Barbara Sturt and Others on behalf of Jaru v Baracus Pty Ltd and Another
[2016] NNTTA 18
•2 May 2016
NATIONAL NATIVE TITLE TRIBUNAL
Barbara Sturt and Others on behalf of Jaru v Baracus Pty Ltd and Another [2016] NNTTA 18 (2 May 2016)
Application No: WO2015/0288
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Barbara Sturt and Others (Jaru) (WC2012/003) (native title party)
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The State of Western Australia (Government party)
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Baracus Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms H Shurven, Member
Place: Perth
Date: 2 May 2016
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere substantially with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure is not attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 32, 44H, 237
Mining Act 1978 (WA), s 66
Mining Regulations 1981 (WA), reg 20
Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metal Ltd [2012] NNTTA 48 (‘Birriliburu v Murchison Metal’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (‘Bunuba #2 v Mings Mining’)
Les Tullock & Ors/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tullock v Bushwin’)
Rosas v Northern Territory (2002) 169 FLR 330
WF (deceased) & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2011] NNTTA 170 (‘Wiluna v Kingx’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representative of the
native title party: Mr Tim Ognenis, Kimberley Land Council
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Ms Lauren Pike, Department of Mines and Petroleum
Representative of the
grantee party: Mr Matthew Clohessy, Emerald Tenement Services
REASONS FOR DETERMINATION
The National Native Title Tribunal must determine whether or not the expedited procedure applies to the grant of exploration licence E80/4908 (‘the licence’) to Baracus Pty Ltd. The State Government of Western Australia included an expedited procedure statement in their notice about the grant, and the Jaru native title claim group lodged an objection to the statement.
By including the expedited procedure statement in their notice, the State asserts the activities permitted under the licence are not likely to interfere with the native title holder’s community or social activities, their sites or areas of particular significance, or involve major disturbance to the land and waters of the licence (see s 237(a), (b) and (c) of the Native Title Act 1993 (Cth). In objecting to the expedited procedure statement, Jaru argue that interference or disturbance is likely. I have been appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies. Section 237 is the focus of the inquiry.
Exploration licence E80/4908 comprises four graticular blocks (approximately 12.96 square kilometres), located 83 kilometres south west of Halls Creek in the Halls Creek Shire. On 14 January 2015, the notification day stipulated by the State in their notice, Jaru’s native title claim application WC2012/003 was on the Register of Native Title Claims and their claim overlapped 100 per cent of the licence area. They were a native title party at that time and are still a native title party because they remain on the Register (see s 29 of the Act). All references to sections of legislation are to the Native Title Act 1993 (Cth) unless otherwise stated.
A decision that the expedited procedure applies means the State can grant the licence and Baracus can proceed to explore without negotiating with Jaru (see s 32(4)). A decision that the expedited procedure does not apply means the normal negotiation procedure is required: the State and Baracus must negotiate in good faith with Jaru, with a view to reaching an agreement about the grant. Those negotiations may be done with or without mediation assistance from the Tribunal (see s 31).
The State and Jaru provided submissions. Baracus did not. At the listing hearing, all parties stated they had no further submissions and requested the matter be determined without further hearing. I consider it is appropriate to do so.
Jaru’s submissions include the affidavit of Elizabeth Jingle. Ms Jingle states she is ‘a Traditional Owner for the Jaru People through my mother’s mother and father’s mother’ (at 4). She also states whilst ‘making this affidavit, I have sitting with me other Jaru Traditional Owners, including Janet Jingle, Eddie Yaloot, Willy Brumby, Anne Jingle, Patrick Jingle, and Lionel Rodgers’ (at 5). I accept Ms Jingle has authority to speak on behalf of Jaru in this matter.
I will address the following issues in relation to s 237(a) and (b):
a)Is it likely the grant will substantially interfere with the carrying on of Jaru’s community or social activities?
i.What are the social or community activities and where do they take place?
ii.What are Baracus’ proposed activities?
b)Is there a real chance or risk the grant will directly interfere with areas or sites of particular significance to Jaru?
i.What areas or sites are identified?
ii.Are any of these areas or sites of particular significance?
iii.Does a regional standard heritage agreement provide protection in the context of any sites of particular significance?
I must also consider, pursuant to s 237(c), whether the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned. However, Jaru made no submissions in relation to this issue. I have examined all mapping and geospatial information provided by parties and there is no evidence that the area of the licence has any special characteristics in this regard. Further, the State proposes to include a series of endorsements and conditions on the grant of the licence which relate to waste disposal, land rehabilitation, and the protection of water and native vegetation (see Appendix A). There is no evidence that Baracus will not abide by the State’s regulatory regime. Therefore, I find the grant of the licence, or the exercise of any rights created by the grant, is not likely to involve major disturbance to the land or waters concerned, and say nothing further on this point in this decision.
a)Is it likely the grant will substantially interfere with the carrying on of Jaru’s community or social activities?
What are the social or community activities and where do they take place?
Ms Jingle states the area of the licence ‘used to be a living area’ for Jaru ‘old people’ and ‘there are camp sites all along the river’ (at 7). She states ‘Jaru people have never stopped going to that country and they go regularly to the Tenement Area to hunt, fish and camp’ in the dry season when ‘the road is good’. She lists ‘the Ryders, the Buttons, the Rodgers and other families’ and ‘Jaru people living in Halls Creek...go... every couple of weeks’ (at 8).
Ms Jingle states the licence area is ‘good for bush tucker’ including yams, bush plum (gindi), bush onion (junda), turkey, kangaroo, freshwater crab, mussels and turtles. She states the ‘best place for hunting and bush food is the flat country near the water’ (at 9–10).
Ms Jingle also states Jaru people who visit the licence ‘take the young kids and teach them about the country and the names of places and bush food’. She says last year ‘we went out on a big camping trip to the Tenement Area and the surrounding area, taking our young people and teaching them about country...including the burial sites talked about below’ (at 11).
Jaru argue Ms Jingle’s evidence establishes their activities ‘occur frequently’ during the dry season ‘precisely when the Grantee Party would be accessing the Tenement Area for exploration’ and so direct interference is ‘highly likely’ (Jaru Contentions at 18-21). They also argue Ms Jingle’s evidence shows the licence area has ‘many unique qualities compared with the rest of the claimed area’ because: it used to be a living area for their ‘old people’; they ‘have never stopped going to that country and they go regularly’; ‘it is flat country there’ which makes the licence ‘particularly good for hunting and collecting bush tucker’; and there are sites which ‘are the subject of ongoing, present day ceremony and transmission of knowledge’ (Jaru Contentions at 35 and 47, Ms Jingle’s affidavit at 6-14).
To support their argument that the licence area has ‘unique qualities’, Jaru cite Wiluna v Kingx at [39]. In that matter, the Tribunal was satisfied that two areas on the licence were unique to the Wiluna claim area. Evidence was provided in relation specifically to those two areas.
The evidence provided in this matter is less specific than that provided in Wiluna v Kingx, in relation to social or community activities occurring on or near particular sites (apart from that provided in relation to two burial sites, discussed below at [15]). Jaru state the licence is ‘particularly good for hunting and collecting bush tucker’ and ‘they go regularly...to hunt, fish and camp’. They also state they ‘went out on a big camping trip to the Tenement Area and the surrounding area’. However, they do not detail how they use specific areas on the licence for these activities. Jaru do not explain the intensity of their activities, nor do they explain how Baracus’ activities might disrupt them.
Ms Jingle refers to two Parralgana burial sites, which are the subject of ceremonial activity and intergenerational teaching to ensure appropriate entry to and protection of the sites. However, there is little specific information about the extent and intensity of the community or social activities which occur in relation to those burial sites.
In addition, the State contentions argue Jaru’s community and social activities have already been affected by previous and current tenure over the licence. The evidence shows the licence has been subject to previous exploration licences and mineral claims, which largely pre-date native title legislation, and is also covered by a common reserve and an Indigenous held pastoral lease. The State argue ‘any intersection between the grant of the proposed tenement and the current activities of the Native Title Party...would be the same as, or no more significant than, the previous and continuing use of the area’. The State also asserts (at 45) Baracus’ activities, like any explorer’s activities, would be ‘low-scale and likely infrequent’ and on numerous occasions the Tribunal has found ‘hunting and collecting bush tucker, and mineral exploration activity are, by their nature, inherently capable of coexistence’. To support their argument, the State cite Tullock v Bushwin at [122] and Rosas v Northern Territory at [71].
In Tullock v Bushwin, the Tribunal had evidence of the grant of a partial lease which was likely to have interfered with the native title party’s obligation to look after country. In the present matter, an Indigenous held pastoral lease partly overlaps the licence, but there is no specific evidence of any interference with Jaru community or social activities from the pastoral activities.
In relation to Rosas v Northern Territory, the Tribunal held there was a likelihood of intersection between the community or social activities of the native title party and the grantee party. However, that was unlikely to lead to significant interference with the native title’s party’s community or social activities because of: the size of the licence; the infrequent and limited nature of the activities; the evidence that previous exploration had not impacted on such activities; and the regulatory regime. The licence in that matter was 939 square kilometres, as opposed to this matter where the licence is approximately 12.96 square kilometres. However, without further detail about the frequency and nature of the activities on parts of the licence, I cannot conclude in this matter that social or community activities will necessarily be interrupted, to the extent that offends s 237(a) of the Act.
What are Baracus’ proposed activities?
Baracus have not provided any submissions regarding their activities, although the State’s submissions include Baracus’ ‘Statement in Support of Application’, which details Baracus’ initial exploration program if the licence is granted. This statement provides very limited information and outlines activities such as rock chip sampling, geological mapping, and geophysical and remote surveying. The State argues Baracas’ program is ‘significantly less than it would otherwise be permitted to undertake’ and therefore ‘the Tribunal must not automatically assume that the Grantee Party intends to exercise the full suite of rights conferred by section 66 of the Mining Act’ (at 15 and 17). I do not accept this argument because no evidence has been provided in relation to Baracus’ intentions beyond the first year of exploration. The grant of the licence would allow for up to 5 years exploration activities, with the possibility of renewal. In the absence of further evidence, I conclude it is open to Baracus to exercise the full rights available to them if the licence is granted.
Conclusion
With the exception of the Parralgana burial sites, Jaru’s activities do not appear to be restricted to specific areas in the licence. Their activities occur in and around the licence area generally and could coexist with Baracus’ exploration activities, which are likely to be temporary and infrequent. Even in relation to the activities associated with the burial sites, the information provided about the exercise of those activities is quite broad. Based on the evidence provided, I conclude both parties’ activities are likely to be able to coexist with some intersection, and interference with the social or community activities of Jaru is unlikely to be substantial.
b)Is there a real chance or risk the grant will directly interfere with areas or sites of particular significance to Jaru?
What areas or sites are identified?
Ms Jingle identifies the following sites within the licence:
·Previous camp sites along the river containing material left by Jaru ‘old people’ (at 7); and
·Two Parralgana burial sites ‘each on either side of the river’ for ‘members of the Button family, who come from around that country’ (at 12). Ms Jingle states, ‘When we go to Parralgana we talk to the spirits... We let the spirits know we are there so they don’t humbug and hurt us and so kids don’t have bad dreams and get a fright. If people are going to Parralgana they need to talk to the spirits first for protection’ (at 12-13).
Results from the Department of Aboriginal Affairs (DAA) Aboriginal Heritage register reveal one registered site with no gender restrictions – Esor Burial ID 12433. It is not clear whether this is one of the burial sites referred to by Ms Jingle, however, the coordinates are described on the register as ‘unreliable’ and DAA mapping locates the site within a circular buffer zone, which indicates a burial site exists somewhere within that zone, but it is not clear precisely where.
Are any of these areas or sites of particular significance?
Jaru must provide sufficient evidence: to show that an area or site exists on the licence; to explain its significance and distinguish it from other areas within the licence; and to show it is of more than ordinary significance to them in accordance with their traditions. These questions are a precondition for inquiring whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). Without sufficient evidence to address these issues, I cannot answer the question of interference.
Jaru do not assert that the ‘old people...camp sites all along the river’ are sites of particular significance to them. Ms Jingle’s description is very general and does not explain the significance of the sites (at 7). Although Jaru refer to the DAA registered site, Esor Burial, they make no comment about its significance (see Jaru Contentions at 44).
However, Jaru assert the two Parralgana burial sites ‘clearly stand out in their significance’, and ‘are the subject of ongoing, present day ceremony and transmission of knowledge’ (Jaru Contentions at 47). Ms Jingle states the sites ‘are important to Jaru people’, identifies the people buried there, and says Jaru people ‘know about Parralgana’ and teach ‘young people...and others’ the cultural practices to ensure ‘protection’ from the spirits who reside there (at 12–14). I am satisfied the two Parralgana burial sites are of particular significance to Jaru in accordance with their traditions.
Does a regional standard heritage agreement provide protection in the context of any sites of particular significance?
The State proposes to include a grant condition which allows Jaru to choose any Regional Standard Heritage Agreement and request that Baracus execute it (the RSHA condition). An RSHA would provide for consultation, heritage clearances and surveys with Jaru, prior to Baracus undertaking certain activities on the licence.
The State contends (at 58(a)) that Baracus is aware of the burial sites as they have been the subject of this inquiry. However, apart from establishing the sites are on the licence, Jaru have provided little specific information about their location, presumably because of the sensitive nature of these sites. As such, one could not say Baracus had sufficient information to avoid the sites or to ensure they did not interfere with them. Even low impact activities by Baracus could constitute interference with such significant burial sites. As noted by the Federal Court (at [76]) in FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation, there is no reference to physical interference in the Act, and:
...the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
Jaru argue ‘it is not appropriate under traditional law and custom for third parties to access the Parralgana burials because the required ceremonial rituals would not be followed’. They argue that despite the State’s regulatory regime, the RSHA condition and Baracus’ ‘best intentions’, ‘[c]onsultation with the [native title party], permission to enter country and the observance of ceremonial ritual is required to avoid interference with the Parralgana burials, the precise boundaries of which are only known to the [native title party]’ (Jaru Contentions at 48–51 and 66).
To support their argument, Jaru cite Birriliburu v Murchison Metal at [67] and state ‘the notion of peoples entering country without permission (e.g. the wrong people or unannounced people on country) was found to cause interference’. They also cite Bunuba #2 v Mings Mining at [49]–[61], [78] and [90] and state ‘the Tribunal found that despite the grantee party’s willingness to enter into a RSHA, interference with sites of significance remained likely due to the nature of those sites, which included burial sites and sites the precise boundaries of which were not readily identifiable by the grantee party, as is the case in this matter’ (Jaru Contentions at 49 and 66). I accept that those principles, as outlined in Birriliburu v Murchison Metal and Bunuba #2 v Mings Mining, apply in this matter.
Conclusion
Without negotiations under s 31, there is a real chance that Baracus could enter the Parralgana burial sites. What may appear to be non trivial interference from the explorer’s point of view, such as accessing the sites for rock chip sampling, is likely to have a real chance or risk of interference with those burial sites from the traditions as outlined by Jaru. In addition, the grant of the licence allows Baracas to extract up to 1,000 tonnes of material, including earth, soil or mineral bearing substance (see s 66 of the Mining Act). If, for example, that material was taken from the area of the burial sites, those sites would clearly be subject to interference. Without proper consultation and assistance from Jaru, there is a real chance of interference with the Parralgana burial sites in accordance with Jaru’s traditions.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E80/4908 to Baracus Pty Ltd, is not an act attracting the expedited procedure.
Helen Shurven
Member
2 May 2016
Appendix A: Draft Tenement Endorsement and Conditions
The grant of E80/4908 will be subject to the following conditions:
All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:
The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
The Licensee [sic] attention is drawn to the provisions of the:
·Waterways Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependant vegetation of any perennial waterway, and
·30 metres from the outer-most water dependant vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water Areas (SWA/15, Fitzroy River & Tributaries) the following endorsements apply:
The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
All activities to be undertaken with minimal disturbance to riparian vegetation.
No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks is issued by the DoW.
Advice shall be sought from the DoW and the relevant service provider is proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas (GWA/10, Canning-Kimberley) the following endorsement applies:
The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take ground water has been issued by the DoW.
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