Yugunga-Nya Native Title Aboriginal Corporation RNTBC v Aruma Exploration Pty Ltd
[2023] NNTTA 8
•28 March 2023
NATIONAL NATIVE TITLE TRIBUNAL
Yugunga-Nya Native Title Aboriginal Corporation RNTBC v Aruma Exploration Pty Ltd & Another [2023] NNTTA 8 (28 March 2023)
Application No: | WO2022/1385 |
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 (WCD2021/0008)
(native title party)
- and -
Aruma Exploration Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Lisa Eaton |
Place: | Perth |
Date: | 28 March 2023 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with the carrying on of community and social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to lands and waters – act is an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Environmental Protection Act 1986 (WA) Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) Mining Act 1978 (WA) Native Title Act 1993 (Cth) ss 29, 31, 32, 34, 237 |
| Cases: | Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 131 (Griffiths v NT) 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 (Ward v WA) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147 (Cheinmora v WA) Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International [2012] NNTTA 24 (Lungunan v Geotech International) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) George Champion, Darren Champion, Darren Indich, James Champion, Tobias Werz, Simon Champion and Lionel Champion/Western Australia/Heron Resources NL, [1998] NNTTA 116(Champion v Western Australia) Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 3) [2021] FCA 1338 (Yugunga-Nya People v WA (No 3)) Kevin Cosmos and Others on behalf of the Yaburara & Mardudhunera Native Title Claim Group v Croydon Gold Pty Ltd and Another[2014] NNTTA 77 (Cosmos v Croydon Gold) KEVIN PETER WALLEY AND OTHERS ON BEHALF OF THE NGOONORU WADJARI PEOPLE (WC01/179); ROBIN BODDINGTON AND OTHERS ON BEHALF OF THE WAJARRI ELDERS (WO01/180)/WESTERN AUSTRALIA/GIRALIA RESOURCES NL [2002] NNTTA 24 (WALLEY V WESTERN AUSTRALIA) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64 (Yanunijarra Aboriginal Corporation v WA) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Ashley Truscott, Yugunga-Nya Native Title Aboriginal Corporation RNTBC |
| Representative of the grantee party: | Ettienne van Tonder, Austwide Legal Pty Ltd |
| Representatives of the Government party: | Bethany Conway & Jake Lincoln, Department of Mines, Industry Regulations and Safety Domhnall McCloskey, State Solicitors Office |
REASONS FOR DETERMINATION
This is a decision about whether the expedited procedure described in s 237 of the Native Title Act 1993 (Cth) (the Act) applies to the grant of exploration licence E58/590 (licence) to Aruma Exploration Pty Ltd (Aruma/grantee party).
The licence is sought under the Mining Act 1978 (WA) (Mining Act) and, if granted, will remain in force for an initial term of five years commencing from the date of grant.
In accordance with s 29 of the Act, the Government of Western Australia (Government party) gave public notice of its intention to grant the licence on 5 August 2022 (notification day).
The notice included a statement that the Government party considers the proposed grant of the licence is a future act attracting the expedited procedure.
Section 237 of the Act provides that a future act is an act attracting the expedited procedure if:
a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
If the notice given under s 29 includes a statement that the Government party considers the act attracts the expedited procedure, unless a native title party lodges an objection, the act may be done without first requiring all the parties to negotiate in good faith.
The effect of lodging an objection was described by the Full Bench in Yanunijarra Aboriginal Corporation v WA at [17] as follows:
‘In this scheme, the importance of an objection lodged pursuant to s 32(3) is apparent. It is by the lodging of an objection that native title parties can test the Government party’s decision that the act attracts the expedited procedure so that the normal negotiation procedure outlined in s 31 is not required. If there is no objection lodged, or if the arbitral body determines that the Government party has properly assessed the act as attracting the expedited procedure, the native title parties will have no right to negotiate with respect to the doing of the act and the act may be undertaken validly.’
Yugunga-Nya Native Title Aboriginal Corporation RNTBC (YN PBC) holds native title on trust for the Yugunga-Nya people (Yugunga-Nya/native title party) as set out in the determination made by the Federal Court of Australia in Yugunga-Nya People v WA (No 3)) [2021] FCA 1338 (the Determination).
52.75% of the proposed licence area overlaps the land and waters the subject of the Determination.
On 5 December 2022, YN PBC lodged an objection on behalf of Yugunga-Nya to the Government party’s inclusion of the expedited procedure statement (the objection).
The President of the National Native Title Tribunal (the Tribunal) has appointed me to constitute the Tribunal for the purposes of considering the objection and determining, under s 32(4) of the Act, whether the grant of the licence is an act attracting the expedited procedure. At the time of the Tribunal’s acceptance of lodgement of the objection, Member Cooley had carriage over the matter.
For the reasons outlined below, my determination is that the grant of the licence is an act attracting the expedited procedure.
Issues
Pursuant to s 237, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to:
(a)Interfere directly with the Yugunga-Nya people’s community or social activities in relation to the licence area (s 237(a));
(b)Interfere with areas or sites of particular significance to the Yugunga-Nya people, 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)).
A description of the legal principles applicable to s 237 were summarised neatly by McKerracher J in FMG v Yindjibarndi at [13]:
‘1. the Tribunal was required to make a predictive assessment of what was likely to occur: YAC v FMG (at [15(a)]); Smith (on behalf of the Gnaala Karla Booja People) v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (at [23] per French J); Parker v Western Australia [2008] FCAFC 23; (2008) 167 FCR 340 (at [8] per Moore J);
2.there must be a real chance or risk of interference with the area or site: YAC v FMG (at [17(e)]);
3.the interference must involve actual physical intervention: YAC v FMG (at [17(c)]);
4.slight interference to a relevant area or site may be unacceptable: YAC v FMG (at [17(c)]);
5.the presumption of regularity applies when making the predictive assessment required: YAC v FMG (at [102]);
6.the Tribunal must consider the evidence provided in a particular matter to decide whether the protective regime of the Aboriginal Heritage Act 1972 (WA) is adequate in that case: YAC v FMG (at [120]).’
I adopt those principles for the purpose of this determination.
The inquiry
On 8 December 2022, Member Cooley made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.
The Government party provided contentions, mapping, and other materials. The materials include a quick appraisal outlining the underlying tenure and searches of the Aboriginal Heritage and Inquiry System (AHIS), held under the Aboriginal Heritage Act 1972 (WA) (AHA). The searches show no registered Aboriginal sites in the proposed licence area, however three ‘Other Heritage Places’ (as defined in the AHA) were identified. I make further comments in relation to these heritage places below at [37]. The Government party also includes in its evidence Draft Tenement Endorsements and Conditions it intends to impose should the grant be made. I note these Draft Tenement Endorsements and Conditions draw Aruma’s attention to the AHA but fail to mention the Aboriginal Cultural Heritage Act 2021 (WA) (new Heritage Act).
Yugunga-Nya provided contentions and a reply. No affidavit, statement, or other material or evidence was provided in support of the contentions. Yugunga-Nya’s contentions refer to and quote from the Determination made by the Federal Court of Australia. Unhelpfully, the contentions do not specifically address the licence area or go directly to the impact of the grant of the licence itself.
A failure to produce evidence on which a decision must be based means that an unfavourable inference may be drawn on that issue, particularly where the facts are, or ought be, within the knowledge of the particular party who has failed to lead evidence, as held by Carr J in Ward v WA at [26]:
‘…The "common sense approach to evidence" is not the same as applying an evidential onus of proof. In administrative matters such as these, any party (not just the native title party) has what might be termed an evidentiary choice. They might choose not to lead any evidence on a particular issue. But that does not necessarily mean that they must fail on that issue i.e. that they have an evidential onus of proof. The Tribunal might (subject to observing the requirements of procedural fairness) make its own inquiries and satisfy itself that the particular issue should be decided in favour of the party electing not to put evidence before it. Alternatively, part of an opposing party's evidence whether in cross-examination or otherwise, may satisfy the Tribunal on the point. That party has, in colloquial terms, taken its chances and won. However, as Woodward J observed in the last of the passages set out above, where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the common sense approach to evidence.’
I acknowledge the existence of the traditional laws and customs of the Yugunga-Nya people, as reflected in their determined native title rights and interests. However, excerpts taken from the Determination itself do not assist the decision to be made in this matter, unless such excerpts were to specifically address the licence area, or in some way go directly to the impact of the grant of the licence itself. The excerpts provided by Yugunga-Nya do neither.
Aruma’s evidence comprised contentions and an affidavit affirmed by Peter Schwann, described as a company director of Aruma. Peter Schwann deposes that the licence will be used to explore for gold and base metals. He provides an overview of the proposed exploration activities, detailing that for Year 1 operations the ground disturbance will be ‘nil’, ‘minimal’ or ‘negligible’, and moving on to Years 2-5 the ground disturbance will be ‘minimal to high’ and may include testing via exploration drilling.
By 22 February 2022, the Government party and Aruma had agreed in writing that the matter should be determined on the papers, as permitted by s 151(2) of the Act. Yugunga-Nya have not provided any position.
Having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
Section 237(a): Is the grant of the licence likely to interfere directly with Yugunga-Nya’s community or social activities?
The interference contemplated in s 237(a) must be substantial in its impact upon community or social activities. Trivial impacts or impacts which are not relevant to the carrying on of such activities are outside the scope. I must also have regard to the context of any interference by considering constraints which may already be imposed on community and social activities by third parties and external regulation: see Smith v WA and Griffiths v NT.
Yugunga-Nya do not provide information about any specific community or social activities which might be impacted by the grant of the licence. A broad submission is made that their connection to country, encapsulated by the proposed tenement, has survived colonisation and the expedited procedure does not (or should not) apply. They also submit that community and social activities occur ‘within the vicinity of’ the licence, without providing any detail as to what those community or social activities might be, nor when or where they might be carried out.
The Government party contends, in summary, that Yugunga-Nya have not provided any evidence proving that any community or social activities are carried out by relevant native title holders on the licence area.
I note the Government party’s overarching submission that Yugunga-Nya’s contentions are broad assertions unsupported by relevant evidence. The Government party draws attention to the fact that Yugunga-Nya has not provided a statement from a native title holder to support their contentions and on this basis, the contentions should not be relied upon by the Tribunal, or given any, or any significant, weight. In summary, the Government party argues Yugunga-Nya’s contentions are of no assistance to the Tribunal on the questions to be considered under s 237.
Aruma contends the exploration activities proposed to be undertaken on the licence area are extremely unlikely to interfere with Yugunga-Nya’s community or social activities. Aruma states they would not exclude any community or social activities sought to be carried out, except where their exploration activities would make this unsafe. The grantee also says if an activity was likely to restrict Yugunga-Nya’s community and social activities, they would endeavour to consult with Yugunga-Nya prior to commencing any such activity, to seek an arrangement that may be acceptable to both parties. Aruma provide no detail as to how they would endeavour to consult, or what form any such consultation would take, a point also made in Yugunga-Nya’s reply where they contend such statements are ‘precatory words’ and ‘mere puffery’.
As Yugunga-Nya have not provided any information about specific community or social activities which might be impacted by the grant of the licence, there is little to no evidence to support a conclusion that there is a real chance or risk any activities conducted by Aruma under the licence will be likely to substantially interfere with Yugunga-Nya’s community or social activities.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to Yugunga-Nya, in accordance with their traditions?
Are there areas or sites of particular significance to Yugunga-Nya in the licence area?
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 WA at 34-35.
The relevant principles for consideration of s 237(b) were summarised by President Webb in Yindjibarndi v FMG (at [17]) as follows:
‘(a) the area or site must be of special or more than ordinary significance to the native title holders (applying Carr J’s explanation in Cheinmora v Striker Resources at 34). In this regard I note it is well established that a site or area may be of particular significance without being recorded on the Government’s cultural heritage register (see Little v Lake Moore Gypsum at [67]);
(b) if an area or site is of particular significance, it must be known and must able to be located and the nature of its significance explained to the Tribunal (referring to Western Australia v McHenry);
(c) even slight interference to a relevant area or site may be unacceptable in the context of s 237(b) but the interference must involve actual physical intervention;
(d) generally the relevant area or site will be located within the proposed licence, in order for it to be directly affected by grant. It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. Examples given in Silver v Northern Territory at [89] are ‘construction of roads, truck movements to and from the proposed licence etc’; and
(e) there must be a real chance or risk of interference with the area or site (referring to Smith v Western Australia and Little v Western Australia, adopting the “real risk” approach).’
Yugunga-Nya contend that the whole of the licence area is of ‘more than ordinary and of particular importance, similar to Mt Yagahong, to the Yugunga-Nya traditional owners’. No detail is provided as to how the whole of the licence area is of particular significance to the Yugunga-Nya people, or in what manner it is of a similar nature to the registered site of Mt Yagahong. I note Mt Yagahong is located some distance from the licence area.
Yugunga-Nya also contend that the licence area is a significant cultural heritage area and there are sites that are not recorded. Unfortunately, Yugunga-Nya do not provide any detail as to what sites there are, where such sites are located, nor why they are of particular significance to the Yugunga-Nya people.
Aruma’s contentions refer to their obligations to comply with the AHA, including reporting any potential Aboriginal heritage sites identified during the course of its activities. In their reply, Yugunga-Nya submit that without conducting surveys in the licence area Aruma may inadvertently disturb a site, as Aboriginal heritage sites can only be properly identified by the traditional owners for such area.
The affidavit of Peter Schwann refers to Aruma’s willingness to enter into a heritage protection agreement in the form of a regional standard heritage agreement. Whilst the Tribunal, in undertaking its predictive assessment, can have regard to the attitude of a grantee party towards heritage protection, including willingness to enter into a heritage protection agreement, the weight to be given to those matters will depend on the overall circumstances: see Champion v Western Australia at [29]-[35]; Yindjibarndi v FMG at [32].
It is well established that the presumption of regularity applies when making the predictive assessment required by s 237 of the Act. Unless there is evidence to the contrary, the Tribunal will act on the basis that the Government will exercise its powers, including making discretionary decisions, properly and in accordance with the law; and that a grantee party will not act contrary to the law and regulatory regime, including conditions imposed governing the exercise of any granted rights: see Walley v Western Australia at [11]. There is no evidence before me to displace that presumption of regularity.
Yugunga-Nya also makes contentions in relation to a number of heritage places recorded on the AHIS identified as ID 20707, ID 20697, ID 20965, ID 20968, ID 20696. As admitted by Yugunga-Nya, none of these places are located within the proposed licence. Yugunga-Nya do not provide any specific evidence explaining how these places are of particular significance to the Yugunga-Nya people. They have also failed to adduce evidence demonstrating how any relevant activities under the grant would directly and physically affect these places, beyond contending that interference cannot be ruled out if the travel route of Aruma is not discussed. Yugunga-Nya make this contention without drawing a link between these places or sites, their traditions, and the likely activities of the grant, such that interference would likely be caused through accessing the licence area.
Aruma contend that the heritage places referred to by Yugunga-Nya are located 8-8.5 kilometres northeast of the northeast corner of the licence, rather than the 400-500 metres contended by Yugunga-Nya. Similarly, the Government party contend that Other Heritage Place ID 20707, referred to by Yugunga-Nya, is located about 9 km north-northeast of the north-eastern corner of the licence and that the remaining heritage places referred to are all in the general vicinity of that heritage place.
In any event, for the reasons set out above at [37], the specific location of the heritage places does not impact the conclusions I have reached as there is no evidence before me explaining how any of those places are of particular significance to the Yugunga-Nya people, nor how any activities of the grant would likely cause interference with such areas or sites.
The evidence provided by the Government party did identify three registered Other Heritage Places within the licence area (ID 20934, ID 20935 and ID 20936), however Yugunga-Nya did not address these places in their contentions so there is no evidence before me that they are of any significance or particular significance to the Yugunga-Nya people. I also note for the sake of completeness that these three recorded Other Heritage Places are located outside of the Determination, in the southern portion of the licence area, and overlap land and waters comprising the determination made in Badimia People (WCD2015/001) that native title does not exist.
As Yugunga-Nya contends, there may be areas or sites that exist that are not recorded on the AHIS. However, in this matter Yugunga-Nya have not provided any detail going to the matters I must consider under s 237(b), and I note the AHA and the new Heritage Act are legislated in such a manner to protect all Aboriginal cultural heritage, including sites, places, objects, landscapes and ancestral remains, whether recorded on the AHIS or not. I have also found there is nothing before me to displace the presumption of regularity.
Having regard to all the material before me, there is insufficient evidence to conclude areas or sites of particular significance to Yugunga-Nya, in accordance with their traditions, exist on or in the vicinity of the licence area. It is therefore not necessary for me to further consider the question of interference with any areas or sites.
Section 237(c): Is the grant of the licence likely to involve major disturbance to any part of the licence area?
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to whether there is a real chance or risk of major disturbance to land and waters. The relevant disturbance is understood to be a significant, direct physical disturbance to the land or waters concerned: see Cosmos v Croydon Gold at [29]; Lungunan v Geotech International at [50].
Generally, unless the matter falls within a category of exceptions, the Tribunal has found that the grant of an exploration licence, or the rights created by the grant, is unlikely to involve major disturbance to land and waters: see Champion v WA at [77]; Yindjibarndi v FMG at [143]. The Tribunal must have regard to the overall circumstances, including the nature of the locality and the regulatory regime in place: see Champion v WA at [77].
Yugunga-Nya contend ‘any disturbance, such as the Grantee Party being on land to conduct exploration activities, to land and waters is too much disturbance’. The brief contentions made on this issue refer again to the Determination and point to the importance of water in a general sense, which it is contended has sustained Yugunga-Nya traditional owners for centuries. These brief contentions fail to detail how the grant of the licence, including the rights created by the grant, is likely to involve major disturbance to any part of the licence area.
The Government party contends that whether read individually or collectively there is nothing in Yugunga-Nya’s contentions showing that the grant is likely to cause major disturbance. They submit the contentions made, like all other contentions made by Yugunga-Nya in this matter, are too general and unsupported by evidence.
Aruma contend that its proposed exploration program will not involve any major disturbance to any land or waters, and any exploration drilling will be targeted, as set out in the affidavit of Peter Schwann. The grantee also points to the Draft Endorsement and Conditions drawing attention to the provisions of the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 providing for the protection of all native vegetation from damage unless prior permission is obtained. Aruma contend they will act in compliance with all water resource management statutory obligations, and that all activities will be undertaken to minimise damage, disturbance or contamination of waterways including their beds and banks, and riparian and other water dependent vegetation.
Based on the evidence before me, I am unable to find that the act is likely to involve major disturbance to any land or waters concerned, or create rights whose exercise is likely to do so.
Determination
The determination of the Tribunal is that the grant of exploration licence E58/590 to Aruma is an act attracting the expedited procedure.
Lisa Eaton
Member
28 March 2023
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