Yurriyangem Taam Aboriginal Corporation RNTBC v Central Pilbara North Iron Ore Pty Ltd
[2022] NNTTA 41
•7 June 2022
NATIONAL NATIVE TITLE TRIBUNAL
Yurriyangem Taam Aboriginal Corporation RNTBC v Central Pilbara North Iron Ore Pty Ltd and Another [2022] NNTTA 41 (7 June 2022)
Application Nos: | WO2021/1001 |
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 -
Central Pilbara North Iron Ore Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 7 June 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – whether act likely to interfere with the carrying on of community and social activities – act is an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) ss 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 30, 31, 141, 151, 237 |
Cases: | Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (‘Yurriyangem Taam Determination’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Walalakoo Aboriginal Corporation RNTBC and Another v Central Pilbara North Iron Ore Pty Ltd and Another [2022] NNTTA 38 (‘WAC v Central Pilbara’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) Yurriyangem Taam v Minexaus Pty Ltd and Another [2021] NNTTA 10 (‘Yurriyangem Taam v Minexaus’) |
| Representatives of the native title party: | Andrew Topfer and Maximillian Roelofsen, Kimberley Land Council |
| Representatives of the grantee party: | Joel Moss and Clare Lawrence, Ashurst |
| Representatives of the Government party: | Richard Anthonisz, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E80/5540 (licence) to Central Pilbara North Iron Ore Pty Ltd (Central Pilbara).
The State of Western Australia (State) considers the grant of the licence is an act attracting the expedited procedure under the NTA, and included a statement to that effect in a notice given under s 29 of the NTA. If the expedited procedure applies, the licence may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA.
Yurriyangem Taam Aboriginal Corporation RNTBC (Yurriyangem Taam RNTBC) holds non-exclusive native title rights in trust in relation to the whole of the licence area in accordance with the Yurriyangem TaamDetermination.
On 26 May 2021, the registered native title claimant for the Yurriyangem Taam native title determination application (WAD44/2019) (the Yurriyangem Taam Claimant), which was the relevant native title party at that time, lodged an objection to the application of the expedited procedure to the grant of the licence.
Later, on 1 July 2021, the Yurriyangem Taam Determination was entered on the National Native Title Register. At that time, Yurriyangem Taam RNTBC became a native title party with respect to the licences and a party to the objection application (ss 30(1)(b) and 141(2A) NTA). The Yurriyangem Taam Claimant is no longer a registered native title claimant for the area of the licence and has ceased to be a relevant native title party (s 30(2) NTA).
I have been directed to constitute the Tribunal to determine whether or not the expedited procedure applies to the grant of the licence. For the reasons given below, I have concluded that the grant of the licence is an act attracting the expedited procedure.
My determination is made without the need for a hearing
All parties provided material for the inquiry.
The State provided contentions together with mapping, a Quick Appraisal containing key tenement information for the licence, an Aboriginal Heritage Inquiry System (AHIS) search, a copy of the licence application together with the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) and the proposed endorsements and conditions to be imposed upon the grant of the licence.
Yurriyangem Taam RNTBC provided contentions and a reply together with a joint affidavit of Mr Bobby Cherel and Ms Helen Malo, affirmed 1 September 2021 (Joint Affidavit).
Central Pilbara provided contentions together with the affidavits of:
(a)Mr Benjamin Lamb, Legal Counsel and Tenement Officer with Hancock Prospecting Pty Ltd (Hancock), affirmed 8 October 2021 (Central Pilbara being a wholly owned subsidiary of Hancock); and
(b)Mr Peter Collings, geologist at Hancock, affirmed 7 October 2021.
Each of the parties is agreeable to the matter being determined without the need for a hearing as is permitted under s 151(2) of the NTA. Having reviewed the material, I am satisfied that I can adequately determine this matter without a hearing.
What do I need to consider to determine whether the expedited procedure applies?
Under s 237 of the NTA, a licence will only be an act attracting the expedited procedure if it 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 native title 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)).
I am required to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence (see overview of approach in Yindjibarndi v FMG at [15]).
In this case, Yurriyangem Taam RNTBC does not make any contentions in relation to major disturbance under s 237(c) and there is no basis to conclude major disturbance is likely. Accordingly, my consideration of the issues is limited to s 237(a) and (b).
Details about the licence, licence area and the activities proposed by Central Pilbara
Exploration licences under the Mining Act are granted for an initial term of five years, and may be renewed (s 61 Mining Act). Section 66 outlines the rights conferred on the holder of an exploration licence, which include the right to “excavate, extract or remove ... earth, soil, rock, stone, fluid or mineral bearing substances” up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The State’s Quick Appraisal indicates the licence is 23154.71 hectares in size, with the underlying tenure being entirely pastoral lease. The AHIS search reveals no registered sites or other heritage places on the licence area.
According to Central Pilbara’s s 58 statement for the licence, the area has the potential to host zinc, silver, lead, copper-gold (accessory), diamonds and minor uranium. The programme of work proposed by Central Pilbara for the first year broadly involves: data review and compilation; aerial photography; aerial geophysical surveys; heritage review and meetings; and logistics including travel and accommodation. Proposed expenditure for the first year is $75,000.
Mr Collings’ affidavit states that, following the acquisition and interpretation of this data, geophysical targets may be identified for further evaluation. Future work programmes would potentially involve geological field surveys and exploration drilling. He also states that Central Pilbara’s drilling methods require the clearing of access tracks and drill pads but that existing roads and tracks would be utilised as far as possible. Mr Collings further states that he “cannot foresee a situation where a drilling programme would result in the extraction of anywhere near the 1000 tonnes of material from the ground that is permitted by the Tenement” (affidavit at paragraph 10). I note this is similar to Mr Collings’ evidence recently considered in WAC v Central Pilbara. Given the limited evidence of proposed activities beyond the initial work programme, it is reasonable to proceed on the basis that Central Pilbara may avail itself of the range of rights available to it under the licence during the term. However, I accept that does not mean all rights will be exercised at all times to the full extent.
Also similar to WAC v Central Pilbara is Central Pilbara’s evidence about its preference to reach agreement with Yurriyangem Taam RNTBC, although once again, the status of any negotiations is not known. Mr Lamb’s affidavit states that, if parties are unable to reach agreement, Central Pilbara will adopt various measures so as to minimise interference including inviting comments from Yurriyangem Taam RNTBC on its proposed exploration activities and, if at a later time drilling or ground disturbing activities are proposed, seeking Yurriyangem Taam RNTBC’s involvement in a work programme clearance survey (affidavit at paragraphs 11–12).
Section 237(a) – is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
Section 237(a) is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that this involves “an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts are outside the scope of interference contemplated by the section.
Ms Malo and Mr Cherel are cousins. In the Joint Affidavit, they explain their connection to the licence area, the Aboriginal name for which is Gundawal.
They say there is good fishing in the licence area where they catch catfish, bream and barramundi and go at least three times per year in barrangga or hot weather time, camping at 6 Mile Gap on the way. Annexure BC-HM-1 to the Joint Affidavit is a map of the licence area which shows 6 Mile Gap about 3 kilometres from the most westerly point of the licence. The Leopold River runs generally in a northerly-southerly direction through the eastern side of the licence area. Ms Malo and Mr Cherel refer to the river as the life for the old people and say they camp in the licence area and cook the fish they catch. They also express concern about exploration in the river and consequential impacts on barramundi breeding and their source of food when in the licence area.
Ms Malo and Mr Cherel further depose to a number of other community and social activities undertaken in the licence area, including hunting and gathering activities and intergenerational teaching. A range of bush tucker is said to be found in the licence area including kangaroo, turkey, snake, porcupine, goanna and witchetty grub.
Annexure BC-HM-2 to the Joint Affidavit is a map of the seasons which Ms Malo and Mr Cherel say shows the types of bush tucker which can be found in the licence area including bush yam and bush tomato. Specific reference is made to bush honey in the trees in the licence area with Goads Yard being good for honey because it is flat, as well as good bush fruit being found along the Leopold River and in some of the hills. Annexure BC-HM-1 shows Goads Yard within the licence area, near to the Leopold River.
The evidence also refers to bush medicine found in the licence area (including river gum, bush gum and in the river itself through river mud), as well as white ochre found throughout the licence area.
Yurriyangem Taam RNTBC contends the evidence shows the area is accessed readily and regularly. Ms Malo and Mr Cherel state there is a good road that goes all through the licence area and, as already noted above, that they fish there in hot weather time, going to the licence area at least three times per year (Joint Affidavit at paragraphs 12 and 16). Yurriyangem Taam RNTBC contends the grant of the licence is likely to disrupt the movement habits of the wildlife and that exploration activities pose a risk to the river system through impacts on water quality. This relates to the concerns expressed by Ms Malo and Mr Cherel about impacts on barramundi breeding.
Central Pilbara argues that interference is not likely due to the nature of its planned exploration, although as I have said, there is little detail of any activities beyond the initial stages. It also contends its activities will be limited to the dry season, about May to August.
Central Pilbara says that it proposes, in any event, to notify and consult with Yurriyangem Taam RNTBC prior to conducting exploration activities but again, this is not an enforceable commitment and lacks detail (see WAC v Central Pilbara at [47]). It also notes that the concerns expressed about impacts to flora, fauna and the water quality lack specificity and its activities would be subject to the State’s endorsements and conditions.
In its contentions, the State makes a number of similar points but also argues the evidence in the Joint Affidavit is insufficient with respect to the extent to which Yurriyangem Taam People, other than Ms Malo and Mr Cherel, undertake community or social activities in the licence area. The State notes also that only a relatively small part of the Leopold River transects the licence area and points to a lack of particularity in the evidence (contentions at paragraphs 24 and 27). The activities identified may well occur in surrounding areas as well as within the licence area. That is not to the point. The issue is the extent to which the activities occur within the licence area and whether the grant of the licence is likely to interfere with those activities.
In reply, Yurriyangem Taam RNTBC contends the evidence is sufficient and clear and demonstrates the area is used “frequently and intensively, at all times of the year”.
I can accept from the evidence that hunting, gathering and teaching activities do occur from time to time in the licence area. It is the case, as the State argues, that the Leopold River extends well beyond the licence area, but Ms Malo and Mr Cherel do identify at least one specific area within the licence area, being Goads Yard.
However, the evidence of the extent to which the activities occur is limited and general and does not support Yurriyangem Taam RNTBC’s contention that the activities are frequent and intensive. While the evidence does indicate activities occur in both the wet and dry seasons, the only particular reference to the frequency of visits is to Ms Malo and Mr Cherel visiting at least three times per year for fishing.
On the basis of the evidence provided, I am not satisfied that the grant of the licence is likely to interfere directly with the community and social activities of the native title holders to the degree required for s 237(a).
Section 237(b) – is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
Section 237(b) is concerned with areas or sites of special, or more than ordinary, significance to the native title holders. Such areas or sites must also be known and be able to be located (see discussion in Yindjibarndi v FMG at [17]).
There are no registered Aboriginal sites in the licence area. However, that is not determinative for s 237(b).
Yurriyangem Taam RNTBC contends that the evidence identifies a number of areas or sites in the licence area which it says are of particular significance to it. The list of these areas or sites at paragraph 10 of the contentions differs from the way the evidence is outlined in the Joint Affidavit. Further, in its contentions, Yurriyangem Taam RNTBC groups a number of the sites or areas listed in the Joint Affidavit under the heading “Leopold River”. There are also some areas or sites in the list that are not specifically mentioned in the contentions but they are addressed in reply, in response to the State’s contentions.
I note that Central Pilbara’s contentions do not address the question of significance in relation to the areas or sites identified in Yurriyangem Taam RNTBC’s material. It instead focusses on why interference with any areas or sites found to be of particular significance is not likely.
In my consideration of the material, I have generally followed the approach taken in Yurriyangem Taam RNTBC’s contentions, highlighting any differences with the evidence and any additional arguments in reply.
Wanunuguweya
Yurriyangem Taam RNTBC contends (at paragraph 11) that Wanunuguweya (spelt Wanunguweya in the Joint Affidavit) and nearby Snake Rock are sites of particular significance, the location and significance of which are outlined in the Joint Affidavit.
In relation to these sites, Ms Malo and Mr Cherel depose as follows:
Murder’s Pool – Wimooroorroo (Murder’s Pool)
33.There’s a track that goes from 6 Mile Gap to Wimooroorroo (Murder’s Pool). There’s a snake in the river at the bottom of the Tenement Area. There’s a big hill and the snake going to the right. That big hill is called Wanunguweya.
34.There are four snakes – Jangala, joongoorra, Jawalyi, Jawandi. They are the four skin groups. Those four snakes lives in the waterholes, springs, and Leopold River all through the Tenement Area.
35.An old man killed himself there in ceremony time and there was trouble at Murder’s Pool. We need to take the Explorer there to show the Explorer and tell them where they can go.
36.Wimooroorroo was ceremony place for Gija, Gooniyandi and Jaru people. They meet there for corrobboree and exchanging at Wanunguweya.
37.There’s a big rock there, it’s a snake. It’s facing west that snake.
38.If the mining mob cut up that rock near the snake, then there will be a big flood. The mining mob will drown there.
39.That snake is connected all the way to Springvale. It goes all through the Tenement Area. It’s not just one place, that snake goes all over.
40.If they go to that area without traditional owners, they’ll wake that snake. They might not be able to get out.
41.A couple of years back with my sister, we went flying with the chopper up to GUdjgie and then over the hill where that snake is. That snake was looking at the chopper. That snake is near the river at the gap at the bottom of the Tenement Area.
42.The mining mob, they need to take us out there. They’ll get sore eyes if they don’t go out there the proper way.
(As per original)
As I have mentioned, 6 Mile Gap appears on the map at BC-HM-1 to the west of the licence area. Murder’s Pool is not marked on the map and the only apparent track or road does not go to the bottom of the licence area where the snake is said to be in the river. It is not clear whether Ms Malo and Mr Cherel are saying that Murder’s Pool and Wanunuguweya are within the licence area. Certainly the snake is said to be in the river at the bottom of the licence area. From the mapping, I assume this to be a reference to the Leopold River.
Murder’s Pool is also mentioned in relation to the evidence in respect of Goads Yard (see below at [62]). That evidence indicates Murder’s Pool is south of Goads Yard towards Margaret River. Margaret River is not shown on the mapping provided by the parties, however, from the Tribunal’s online mapping tool, Native Title Vision, Margaret River appears to join the Leopold River to the south of the licence. While that is broadly consistent with the Joint Affidavit, it does not assist in locating Murder’s Pool in the licence area.
In Yurriyangem Taam v Minexaus, the Tribunal also considered evidence about a Snake Rock. However, according to Native Title Vision, the tenement in issue in that case was located approximately 16 kilometres north-easterly of the licence. Further, the story about that particular rock does not match the evidence here, so I do not draw any particular inference from that decision.
The State argues, (contentions at paragraph 45), that there is insufficient evidence with respect to the location of these sites and their particular significance in order to satisfy the requirements of s 237(b). It says the evidence is too broad and general. Yurriyangem Taam RNTBC rejects that submission in reply at paragraph 40.
I have noted that Yurriyangem Taam RNTBC’s contentions about the sites associated with Wanunuguweya shift between its initial contentions and reply. Initially, Yurriyangem Taam RNTBC did not assert that Murder’s Pool, or Wimooroorroo, is itself an area or site of particular significance, but in reply it does (paragraph 1b). However, the particular significance of Murder’s Pool in accordance with Yurriyangem Taam tradition is not explained, nor included in the Joint Affidavit. Similarly, in the reply (at paragraph 40), Wimooroorroo is referred to as a meeting area but its association with the snake story is not explained.
Overall, there is a lack of detail in relation to the particular significance of these areas or sites in accordance with Yurriyangem Taam tradition. In its reply (at paragraph 38), Yurriyangem Taam RNTBC points to the evidence that the snake goes through all of the licence area. It contends further that the “big rock near Wanunuguweya” is just one site that is of significance, going on to say that, because the snake travelled all over and is connected all the way to Springvale, it has created an “area of significance”.
The difficulty with this submission is that it does not assist in explaining why the specific sites mentioned in the Joint Affidavit are of more than ordinary significance compared to the balance of the licence area. Nor, to the extent it is the intent, does it identify any larger “area of significance” or explain why the whole of the licence area is an area of particular significance due to its association with the snake or snakes.
The evidence is also insufficiently clear for me to be satisfied of the location of each of Murder’s Pool, Snake Rock and Wanunuguweya in the licence area. Unlike the evidence in Yurriyangem Taam v Minexaus, none of the locations are marked on the map at BC-HM-1 and the mapping does not otherwise assist.
On the basis of the evidence provided, I am unable to conclude that these are sites or areas of particular significance within the licence area within the scope of s 237(b).
The Leopold River
Yurriyangem Taam RNTBC contends that the evidence identifies a number of features in the vicinity of the Leopold River which are themselves of particular significance and also show the particular importance of the river itself. It contends that the particular importance of the river is further demonstrated in its identification with the four snakes as explained at paragraph 34 of the Joint Affidavit (see extract above at [40]).
The sites in the vicinity of the river include burial sites, massacre sites, painting sites and birthing sites. The Joint Affidavit deals with each of these types of sites separately, but in the same general way. The evidence is broadly that there are burial sites throughout the licence area (including in caves along the river) and that there are massacre sites, painting sites and birthing sites along the river. Further, Yurriyangem Taam RNTBC contends that the number of artefacts scattered throughout the licence area means that any ground disturbing activities are likely to cause interference.
The State argues (at paragraph 62) that this evidence lacks detail on the number or precise location of these sites. It also argues the evidence regarding the Leopold River itself is too broad and general, noting the majority of the river extends well beyond the licence area and there is nothing in the evidence that identifies this particular segment of the river as being particularly significant, and that no waterholes or springs have been identified with sufficient particularity (contentions at paragraph 67).
In reply, Yurriyangem Taam RNTBC contends that it does not see how the disclosure of these sites will assist Central Pilbara in its exploration, although that is not the issue here. The question is whether the evidence is sufficient for me to find that such sites are known and located in the licence area. Yurriyangem Taam RNTBC points out that the Tribunal has previously found otherwise compelling evidence can overcome a lack of precise location (reply at paragraph 45).
However the evidence here is not otherwise compelling. It is too general and broad to enable me to make any specific finding with respect to these sites. Similarly for the Leopold River, the evidence does not sufficiently explain why it is of particular significance in accordance with Yurriyangem Taam tradition. In its reply, Yurriyangem Taam RNTBC explains that all waterways and rivers are important, which speaks more to the general significance of country rather than the particular, or more than ordinary, significance of an area or site as required by s 237(b).
Gangari Songline (and artefact scatter)
Ms Malo and Mr Cherel say (at paragraph 43) that there is a Gooniyandi songline “all through” the licence area. In this context, they also refer to the trading of spearheads by the old people and say you can still see the spearheads all through the licence area.
Yurriyangem Taam RNTBC includes both the songline and the artefact scatter in its list of sites and areas of particular significance at paragraph 10 of its contentions. No specific contention is made with respect to the songline but Yurriyangem Taam RNTBC addresses the artefacts in the context of the Leopold River, which I have already addressed above.
In its contentions (at paragraphs 53–54), the State accepts that artefacts may be of special or more than ordinary significance but argues the evidence is too broad and general. While additional arguments are raised by Yurriyangem Taam RNTBC in reply, they do not address the particular significance of this songline or any location in the licence area associated with it. Rather, the arguments focus on the information about Wimooroorroo and the significance of the area as a whole.
On the evidence available, I am unable to make any specific finding in relation to the particular significance of this songline or sites associated with it.
Crocodile Dreaming
Reference is also made to a crocodile Dreaming through the licence area. Ms Malo and Mr Cherel say “[t]his is a very strong story with the snake serpent” which “went everywhere”.
Again, this Dreaming was not specifically addressed in Yurriyangem Taam RNTBC’s primary contentions and the arguments in reply rely on the entirety of the evidence rather than specifically addressing this Dreaming.
I am therefore unable to make any specific finding in relation to the particular significance of this Dreaming or any sites associated with it.
Goads Yard
Under the heading “Goads Yard”, Ms Malo and Mr Cherel say (at paragraphs 47–48):
47.Me and Bobby been at Goads Yard.
48.The Leopold River is a landmark for the old people. They used to follow the river down and the main camp was at Murder’s Pool before going back to Margaret River.
(As per original)
Yurriyangem Taam RNTBC addresses this evidence only in the context of the Leopold River, which I have already discussed above. There is no specific evidence on which to conclude Goads Yard is itself an area or site of particular significance in accordance with the native title holders’ tradition.
Conclusion
On the evidence provided, I am unable to make any findings in relation to any sites or areas of particular significance for s 237(b). It is therefore not necessary for me to consider the question of likely interference from the grant of the licence.
It of course remains open to Central Pilbara and Yurriyangem Taam RNTBC to continue their negotiations towards a heritage agreement.
Determination
I determine that the grant of exploration licence E80/5540 is an act attracting the expedited procedure.
Nerida Cooley
Member
7 June 2022
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