July 2021. Both Mr Smirke and Mr Injie confirmed their statements at a hearing held on 24 August 2021. Both Mr Smirke and Mr Injie state they are Yinhawangka people and I accept their authority to speak for the area on behalf of Yinhawangka.
As indicated above, Yinhawangka requested that an oral hearing be held. On 9 August 2021, I convened a listing hearing to ventilate issues with the outcome being that no further documents would be submitted and that a private hearing would be held via teleconference where any further oral evidence from the Yinhawangka witnesses would be directed towards affirming and augmenting the statements which have already been filed. It was also decided that the parties would have the opportunity to ask questions in order to clarify the further oral evidence given by the witnesses and the evidence given would be subject to the same directions limiting their disclosure and use as those made on 16 June 2021 as permitted by s 154(3)-(4) and s 155 of the NTA.
Section 237(a): is the grant of the licence likely to interfere directly with Yinhawangka’s community or social activities?
To meet the threshold of interference, the interference ‘must be substantial in its impact upon community or social activities. That is to say trivial impacts … are outside the scope of the kind of interference contemplated by this section’ (Smith v Western Australia at [26]).
In their contentions and evidence directed towards s 237(a) the following points are made by Yinhawangka:
·Yinhawangka people use the area for hunting, particularly for turkey ‘which are attracted to the area by the presence of a certain bush lolly/bush gum. (Yinhawangka contentions [21], DI statement [23]);
·Yinhawangka people access the proposed licence area and surrounds to conduct ceremony (Yinhawangka contentions [23]);
·Mr Injie states ‘[a]ccess to our country is important for ceremonial rites and hunting’ and details particular ceremonial rites that are practiced ‘in proximity’ to the licence at an unnamed location and ‘in the flat west of the Binyarry Range (west of Binyarry Well)’ (DI statement at [21], [23], [28]);
·Mr Injie also refers to regularly attending ceremonies at Bellary (Jilara) community, Wakathuni community (DI statement at 17-18), and;
·without cultural heritage arrangements in place, the grant of the proposed licence poses a real risk to the social and community activities of the Yinhawangka people (Yinhawangka contentions, [28]).
While Yinhawangka outline these community or social activities, no material is provided as to how they will be impacted by the grant of the licence. Additionally, according to the maps provided by the State and Yinhawangka (as attached to the witness statements), none of the locations listed above are within the licence area. Binyarry Well is in proximity however is indicated to be approximately 4km to north west of the proposed licence while Bellary and Wakathuni are in excess of 40km distant. As such, much of the focus of the activities outlined in the Yinhawangka materials is external to the proposed licence.
Having considered the material before me and applying the approach outlined in Ward v Western Australia at [26], I have formed the view that direct interference under s 237(a) is unlikely. Even assuming the grantee party will exercise all the rights provided by an exploration permit, given the very limited spatial extent of the proposed licence, the nature of these activities and because the focus areas for community or social activities in the materials provided by Yinhawangka are some distance from the proposed tenement, I find that the risk of interference under s 237(a) is unlikely.
Section 237(b): is the grant of the licence likely to interfere directly with areas or sites of particular significance to Yinhawangka?
What sites or places are identified?
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 at [91]).
Yinhawangka identify 3 areas of particular significance, as labelled in the Yinhawangka contentions in reply (at [9]). These are:
(a)a story where the ranges and flat meet;
(b)berry jibalba; and,
(c)bush gum jibalba.
In his statement Mr Injie says the proposed licence is ‘in proximity to some important places’ (DI statement [20]) which include the above listed jibalba areas in addition to Warri Well (DI statement [22]). Mr Injie also states the proposed licence is located on the north branch of Pirruburdu Creek (DI statement [ 24]) and says that creeks and waterways are ‘very important’ to Yinhawangka as water sources (DI statement [25]).
Both Mr Injie and Mr Smirke indicate the area has heritage artefacts which are yet to be recorded via a survey (DI statement [29] and HS statement [11] respectively).
Are these sites or places of particular significance?
Story where the range meets the flat
Mr Smirke describes how the area of the licence lies in an area ‘where the hills meet the flat country’ which is associated with a ‘big story’, the details of which are subject to non-disclosure directions (HS statement at [8]-[9]). Mr Smirke further explained this story during the course of the hearing, including that in the licence area there are etchings related to it, although further detail was not set out.
While the State contentions were provided prior to the hearing it contends Yinhawangka have not provided ‘any information regarding the location of specific sites in relation to the area of the proposed tenement that are connected with that story’ (at [30]). I am inclined to agree with the State that the evidence provided here lacks the level of clarity to allow a finding of particular significance.
In previous matters, the Tribunal has found that story and story lines themselves are areas of particular significance (see for example Waturta v Piper Preston). In instances such as this however, more detailed evidence is provided on the specific route or pathway a story line will follow or the places within it. This is not the case in this matter.
While some further detail was able to be elucidated during the hearing and while it is clear the story itself is significant to the Yinhawangka people, overall, what has been set out in this matter is a more general description of the story as it operates in the broader area. Without more specific evidence which provides further insight into particular places or pathways or as it relates to the proposed licence itself, it is my view there is insufficient evidence to make a positive finding on areas of particular significance in relation to this aspect of the Yinhawangka evidence.
Berry jibalba and bush gum jibalba
Mr Injie states there is a berry increase site, labelled ‘berry jibalba’ in the Yinhawangka contentions in reply (at [9]), ‘in the area’ of the proposed licence (DI affidavit [21]) and as being near the eastern boundary of the proposed licence in his statement at the hearing. Mr Injie describes the conduct of rituals and the anticipated physical result of these rituals on the specified flora and further reinforces this in his hearing testimony.
Mr Injie also says there is a bush gum increase site in the vicinity of Binyarry Well, which in the mapping provided by Yinhawangka, looks to be some 4km to the north east of the proposed tenement (DI affidavit [23]). In describing the bush gum jibalba, Mr Injie also describes the effect of interference upon it.
This part of Mr Injie’s affidavit is subject to non-disclosure directions however increase sites, being places where ceremony is performed to increase the specific flora and fauna the site is dedicated to, have been examined by the Tribunal in previous determinations (see for example Ngarluma v Kalamazoo Resources at [20]-[22]) and the Federal Court (see for example Daniel v WA at [1336]-[1346]).
While the State also contend there is insufficient evidence in relation to these sites (State contentions [34]), I am inclined to disagree with this in the context of both the affidavit evidence and the hearing testimony. In my view, there is sufficient information as to the location of the two increase sites relative to the proposed licence and relative to other known land marks to understand the vicinity in which they are situated. Additionally, I am satisfied the significance of the sites in accordance with the traditions of the Yinhawangka people in addition to the impact of interference has been explained.
Based on this, I am satisfied that both berry jibalba and bush gum jibalba are sites of particular significance to the Yinhawangka people.
Warrie Well, Pirruburdu Creek Branch and artefacts on the licence
In his affidavit, Mr Injie simply lists Warrie Well is one of ‘the important places’ (DI statement [20], [22]) however does not detail its particular significance. As such, there is insufficient evidence to conclude Warrie Well is a place of particular significance.
In relation to the branch of the Pirruburdu Creek, Mr Injie provides a general statement that ‘our creeks and waterways are very important to us’ (DI statement [24]) while in relation to artefacts, in their hearing testimony, Mr Injie and Mr Smirke stress the importance of undertaking surveys to record these. Like Warrie Well, I am of the view there is insufficient evidence to find these are areas of particular significance.
Is there likely to be interference to these sites or places of particular significance?
The increase sites
Mr Injie explains the repercussions to the specified flora and fauna, according to Yinhawangka’s traditions, should the increase sites be interfered with (DI statement [23] and in Mr Injie’s hearing testimony). Based on the small area of the proposed licence and the limited level of activity it will allow (even if it is assumed the grantee will exercise all rights), given that the bush gum jibalba near Binyarry Well is located some distance from the licence and given the berry jibalba is stated to be in proximity to the proposed licence but not said to be within it, I cannot conclude there is a risk of interference to these sites of particular significance.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area?
In Little v Oriole Resources (at [20]) Deputy President Franklyn states:
In Dann v WA (1997) 144 ALR 1 the Full Court of the Federal Court held that the expression “major disturbance” in s 237(c) must be given its ordinary English meaning. Wilcox J pointed out that “major” is an adjective of degree in respect of which the Tribunal must make a value judgment, considering the matter of degree from the viewpoint of the community generally. The effect of the disturbance on local people is particularly important. If it will have a significant impact on Aboriginals who live or use the affected area, that might be significant to warrant a finding that it will constitute a major disturbance (Wilcox J at 4-5).
The activities proposed by the grantee at paragraphs [8]-[9] of this determination. Yinhawangka contends these activities ‘will likely result in major disturbance to native vegetation; archaeological surface and sub-surface material yet to be identified’ (at [54]).
The grantee argues ‘any ground disturbance would be rehabilitated to modern standards as required by DMIRS leaving the land in much better condition than it is’ (GP contentions [16]). While this may or may not be the case, the State contends more directly that the activities proposed by the grantee are limited and are not capable of causing ‘major disturbance’ within the meaning of s 237(c) (State contentions [47]).
On this I agree with the State. Considering the activities proposed and the material before me, I am unable to find the grant of the licence is likely to involve or create rights that may involve major disturbance to the licence area.
Determination
My determination is that the grant of E47/4357 to Thomas Peter Sander is an act which attracts the expedited procedure.
Glen Kelly
Member
24 February 2022
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