Native title future act determinations Evidentiary ...

Native title future act determinations Evidentiary ...

Native title future act determinations Evidentiary requirements a review of key cases Emily Gerrard, Senior Associate NNTT Allens Workshop, Melbourne 2016 Allens is an independent partnership operating in alliance with Linklaters LLP. 1 AGL Loy Yang Pty Ltd v Gunaikurnai Land & Waters Aboriginal Corporation RNTBC [2015] NNTTA 50 (28 October 2015) 2

AGL Loy Yang v GLWAC Regard must be had for the criteria in section 39 NTA. Criteria include: enjoyment by Gunaikurnai people of their native title rights and interests; development of social, cultural and economic structures; freedom of access and freedom to carry out rites, ceremonies or other activities of cultural significance; and any area or site of particular significance to the Gunaikurnai people. Determination involves weighing of the criteria in section 39 according to the evidence before the decision maker. 3 Summary of criteria applied in the determination Section Requirement

s39(1)(a)(i) Effect of the act on enjoyment of native title rights and interests s39(1)(a)(ii) Effect of the act on way of life, culture and traditions s39(1)(a)(iii) Effect of the act on development of social, cultural and economic structures s39(1)(a)(iv) Effect of the act on freedom of access to the area and freedom to carry out activities of cultural significance

s39(1)(a)(v) Effect of the act on any area or site of particular significance s39(1)(b) The interests, opinions, proposals or wishes of the native title party s39(1)(c) Economic or other significance of the act to Australia, the State or local area s39(1)(e) Public interest

S39(1)(f) Any other relevant matter 4 AGL Loy Yang v GLWAC Agreed Statement of Facts and Issues requested by the Tribunal and filed by the parties. AGL Loy Yang applied for Retention Licence 2015 (an area of approximately 1,640 hectares in the Latrobe Valley in Victoria). AGL and the State contended that the grant would have no greater impact on the enjoyment of native title rights and interests over and above the arrangements in place between the parties in relation to the Crown land concerned.

5 AGL Loy Yang v GLWAC GLWAC contended that the burning of brown coal would adversely affect Gunaikurnai peoples country, including through climate change impacts. Also that open cut mine development would have adverse visual impacts and destroy the cultural landscape. 6 AGL Loy Yang v GLWAC Key Considerations: No evidence was provided in relation to the exercise of native title rights on Crown land within the application area; consent to previous grants (tenements) not relevant to the consideration of the current application and its potential

impacts; as agreed by the parties, the application did not permit mining activities. Therefore arguments about open cut development, burning of brown coal and environmental impacts were not relevant to consideration of the application; 7 AGL Loy Yang v GLWAC Key Considerations: No evidence of areas or sites of significance in the application area. Less weight given to the native title partys interests, proposals, opinions or wishes in matters where no significant impact in relation to the matters in s 39(1)(a) is established [73]. Tribunal not persuaded that s 39(1)(a) had been met.

Tribunal is required to evaluate the economic or other significance of the grant to the wider community as well as local Aboriginal and Torres Strait Islanders (Drake Coal v Smallwood). 8 AGL Loy Yang v GLWAC Public interest - despite contentions of GLWAC (that there is a public interest in refusing to grant the licence on environmental grounds), the Tribunal found that the resource and area are of state and national significance. Environmental impact (as a specific factor to be considered) was amended in 1998, but the Tribunal considers it is entitled to take account of the effect on the natural environment where that effect is related to other factors. In this case, the environmental issues raised did not directly relate

to the grant of the licence (mining is not an activity permitted under the licence). In order to mine on the tenement, AGL would need to apply for a mining tenement. Such an application would be the subject of a 9 Yindjibarndi Aboriginal Corporation RNTBS v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (17 January 2014) Objection to the application of expedited procedure 10 10 Yindjibarndi AC v FMG Pilbara Pty Ltd On or about 8 April 2004, FMG

Pilbara Pty Ltd (the grantee party) applied for exploration licence E47/1397 (the proposed licence). On 22 August 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant the proposed licence to the grantee party with the expedited procedure. 11 12 Yindjibarndi AC v FMG Pilbara Pty Ltd

Proposed licence approximately 218.80 km2 and authorises the holder to explore for minerals for a term of five years from the date of grant. 87.4% of the proposed licence area falls within the external boundaries of the Ngarluma Yindjibarndi native title determination area. The Yindjibarndi Aboriginal Corporation RNTBC holds native title in the Yindjibarndi portion of the determination area in trust for the Yindjibarndi People. The Yindjibarndi Aboriginal Corporation lodged an objection to the proposed application of the expedited procedure. 13 Yindjibarndi AC v FMG Pilbara Pty Ltd Section 237: 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.

14 Yindjibarndi AC v FMG Pilbara Pty Ltd Unless there is evidence to the contrary, the Tribunal will act on the basis that: the Government will exercise its powers, including making discretionary decisions properly and in accordance with the law; and that a grantee party will not act contrary to the law and the regulatory regime.

This decision highlights the importance of providing specific and relevant evidence and referring to it. 15 Yindjibarndi AC v FMG Pilbara Pty Ltd Section 237(a) Despite the native title party providing over 1000 pages of material to the Tribunal, there was no useful information to assist the Tribunal in its consideration of how (if at all) any proposed exploration activities will interfere, in a practical way, with the carrying on of the activities relied upon by the native title party for the purposes of s237(a) (at [76]) The Tribunal was unable to conclude that the proposed exploration activities were likely to interfere with the carrying of the community and social activities of the native title holders.

16 Yindjibarndi AC v FMG Pilbara Pty Ltd Section 237(b) The native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required. Leaving aside the issue of whether sites of particular significance exist, the Tribunal agreed with the grantee party that the native title party did not address how interference might arise in respect of any place it referred to in submissions. 17 By focusing on the conduct of Fortescue Metals Group Limited, including its relationship with WMYAC, in the course of attempting to show what

it says are the consequences of the expedited procedure being found to apply, the native title party has neglected to focus on the very evidence which provides the Tribunal with a basis for finding that the expedited procedure does not apply. (President Webb, at [101]). Allens is an independent partnership operating in alliance with Linklaters LLP. 18 Yindjibarndi AC v FMG Pilbara Pty Ltd Section 237(c) The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to whether there is a real chance or risk of major disturbance to land and waters.

The relevant disturbance is understood to be a significant, direct physical disturbance to the land or waters concerned. The native title party contended that the meaning of major disturbance is unclear. The President disagreed. Even if the evidence had disclosed relevant areas or sites of particular significance, the Tribunal commented that, in this instance the nature of the exploration activities are relatively low impact. 19 Yindjibarndi AC v FMG Pilbara Pty Ltd Sensitive evidence In this case, concerns were raised about disclosure of sensitive information. The Tribunal noted that there are mechanisms which can be put in place to limit the dissemination of such information, rather than not providing it at all. In making this observation, the Tribunal noted that there would

need to be a traditional basis for limiting disclosure as opposed to non-disclosure because of the apparent dissension with the group of native title holders or a level of distrust towards the grantee party. 20 Yindjibarndi AC v FMG Pilbara Pty Ltd Observations the volume of evidence does not determine the relevance or persuasiveness of the evidence. Evidence should be relevant to, and address the specific requirements of, the inquiry required by provisions of the NTA. Be strategic and selective about the evidence provided if key facts can be demonstrated or evidenced in one expert report or by one affidavit, then use that one source.

21 Yindjibarndi AC v FMG Pilbara Pty Ltd the Tribunal is entitled to have regard, and give considerable weight, to the Government partys site protection regime, however this does not mean that in all cases the protective regime will be adequate to make interference unlikely under s237(b). even slight interference to a relevant area or site may be unacceptable in the context of s237(b), but the interference must involve actual physical intervention. if an area or site is of particular significance, it must be able to be located and the nature of its significance must be explained to the Tribunal. The area or site must be of special, or more than ordinary, significance to the native title holders (also s237(b)). 22 The difficulty that I have with the native title partys

evidence is that it does not provide the Tribunal with a basis for assessing the particular significance of areas and sites within the proposed licence area or close to it If such a distinction is not drawn, and the significance of particular areas or sites in relation to other sites of a similar nature is not addressed, then the Tribunal is left with no basis for determining whether or not there are areas or sites of special or more than ordinary significance (President Webb, at [129]) Allens is an independent partnership operating in alliance with Linklaters LLP. 23 Weld Range Metals Ltd v Ike Simpson and Others on behalf of

Wajarri Yamatji [2011] NNTTA 172 (12 September 2011) Future act determination 24 24 Weld Range Metals Ltd v Wajarri Yamatji An example in which the Tribunal determined that the grant of one or more mining leases must not be done. The Government party gave notice under s 29 of the grant of mining leases M51/543 (863.4 hectares), M51/544 (880.8 hectares), M51/545 (851.07 hectares) and M51/546 (559.6 hectares) (the Tenements) under the Mining Act 1978. Eight other mining leases already held by Weld immediately adjacent to the proposed Tenements. Negotiations did not lead to an agreement. On 8 September 2010,

Weld Range Metals (WRML) applied to the Tribunal for a determination that the grant of the mining leases could occur. 25 Weld Range Metals Ltd v Wajarri Yamatji The Tribunal determined that the required negotiations in good faith had taken place. Wajarri Yamatji representative argued that the leases should not be granted, or alternatively that they should be allowed only on certain conditions. WRML and the State government argued that the leases should be allowed without any further conditions, or alternatively they should be allowed on the conditions suggested by the State. 26

27 Weld Range Metals Ltd v Wajarri Yamatji Government party documentation establishes that the Tenements are entirely overlapped by pastoral leasehold. Tribunal Geospatial mapping shows that there are no Aboriginal communities identified within or in the vicinity of the Tenement area but the evidence establishes that the Reserve is used for camping by Wajarri Yamatji people from time to time. Documents provided by the Government party reveal sites recorded on the Register of Aboriginal Sites as Other

Heritage Places, overlapping three of the four Tenements. 28 Weld Range Metals Ltd v Wajarri Yamatji The Government party objected to the admissibility of some of the NTPs affidavit evidence. The Tribunals general approach is to admit documentary evidence unless it is patently irrelevant or otherwise inappropriate. Tribunal not bound by rules of evidence (useful but not binding). Similar to the Western Desert v Holocene determination, directions were given by the Tribunal regarding sensitive evidence (non-disclosure direction). 29 Weld Range Metals Ltd v Wajarri Yamatji Grantee party submissions as to credibility of native title

party evidence at on country hearing. Affidavit amended after field trip evidence Language and drafting of affidavit do not resemble oral evidence given Witness was asked leading questions and involved in joint oral evidence Grantee party's submissions rejected. Grantee party also challenged the evidence of anthropological experts, which

informed weighting placed on certain aspects. 30 Weld Range Metals Ltd v Wajarri Yamatji The found that the archaeological evidence supports a finding that there are quarry and artefact sites in the area of the Tenements, which were utilised for some considerable time in the past by Aboriginal people and which have archaeological significance for their research potential. The issue is not whether these sites have significance for their archaeological research potential, but whether they are areas or sites of particular significance to the native title party in accordance with their traditions. 31 Weld Range Metals Ltd v Wajarri Yamatji

The quarry sites identified on the Tenement area were found to be of particular significance to the native title party in accordance with their traditions. Tribunal used its discretion to consider evidence provided in previous expedited procedure objection determinations in the area. The evidence and findings were consistent with and supported the Tribunals view that the quarry sites and Wilgie Mia are of particular significance. 32 Weld Range Metals Ltd v Wajarri Yamatji The Tribunal distinguished the current circumstances from those in which it previously made determinations that the expedited procedure applied to the grant of exploration interests in the area. Previous determinations were based on the evidence before the Tribunal at the time, and it was acknowledged at that time that

further evidence could lead to a different finding. The Tribunal considered it had the benefit of more extensive evidence in this matter, which more clearly delineated the area particular significance to the native title party. 33 Weld Range Metals Ltd v Wajarri Yamatji Previous mining activities: It is generally accepted that mining activity has occurred in the past and that, particularly, exploration activity continues in the Weld Range. There has been a considerable amount of exploration conducted by various companies but no large scale mining of the kind now envisaged. Although mining leases have been held over the Tenement area, there is no evidence that they have been utilised for productive mining.

The Tribunal concluded that the Wajarri Yamatji people had not, in a positive sense, entered into any agreement for mining over the Weld Range area in question. 34 Weld Range Metals Ltd v Wajarri Yamatji Parallel National Heritage Listing (NHL) Application Expert evidence that the tenements are located very close to the NHL area, which takes in Wilgie Mia and Little Wilgie Mia. Uncertainty whether NHL document provided was a draft or final version. o my approach to the evidence in the NHL Report is to rely on the primary

evidence from Wajarri Yamatji people and other Indigenous people, rather than the opinions expressed in the Report." (at [120]) o Leaving aside the opinions in the NHL Report, I am satisfied by the whole of the evidence that the area around Wilgie Mia and the Weld Range is of particular significance to the native title party in accordance with their traditions. (at [124]). While broadly relevant and arguably demonstrating measures being taken to protect the area, the NHL documentation was essentially a distraction. The central inquiry relates to the significance of the place to the Wajarri Yamatji people in accordance with their traditions, as evidenced by members of the native title group. 35

Weld Range Metals Ltd v Wajarri Yamatji Evidence that the proposed leases: connected to a number of important dreaming stories; historically an area of intense occupation and ceremony, and contains a number of highly significant sites including quarries, rock holes, grinding stones and caves with rock art. Weld Range area is of such significance to the Wajarri Yamatji people in accordance with their traditions, that

mining in that area should only be allowed with their agreement. Therefore, the Tribunal determined that the proposed mining leases must not be granted. 36 Summary of criteria applied in the determination Section Requirement Decision s39(1)(a)(i) Effect on enjoyment of native title rights and interests

Some interference with native title rights and interests, but not sufficient to justify refusal of the act. Exception of caring for places of importance (addressed at s39(1)(a)(v) s39(1)(a)(ii) Effect on way of life, culture and traditions Will be affected to some extent. s39(1)(a) (iii) Effect on development of social, cultural and economic

structures No evidence provided to support assertions of native title party s39(1)(a) (iv) Effect on freedom of access to the area /to carry out activities Insufficient evidence to support a finding that the act should not be done on this basis s39(1)(a) (v)

Effect on any area or site of particular significance Evidence on highways and dreaming stories not persuasive. Evidence regarding quarry site supports view that the area is of particular significance. Evidence regarding Weld Range leaves no question as to its particular significance. Heritage legislation does not provide sufficient protection s39(1)(b) The interests, opinions, proposals or wishes of the native title party Native title party not opposed to mining but want special requirements met for culturally sensitive areas like Weld Range

s39(1)(c) Economic/other significance to Australia, the State or local area Future Act not likely to have any positive impact on economic structures of native title party. Of concern to the native title party. s39(1)(e) Public interest Public interest must be balanced against interests of the Wajarri Yamatji in relation to a place of particular significance s39(1)(f)

Any other relevant matter Welds expenditure considered 37 In Martu/Holocene I gave weight to the fact that it was already the subject of a determination of exclusive native title. In this case the WY people have not yet had their native title claim determined and, if it is it determined in their favour, it will not be of an exclusive nature. However, while a positive determination of exclusive native title is a relevant factor, it cannot be decisive in the sense that there can never be a determination under s 38 NTA that an act must not be done unless there is a determination recognising the existence of native title.

The Act contemplates a s 38 NTA future act determination being made at the claimant stage and, in this case, I have been confronted with an impressive range of evidence about the significance of the Weld Range area including the Tenement area to the NTP in accordance with their traditions which I am obliged to give appropriate weight to. (at [341]) Allens is an independent partnership operating in alliance with Linklaters LLP. 38 Weld Range Metals Ltd v Wajarri Yamatji Subsequently, the Wajarri Yamatji and Sinosteel Midwest Corporation Ltd announced they had reached agreement in relation to the Weld Range project. According to media releases, the agreement includes exclusion zones, heritage protection and financial and nonfinancial benefits.

39 Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) v Holcene Pty / Ltd [2009] NNTTA 49 (27 May 2009) Future act determination 40 40 Western Desert Lands AC v Holocene On 31 October 2007, the Government Party gave notice under s29 of its intention to grant mining lease M45/1171 (the proposed lease) to Holocene Ltd (the grantee party). The proposed lease comprises 3144.25 hectares located 187

kilometres southerly of Telfer in the Shire of East Pilbara. Most of the subject area falls over Lake Disappointment, within the Gibson Desert of Western Australia. The key determinative issue was the effect of the project on Lake Disappointment, a site of particular significance, in the context of the interests, proposals, opinions or wishes of Western Desert Lands AC. 41 Western Desert Lands AC v Holocene The proposed lease entirely overlapped the determination area of the Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) (WDLAC/the Martu People) (the native title party). The Martu People objected to the proposed future act. On 4 September 2008 the grantee party applied for a future act determination.

The native title party challenged the Tribunals jurisdiction on the basis that the grantee party had not negotiated in good faith. This challenge was rejected on 21 November 2008 and reasons were handed down on 6 February 2009. 42 43 Western Desert Lands AC v Holocene Government party documentation established the following underlying tenure: Unallocated Crown Land (100 per cent overlap); and

Lake Disappointment (Savory Creek) System AW/52 (86.6 per cent overlap). This means that 86.6 per cent of the proposed lease area overlaps the actual Lake with the balance being on an area adjoining the Lakes edge. Tribunal mapping indicated the nearest Aboriginal community was Parnngurr (Cotton Creek), about 50 km north west of the north western tip of the proposed lease. 44 Western Desert Lands AC v Holocene Department of Indigenous Affairs documentation confirmed one site registered under the Aboriginal Heritage Act 1972 overlapping the proposed lease at 100%: Site ID 12103 Gumbubindil/Lake Disappointment (the Lake).

The Tribunal made section 155 non-disclosure or confidentiality directions with respect to sensitive evidence. The native title party tendered affidavits of a number of Martu elders and on-country hearing took place on 6 April 2009 at Jigalong. 45 Western Desert Lands AC v Holocene The native title party submitted that the Racial Discrimination Act 1975 (Cth) (RDA) operated to provide the Martu People with the same rights as private landholders under s29(2) of the Mining Act (ie, the right of consent on mining activities) was not successful. Tribunal found that while s7(1) of the NTA provides that the Act should be read and construed subject to the provisions of the RDA, s7(2) limits this application to the performance of functions and exercise of powers conferred or authorised by the NTA. Consistent

with the High Courts decision in Western Australia v The Commonwealth (1995) 183 CLR 373 at 484, the Tribunal noted the general provisions of the RDA must yield to the specific provisions of the NTA in order to allow those provisions a scope for operation. 46 Western Desert Lands AC v Holocene DP Sumner confirmed the Tribunals task is to examine the effect of the mining activities on area of the proposed lease on the enjoyment of native title rights and interests. This involves an examination based on evidence relating to the actual exercise or enjoyment of the rights in the relevant area, not

based on an assumption that all registered native title rights are enjoyed equally over the whole of the determined area, including the proposed lease area. The effect of the grant of the proposed lease must be considered in the context of the whole Project, including mining operations, mine site and ancillary infrastructure (including accommodation, and in this case, a proposed airstrip). 47 Western Desert Lands AC v Holocene Areas or sites of particular significance The parties agreed that the proposed mining lease was within the

area of Lake Disappointment, a site under the Aboriginal Heritage Act 1972 (WA) and an area of significance to the Martu under their traditional law and custom. However, the parties could not agree about the level of significance or value that should be attributed to Lake Disappointment for the purposes of the determination. The Tribunal found a considerable amount of evidence bearing on the significance of Lake Disappointment and the attitudes of the native title party to mining on it. 48

Western Desert Lands AC v Holocene While agreeing with the grantee party that Lake Disappointment is not an area that contemporary Martu People regard as so important that mining would not be considered under any circumstances, the Tribunal was satisfied that the evidence overwhelmingly established it as a very important place in Martu culture and tradition. The whole of the evidence leaves no doubt that the Lake is of spiritual significance to the Martu including the surface of the Lake which traditionally was not visited. The evidence also establishes that this spiritual significance extends to areas around the Lake because of the Dreaming stories associated with it and such places as Savory Creek which runs into it. (at [141]). 49 Western Desert Lands AC v Holocene The fact that a native title party is not opposed to mining

but has not reached a satisfactory agreement in relation to it does not automatically justify a determination that the act may be done Further, the alignment between the parties on a term sheet was not taken to be agreement that the act may be done. 50 Western Desert Lands AC v Holocene Exclusive possession native title Comments from the Tribunal on the weight to be given to the native title holders interests, proposals, wishes in relation to management, use or control of land where exclusive possession native title has been recognised. Noted that, as a general proposition, there is a difference between making a future act determination over an area of exclusive possession and making a determination over an area where the

right to exclusive possession has been extinguished (non-exclusive native title), such as pastoral interests. However, the Tribunal confirmed that the weight applied to cases of exclusive possession native title cannot be tantamount to a veto in all cases. 51 Summary of criteria applied in the determination Section Requirement Decision s39(1)(a)(i) Effect of the act on enjoyment of native title rights and interests In past, evidence presented but Tribunal disagreed with

the exception of impacts on a place of significance s39(1)(a)(ii) Effect of the act on way of life, culture and traditions Agreed potential for impact but insufficient evidence of residue in area s39(1)(a) (iii) Effect of the act on development of social, cultural and economic structures Insufficient impact evidence to warrant refusal

s39(1)(a) (iv) Effect of the act on freedom of access to the area and freedom to carry out activities of cultural significance Limited evidence of interference s39(1)(a)(v) Effect of the act on any area or site of particular significance Clear and compelling evidence of impacts

s39(1)(b) The interests, opinions, proposals or wishes of the native title party Clear that Martu would agree to mining on acceptable terms but this does not override impacts in absence of agreement s39(1)(c) Economic or other significance of the act to Australia, the State or local area Economic benefit to Martu not likely to be very great s39(1)(e)

Public interest Interests of the native title party and impacts on site of particular significance outweigh public interest S39(1)(f) Any other relevant matter Regard had to the expenditure and effort from grantee party 52 the interests, proposals, opinions and wishes of the native title party in

relation to the use of Lake Disappointment should be given greater weight than the potential economic benefit or public interest in the Project proceeding (at [216]) 53 53 Questions Emily Gerrard, Senior Associate 54 Allens is an independent partnership operating in alliance with Linklaters LLP.

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