Yurriyangem Taam Aboriginal Corporation RNTBC v Celsius Resources Limited
[2022] NNTTA 63
•7 October 2022
NATIONAL NATIVE TITLE TRIBUNAL
Yurriyangem Taam Aboriginal Corporation RNTBC v Celsius Resources Limited and Another [2022] NNTTA 63 (7 October 2022)
Application No: | WO2021/1489 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yurriyangem Taam Aboriginal Corporation RNTBC (WCD2019/006)
(native title party)
- and -
Celsius Resources Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT is not AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Melbourne |
Date: | 7 October 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – consideration of s 237(b) whether act likely to interfere with sites or areas of particular significance – use of Australian Heritage Council report in support of assertions – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 151, 237 Mining Act 1978 (WA) s 66 Mining Regulations 1981 (WA) reg 20 Aboriginal Heritage Act 1972 (WA) |
Cases: | Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182 (FMG v Yindjibarndi) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia (2015) 233 FCR 96; [2015] FCA 560 (Hale v WA) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (Yurriyangem Taam v Western Australia) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC and FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Scott Howieson, Kimberley Land Council |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety David Reger, State Solicitor’s Office |
REASONS FOR DETERMINATION
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E80/5117 to Celsius Resources Limited (Celsius/grantee party). The notice for the proposed licence included a statement that the grant is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts the grant of the licence is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those holders (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)).
On 1 July 2021, native title was found to exist on a non-exclusive basis for the native title party, Yurriyangem Taam (over an area which includes the proposed licence) in the Federal Court decision of Yurriyangem Taam v Western Australia. Yurriyangem Taam lodged an objection against the State’s expedited procedure statement, and during the inquiry they asserted that the statement should not apply on account of s 237(b) of the Act. Yurriyangem Taam did not assert s 237(a) or (c) applied to this inquiry and based on a common sense view of the evidence, I could not say there would be interference or major disturbance in accordance with those limbs of s 237. As such, the focus of this decision is s 237(b) of the Act.
If the expedited procedure is held to apply, the proposed licence may be granted without first requiring negotiation in good faith under s 31(1)(b) of the Act. The proposed licence is over 654 square kilometres in size, with non-exclusive native title rights and interests held by Yurriyangem Taam over 0.26 per cent of the area (just under 2 square kilometres). I must consider that the scope of an expedited procedure objection inquiry is not restricted to the area overlapped by the objector’s native title claim or determination, but take into account the whole area specified in the s 29 notice (see Hale v WA at [103]-[113]).
An objection was made by the Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC, who hold exclusive and non-exclusive native title rights and interests over the remaining portion of the proposed licence. That objection application was subsequently withdrawn, and so does not form part of this inquiry.
I have been directed to constitute the Tribunal in order to determine whether or not the expedited procedure applies to the grant of the proposed licence. Celsius did not provide any materials for the inquiry, and no party communicated any exception to this matter being determined on the basis of the materials provided. Having reviewed that material, I am satisfied I can adequately determine this matter without the need for a hearing (see s 151(2) of the Act). For the reasons outlined below I have concluded that the expedited procedure does not apply.
Party materials provided for the Inquiry
Yurriyangem Taam provided a reply to the States materials, as well as: initial contentions; the affidavit of native title holder Wallace Midmee; the Commonwealth of Australia Gazette No. S132, 31 August 2011 showing the inclusion of the ‘West Kimberley’ on the National Heritage List; the Australian Heritage Council’s final assessment of national heritage values of the West Kimberley (the Report).
I note the proposed licence is wholly within the boundary of the National Heritage Listed area of the West Kimberley, according to the State’s Tengraph. That is not particularly persuasive, as that area is vast. What is more compelling is the reference within the Report to areas which form part of this inquiry asserted to be of particular significance, which are on the proposed licence. These include part of the Hann River and Police Valley. Yurriyangem Taam contend (at 13) the Hann River is a tributary of the Fitzroy River, and the Report supports that assertion. I provide more consideration of these areas below.
Areas which are not within the proposed licence, according to party mapping, but which are asserted in the Yurriyangem Taam evidence as being of particular significance, include: Pelican Yard; Middle Yard; and Box Hole Yard. These areas do not appear to feature in the Report, and I also consider these areas below.
The State provided contentions and evidence in the inquiry including:
·Mapping;
·a Tengraph Quick Appraisal;
·searches and mapping from the Aboriginal Heritage Inquiry System (AHIS) which shows one recorded site (ID 22839) ‘Boab Tree’ which is in the eastern area of the proposed licence; and
·the draft endorsements and conditions which the State intends to apply to the grant of the proposed licence.
The State also provided a copy of the Celsius proposed licence application, which indicated the program of works for the first three years would cost approximately $800,000. Celsius states in the application (emphasis added) that the ‘objective of the program of work is to test the whole of the land subject to the application for... mineralisation’. They indicate they will look at historical data for the area, including ‘acquisition and interpretation of airborne geophysical data, geological mapping and reconnaissance, and regional soil/rock chip sampling programs’. They will then ‘generate drill targets for testing using the Reverse Circulation (RC) and diamond drilling (DD) methods’.
The State note (at 15) in the absence of materials from the explorer, it is open to the Tribunal to assume the grantee party will undertake the full scope of activity to which it is entitled, under the grant of an exploration licence as set out in s 66 of the Mining Act 1978 (WA):
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 (WA) outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
I have made the assumption that Celsius is likely to exercise the full suite of rights available to them, and make my assessment of s 237(b) on the basis that they will not breach the regulatory regime of the State.
Is the grant of the proposed licence likely to interfere with areas or sites of particular significance to Yurriyangem Taam?
Having been appointed to determine this matter, I must look at what is likely to result from the grant of the licence and decide whether there is material to support a real chance, or risk of the interference outlined in s 237 of the Act (see Yindjibarndi v FMG at [15]). I must have regard to the rights conferred by the grant, the nature of the proposed grant and the applicable regulatory regime (see Walley v Western Australia).
Specifically in relation to my consideration of s 237(b), I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at 34-35).
·To be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91]).
·If I am satisfied the site or area is of particular significance, I must analyse carefully the potential interference, because of the importance it has to the native title holders. The nature of the site or area, the nature of the potential interference and the laws and traditions of the native title holders are relevant considerations (Silverv Northern Territory at [88]).
·Even slight or apparently non-trivial interference may be unacceptable (FMG v Yindjibarndi at [64]-[76])
·There must be a real chance or risk of interference with the site or area, not just a possible chance (Smith v Western Australia at [23]).
·I will give weight to the State’s heritage and regulatory regime (Walley v Western Australia at [11]).
Relying on the Report, contentions, reply and the evidence of Mr Midmee, Yurriyangem Taam argue there are a number of areas or sites of particular significance:
·The Hann River
·Living water at Police Valley
·Living water at Pelican Yard
·Burial site near Middle Yard near a Boab tree
·Burial site near Box Hole Yard
I consider each of these areas, including whether or not they are of particular significance for the purposes of this inquiry, and if so, whether or not they are likely to suffer from interference contemplated in s 237(b) of the Act. I have grouped the sites and areas into those which are on the proposed licence, and those which are either not apparently on the proposed licence or are on the proposed licence but I have concluded they are not of particular significance.
The Hann River and living water at Police Valley – areas on the proposed licence
The State argue (at 28-29, 32) that the evidence provided in relation to the Hann River and Police Valley is ‘very general and non-specific’. The State argue that Mr Midmee has not specifically referenced the Hann River as being of ‘particular significance’, although they do accept parts of the Hann River and Police Valley intersect with the proposed licence. I do not believe a native title party needs to specifically say a place is of ‘particular significance’, for it to be of particular significance. That conclusion is drawn from the evidence and materials provided, which draws an overall picture of an area and its significance to the native title party according to traditions.
Mr Midmee refers to his familiarity with the Hann River (at 6 and 8), and that Police Valley is a place with ‘living water’ (at 10). The Yurriyangem Taam contentions also rely on the Report, which explains the significance of the Hann River (at page 174), its creation story (in relation to the Rainbow Serpent), and the significance of the River in relation to the creation story. The ‘West Kimberley National Heritage Assessment – Values Table’, which is attached to the Report, outlines (at 12) how the Hann River is an exemplar of the Rainbow Serpent tradition. Yurriyangem Taam contentions explain (at 10) that ‘living water’ is a phrase ‘commonly used by Aboriginal People in the Kimberley to describe bodies of water that are particularly significant’. This is consistent with the Report.
On the basis of this matrix of evidence, I conclude the Hann River and area of Police Valley are of particular significance to the native title party. I must, therefore, consider whether or not exploration activities are likely to interfere with these areas.
Yurriyangem Taam contend (at 18) that interfering with certain water sources, including tributaries of the Fitzroy River such as the Hann River and ‘living water’ sources would interfere with their traditional law and customs. Mr Midmee (at 14-15) outlines consequences of not being in accord with native title party traditions when on country. I note that Celsius has indicated it intends to explore the whole of the proposed licence area.
The States materials show the following endorsements it intends to impose on the grant in relation to waterways which may be associated with the Hann River:
In respect to Proclaimed Surface Water Areas (Fitzroy River and Tributaries) and Rivers (RIWI Act) the following endorsements apply:
12 The taking of surface water from a watercourse or wetland is prohibited unless a current licence has been issued by the Department of Water and Environmental Regulation (DWER).
13 Advice shall be sought from the Department of Water and Environmental Regulation (DWER) and the relevant water service provider if proposing exploration activity in an existing or designated future irrigation area, or within 50 meters of a channel, drain or watercourse from which water is used for irrigation or any other purpose, and the proposed activity may impact water users.
14 No exploration activity is to be carried out if:
· it may obstruct or interfere with the waters, bed or banks of a watercourse or wetland
· it relates to the taking or diversion of water, including diversion of the watercourse or wetland
unless in accordance with a permit issued by the Department of Water and Environmental Regulation (DWER).
As such, there is nothing in relation to communications with a native title party regards water, and the explorer is only bound to seek a permit from the relevant State department.
The Yurriyangem Taam reply argues (at 14) that Diamond and RC Drilling can involve a significant clearance of vegetation and significant ground disturbance. They go on to assert (at 15) that ‘there is a likelihood, in the sense that there is a real and not remote chance or possibility, that if the Grantee Party plans and executes its Diamond and RC Drilling programs in the absence of prior consultation with the NTP, that Diamond and RC Drilling will occur in the areas of “living water” identified in the Midmee affidavit’. There is nothing from Celsius to counter this argument.
As noted in FMG v Yindjibarndi (at [64]-[76]), even slight interference may be unacceptable for the purposes of s 237(b). On the basis of the available evidence, I conclude these areas of particular significance to the native title party are likely to be interfered with by activities of the explorer.
Living water at Pelican Yard, Burial site near Middle Yard near a Boab tree, Burial site near Box Hole Yard – areas which are either not on the proposed licence or which are not of particular significance
I accept that due to its association with living water, the area of Pelican Yard is of particular significance, for the reasons outlined at [16] and [18] above. I also accept that specific people are buried near Middle Yard and Box Hole Yard and they are sites of particular significance to the native title party.
I note there is a Boab Tree recorded on the AHIS - while the Report notes Boab trees can be associated with burial sites, no such assertion is made about that AHIS site. As such, I could not say it was a site of particular significance to the native title party.
The areas of Pelican Yard, Middle Yard and Box Hole Yard are clearly located on mapping provided by parties, and are shown to be some distance from the proposed licence. The State argues (at 62) that Yurriyangem Taam has not identified a clear nexus between activities likely to be undertaken by Celsius on the proposed licence, and any potential interference with sites. I accept that argument, and have concluded that exploration activity on the proposed licence is unlikely to cause interference to these sites of particular significance.
Determination
I find the grant of proposed exploration licence E80/5117 to Celsius Resources Limited is not an act attracting the expedited procedure.
Helen Shurven
Member
7 October 2022
0
9
0