Yurriyangem Taam v Minexaus Pty Ltd
[2021] NNTTA 10
•16 March 2021
NATIONAL NATIVE TITLE TRIBUNAL
Yurriyangem Taam v Minexaus Pty Ltd and Another [2021] NNTTA 10 (16 March 2021)
Application No: | WO2020/0451 |
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 (WC2010/013)
(native title party)
- and -
Minexaus Pty Ltd
(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: | Perth |
Date: | 16 March 2021 |
Catchwords: | Native title – future act – proposed grant of exploration licence – 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 – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 31, 32, 56, 57, 151, 237 Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 58, 66 Mining Regulations 1981 (WA) r 20 |
Cases: | Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182 (FMG v Yindjibarndi) Peggy Patrick & Ors on behalf of Yurriyangem Taam v Landsdowne Metals Holdings Pty Ltd and Another [2018] NNTTA 51 (Yurriyangem Taam v Landsdowne Metals Holdings) Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 (Yurriyangem Taam v Western Australia) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) 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) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 |
| Representatives of the native title party: | Andrew Topher, Kimberley Land Council Ania Maszkowski, Kimberley Land Council |
| Representatives of the grantee party: | Lois Blackwood Norman Holmes |
| Representatives of the Government party: | Jennifer Perera, State Solicitor’s Office Angela Murphy, Department of Mines, Industry Regulation and Safety Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
The State of Western Australia (the State) gave notice of their intention to grant exploration licence E80/5462 (the proposed licence) to Minexaus Pty Ltd (Minexaus), and included a statement in the notice that they consider the grant is an act attracting the expedited procedure. This would, subject to any successful objection, allow the licence to be granted without the requirement under s 31 of the Native Title Act1993 (Cth) (the Act) for the State and Minexaus to negotiate in good faith with a view to obtaining the agreement of the relevant native title party to the doing of the act.
This is a decision under s 32 of the Act about whether the expedited procedure applies to the grant of the proposed licence to Minexaus. The licence is just over 322 square kilometres, and located in the Halls Creek Shire. The licence is on land and waters where the Federal Court has ordered there will be a determination of native title in favour of the Yurriyangem Taam native title claimants, which will take effect immediately upon a prescribed body corporate being determined under s 56(1) or s 57(2) (see Yurriyangem Taam v Western Australia). The registered native title rights and interests claimed are to:
· access the Application Area;
· camp on the Application Area;
· erect temporary shelters on the Application Area;
· live on the Application Area;
· move about on the Application Area;
· hold meetings on the Application Area;
· possess, occupy, use and enjoy of that part of the Determination Area as against the whole world;
· conduct ceremonies on the Application Area;
· participate in cultural activities on the Application Area;
· maintain and protect places of importance under traditional laws, customs and practices in the Application Area;
· conduct cultural burning on the Application Area;
· conduct burials and burial rites and other ceremonies in relation to death in that part;
· trade all resources in the Application Area other than those minerals, petroleum and gas wholly owned by the Crown.
Yurriyangem Taam lodged an objection with the National Native Title Tribunal (the Tribunal) to the State’s inclusion of the expedited procedure statement. The Tribunal must make a determination about whether the expedited procedure applies (s 32(4)). The President of the Tribunal appointed me to constitute the Tribunal for this purpose.
For the reasons outlined below, my determination is that the grant of the licence is not an act attracting the expedited procedure.
Issues for Inquiry
Under s 237, the grant of a licence is only 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 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)).
Yurriyangem Taam do not submit contentions or evidence regarding s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. As such, this inquiry is focused on s 237(a) and s 237(b).
Determination on the papers
The State provided a statement of contentions and evidence including mapping, tengraph quick appraisal tenure documents, search results from the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS searches), the licence application with the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act), and details of proposed endorsements and conditions to be imposed, including their Regional Standard Heritage Agreement (RSHA).
Minexaus provided contentions in the form of an email submission.
Yurriyangem Taam provided a statement of contentions, an affidavit of Helen Malo from 2020, an affidavit from Ms Malo from 2018, and a reply. Ms Malo states she is a native title holder for the area of the licence and I accept Ms Malo’s evidence on that basis. The affidavit from 2018 related to a previous inquiry for a matter where the exploration licence application overlapped the current application (Yurriyangem Taam v Landsdowne Metals Holdings). In that inquiry, I found the expedited procedure did apply – the licence was granted in 2018, and surrendered approximately 12 months later. However, each matter must turn on the facts and evidence presented.
I was satisfied this inquiry could be adequately determined without a hearing (s 151(2)) and no party took exception to that course of action.
The s 237 predictive assessment
As outlined in Silver v Northern Territory (at [21]), which I adopt for the purposes of this inquiry (emphasis in original):
…section 237 requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences outlined in paragraphs (a) – (c) set out above. The proper approach to the application of section 237 was explained by French J in Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442. His Honour pointed out (at 450): "The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement." … [T]his approach was also endorsed by R D Nicholson J in Little v Western Australia [2001] FCA 1706 at [69].
Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the native title holders?
Interference within the scope of s 237(a) must be direct and substantial and the exploration activities must be the proximate cause of the interference (see Smithv Western Australia at [26]).
What community or social activities are carried out by native title holders?
Ms Malo’s 2018 affidavit outlines that the proposed licence area is good for hunting and fishing, including hunting for emu, turkey and special kangaroo that can only be found on that country (at 4). Fishing and camping is referred to in the 2020 affidavit (at 13), as is bush tucker and bush medicine such as the blood wood tree and pine wood (at 17). There is also some reference in the 2020 affidavit to intergenerational teaching in the area (at 13 and 18). Ms Malo’s 2020 affidavit refers to the easy access to the proposed licence from the Gudargie community (at 12), and that, together with the unique flora and fauna, are asserted to support that social activities occur frequently on the proposed licence. According to mapping, the Gudargie community is approximately 6 kilometres from the south west corner of the licence.
Yurriyangem Taam contentions (at 12) outline that the use of the area without their knowledge may disrupt the wildlife and affect the flora and fauna, and the willingness of Yurriyangem Taam to undertake social and community activities. However, the bulk of the evidence concentrates on s 237(b), and the community and social activities of Yurriyangem Taam for s 237(a) are asserted in fairly broad terms. The State argue (at 27) there is little specific information about social and community activities in relation to the licence, and that argument is echoed by Minexaus.
I could not conclude that exploration activities would be likely to be a direct and substantial cause of any interference with such activities on the basis of the evidence as presented.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance?
My assessment of s 237(b) turns on whether or not there are areas or sites of ‘particular significance’ – meaning of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). If an area or site is of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]).
What areas or sites have been identified and are any of particular significance?
At the outset of my consideration of s 237(b), I note Ms Malo’s 2018 and 2020 affidavit evidence is consistent and clear. The State arguments (at 15-17 and 35-36, for example) suggest that I should make the same determination as I did in the previous overlapping inquiry of Yurriyangem Taam v Landsdowne Metals Holdings. However, as outlined in the Yurriyangem Taam reply (at 6) and in the States submissions (at 32-33 – see [9] below), Ms Malo’s 2020 affidavit outlines additional information regarding: the jungurra rock and associated site; the path of the Emu Dreaming through the licence; and about Elbow Hole Yard and its cultural heritage significance. I must consider each inquiry on the basis of the facts and evidence provided.
Jungurra (snake rock)
The Jungurra (snake rock) is described as being outside the proposed licence, but is ‘very close’ (2018 affidavit at 10) and is an area of an important dreaming where a snake travelled and turned into a big rock on black soil (Ms Malo’s 2020 affidavit at 20-23; 2018 affidavit at 6- 8). There are ‘little rocks’ which are part of the Jungurra (2018 affidavit at 7). I accept, as per the Yurriyangem Taam reply (at 18), that Ms Malo has marked the area on the map attached to her 2020 affidavit, and I note it is adjacent to the licence, and close to Elbow Hole Yard (which is within the licence).
The States submissions (at 32-33) notes that the evidence regarding jungurra was presented to the Tribunal in the Yurriyangem Taam v Landsdowne Metals Holdings matter, and additional information about Horse Creek and Elbow Hole Yard has been provided for the present inquiry. The State acknowledge ‘the evidence about the significance of Elbow Hole Yard in connections with the spirits of the old people…is new in the current proceedings, as is the map and markings associated with the evidence’.
I accept there is evidence that the Jungurra dreaming path travels through the King Leopold Ranges (which are now known as Wunaamin Miliwundi Ranges), which run through the north of the licence. That dreaming path runs from the ranges, down through snake rock and Elbow Hole Yard (see [21] below). I also accept the north-west area of the licence is an area which has particular significance for the Yurriyangem Taam people. Even though the snake rock is outside the licence, I accept it is intimately tied to sites and areas inside the licence (Ms Malo’s 2020 affidavit at 20-21).
Emu Story (Horse Creek, King Leopold Ranges and Elbow Hole Yard)
Ms Malo outlines an Emu dreaming story, which I do not repeat here due to its cultural sensitivity, but I am satisfied on the evidence that the trajectory of the story takes it near Elbow Hole Yard, and that it is a site of particular significance for Yurriyangem Taam (2018 affidavit at 5-6). This relates to a gender restricted songline which is located on the top of the northern boundary of the proposed licence (2020 affidavit at 24).Horse Creek is identified as being associated with the Emu dreaming (2020 affidavit at 24), and that runs through Elbow Hole Yard, and through the north-west and central portion of the proposed licence.The gender restricted nature of this site makes its significance distinct (Yurriyangem Taam reply at 25). In addition, Elbow Hole Yard itself is described as a focal point for two dreaming tracks and old people spirits (2020 affidavit at 24-25).
What activities will Minexaus likely undertake on the licence?
The State’s papers for this inquiry included the statement provided by Minexaus with their application for the licence. Exploration activities noted include:
Year 1
Literature review & compilation
Processing & interpretation mag data
Soil sampling & assaying
Field camp & accommodation
Vehicle hire & fuel
Geological/geophysical consulting
Detailed airborne magnetic surveyYear 2
Heritage Survey
Aircore drilling
Assaying
Geological logging & drill supervision
Field camp/accommodation
The Yurriyangem Taam reply (at 9) states that Minexaus provided minimal detail about proposed exploration activities, that the information provided is speculative, and is only in respect to the first two years of grant. Yurriyangem Taam argue that, in the absence of evidence about activities for the duration of the grant, the Tribunal should conclude Minexaus will exercise the full suite of rights available to it. There is nothing to rebut that assumption in Minexaus’s submissions, and I note at least in year 2, drilling is proposed, according to the licence application. The full suite of rights are set out in s 66 of the Mining Act which provides that, upon grant, an exploration licence will authorise a grantee party:
(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 each exploration licence as follows:
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.
Are the exploration activities likely to interfere with sites of particular significance to Yurriyangem Taam?
The State argue (at 43-45) that interference has not been established. Minexaus adopts a similar position. However, given the evidence about the sensitivities and particular significance of the north west corner of the licence and surrounds, and the evidence that the dreaming tracks and sites associated with it are not easily recognisable by people other than the Yurriyangem Taam, I accept the argument summarised in the Yurriyangem Taam reply (at 21), as outlined in Ms Malo’s affidavits (for example, 2018 at 10 and 2020 at 20-23) that:
· Without prior consultation with Yurriyangem Taam, there would be no opportunity to identify the precise location and boundaries of the jungurra site and its elements and to ensure that traditional law and customs are followed;
· Interference in accordance with traditional law and custom can not only occur by access to or near the jungurra rock but by viewing the jungurra rock when in the north-western part of the licence;
· The proposed exploration activities would constitute a physical disturbance of the area including the dreaming tracks travelling from the King Leopold Ranges and the jungarra site outside of the licence, down to Elbow Hole Yard through and into the licence.
The State argue their Aboriginal Heritage Act 1972 (WA) (AHA), and regulatory regime in general (for example, at 46), means exploration activities are unlikely to interfere with any areas of particular significance. Minexaus makes little comment addressing the evidence regarding sites and areas of particular significance which has been provided. The Yurriyangem Taam reply counters that the AHA is not designed to protect areas of particular significance as identified in the evidence, nor is it sufficient to accommodate the restrictions related to accessing the jungurra area and Emu dreaming (at 32-33). The Yurriyangem Taam reply also contends it is not appropriate for third parties to access those sites without following cultural protocols (at 34). I accept that is the case, and in addition, having assessed the conditions and endorsements the State intends to impose on the grant of the licence, including the RSHA, I do not believe they are sufficient to mitigate or prevent any such interference from exploration activities on the areas of particular significance.
I accept, as summarised in the Yurriyangem Taam reply (at 21), if Minexaus goes into that north-west area of the licence without following traditional laws and customs of Yurriyangem Taam, they are likely to interfere with sites of particular significance. As McKerracher J outlined in FMG v Yindjibarndi (at [79]), to establish interference for the purposes of s 237(b) ‘the impact must be substantial or non-trivial. The meaning of these terms must be taken in the context of the particular site and the laws and customs in relation to that site’. At [75]-[76], McKerracher J clarified:
That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) [of the Act], may be substantial having regard to the native title party’s traditions... It may follow that mere entry onto the site other than on supervised terms and conditions … may from the native title party’s perspective none the less be non-trivial interference...
Determination
The grant of the grant of exploration licence E80/5462 to Minexaus Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
16 March 2021
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