Yinhawangka Aboriginal Corporation RNTBC v WA Mining Resources Pty Ltd
[2019] NNTTA 36
•11 June 2019
NATIONAL NATIVE TITLE TRIBUNAL
Yinhawangka Aboriginal Corporation RNTBC v WA Mining Resources Pty Ltd and Another [2019] NNTTA 36 (11 June 2019)
Application No: | WO2018/0486 |
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 -
WA Mining 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 Helen Shurven, Member |
Place: | Perth |
Date: | 11 June 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: | Native Title Act 1993 (Cth) ss 29, 155, 237 |
Cases: | Atkins and Others on behalf of Gingirana v Drillabit Pty Ltd and Another [2016] NNTTA 17 (Atkins v Drillabit) Cheinmora v Striker Resources NL; Dann v State of 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 Pilbara v Yindjibarndi) Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (Tullock v Bushwin) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 14 (Yindjibarndi v FMG Pilbara) |
| Representatives(s) of the native title party: | Kate Holloman and Sarah Cimetta, Yamatji Marlpa Aboriginal Corporation |
| Representative(s) of the grantee party: | Hong-Jim Saw, Gold Valley Holdings Pty Ltd |
| Representatives(s) of the Government party: | Gemma Mullins, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This decision considers whether or not the expedited procedure applies to the proposed grant of exploration licence E47/3932 (the licence). The State of Western Australia (the State) gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant the licence to WA Mining Resources Pty Ltd (WA Mining Resources). The notice indicated the State considers the grant of the licence to be an act attracting the expedited procedure. Under s 237 of the Act, the expedited procedure applies if the grant is not likely to:
(a)interfere directly with the native title holders' community or social activities;
(b)interfere with areas or sites of particular significance, in accordance with the native title holders' traditions; and
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The native title party in this inquiry is the Yinhawangka Aboriginal Corporation RNTBC (YAC), who holds native title in trust for the Yinhawangka people over the entire licence area. Approximately 53.9 per cent of that is exclusive native title. The licence covers approximately 53.68 square kilometres and sits within the Shire of Ashburton.
YAC lodged an objection with the National Native Title Tribunal against the State’s assertion the expedited procedure applies to the grant of the licence. YAC argues the expedited procedure should not apply to the licence, as interference contemplated under s 237 of the Act is likely. WA Mining Resources and the State argue the expedited procedure should apply. In determining whether the expedited applies or not, I must make a predictive assessment. I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference. I must have regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. For the reasons outlined below, I have determined that the expedited procedure does not apply to the licence.
Parties’ submissions
Following compliance with the directions, parties indicated they had no issue with this matter being determined on the papers. I am satisfied this matter can be determined on the papers without the need for a hearing.
YAC seeks to rely on the statements of Mr Marlon Cooke, Mr Brendon Cook and Mr David Cox. All three statements outline they are made by Yinhawangka men or elders and I am satisfied Mr Cooke, Mr Cook and Mr Cox have authority to speak for the native title holders in relation to the licence area.
In addition to the statements, YAC submitted the following evidence in support of its contentions:
(a)An anthropological report titled ‘A Report about the cultural significance of country within Tenement E47/3932’ prepared by Ms Zsuzsanna Gonda and dated December 2018 (Gonda Report);
(b)A report titled ‘Short report of the archaeological, ethnographic and environmental findings from the Nyimili Project, Stage Two field season, conducted with Yinhawangka Traditional Owner participants and prepared for the Yinhawangka Aboriginal Corporation’ produced by Terra Rosa Consulting and dated January 2016 (Short Report);
(c)A report titled ‘Summary report of the archaeological, ethnographic and environmental values identified during the Nyimili Project, Stage Two field season…, conducted by the Yinhawangka Traditional Owner and Terra Rosa Consulting for the Yinhawangka Aboriginal Corporation’ produced by Terra Rosa Consulting and dated January 2016 (Summary Report);
(d)A document titled ‘Preliminary Advice of a Site Avoidance Ethnographic heritage survey for the Greater Paraburdoo drilling program and mine development, April 2016’ authored by Stephen Morgan (Morgan Report); and
(e)A map showing the location of the licence in relation to the Yinhawangka determination area as well as proximate Aboriginal communities, registered Aboriginal Sites and other heritage places.
Ms Gonda is an anthropologist employed at Yamatji Marlpa Aboriginal Corporation. Mapping provided by YAC, including that in the Gonda Report, was of assistance in my consideration of the evidence in this inquiry. The Gonda Report, the Morgan Report, and the material provided in the Summary Report and the Short Report were all consistent in their content, and supported the evidence in the statements provided by Mr Cook, Mr Cooke and Mr Cox. Photographs in the Summary Report and the Short Report were also of assistance.
YAC applied for non-disclosure directions under s 155 of the Act in relation to the statements listed at [6] and the documents listed at [7](a)-(d) above. No issues were raised by other parties in regards to this request, and I was satisfied the documents contained culturally sensitive material. I had due regard to the cultural and customary concerns outlined in the statements and the reports, which includes concerns of the broader community of native title holders regarding the dissemination of this sensitive information. On that basis, I made directions restricting the use of the information contained within these documents. I refer to the information contained in the restricted documents in this decision only to the extent necessary to ensure my reasons are explained and supported.
Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the Yinhawangka people?
To find interference is likely in accordance with s 237(a) of the Act, the evidence must point to direct and substantial interference with social or community activities (see Yindjibarndi v FMG Pilbara at [16]). The Tribunal must balance a native tile party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
What community or social activities does the Yinhawangka people undertake?
YAC’s contentions addressing the community and social activities of the Yinhawangka people link specific activities to determined native title rights and interests it holds over the area, specifically:
(a)A right to occupy, use and enjoy the area to the exclusion of all others;
(b)A right to visit places of cultural or spiritual importance and maintain, care for, and protect those places by carrying out activities to preserve their physical or spiritual integrity;
(c)A right to engage in cultural activities and the transmission of cultural knowledge; and
(d)A right to take ochre.
In relation to the exclusive native title rights over the licence area, YAC argues a key component of its exclusive possession is the right to control access and exclude others from the area. YAC argues the area covered by the licence contains sites and areas considered by Yinhawangka people to be extremely dangerous, and visitation to the area is restricted to secret ritual activities and heritage protection measures. It states Yinhawangka people consider themselves ‘gatekeepers’ for this area and expect strangers to seek and receive permission to enter Yinhawangka country, especially dangerous areas. YAC states the grant of the licence is likely to directly interfere with the exercise of a right to control access in accordance with traditional laws and customs.
In response, the State argues s 237 is not a means by which exclusive native title is to be enforced. Further, it states the application of the expedited procedure is not concerned with obtaining the agreement of the native title party. Citing Atkins v Drillabit (at [41]), the State notes the Tribunal has previously found that were a native title party’s argument regarding accompanying strangers on country to succeed, it would amount to a virtual veto, which does not appear to be the intent of s 237(a).
In resolving that argument, I adopt the reasoning in Tullock v Bushwin (at [120]), where the Tribunal found:
The sort of community or social activities associated with looking after country identified by the native title party in this matter are, from the Tribunal’s own knowledge, likely to be common to all native title holders. Contentions which are likely to have the result that the expedited procedure would almost never be attracted do not, in my view, accord with Parliament’s intentions in the 1998 amendments.
In relation to the native title rights described at [11](b) and (c) above, the State accepts these community activities take place on the licence, and I am satisfied the evidence supports such a finding.
In relation to the activity of collecting ochre, there is some evidence contained in the reports of ochre sites located within or adjacent to the licence (for example Short Report, at 25; Gonda Report, at 18). However, the reports are unclear whether these sites are currently used by the Yinhawangka community for that activity. The statement evidence submitted by YAC makes no reference to Yinhawangka people collecting ochre within the licence area.
The State argues the evidence regarding collecting ochre does not contain the necessary details - for example, the frequency this activity occurs, the number of people involved, or the locations from which the ochre is taken. I conclude there is insufficient evidence for me to find collecting ochre is a social and community activity currently undertaken on or near the licence.
What will WA Mining Resources’ activities be?
WA Mining Resources has provided a statement that briefly describes its proposed activities across the initial three years of exploration. It states activities in the initial year of grant will be limited to ‘desktop reviews, review of the historical information and remodelling of the available data.’ It states the second year will ‘coincide with a site visit, if allowed, with a maximum disturbance of hand sampling.’ It states, in the third year, ‘plans would require [YAC] to have some input if ground disturbing activity was proposed.’ I note also the work program provided by the explorer through the State’s material outlines that ‘…in the event that access is required for drill rigs or larger vehicles, track construction will be minimized and cut only in accordance with effected land users.’ It is not clear the extent to which any native title rights or interests are considered.
Given the broad and general nature of the information provided by the explorer regarding proposed activities, I will proceed on the assumption WA Mining Resources will exercise the full suite of rights available to it under ss 61 and 66 of the Mining Act 1978 (WA). These rights allow WA Mining Resources access to the licence area with its agents, employees, motor vehicles and other machinery for up to twelve years if renewal options are exercised. The rights include setting up camps, leaving machinery or equipment, digging pits, trenches and holes, sinking bores and tunnels, and removing up to 1000 tonnes of material (or more if the Minister approves).
Is interference with the Yinhawangka people’s community and social activities likely?
As outlined above, I am satisfied the Yinhawangka people: conduct cultural activities; transmit cultural knowledge; and, visit, maintain, care for and protect places of cultural and spiritual importance, over the licence area.
The statement evidence describes the Yinhawangka people’s activities predominantly in relation to an identified area which covers approximately half the licence, and extends beyond the licence boundaries. I do not reproduce a great deal of detail from the material about this area, given the sensitivities expressed by YAC. For the purposes of this determination I will refer to the identified area as the ‘broader sensitive area’.
I can say the statement evidence: describes the songs sung at law time as being about the broader sensitive area and the dreamtime story that passes across it; states the teaching of young people is in relation to the story of the broader sensitive area and its importance; and the caring and protecting of places is largely centred on the need to keep people away from the broader sensitive area, which is described as an extremely powerful and dangerous place.
The State argues direct interference with these activities is unlikely given the nature of the rights held by an exploration licensee. It argues there is no evidence to show how WA Mining Resources’ activities are likely to interfere with the carrying on of cultural activities or the transmission of cultural knowledge. Addressing the activities of visiting places of cultural importance and maintaining, caring for and protecting those places, the State reiterates its argument that s 237 is not a means by which exclusive possession is to be enforced by imposing ‘exclusion zones’.
Although I am satisfied the Yinhawangka people carry on the activities described at [22], I do not find the evidence supports a finding that direct and substantial interference of the kind described at s 237(a) is likely. In particular, I note the evidence does not explicitly describe these activities as occurring, or needing to occur, on the licence area.
While the statements do describe visiting the licence area, they are largely focussed on explaining the need for all people to avoid the broader sensitive area. All three statements describe it as a dangerous place and that even Yinhawangka people will only go there if they need to. This element of the evidence will be discussed further in relation to s 237(b) below. However, in the context of s 237(a), it would suggest the broader sensitive area, including the licence, is not frequently visited by Yinhawangka people. Therefore, direct and substantial interference is not likely to be caused by WA Mining Resources’ activities.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the Yinhawangka community?
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 (see Silver v Northern Territory). These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (see Yindjibarndi v FMG Pilbara).
What areas or sites of particular significance have been identified by YAC?
Without disclosing specific details, the evidence regarding the particular significance of the broader sensitive area is compelling. The Gonda Report describes the broader sensitive area as a culturally dense focal point associated with dreamtime activity. It further states Yinhawangka people regard it as a place of extreme significance that has strict access protocols due to its sacredness and the danger associated with the place. The Gonda Report’s description of the broader sensitive area and its significance to the Yinhawangka people is consistent with the evidence contained in the three statements submitted by YAC.
The Aboriginal Heritage Inquiry System (AHIS) records three ‘registered sites’ and an ‘other heritage place’ located within the licence area. Sites recorded on the AHIS can be characterised in two main ways. Firstly, as a ‘registered site’, which means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (AHA). Secondly, as an ‘other heritage place’, which includes sites or places which have been assessed as not meeting s 5, and places where information has been received in relation to the place but an assessment has not been completed to determine if it meets s 5. The site types listed against the three registered sites are, respectively: Engraving; Engraving, Painting; and Man-Made Structure, Painting. The ‘other heritage place’ is described as a Mythological, Birth Place, Named Place. These sites are referred to specifically in the evidence provided by YAC, including the statements.
The statements of Mr Cooke and Mr Cook refer to an area located within the licence area which is restricted to men and a dangerous place. The reports submitted by YAC provide details of a number of sites located in and around the licence area that are not recorded on the AHIS. These sites were identified and recorded as part of a heritage project undertaken by YAC and Terra Rosa Consulting between 2014 and 2016. The statements make reference to involvement in this project, including travelling to the broader sensitive area to ‘record the important places around [it]’ (Cox Statement at 47).
The State accepts that the three AHIS registered sites are sites of particular significance in accordance with s 237(b). In relation to the other heritage place, the State acknowledges that it is ‘likely’ a site of particular significance. The State makes no reference to the other sites referred to in YAC’s evidence.
The evidence before me regarding the significance of the broader sensitive area is extensive and consistent. This area includes approximately half of the licence considered in this inquiry. I am satisfied this broader sensitive area is itself a site of particular significance. I am also satisfied it has connections to sites outside of the licence, and that the licence contains within it sites of particular significance such as the men’s area (described at [29]) and sites recorded or registered on the AHIS.
Is interference with the sites or areas of particular significance likely?
The evidence submitted by YAC describes the strict access restrictions and protocols observed by Yinhawangka people in relation to the broader sensitive area and the sites located within it. The evidence also describes the potential repercussions should these protocols not be observed. All three statements stress the danger of the broader sensitive area to any person entering the area, including Yinhawangka people. They state that people who go to the broader sensitive area are at risk of being hurt. Mr Cox’s statement says Yinhawangka people only go to the broader sensitive area when they need to. It also states ‘[w]e did some trips with Terra Rosa to record the important places around [that area]. We only did that to protect the place… It’s important to me because it’s very dangerous, we can’t even cut a tree there.’ As noted in FMG Pilbara v Yindjibarndi, mere entry onto a site of particular significance may be found to be substantial interference when considered in the context of the native title party’s traditions.
In making my predictive assessment on the likelihood of interference, I have considered previous mining or exploration over the area. The State has provided a copy of the Tengraph Quick Appraisal Form for the licence. This shows two exploration licences were previously granted which overlapped the licence by 25.93 per cent and 27.51 per cent respectively. WA Mining Resources states both of these historical tenements had ‘significant expenditure’ and that it is unlikely WA Mining Resources will conduct activities that ‘exceed previously completed activities.’ In support of this contention, WA Mining Resources has provided Department of Mining, Industry Regulation and Safety reports detailing the expenditure of the two previous exploration licences, as well as a Mineral Exploration Report for the licence area and its surrounds. There is nothing in this material that confirms the nature of past exploration activity over the area of the licence, and many of the maps provided do not clearly reference the location of the current licence with respect to past activity.
In relation to sites of significance, WA Mining Resources’ contentions state it operates on a ‘site avoidance basis’. It states it will avoid any identified sites or ‘areas that can be identified with some assurance’, but also notes ‘it is relatively difficult to identify areas of sensitivity from the evidence provided by [YAC].’ WA Mining Resources has not elaborated further on this point. Based on the evidence provided, including mapping, WA Mining Resources could identify the areas of sensitivity described in the evidence. For example, YAC’s evidence clearly identifies the broader sensitive area as an area of great importance and sensitivity which covers approximately half the licence. WA Mining Resources also indicates it would be willing to request an exclusion area for the purposes of site avoidance. This may be a reference to excision of a portion of the licence. There appears to be no application for an excision in the grantee or State materials. Given this, WA Mining Resources avoiding any identified sites or areas during exploration appears unlikely, particularly given the activities proposed by WA Mining Resources are on-ground from the second year of grant.
The State contends interference with sites of particular significance is unlikely due to the protection afforded by the AHA and the endorsements and conditions that will be imposed on the licence. The State contends the standard conditions will apply to the grant of the licence, addressing environmental rehabilitation and environmental approval being required before any ground-disturbing activities are carried out.
The protections afforded under the AHA, and its relevance to considerations under s 237(b), were recently considered in Marputu v Gianni (at [44]):
It is possible that protection under the AH Act may not extend to areas or sites to which s 237(b) applies. It is also possible that s 237(b) may not apply to sites protected under the AH Act. Once this difference in focus is recognized, it becomes difficult to identify the extent to which the AH Act might protect sites of particular significance to traditional owners.
In Marputu v Gianni, President Dowsett acknowledged the operation of the AHA as relevant to the extent of any risk, but also noted its relevance will depend on the facts of the matter (at [62]):
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.
As well as suggesting the AHA would afford sufficient protection in this matter, the State intends to impose a condition on the grant of the licence requiring WA Mining Resources to execute a Regional Standard Heritage Agreement (RSHA) in favour of the native title party should this be requested by YAC. The State notes the RSHA requires a grantee party to notify, consult and, if necessary, carry out surveys with the native title party. In relation to any RSHA which may be entered into by parties, President Dowsett noted in Marputu v Gianni (ay [66]):
As I have previously observed, protection of that general kind may be appropriate where the traditional owners’ concerns are unparticularized, but that is not the present case. In those circumstances, the proposed grantee’s willingness to enter into [an RSHA] says little about the extent to which the sites will be at risk. The State’s proposed special condition similarly offers little or no protection in this case.
In this matter, YAC has particularised sites of significance located on and within the licence area, and its concerns in relation to these sites. For example, the statements make it clear that even an explorer taking samples is a dangerous activity in terms of the traditions of Yinhawangka people and the esteem they hold for the area. Neither the State nor WA Mining Resources have elaborated on how the AHA or an RSHA would operate in relation to these particular sites, or addressed the concerns raised by the YAC.
Conclusion
The evidence provided in this matter indicates that even exploration work considered to be low-impact or non-ground disturbing on the licence would constitute interference with the broader sensitive area (a site of particular significance) for the purposes of s 237(b). I also accept there are sites of particular significance within that broader sensitive area. So, even activing lawfully within the State’s regulatory regime, it is likely WA Mining Resources would interfere with sites of particular significance to Yinhawangka people. This finding is supported by Justice McKerracher’s decision in FMG Pilbara v Yindjibarndi (at [75]-[76]):
… 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 non the less be non-trivial interference… That is why the focus of s 237(b) is the interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of the native title party for the purpose of s 237(b) of the NTA, may be substantial having regard to the native title party’s traditions.
Given the licence is overlapped significantly by the broader sensitive area, which I accept is a site of particular significance, and is a site for which Yinhawangka people observe very strict access restrictions, it is my conclusion the grant of the licence is likely to cause interference for the purposes of s 237(b) of the Act.
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 land or waters concerned?
YAC did not make contentions or provide evidence in relation to s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. Therefore I find disturbance under s 237(c) is unlikely.
Determination
The grant of exploration licence E47/3932 to WA Mining Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
11 June 2019
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