Yugunga-Nya Native Title Aboriginal Corporation RNTBC v Factor Resources Pty Ltd
[2024] NNTTA 71
•20 September 2024
NATIONAL NATIVE TITLE TRIBUNAL
Yugunga-Nya Native Title Aboriginal Corporation RNTBC v Factor Resources Pty Ltd & Another [2024] NNTTA 71 (20 September 2024)
Application No: | WO2022/1278, WO2022/1430, WO2022/1431 & WO2022/1432 |
IN THE MATTER of an inquiry into expedited procedure objection applications
Yugunga-Nya Native Title Aboriginal Corporation RNTBC (WCD2021/008)
(native title party/YN PBC)
- and -
Factor Resources Pty Ltd
(grantee party/Factor Resources)
- and -
State of Western Australia
(State)
DETERMINATION THAT THE ACTS ARE ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Lisa Eaton |
Place: | Perth |
Date: | 20 September 2024 |
Catchwords: | Native title – future act – proposed grant of amalgamation applications – expedited procedure objection applications – evidence subject to non-disclosure directions – acts are not likely to interfere with community and social activities – sites outside of amalgamation areas – failure to identify areas or sites of particular significance within or in the vicinity of amalgamation areas – insufficient evidence and detail – acts are not likely to interfere with areas or sites of particular significance – acts are not likely to involve or create rights likely to involve major disturbance to relevant land or waters |
Legislation: | Aboriginal Cultural Heritage Act 2021 (WA) (ACHA) Aboriginal Heritage Act 1972 (WA) (AHA) Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) (Repeal Act) Mining Act 1979 (WA) s 67A (Mining Act) Native Title Act 1993 (Cth) ss 29, 30, 31, 237 (the Act) |
Cases: | Champion v Western Australia [2005] NNTTA 1 (2005) 190 FLR 362 (Champion v Western Australia) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147 (Cheinmora v Western Australia) 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) Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 3) [2021] FCA 1338 (Yugunga-Nya Part A determination) 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) Nyamal Aboriginal Corporation RNTBC & Gardner Mining Pty Ltd & Another [2021] NNTTA 48 (Nyamal v Gardner) Top End (Default PBC/CLA) Aboriginal Corporation RNTBC v Green Critical Minerals Limited & Anor [2024] NNTTA 5 (Top End v Green Critical Minerals) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Lucky Break Operations Pty Ltd & Another [2019] NNTTA 125 (Wanjina-Wunggurr v Lucky Break Operations) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Border Exploration Pty Ltd and Another [2024] NNTTA 28 (YNPAC v Border Exploration) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Vanessa Malu Cecchi, Umanity Legal |
| Representative of the grantee party: | Ettienne van Tonder, Austwide Legal Pty Ltd |
| Representatives of the Government party: | Andrea Wyles (WO2022/1278) and Michelle Florey (WO2022/1430-1432), Department of Energy, Mines, Industry Regulation and Safety Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
Factor Resources holds exploration licence 51/1960 and has applied to amalgamate:
(a)part of the ground contained in forfeited prospecting licence 51/3031;[1]
(b)the ground contained in surrendered prospecting licence 51/3002;[2] and
(c)a portion of the ground contained in surrendered prospecting licence 51/2932,[3]
such grounds as contained within the graticular boundaries of exploration licence 51/1960, the effect of which would be to amend the exploration licence to include the land subject to the forfeited and surrendered prospecting licences.
[1] AM-E51/1960, AM652070 (WO2022/1278).
[2] AM-E51/1960, AM657806 (WO2022/1431).
[3] AM-E51/1960, AM657807 (WO2022/1432).
Factor Resources also holds exploration licence 51/1853 and has applied to amalgamate the ground contained in surrendered prospecting licence 51/2932[4] that is within the graticular boundaries of the existing licence.
[4] AM-E51/1853, AM657616 (WO2022/1430).
The State considers the grant of the amalgamations are acts attracting the expedited procedure and included statements to that effect in notices given under s 29 of the Act. If the expedited procedure applies, the amalgamations may be done without first requiring negotiation in good faith under s 31(1)(b) of the Act.
The proposed amalgamations fall wholly on land subject to a determination of native title made by the Federal Court of Australia in the Yugunga-Nya Part A determination. As set out in the determination the YN PBC holds native title on trust for the Yugunga-Nya people. As the relevant native title party in relation to land and waters that will be affected by the grant,[5] YN PBC lodged objections to the State’s inclusion of the expedited procedure statement in respect of each amalgamation application.
[5] See s 30 of the Act.
During the conduct of these matters, the ACHA was introduced in July 2023, followed by the commencement of the substantive provisions of the Repeal Act in November 2023 amending the AHA and repealing the ACHA. All parties were afforded the opportunity to provide supplementary contentions addressing these changes to the heritage regime operating in Western Australia, to the extent relevant to the matters I must consider in this inquiry.
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.
In determining whether the expedited procedure applies, I must undertake a predictive assessment by considering the likely consequences arising from the grant of the amalgamations.
A description of the legal principles applicable to s 237, which I adopt for the purpose of this determination, were set out in FMG v Yindjibarndi and are summarised below:[6]
(a)the Tribunal was required to make a predictive assessment of what was likely to occur;
(b)there must be a real chance or risk of interference with the area or site;
(c)the interference must involve actual physical intervention;
(d)slight interference to a relevant area or site may be unacceptable;
(e)the presumption of regularity applies when making the predictive assessment required; and
(f)the Tribunal must consider the evidence provided in a particular matter to decide whether the protective regime is adequate in that case.
[6] FMG v Yindjibarndi at [13].
YN PBC initially contended the grant of the tenements (amalgamations) was likely to:
(a)interfere with community or social activities per s 237(a);
(b)interfere with areas or sites of significance per s 237(b); and
(c)involve major disturbance to land or waters per s 237(c).
As the inquiry progressed, YN PBC focused their evidence and contentions on the grounds arising under s 237(b), contending that the grant of the amalgamations is likely to interfere with an area or site of particular significance to the Yugunga-Nya people.
For the reasons outlined below, my determination is that the grant of the amalgamations are acts attracting the expedited procedure.
Consideration
YN PBC’s more relevant evidence in this inquiry included:
(a)contentions relating to WO2022/1278;[7]
(b)contentions relating to WO2022/1430-1432;[8]
(c)a statutory declaration of Andrew Gentle Snr;[9]
(d)a statutory declaration of Leonard (Jeff) Barnard;[10]
(e)two replies;[11] and
(f)submissions concerning changes to the heritage protection regime in Western Australia.[12]
[7] Native title party contentions relating to WO2022/1278 dated 12 December 2022 (NTP contentions 1).
[8] Native title party contentions relating to WO2022/1430-1432 dated 29 May 2023 (NTP contentions 2).
[9] Statutory declaration of Andrew Gentle Snr, common law holder, dated 16 June 2023 (AG statement).
[10] Statutory declaration of Leonard (Jeff) Barnard, common law holder, dated 5 May 2023 (LB statement).
[11] Native title party reply dated 17 February 2023 (NTP reply 1) and further reply dated 27 June 2023.
[12] Native title party submissions concerning the introduction of the ACHA dated 3 March 2023 and submissions concerning the repeal of the ACHA dated 21 December 2023.
I accept that Mr Gentle and Mr Barnard are Yugunga-Nya common law holders and have authority to speak for the area subject to the proposed amalgamations. This authority was not disputed by any of the parties.
At the request of the YN PBC, and following consultation with the parties, I made directions[13] prohibiting the disclosure of identified culturally sensitive parts of the statements of Mr Gentle and Mr Barnard, other than to specified persons for the purposes of this inquiry or any related appeal (restricted evidence). Nothing in those directions prevents me from stating any findings of fact on which this determination is based, however I have refrained from disclosing the restricted evidence wherever possible. I also note the parties already have had the benefit of considering and commenting on the restricted evidence.
[13] Directions made 30 May 2023.
The State’s more relevant evidence included:
(a)contentions;[14]
(b)further contentions;[15] and
(c)Aboriginal Cultural Heritage Inquiry System (ACHIS) searches.[16]
[14] State contentions for WO2022/1278 dated 9 February 2023 (State contentions 1) and State contentions for WO2022/1430-1432 dated 15 June 2023 (State contentions 2).
[15] State further contentions dated 15 December 2023.
[16] ACHIS searches dated 6 December 2023.
Factor Resources provided a statement of contentions,[17] an affidavit of Terence Topping the sole director of Factor Resources,[18] supplementary statements of contentions,[19] and a further statement of contentions addressing the impact of the changes to the AHA.[20]
The amalgamations
[17] Grantee party statement of contentions for WO2022/1278 dated 3 February 2023 (GP contentions).
[18] Affidavit of Terence Topping dated 2 February 2023 (TT statement).
[19] Grantee party statement of supplementary contentions for WO2022/1278 dated May 2023 (GP supplementary contentions 1) and Grantee party statement of supplementary contentions for WO2022/1430-1432 dated 12 June 2023 (GP supplementary contentions 2).
[20] Grantee party statement of contentions concerning the introduction of the ACHA dated 8 August 2023 (GP ACHA contentions) and email regarding repeal of ACHA dated 21 December 2023.
As set out at [1] and [2] above, Factor Resources seeks to amalgamate certain portions of four (4) surrendered and forfeited prospecting licences that are within the graticular boundaries of their existing licences.
Mr Topping gives evidence that Factor Resources intend on exploring for gold and base metals on the amalgamation areas, consistent with the work program for the existing licences.[21]
[21] TT statement at [9]. See also GP supplementary contentions 1 at [5].
The amalgamation applications are made under s 67A(3) of the Mining Act which permits the amalgamation of a secondary tenement with an exploration licence where the holder of the exploration licence so applies following the surrender, forfeit, or expiration of the secondary tenement. A secondary tenement includes any part of a mining tenement (other than a retention licence) situated within the boundaries of the land the subject of the exploration licence.[22]
[22] Mining Act, s 67A(7).
The mapping evidence provided by the State and prepared by the Tribunal’s geospatial team confirms that each of the proposed amalgamation areas are located within the existing graticular boundaries of exploration licences 51/1960 and 51/1853, both held by Factor Resources.
The State contends it will maintain the Tenement Endorsements and Conditions on the existing licences after the amalgamations to such licences occur, including the endorsement drawing the grantee’s attention to the AHA and standard conditions as to environmental rehabilitation, and environmental approval being required before any ground disturbing activities are carried out.[23]
Section 237(a): Is the grant of the amalgamations likely to interfere directly with the carrying on of Yugunga-Nya’s community or social activities?
[23] State contentions 1 at [14]; State contentions 2 at [16].
In their initial contentions relating to the grant of AM652070 (AM-E51/1960) only,
YN PBC submitted that community and social activities occur within the vicinity of the tenement and on this basis the expedited procedure does not apply per s 237(a). They provide no details as to what activities occur or where, nor do they explain how the grant of the amalgamations is likely to interfere directly with any such activities occurring.[24][24] NTP contentions 1 at [5].
This ground does not appear to be pursued at the later stage of the inquiry, as in their supplementary contentions YN PBC makes submissions solely going to s 237(b).[25]
[25] See NTP contentions 2.
The Tribunal takes a commonsense approach to evidence and parties excising evidentiary choice.[26] The potential impact of the grant on Yugunga-Nya’s community or social activities are matters within Yugunga-Nya’s knowledge, and they have failed to put forward any evidence or particularise the bare assertion made. Based on the evidence before me, and applying a commonsense approach to such evidence, I find disturbance under s 237(a) is unlikely.
Section 237(b): Is the grant of the amalgamations likely to interfere with areas or sites of particular significance to the native title party, in accordance with their traditions?
[26] See Ward v Western Australia at [26]; Nyamal v Gardner at [5].
Are there relevant areas or sites of particular significance to the Yugunga-Nya people?
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.[27] An explanation of a site’s particular significance need not be lengthy; however, it does need to go beyond mere claim and the nature of the significance in accordance with the native title party’s traditions must be explained.[28]
[27] See Cheinmora v Western Australia at 34-35.
[28] Wanjina-Wunggurr v Lucky Break Operations at [21].
The relevant principles for consideration of s 237(b) were summarised in Yindjibarndi v FMG:[29]
(a)the area or site must be of special or more than ordinary significance to the native title holders. 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;
(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;
(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; and
(e)there must be a real chance or risk of interference with the area or site.
[29] Yindjibarndi v FMG at [17].
Unfortunately, the evidence from the native title party in this inquiry does not specifically address the relevant acts, being the amalgamations, and the likelihood of such acts interfering with areas or sites of particular significance to the Yugunga-Nya people in accordance with their traditions. Further, the evidence that is provided lacks detail and explanation and it is often not clear how such broad evidence is relevant to the matters I must consider under s 237.
The Area
Some of the contentions made by YN PBC refer to and quote from the Yugunga-Nya Part A determination.[30] Unhelpfully, such contentions do not specifically address the amalgamation areas or go directly to the impact of the grant of the amalgamations themselves. Excerpts taken from the determination do not assist the decision to be made in this matter, unless such excerpts were to specifically address the amalgamation areas, or in some way go directly to the impact of the grants. The excerpts provided here do neither.
[30] NTP reply 1 at [5].
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.[31]
[31] See Ward v Western Australia at [26].
The later contentions of YN PBC state that the tenements are located within ‘the area’ that is; the spiritual centre of Yugunga-Nya country,[32] however none of the maps before me, nor any of the evidence submitted, support the assertion that the amalgamation areas are located in, or in the vicinity of, the area described and identified by the native title party.
[32] NTP contentions 2 at [11].
Mr Gentle’s restricted evidence addresses the area in limited detail. Mr Gentle describes the location and size of the area by stating the current exclusion zone for Yagahong Hill should be at least 10 kilometres bigger, and that ‘the area’ can be felt from any direction roughly 20 kilometres from Yagahong Hill.[33] I note the location of the area is identified by its proximity to Yagahong Hill and not by topographical or geographical markers.
[33] AG statement at [3].
Mr Gentle’s restricted evidence regarding the nature of the significance of the area also links it to the particular importance he places on Yagahong Hill. His evidence describes the significance of the area solely in terms of its connection to and proximity from Yagahong Hill.[34] The particular significance of the area itself is not sufficiently explained.
[34] Ibid.
Mr Barnard’s restricted evidence also addresses the location and nature of the area. Mr Barnard’s statement attaches a map which he identifies as the area marked out by a large blue boundary. This area marked in blue identified on the map is large indeed. Using the scale on the map, at its widest the circle type shape appears to be approximately 50 kms wide and approximately 50 kms in length at its longest point. This large area also overlaps more than 10 current future act objection applications, more than 40 existing grants, and several registered Aboriginal sites and Other Heritage Places.[35]
[35] LB statement.
Mr Barnard’s evidence regarding the nature of the significance of the area explains that the area is a cultural centre and linked to a creation story. Some detail of the creation story is provided in the restricted evidence, however such detail is limited and does not explain the track or path the creation story follows in any identifiable way, such as by reference to landmarks, roads or sites.[36]
[36] LB statement at [4], [5].
The particular significance of a site or area associated with a creation or dreaming story must be sufficiently explained. The fact that an area or site is connected to such a story is not, of itself, enough. The particular significance of the area to the native title holders in accordance with their traditions must also be explained.[37] The evidence before me fails to do this sufficiently.
[37] See Top End v Green Critical Minerals at [32]; YNPAC v Border Exploration at [22].
In any event, the evidence contained in the statements of Mr Gentle and Mr Barnard do not indicate that the area overlaps, either partly or wholly, with any of the amalgamation areas the subject of this inquiry. Indeed, neither statement specially addresses the proposed amalgamations, nor the areas of the existing exploration licences held by Factor Resources.
Evidence of the other parties
Factor Resources contends that even if an exclusion zone with a 20-kilometre radius from Yagahong Hill was in effect, as suggested in the native title parties’ evidence, the amalgamation areas would still fall outside of such an exclusion zone.[38] Based on the evidence before me, I agree with this contention. They also make the general contention that YN PBC have failed to provide any evidence or particularity to support their contentions or grounds for objection.
[38] GP supplementary contentions 2 at [16].
The grantee notes that registered site Nowthanna Hill is located on the northern boundary in the north-east corner of granted exploration licence E51/1960, however Factor Resources contend that the proposed amalgamation areas are all located between 3 kilometres and 6 kilometres from the site[39] and the site will not be affected by any proposed exploration activity on the amalgamation areas.[40] The grantee also states that it has not, and does not intend on conducting any exploration on or in close vicinity of the registered site, now or in future and is prepared to give the native title party a written undertaking on such terms.[41]
[39] GP ACHA contentions at [10].
[40] GP contentions at [25].
[41] Ibid at [32].
YN PBC contended that Nowthanna Hill is of particular significance to the native title party, and they refer to other Tribunal decisions confirming this significance,[42] however YN PBC fail to then provide any evidence that the grant of the amalgamations is likely to interfere with such site, particularly noting there is no overlap between the site and any of the amalgamation areas.
[42] NTP contentions 1 at [12]-[13].
As already noted, whilst it is possible for an area or site of particular significance located outside the proposed licence area to be taken into consideration, there must be evidence adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant area or site. YN PBC have not provided any such evidence in relation to either Nowthanna Hill or the area/spiritual centre.
Factor Resources also gives evidence that they offered to enter into a regional standard heritage protection agreement with the native title party to address any likelihood of interference with sites.[43]
[43] GP contentions at [18]. See also GP supplementary contentions 1 at [4]-[5].
In undertaking my predictive assessment when considering the likelihood of interference, I may have regard to the attitude of a grantee towards heritage protection, including a willingness to enter into a heritage protection agreement.[44] There is no evidence before me that the grantee’s conduct to date on its existing licences has resulted in any interference with sites. That factor, together with its willingness to provide an undertaking that it will not conduct any exploration on or in close vicinity of Nowthanna Hill, are factors which reduce the likelihood of interference.
[44] See Champion v Western Australia at [29]-[35]; Yindjibarndi v FMG at [32].
Further, unless there is evidence to the contrary the Tribunal will act on the basis that the State will exercise its powers, including making discretionary decisions, properly and in accordance with the law; and that a grantee will not act contrary to the law and regulatory regime, including conditions imposed governing the exercise of any granted rights.[45]
[45] See Walley v Western Australia at [11].
In this matter, there is no evidence before me to displace the presumption of regularity. However, compliance with the law and regulatory regime does not, of itself, render interference unlikely and the likelihood of interference must still be carefully considered where the Tribunal has found there is a site or area of particular significance for the purposes of s 237(b).
The State contends that nothing in native title parties’ evidence establishes there are any areas or sites of particular significance to the native title holders on the amalgamation areas or the existing tenements, further noting that the evidence provided by Mr Gentle and Mr Barnard does not show that those individuals are familiar with the planned location of the amalgamations, or identify with any degree of specificity the location or nature of any alleged areas or sites of particular significance on either the amalgamation areas or the existing tenements.[46] I agree with this contention.
[46] State contentions 2 at [26].
In this matter, YN PBC have failed to provide sufficient evidence to demonstrate that grant of the amalgamations is likely to interfere with areas or sites of particular significance to the native title party in accordance with their traditions.
Having regard to all the material before me, there is insufficient evidence to conclude that areas or sites of particular significance to the Yugunga-Nya people, in accordance with their traditions, exist on or in the vicinity of the amalgamation areas and are likely to be interfered with by the proposed grants. It is therefore not necessary for me to further consider the likelihood of interference by examining factors which may mitigate such likelihood.
Section 237(c): Is the grant of the amalgamations likely to cause major disturbance?
In their initial contentions relating to the grant of AM652070 (AM-E51/1960) only, YN PBC submit that the expedited procedure does not apply based on s 237(c), as there will be disturbance to land and waters of the YN PBC. However, like the ground raised under s 237(a), they provide no details as to what disturbance will occur or where, nor do they explain in sufficient detail how such disturbance will involve major disturbance.[47]
[47] NTP contentions 1 at [20].
Again, this ground does not appear to be pursued at the later stage of the inquiry, as in their supplementary contentions YN PBC makes submissions solely going to s 237(b) and appear to abandon the grounds initially raised under s 237(a) and (c).
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.[48]
[48] See Cosmos v Croydon Gold at [29]; Lungunan v Geotech International at [50].
Based on the evidence before me, and applying a commonsense approach to such evidence, I find disturbance under s 237(c) is unlikely.
Determination
The grant of amalgamations applications AM652070 (AM-E51/1960), AM657806 (AM-E51/1960), AM657807 (AM-E51/1960), and AM657616 (AM-E51/1853) to Factor Resources are acts attracting the expedited procedure.
Lisa Eaton
Member
20 September 2024
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