Yugunga-Nya Native Title Aboriginal Corporation RNTBC v M61 Holdings Pty Ltd
[2024] NNTTA 51
•24 July 2024
NATIONAL NATIVE TITLE TRIBUNAL
Yugunga-Nya Native Title Aboriginal Corporation RNTBC v M61 Holdings Pty Ltd and Anor [2024] NNTTA 51 (24 July 2024)
Application No: | WO2022/0839 |
IN THE MATTER of an inquiry into an expedited procedure objection application
Yugunga-Nya Native Title Aboriginal Corporation RNTBC (WCD2021/008)
(native title party/YN PBC)
- and -
M61 Holdings Pty Ltd
(grantee party/M61 Holdings)
- and -
State of Western Australia
(State)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Member Lisa Eaton |
Place: | Perth |
Date: | 24 July 2024 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with areas of particular significance – amended Aboriginal heritage act in Western Australia – insufficient evidence – act is an act attracting the expedited procedure |
Legislation: | Aboriginal Cultural Heritage Act 2021 (WA) (ACHA) Aboriginal Heritage Act 1972 (WA) s 18 (AHA) Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) (Repeal Act) Native Title Act 1993 (Cth) ss 29, 30, 32, 237 (the Act) |
Cases: | Ashwin and Others on behalf of the Wutha People v Encounter Resources Ltd and Another [2014] NNTTA 86 (Wutha v Encounter) 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) 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 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) Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 (Wanjina-Wunggurr v Braeburn) 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: | Domhnall McCloskey, State Solicitor’s Office Jake Lincoln, Department of Energy, Mines, Industry and Safety Regulation |
REASONS FOR DETERMINATION
This is a decision about whether the expedited procedure described in s 237 of the Act applies to the grant of an exploration licence[1] to M61 Holdings.
[1] E 51/2073 (licence).
Under s 29 of the Act, the State gave public notice of its intention to grant the licence and included a statement that it considers the proposed grant is a future act attracting the expedited procedure.
The proposed licence falls 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,[2] YN PBC lodged an objection to the State’s inclusion of the expedited procedure statement.
[2] See s 30 of the Act.
Unfortunately, consideration of this matter was caught up in the proposed changes to the Aboriginal heritage regime operating in Western Australia. During the conduct of this inquiry 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 the impact of these changes on 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,[3] I must undertake a predictive assessment by considering the likely consequences arising from the grant of the licence.
[3] See s 32(4) of the Act.
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:[4]
(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;
(f)the Tribunal must consider the evidence provided in a particular matter to decide whether the protective regime is adequate in that case.
[4] FMG v Yindjibarndi at [13].
YN PBC do not make any contentions in relation to s 237(a) or (c) and there is no information or evidence before me supporting a conclusion that interference of the kind outlined in s 237(a) or s 237(c) is likely.
YN PBC do however contend that the grant is likely to interfere with an area of particular significance to the Yugunga-Nya people, and on that basis, it is not an act attracting the expedited procedure under s 237(b). As such, this decision focuses on
s 237(b).For the reasons outlined below, my determination is that the grant of the licence is an act attracting the expedited procedure. In short, I have reached this decision as, based on the limited evidence before me, I am not satisfied that the grant of the licence is likely to interfere with the carrying on of relevant community or social activities, or areas or sites of particular significance, nor is it likely to involve major disturbance to the land or waters concerned.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title party, in accordance with their traditions?
Are there areas or sites of particular significance to the Yugunga-Nya people 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.[5]
[5] See Cheinmora v Western Australia at 34-35.
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.[6]
[6] Wanjina-Wunggurr v Lucky Break Operations at [21].
The relevant principles for consideration of s 237(b) were summarised in Yindjibarndi v FMG:[7]
(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.
[7] Yindjibarndi v FMG at [17].
YN PBC’s evidence includes:
(a)contentions;[8]
(b)an unsigned and undated statutory declaration of Andrew Gentle Snr;[9]
(c)a statutory declaration of Angie Maree Underwood, lawyer and employee of YN PBC, explaining how she took the statement of Mr Gentle on 12 May 2023 and was instructed to lodge it with the Tribunal for the purposes of this inquiry;[10]
(d)a statutory declaration of Leonard (Jeff) Barnard;[11]
(e)a reply;[12] and
(f)a further statement of contentions addressing the impact of the changes to the AHA.[13]
[8] Native title party contentions dated 15 May 2023 (NTP contentions).
[9] Statutory declaration of Andrew Gentle Snr, common law holder, unsigned and undated.
[10] Statutory declaration of Angie Maree Underwood, lawyer and employee of YN PBC, dated 15 May 2023.
[11] Statutory declaration of Leonard (Jeff) Barnard, common law holder, dated 5 May 2023.
[12] Native title party reply dated 30 June 2023 (NTP reply).
[13] Submissions concerning the repeal of the Aboriginal Cultural Heritage Act 2021 (WA) dated 20 December 2023.
I accept that Mr Gentle and Mr Barnard are both Yugunga-Nya common law holders and have authority to speak for the license area. Their 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 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 all parties have already had the benefit of considering and commenting on the restricted evidence.
The State’s more relevant evidence included a search of the Aboriginal Cultural Heritage Inquiry System (ACHIS);[14] a set of Endorsements and Conditions to be applied to the proposed licence upon grant and an extract of the Application for Mining Tenement;[15] contentions;[16] and further contentions addressing the changes to the AHA.[17]
[14] ACHIS search dated 6 December 2023.
[15] Department of Mines, Industry Regulation and Safety inquiry documents dated 19 July 2022.
[16] State contentions dated 15 June 2023 (State contentions).
[17] State further contentions dated 13 December 2023.
M61 Holdings provided a statement of contentions,[18] an affidavit of Anthony Brendon Goddard the sole director of M61 holdings,[19] and a further statement of contentions addressing the impact of the changes to the AHA.[20]
The Area
[18] Grantee party statement of contentions dated 7 June 2023 (GP contentions).
[19] Affidavit of Anthony Brendon Goddard, sole director, dated 26 May 2023 (ABG affidavit).
[20] Statement of Contentions in accordance with Direction 1 made on 7 July 2023, dated 8 August 2023.
YN PBC contend that the proposed licence area is within the spiritual centre of Yugunga-Nya country, and that such an area is an area of particular significance.[21] The native title party refers to the spiritual centre as ‘the Area’ throughout its evidence and I have adopted the same term for the purpose of this decision.
[21] NTP contentions at [10].
The mere assertion that an area or site has particular significance carries little weight. What is required is the nature of its significance must be explained to the Tribunal, and it must be known and able to be located. Significant detail or specificity is not required, however more than a superficial reading of the evidence must be undertaken.[22]
[22] Wanjina-Wunggurr v Braeburn at [42]-[43].
At the outset, I note the evidence from the native title party going to the matters I must consider under s 237(b), is lacking in detail and explanation.
Mr Gentle’s restricted evidence addresses the location of the Area. Some of this evidence is also separately set out in the contentions and reply of the native title party. YN PBC contends the evidence states that 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.[23] I note the location of the Area is identified only by its proximity to Yagahong Hill and not by topographical or geographical markers. This suggests the particular significance lies with Yagahong Hill and not the 20 or so kilometres around it.
[23] NTP reply at [9].
Similarly, Mr Gentle’s restricted evidence regarding the nature of the significance of the Area is linked 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. The particular significance of the Area itself is not sufficiently explained.
Mr Barnard’s restricted evidence also addresses the location and nature of the Area and attaches a map identifying the Area by a marked blue boundary. Again, this evidence is set out and summarised in the contentions and reply of the native title party. I note the Area, as identified on the map by the native title party, is very large. Using the scale on the map, the Area appears to be approximately 50 kms wide by approximately 50 kms in length, and overlaps several current objection applications, existing grants, and registered Aboriginal sites and Other Heritage Places.
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. Nor does the evidence explain how the track of the story extends in location from Yagahong Hill to such a large area of some 100 kilometres squared, nor how the entirety of that large area is of special or more than ordinary significance to the native title holders in accordance with their traditions.
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.[24] The evidence before me fails to do this sufficiently.
Evidence of the other parties
[24] See Top End v Green Critical Minerals at [32]; YNPAC v Border Exploration at [22].
Often referred to as the presumption of regularity, 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.[25]
[25] See Walley v Western Australia at [11].
In relation to this presumption, I note that when assessing the facts and evidence before me and making my predictive assessment I must assess whether interference is likely even where the presumption is found to apply. 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). I also note that the presumption can be displaced where there is evidence before me of previous conduct or intention. In this matter, there is no evidence before me to displace the presumption.
M61 Holdings contend they are willing to enter into a heritage protection agreement with the native title party in the form of a regional standard heritage protection agreement, whilst noting that the evidence provided by the State shows that there are no registered Aboriginal sites or Other Heritage Places within the licence area.[26] 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, however the weight to be given to those matters will depend on the overall circumstances.[27]
[26] GP contentions at [16], [24], [30]-[31]. See also ABG affidavit at [13].
[27] See Yindjibarndi v FMG at [32] citing Champion v Western Australia at [29]-[35].
M61 Holdings contends that YN PBC has not provided specific details and particularity of the areas of cultural significance within or in close vicinity to the licence. The grantee says that the evidence of the native title party contains general statements not enabling the Tribunal to make a considered decision under s 237(b).[28] M61 Holdings also contends that specific evidence is required to enable assessment of interference under s 237(b).[29]
[28] GP contentions at [54].
[29] Ibid at [55].
Adopting a similar position, the State contends that the evidence provided by the native title party does not identify with any degree of specificity the location or nature of any areas or sites of particular significance on the licence area.[30]
[30] State contentions at [23].
For the reasons set out above, I agree with the contentions made by both the State and the grantee that sufficient detail regarding the location of, and the nature of the particular significance of, the Area has not been provided.
The State further contends that the evidence provided by Mr Barnard and Mr Gentle does not show that they are familiar with the planned location of the licence.[31] YN PBC dispute this in their reply, however the evidence YN PBC points to does not demonstrate that the precise location of the licence area is known and was identified by the witnesses.[32] I do note the map attached to Mr Barnard’s statement shows various tenements, including the proposed licence, however he makes no specific reference to the licence area itself when discussing the map or otherwise.
Insufficient evidence
[31] Ibid.
[32] NTP reply at [9].
Unfortunately, the evidence provided by YN PBC was of limited assistance to my consideration of this matter. Unhelpfully, the evidence of the native title party did not specifically address the proposed licence area or contain the specificity required. Without such information or evidence, I am unable to make a predictive assessment that what is likely to occur offends the requirements of s 237.
Whilst I accept the Area is of importance to the native title party, to enable me to be satisfied that the entirety of the large area is of particular or more than ordinary significance I would need evidence explaining, in sufficient detail, the nature of the significance of the entire area in accordance with Yugunga-Nya traditions. The evidence before me does not do so, and I am unable to conclude the Area is an area or site of particular significance to the Yugunga-Nya people in accordance with their traditions.
Explaining the significance of the Area by reference to the importance of an existing registered site, in this case Yagahong Hill, is not of itself enough. Particularly, when such a site is not overlapped by or in the vicinity of the licence area itself. It is also not enough to assert the vast Area is linked to a creation or dreaming story without further particularisation.
An unfavourable inference may be drawn on an issue where a party has failed to produce evidence on which a decision must be based, particularly where the facts are, or ought be, within the knowledge of the particular party who has failed to lead evidence. Such an unfavourable inference will not be drawn because of the application of any evidential onus of proof, but by the application of a ‘common sense approach to evidence’.[33] In this matter I have applied a common sense approach to the evidence.
[33] Ward v WA at [26].
Having regard to all the material before me, there is insufficient evidence to conclude areas or sites of particular significance to the Yugunga-Nya people, in accordance with their traditions, exist on or in the vicinity of the licence area and are likely to be interfered with by the proposed grant. It is therefore not necessary for me to further consider the likelihood of interference by examining evidence of the grantee’s intentions and the impact of the applicable regulatory regime, as factors which may mitigate the likelihood of interference.
Consideration of sub-sections 237(a) and 237(c)
In this matter, YN PBC do not make any contentions in relation to s 237(a) and there is no evidence before me which indicates the grant of the licence is likely to directly interfere with the native title party’s community and social activities.
YN PBC also do not make any contentions in relation to s 237(c), and there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to any of the land or waters concerned.
The Tribunal takes a common sense approach to evidence and parties exercising evidentiary choice.[34] In this matter, I am unable to find there is any likelihood of interference under s 237(a) or s 237(c).
[34] See Nyamal v Gardner at [5] citing Ward v Western Australia at [26].
Determination
The grant of exploration licence E 51/2073 to M61 Holdings is an act attracting the expedited procedure.
Lisa Eaton
Member
24 July 2024
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