Yurriyangem Taam Aboriginal Corporation v Kimberley Metals Group Pty Ltd
[2021] NNTTA 39
•21 July 2021
NATIONAL NATIVE TITLE TRIBUNAL
Yurriyangem Taam Aboriginal Corporation v Kimberley Metals Group Pty Ltd & Another [2021] NNTTA 39 (21 July 2021)
Application No: | WO2019/0361 |
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 (WCD2019/006)
(native title party)
- and -
Kimberley Metals Group Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 21 July 2021 |
Catchwords: | Native title – future act – amalgamation application – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – expedited procedure applies |
Legislation: | Aboriginal Heritage Act 1972 (WA) Native Title Act 1993 (Cth) ss 29, 30, 31, 141, 151, 237 Mining Act 1978 (WA) ss 67A, 57 |
Cases: | 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) Jessell on behalf of the Goorring Native Title Claimants v State of Western Australia [2018] FCA 2047 (Jessell v Western Australia) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (Yurriyangem Taam Determination) 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) |
| Representatives of the native title party: | Andrew Topfer, Kimberly Land Council |
| Representative of the grantee party: | Stuart House, House Legal |
| Representatives of the Government party: | Karess Dias, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
Kimberley Metals Group Pty Ltd (KMG) holds exploration licence E80/2389-I and an adjacent prospecting licence, P80/1749-I. KMG has applied under the Mining Act 1978 (WA) (Mining Act) to amalgamate the prospecting licence with the exploration licence, the effect of which would be to amend the exploration licence to include the land subject to the prospecting licence.
The State of Western Australia (State) considers the grant of KMG’s amalgamation application (amalgamation) is an act attracting the expedited procedure under the Native Title Act 1993 (Cth) (NTA), and included a statement to that effect in a notice given under s 29 of the NTA. If the expedited procedure applies, the amalgamation may be done without first requiring negotiation in good faith under s 31(1)(b) of the NTA.
At the time of the State’s s 29 notice the amalgamation was situated partly within the area of the Yurriyangem Taam native title determination application (WAD44/2019) On 16 May 2019, the registered native title claimant for the Yurriyangem Taam native title determination application (WAD44/2019) (Claimant) lodged an objection against the State’s expedited procedure statement.
I have been directed to constitute the Tribunal in order to determine whether or not the expedited procedure applies to the amalgamation. For the reasons outlined below I have concluded that the expedited procedure applies.
There has been a change to the native title party to this inquiry
On 23 May 2019, after lodgement of the objection, the Federal Court made a determination of native title in relation to the Yurriyangem Taam native title determination application (see Yurriyangem Taam Determination). The Yurriyangem Taam Determination took effect on 1 July 2021 and is now entered on the National Native Title Register.
Yurriyangem Taam Aboriginal Corporation (Yurriyangem Taam) which holds the native title in trust is now the registered native title body corporate for the determination area which includes part of the amalgamation area.
As a consequence:
(a)Yurriyangem Taam has become a native title party in relation to the amalgamation application (s 30(1)(c) NTA);
(b)the Claimant has ceased to be a native title party (s 30(2) NTA); and
(c)
Yurriyangem Taam has replaced the Claimant as a party to this inquiry
(s 141(2A) NTA).
Yurriyangem Taam has adopted the contentions and evidence submitted to this inquiry by the Claimant.
My determination is made without the need for a hearing
The State has provided contentions and evidence in the inquiry including:
(a)mapping;
(b)a Tengraph Quick Appraisal containing details about the amalgamation;
(c)two searches of the Aboriginal Heritage Inquiry System, one for the area of E80/2389-I and one for the area of P80/1749-I, being the amalgamation area. (AHIS searches);
(d)a copy of KMG’s amalgamation application; and
(e)the endorsements and conditions which apply to E80/2389-I (which would also apply in the amalgamation area post-amalgamation).
KMG provided contentions, although they appear to be in a draft form.
Yurriyangem Taam relies on contentions and a supporting anthropological report by Justin Lincoln, a senior anthropologist with the Kimberley Land Council (Report). There were no contentions in reply. The Report states that it is based solely on desktop research. It relies heavily on previous reports but also references Mr Lincoln’s field notes of interviews with native title holders (Report at 6).
All parties agree to this matter being determined on the basis of the material provided and, having reviewed that material, I am satisfied I can adequately determine this matter without the need for a hearing (s 151(2) NTA).
What do I need to consider to determine whether the expedited procedure applies?
Under s 237 of the NTA, the amalgamation 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 amalgamation 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 amalgamation area (s 237(c)).
The accepted approach to s 237 is summarised in Yindjibarndi v FMG at [15]. The Tribunal’s role is 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 amalgamation.
In this case, Yurriyangem Taam asserts that the amalgamation is likely to cause interference within the scope of ss 237(a) and (b) and I have considered that likelihood in more detail below. No contention is made regarding major disturbance under
s 237(c) and there is nothing in the material to indicate such disturbance is likely.
Details of the amalgamation
As I have already noted, KMG seeks to amalgamate P80/1749-I with E80/2389-I. The various maps provided by the parties show that the amalgamation area is a narrow strip of land (about 200 metres wide) abutting three sections of the southern boundary of E80/2389-I.
KMG explains the background to the amalgamation application as follows:
6. The Application has been made to amalgamate a narrow prospecting licence that was applied for when the datum by which graticular blocks were based moved from the Australian Geodetic Datum 1984 (ADG84) to the Geocentric Datum of Australia 1994 (GDA94) resulting in a graticular block shift of approximately 200m to the south west. This in turn resulted in narrow gaps in tenement holdings, corresponding to the datum shift, which in turn led to the need to apply for narrow prospecting licences to secure such gaps and resultant applications to amalgamate such areas, one of which is the subject Application.
7. The Amalgamation is not required for KMG’s ongoing exploration or mining other than to maintain continuity of its tenure. KMG has, as a result, no present intention to explore within, or carry out any mining on the area of the Application.
KMG’s amalgamation application is made under s 67A of the Mining Act which permits the amalgamation of what are called ‘secondary tenements’ with an exploration licence in a number of circumstances. One of the permitted circumstances is where both tenements are held by the same person, as is the case here. However, by definition a secondary tenement (which may in some cases include part of a tenement) must be situated “within the boundaries” of the relevant exploration licence.
The State contended (at 10) that P80/1749-I is a secondary tenement as it is situated wholly within the boundaries of E80/2389-I. On the face of the mapping that does not appear to be the case, because P80/1749-I is shown as adjacent to E80/2389-I. This follows given, as explained by KMG, the objective of P80/1789-I was to secure tenure to a ‘gap’ in its tenement holdings.
However, under s 57(2f) of the Mining Act, where the land subject to an exploration licence includes part of a block (as E80/2389-I does), the boundaries of the land subject to the exploration licence are deemed to be the same as the boundaries of the block for the purposes of section 67A. In response to a query from the Tribunal, the State provided supplementary mapping which shows that P80/1749-I is situated wholly within the boundaries of the blocks subject to E80/2389-I. Accordingly, for the purposes of s 67A, P80/1749-I is situated wholly within the boundaries of E80/2389-I.
The Tengraph Quick Appraisal provided by the State shows that the amalgamation area is 135.45 hectares and the underlying land tenure is the Glen Hill pastoral lease. It also reveals that, in addition to P80/1749-I, KMG holds a number of other tenements which include parts of the amalgamation area, being general purpose lease 80/18 and two miscellaneous licences 80/55 and 80/60.
Predictive assessment for s 237
Is the amalgamation likely to interfere directly with Yurriyangem Taam’s 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.
Relying on the Report at 13-15, Yurriyangem Taam contends that the evidence establishes that members of Yurriyangem Taam regularly access the amalgamation area to:
(a)pick Minjarra (black plum);
(b)collect bush medicine from the Guriny tree;
(c)collect white ochre to trade and to conduct men’s law ceremonies; and
(d)practice men’s law.
However, that contention overstates the extent of the Report. The Report relies on the Yurriyangem Taam Determination and includes three examples of activities for
s 237(a), only one of which relates directly to the amalgamation area.
I note that a reference in the Report to the ‘Exploration Licence’ is a reference to AM-E80/2389-I, being the amalgamation. While my inquiry concerns the whole of the amalgamation area (see Hale at [119]), the Report also distinguishes that part of the amalgamation area (being approximately 1.1 square kilometres) subject to the Yurriyangem Taam Determination, which it refers to as the ‘subject area’ (Report section 1.1).
The Report identifies the area for harvesting minjarra and guriny in the country “near Pompey’s Pillar”, which is located within E80/2389-I. Consistent with the map at Annexure 1 to the State’s contentions, the Report states that Pompey’s Pillar is less than two kilometres from the amalgamation area. The Report says this places the amalgamation area well within the range for harvesting minjarra and guriny.
The Report sites an area of white ochre deposits in the Goorring native title determination area (located outside both the amalgamation area and the area of E80/2389-I) but says that the deposits were used for ceremonies near to the resource. I take this to suggest that such ceremonies may have occurred in the amalgamation area, which would be consistent with the siting of the men’s law area mentioned below. I understand the Goorring determination to relate to the area of mining leases
M80/599-I and M80/600-I shown on the State’s Annexure 1 as exclusions from E80/2389-I (see Jessell v Western Australia). At its closest M80/600-I appears to be less than half a kilometre from the amalgamation area.
The men’s law area is said to be within the amalgamation area although it is not clear where, or whether the area remains in use. The Report states that, although ceremony grounds may no longer be used, the power of the ceremony remains in the country.
The Report concludes that the examples provided show that the native title holders still maintain the knowledge of country and access to country to exploit resources and in particular, still acknowledge important men’s law in the vicinity of the amalgamation area. It states that the amalgamation risks native title holders’ ability to access the country and exploit traditional resources.
There are a number of difficulties with this conclusion. Firstly, two of the three examples identify locations in the area of E80/2389-I where exploration is already permitted. I note also that both E80/2389 and P80/1749 are listed as ‘Other Interests’ in the Yurriyangem Taam Determination, which means the determination was made subject to those rights and the relationship between them is as set out in order 13, which contemplates co-existence between those tenements and Yurriyangem Taam’s native title.
Only the law ceremony site is said to be located in the amalgamation area and, as noted, it is not clear whether ceremonies continue to be conducted there. If not, perhaps this site may have been more relevant to s 237(b).
In any event, none of the examples in the Report support a conclusion that the grant of the amalgamation will cause interference within the meaning of s 237(a), which requires direct and substantial interference with Yurriyangem Taam’s community or social activities. Even if activities of the kind described are carried out in the amalgamation area as the Report suggests, there is nothing in the nature of the activities described to indicate they could not co-exist with E80/2389-I in the amalgamation area, as they do in the balance of E80/2389-I. Similarly, the Report’s conclusion that the amalgamation risks the native title holders’ ability to access the country is unsubstantiated.
The State (at 35-37) and KMG (at 20-21) raise a number of issues with Yurriyangem Taam’s contentions with respect to s 237(a), aspects of which are dealt with above. As I have concluded that interference within the meaning of s 237(a) is not likely, it is not necessary for me to further address those issues.
Is the amalgamation likely to interfere with areas or sites of particular significance to Yurriyangem Taam?
Relying on the Report, Yurriyangem Taam argue there are eight areas or sites of particular significance, either within or in close proximity to the amalgamation area. These are outlined below.
Sites in the amalgamation area
1. Site ID14017 named Tjamindin/Ngoakul
This is a registered site under the Aboriginal Heritage Act 1972 (WA) (AHA) which extends into both the amalgamation area and E80/2389-I. According to the AHIS Searches it is of a mythological/quarry type and subject to file and boundary restrictions.
The Report at 4.2 describes this site as a “mythological site centred on a white quartz outcrop and recognised as an increase site for ant eggs”.
The Report states that this site was originally identified in 1979 but that its existence was confirmed in a 2009 heritage survey by Anthropos Australis conducted for Kimberley Metals Group Ltd (also cited as Kimberley Metals Group Pty Ltd).
2. Site ID 30206 named KMG 09-05
This site is also registered and located within the amalgamation area. It is described as an artefacts/scatter type and is not subject to any restrictions. According to the Report and the State’s contentions this site is located wholly within the amalgamation area although that is not shown on the mapping due to its scale.
Sites said to be within the vicinity of the amalgamation
3. Site ID 14006 named Pankaltji Site
This is a registered site in the area of E80/2389-I. It is described as a mythological type and is subject to boundary and file restrictions. The Report says this site, located to the northwest of the amalgamation, is Pompey’s Pillar and is associated with Bat Dreaming.
4. Site ID 22094 named Argyle Iron Ore FS5
The Report states that this site is a white ochre quarry located to the north of the amalgamation in the area of the Goorring Determination and the Ridges Iron Ore Project mining lease. I understand this to be the ochre deposit mentioned at [27] above. It is therefore outside of both the amalgamation area and E80/2389-I and does not appear on either of the AHIS searches.
5. Site ID 30207 named KMG 09-04
6. Site ID 30208 named KMG 09-05
7. Site ID 30209 named KMG 09-06
8. Site ID 30210 named KMG 09-07
The Report states that the final four sites are all in the vicinity of the amalgamation area and were all recorded in the 2009 Report by Anthropos Australis mentioned above which was prepared in response to a proposed mineral exploration program.
Of these, only registered site ID 30208, being an artefacts/scatter type described as KMG 09-05, is shown on the AHIS search for E80/2389-I. I therefore understand the remaining sites to be outside of both E80/2389-I and the amalgamation area.
The Report concludes that without adequate protections in place, there is a risk that any future mineral exploration could impact the sites in the amalgamation area, the sites in the vicinity and any sites yet to be identified.
As to the sites outside the amalgamation area, it is difficult to see how they could be affected by the amalgamation, particularly those already subject to the grant of E80/2389-I or the Ridges Iron Ore Project mining lease, and Yurriyangem Taam do not explain why interference with those sites is likely in such circumstances. Further, speculation about sites which may not yet have been identified is not especially helpful or relevant in the context of my predictive assessment for s 237(b).
For its part, KMG says it is aware the amalgamation area includes part of Site ID 14017 and the whole of site ID 30208, which it suggests is incorrectly recorded in the Report as site ID 30206. The Report is correct but I can understand KMG’s confusion on this point.
Initially the State provided the AHIS Search for E80/2389-I which includes sites ID 14017 and ID 30208. However, as explained, the amalgamation area is adjacent to E80/2389-I and so the AHIS Search for that tenement would not include a site in the amalgamation area unless it extended into both tenements. That is the case for site ID 14017, but not site ID 30206.
At the request of the Tribunal, the State later provided an AHIS Search for P80/1749-I, which confirms the sites located in the amalgamation area are sites ID 104017 and ID 30206 (being sites 1 and 2 in the list above). Sites ID 30206 and ID 30208 also have similar names and are both artefact scatters which adds to the confusion as does the mapping, which does not adequately identify or show the location of these sites.
As discussed in Yindjibarndi v FMG at [17]-[18], an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders.
The two sites that are situated wholly or partly within the amalgamation area are identified and able to be located (although the exact location of site ID 14017 is subject to boundary restrictions). However, there is no information or evidence provided about their particular significance to Yurriyangem Taam in accordance with its traditions. The most I have to rely on is the description shown in the AHIS search and some limited additional description in the Report regarding the nature, but not the significance, of site ID 14017.
That information is insufficient and, on the material provided, I am unable to find that either site ID 14017 or 30206 is of particular, or more than ordinary, significance to Yurriyangem Taam within the meaning of s 237(b).
For completeness I note that KMG says that it is aware of and will comply with its obligations under the AHA. While it says no activities are presently planned for the amalgamation area, KMG has set out (at 14) how it would seek to manage any impacts on heritage if it were to propose significant ground disturbing activity. The fact that a number of the sites listed by Yurriyangem Taam were recorded in a survey apparently conducted for KMG may support that statement, although I am conscious that survey may have been conducted by agreement with Yurriyangem Taam, whereas there is no agreement here.
In any event, KMG is on notice in relation to the registered sites in the amalgamation area and there is no reason to expect it would not comply with its statutory obligations.
Determination
I determine that amalgamation application number 543861 in relation to E80/2389-I is an act attracting the expedited procedure.
Nerida Cooley
Member
21 July 2021
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