Yugunga-Nya Native Title Aboriginal Corporation RNTBC v Arabella Resources Pty Ltd and Another
[2024] NNTTA 6
•9 February 2024
NATIONAL NATIVE TITLE TRIBUNAL
Yugunga-Nya Native Title Aboriginal Corporation RNTBC v Arabella Resources Pty Ltd and Another [2024] NNTTA 6 (9 February 2024)
Application No: | WO2022/1277 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yugunga-Nya Native Title Aboriginal Corporation RNTBC (WCD2021/008)
(native title party)
- and -
Arabella Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 9 February 2024 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere with the carrying on of community and social activities – whether act is likely to interfere with sites or areas of particular significance – whether act is likely to involve major disturbance to lands and waters – act is an act attracting the expedited procedure |
Legislation: | Aboriginal Cultural Heritage Act 2021 (WA) Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) s 58 Native Title Act 1993 (Cth) ss 109, 151, 237 |
Cases: | Dann v Western Australia and Another [1997] FCA 332; (1997) 74 FCR 391 (‘Dann 1997’) Dann v State of Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21 (‘Dann 1996’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC and Another [2014] FCA 1335; (2014) 227 FCR 182 (‘FMG v Yindjibarndi’) I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (‘Wajarri Yamatji Determination’) Kevin Allen & Ors on behalf of Nyamal #1 v Beatons Creek Gold Pty Ltd and Another [2021] NNTTA 40 (‘Nyamal v Beatons Creek’) Keven Allen & Others on behalf of Nyamal #1 v Youanmi Metals Pty Ltd & Another [2019] NNTTA 110 (‘Nyamal v Youanmi’) Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (‘Little v Oriole Resources’) Michael Ross & Others on behalf of the Cape York United #1 Claim v Oosen Lewis Mining Pty Ltd & Another [2022] NNTTA 11 (‘Ross v Oosen Lewis’) Ngarlawangga Aboriginal Corporation and FMG Pilbara Pty Ltd [2020] NNTTA 56 (‘Ngarlawangga and FMG’) Rosas v Northern Territory of Australia and Another [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representatives of the native title party: | Ashley Truscott and Angie Underwood, Yugunga-Nya Native Title Aboriginal Corporation RNTBC |
| Representative of the grantee party: | Darren McAulay, Datum Peg Mining Titles Solutions |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Andrea Wyles, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Arabella Resources Pty Ltd has applied for the grant of an exploration licence (E 51/2022) near Meekatharra in Western Australia. Yugunga-Nya Native Title Aboriginal Corporation RNTBC holds non-exclusive native title in trust for the common law holders in relation to about 77% of the licence area. Wajarri Yamaji Aboriginal Corporation RNTBC holds native title in trust for the Wajarri Yamatji in relation to about 23% of the licence area, which, according to the Tribunal’s online mapping tool, Native Title Vision, is located along the western side of the licence. There is also a very small area (less than 1%) where native title has been determined not to exist.
The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth), which would mean that the licence may be granted without first requiring Arabella, Yugunga-Nya, Wajarri Yamaji and the State to negotiate in good faith about the grant.
Yugunga-Nya objects to the application of the expedited procedure on the basis that the grant of the licence is likely to interfere with areas or sites of particular significance to Yugunga-Nya People and their community and social activities, and also cause major disturbance.
I am satisfied this matter can be adequately determined without a hearing: s 151(2) Native Title Act. For the reasons outlined below, I have determined that the grant of the licence is an act attracting the expedited procedure.
When does the expedited procedure apply?
Under the Native Title Act, the expedited procedure will only apply if the grant of the licence is not likely to:
(a)interfere directly with the carrying on of the native title holders’ community or social activities: s 237(a);
(b)interfere with areas or sites of particular significance to the native title holders, in accordance with their traditions: s 237(b); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters located in the licence area: s 237(c).
In order to determine whether the expedited procedure applies, I must undertake a predictive assessment by considering the likely consequences from the grant of the licence (in the sense of a real, not remote, chance).
The State’s regulatory regime, including the licence conditions and various legislative requirements, is relevant to my predictive assessment. Since the commencement of this inquiry, there have been a number of well publicised changes to the Aboriginal cultural heritage laws in Western Australia. Those changes began with the commencement of the Aboriginal Cultural Heritage Act 2021 (WA) (ACHA) in July 2023, and were followed by the subsequent repeal of that Act and amendments to the Aboriginal Heritage Act 1972 (WA) (AHA), commencing on 15 November 2023.
The parties were afforded an opportunity to make submissions in relation to each of those legislative changes. Only the State provided submissions on the ACHA, which it agrees I can now disregard. All parties provided additional submissions on the most recent changes to the AHA, and the State also provided updated reports from its Aboriginal Cultural Heritage Inquiry System (collectively ACHIS Report) showing registered and other sites in the licence area.
Is the grant of the licence likely to interfere with areas or sites of particular significance to the Yugunga-Nya People, in accordance with their traditions?
What areas or sites are identified by Yugunga-Nya?
An area or site of particular significance for s 237(b) is one of special, or more than ordinary, significance to the native title holders in accordance with their traditions: Dann 1996 at page 35. Such an area or site must also be known and be able to be located, and the nature of its significance explained: Yindjibarndi v FMG at [17].
The ACHIS Report identifies four registered Aboriginal sites located wholly or partly within the licence area, being Nannine Well, Djurdu, Norie 6 and Norie 7 but states that the boundaries of all of these sites, except Nannine Well, are unreliable.
The ACHIS Report also lists an unnamed site (identified in the State’s original Aboriginal Heritage Inquiry System report as Norie 8), described as “lodged”, meaning it has not yet been assessed and is not registered.
It is not necessary for an area or site to be registered under the AHA to be of particular significance to the native title holders for s 237(b). Equally, the registration of a site is not determinative of particular significance.
In its initial contentions, Yugunga-Nya named the four registered sites as areas or sites of particular significance to Yugunga-Nya People. It did not mention the lodged site.
Yugunga-Nya relies on the evidence of Yugunga-Nya traditional owner and common law holder, Ms Evelyn Gilla. The State says that Ms Gilla’s affidavit is incorrectly affirmed, although it has not provided any particulars. The Tribunal is not bound by technicalities, legal forms or rules of evidence (s 109(3) Native Title Act) and regularly receives evidence in a variety of formats, many less formal than Ms Gilla’s affidavit, which I accept for the purpose of this inquiry.
As I have accepted the affidavit, the State argues that Ms Gilla’s evidence is insufficient to establish that the grant of the licence will cause interference or major disturbance of the kind described in s 237 of the Native Title Act. Arabella does not address the particular significance of the registered sites, focussing its contentions on how the registered sites might be protected.
For s 237(b), Ms Gilla gives brief evidence in relation to each of the registered sites as set out below and, consistent with Yugunga-Nya’s initial contentions, does not specifically mention the lodged site Norie 8.
Nannine Well
Nannine Well is identified in the ACHIS Report as an unrestricted site of the type “Artefacts / Scatter”.
Ms Gilla says Nannine Well is very precious to Yugunga-Nya People. She says that some of the artefacts are old cutting and grinding tools used to cut marlu (kangaroo) and bungarra (goanna) and that if people take these artefacts they will get sick. While Ms Gilla says this site is “precious”, she does not give any explanation of why it is of more than ordinary significance in accordance with Yugunga-Nya traditions.
On the basis of this evidence, I cannot conclude that Nannine Well is an area or site of particular significance for s 237(b).
Djurdu
According to the ACHIS Report, Djurdu is a culturally sensitive site of a “Creation / Dreaming Narrative” type, subject to boundary restrictions, but not gender or initiation restrictions.
Ms Gilla says that Djurdu means “sister, that’s a girl”. She says this site is “very big spiritually and has lots of cultural significance”. Ms Gilla says Djurdu is for both men and women and is related to the Nannine story of the three sisters. Unfortunately, Ms Gilla does not elaborate on the details of this story, nor explain the particular significance of Djurdu in the context of the story.
Again, on the strength of this evidence, I am unable to make a finding regarding the particular significance of this site for s 237(b).
Norrie 6
Ms Gilla’s evidence in relation to Norrie 6 is very brief. She describes it as a ceremonial site, but she says it is “special men’s business … kept by Yugunga-Nya traditional men for law times”, which she cannot talk about.
This information does not meaningfully add to the site’s description in the ACHIS Report, which identifies the site (spelt Norie 6) as of the type “Ritual / Ceremonial; Creation / Dreaming Narrative; Traditional Structure”. The ACHIS Report states Norie 6 is not culturally sensitive and is without gender or initiation restrictions, which is, at least on face value, not entirely consistent with Ms Gilla’s evidence.
Overall, this evidence is insufficient for me to make a finding of particular significance for s 237(b) in relation to Norrie 6.
Norrie 7
Ms Gilla says that Norrie 7 is old country for her family, the Wilba family, and also one of the boundaries used to indicate Wilba country.
Ms Gilla describes this site as a very important mythological place and water place for men, women and children. She says there is a creek there where people used to live and that there is a record of that occupation on the ground. The creek is still used today for water when Yugunga-Nya People pass through the area to go hunting.
According to the ACHIS Report, there are no gender or initiation restrictions for the registered site (spelt Norie 7), but it is subject to boundary restrictions and is identified as a culturally sensitive site of a “Creation / Dreaming Narrative; Water Source” type. Ms Gilla says that there is a songline attached to this site and she makes reference to a men’s story and a ceremonial ground for meetings, although no further detail is provided.
Ms Gilla expresses her concerns about Norrie 7 by saying it “must be kept for our culture and future generations of Yugunga-Nya [P]eople”.
Yugunga-Nya contends this is a significant cultural heritage place, saying there are a number of different cultural activities that take place on this site, including a cultural story that only men can talk about and a ceremonial ground.
Once again, there is very little basis upon which to make a finding of particular significance for this site. The references to the site being an important mythological place and water place convey little beyond the recorded details for the site. Certainly, there is no evidence about what makes this site of more than ordinary significance as a mythological site, a water source, a ceremonial ground or as a men’s site. The reference to the site being one of the boundaries to indicate Wilba country could indicate a basis for particular significance but Ms Gilla does not give any further explanation by reference to Yugunga-Nya traditions. Overall, the evidence falls short of that required for s 237(b).
The southern portion of the licence
In its supplementary submissions on the AHA, Yugunga-Nya appears to shift its focus from the individual sites outlined above to the whole of the area comprising those sites. Yugunga-Nya identifies that each of the registered sites and the lodged site are located in the southern portion of the licence and goes on to contend that the southern portion of the licence is an area of particular significance to Yugunga-Nya People, having regard to the requirements outlined above at [9].
According to the mapping in the ACHIS Report, each of the registered sites is located near the south-westerly corner of the licence and there is a degree of overlap between them. Native Title Vision shows that a part of the western side of each registered site extends into the area of the Wajarri Yamatji Determination, although, as noted, most of these site boundaries are said to be unreliable.
Nannine Well appears to be situated within the area of Norie 6, which is in turn situated within the area of Djurdu. Nannine Well is shown to be located wholly within the licence but the sites Norie 6 and Djurdu extend beyond the western boundary of the licence, with majority of the Djurdu site being located outside of the licence area. In addition, there is also a substantial overlap between Djurdu and Norie 7, which also extends beyond the licence to the west.
The lodged site, Norie 8, of the type “Artefacts / Scatter; Camp; Ritual / Ceremonial”, does not overlap any of the registered sites. It is located further east, in the middle of the southern portion of the licence.
Yugunga-Nya relies on Ms Gilla’s evidence to support its contention about the southern portion of the licence, but the obvious stumbling block is that Ms Gilla does not attribute particular significance to the southern portion of the licence as a whole.
For Norie 8, Yugunga-Nya relies on Ms Gilla’s references to artefacts in her affidavit at paragraph 8. However, that evidence appears to be given in the context of Norrie 7. There does not appear to be any evidence directly relating to the particular significance of Norie 8.
It may be that, given the limited nature of Ms Gilla’s evidence, Yugunga-Nya reasoned that arguing on the basis of a composite of all of these sites may be to its advantage, similar to arguments occasionally put about “site rich” areas. However, as the Tribunal has observed, arguments of this nature are largely unhelpful as they do not speak to the requirements of s 237(b) (see for example Nyamal v Youanmi at [31]–[32] and Ross v Oosen Lewis at [113]). While the evidence may be lacking in relation to the particular significance of each registered site in accordance with Yugunga-Nya traditions, there is no evidence directed to the particular significance of the southern portion of the licence as a whole. Ms Gilla does, as Yugunga-Nya submits, say that the area of the licence is “big for our heritage and culture all through the lands and waters” but this is in the context of saying that Arabella should speak to Yugunga-Nya first “for respect and culture” and does not support a finding that the southern portion of the licence is itself an area of particular significance, independent of the registered sites. It follows that this argument is not made out.
Conclusion for s 237(b)
There is no doubt importance or significance attaching to the registered sites, which is why they are registered under the AHA.
However, as discussed in Dann 1996, it is not enough for the site to be of significance to the common law holders, it must be of more than ordinary significance in accordance with their traditions. Three of the sites are described in the ACHIS Report as being of creation or Dreaming narrative but that alone does not suffice for s 237(b) and the evidence provided does not sufficiently explain the particular significance of these sites in accordance with Yugunga-Nya traditions.
In light of my conclusions in relation to particular significance, it is not necessary for me to further consider the likelihood of interference from the grant of the licence or to expand on the parties’ submissions on the operation of the AHA.
Is the grant of the licence likely to directly interfere with the Yugunga-Nya People’s community or social activities?
Yugunga-Nya contends that community and social activities occur within the vicinity of the licence and therefore the expedited procedure does not apply. It does not elaborate on what those activities are, where they occur or how the grant of the licence will cause interference.
Ms Gilla refers briefly to community and social activities. Ms Gilla says that Yugunga-Nya People “continue to protect and maintain areas of cultural significance in the [licence] area, including sites”. She also makes mention of Norrie 7 being a camp like area Yugunga-Nya People pass through when hunting and gathering and then return to for rest and to take water.
Both the State and Arabella raise issues with the adequacy of Yugunga-Nya’s evidence and contentions for s 237(a) but in reply Yugunga-Nya simply repeats its initial contentions.
Section 237(a) is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that this involves “an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts are outside the scope of interference contemplated by the section. I have also had regard to the discussion of the authorities regarding s 237(a) in Ngarlawangga and FMG at [72]–[77].
In light of the limited evidence provided, I am not satisfied that the grant of the licence is likely to cause interference within the meaning of s 237(a).
Is the grant of the licence likely to cause major disturbance?
In the context of s 237(c), major disturbance is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people (see Littlev Oriole Resources at [52]–[54]). I can also have regard to the context of the relevant grant, including the history of mining and the characteristics of the land and waters to determine whether major disturbance is likely.
In Dann 1997 at page 395 the word “major” is described as an adjective of degree in respect of which the Tribunal must make a value judgement.
There is no evidence of Arabella’s proposed activities other than the statement in accordance with s 58 of the Mining Act 1978 (WA), which accompanied the licence application. The s 58 statement broadly outlines the proposed activities in year one, with an estimated expenditure of about $23,000 and identifies an expected drilling program in year two. Beyond that, the statement says, detailed programs of works will depend on the results from years one and two.
Arabella contends that, as the sites are identified, they are more easily protected. It also contends that the area can be protected by heritage agreements or by imposing conditions on the licence. Neither of those eventualities are proposed here, save for a generic endorsement proposed by the State which draws Arabella’s attention to the provisions of the AHA. Arabella says it is open to negotiating an agreement with Yugunga-Nya on favourable terms but statements of good will of that nature do not assist in the present context.
The tenure underlying the licence is predominately pastoral lease and there is no evidence of any Aboriginal community in or in the vicinity of the licence. There is evidence of mining tenements having been granted over parts of the area, but no evidence of the extent of any activity undertaken under those tenements.
The key issue in terms of the potential for major disturbance appears to be the partial overlap with the registered sites. As contended by the State, Arabella will be required to comply with the provisions of the AHA and there is no basis to conclude it would not do so.
Yugunga-Nya does not address the requirements of s 237(c) in its contentions. Ms Gilla says that “anything to land and waters is too much” which, as the Tribunal has observed previously, is unhelpful for a predictive assessment in relation to s 237(c) (see Nyamal v Beatons Creek at [31]). Ms Gilla expands on the importance of water, saying it is “very special”, although the State’s proposed conditions and endorsements for the licence identify a number of regulatory controls with respect to the likely impacts on water.
In my view, on the basis of the evidence in this matter and taking account of the State’s regulatory regime, there is no basis to conclude that major disturbance within the meaning of s 237(c) is likely.
Determination
I determine that the grant of exploration licence E 51/2022 is an act attracting the expedited procedure.
Ms Nerida Cooley
Member
9 February 2024
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