Barbara Sturt and Others on behalf of Jaru v Montezuma Mining Company Ltd and Another
[2018] NNTTA 78
•14 December 2018
NATIONAL NATIVE TITLE TRIBUNAL
Barbara Sturt & Others on behalf of Jaru v Montezuma Mining Company Ltd and Another [2018] NNTTA 78 (14 December 2018)
Application No: | WO2018/0023 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Barbara Sturt & Others on behalf of Jaru (WC2012/003)
(native title party)
- and -
Montezuma Mining Company Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
-Date: | 14 December 2018 |
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 applies – the act is an act attracting the expedited procedure |
| Legislation: | Native Title Act 1993 (Cth) s 237 |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Gooniyandi Aboriginal Corporation v Inventum Resources Pty Ltd and Another [2018] NNTTA 41 (Gooniyandi v Inventum) Josephine Forrest on behalf of Yi-Martuwarra Ngurrara; Butcher Wise on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 100 (Forrest v Brockman Exploration) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Silver v Northern Territory[2002] NNNTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd[2014] NNTTA 56 (Western Desert v Teck) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Ashley Mumford, Kimberley Land Council |
| Representative of the grantee party: | Michael Giles, Element 25 Ltd |
| Representatives of the Government party: | Jeff O’Halloran, State Solicitor’s Office Bethany Conway and Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
I have been appointed to decide whether the State Government of Western Australia can, using the expedited procedure, grant exploration licence E80/5092 (the licence) to Montezuma Mining Company Ltd (Montezuma). Under s 237 of the Native Title Act 1993 (Cth) (the Act), the expedited procedure applies to a licence if the grant is not likely to:
(a)interfere directly with the native title holders’ community or social activities; and
(b)interfere with areas or sites of particular significance, in accordance with their traditions; and
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The native title party in this inquiry are the Jaru registered native title claimants, whose native title claim overlaps the licence by 98.3 per cent. They lodged an objection against the State’s assertion that the expedited procedure applies to the licence. The licence is approximately 4,848 hectares in size, located in the Halls Creek Shire within the Carranya and Lamboo Indigenous held pastoral leases.
Under the expedited procedure, the State can grant the licence to Montezuma without negotiations with Jaru. My decision on whether this can occur must rest on the three criteria set out in s 237 of the Act. In this decision, all references to legislation are to the Act, unless otherwise noted.
The parties’ submissions
Jaru submitted a statement of contentions, attaching the affidavit Mr Murray Gordon. Mr Gordon is a Jaru man through his father, and I accept he has authority to speak for the licence area.
Montezuma submitted a statement of contentions along with a map showing historic drill holes by previous explorers. The State lodged a statement of contentions, mapping, a Tengraph Quick Appraisal form, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches) and a list of proposed endorsements and conditions to be imposed on the grant of the licence. Jaru submitted a statement of contentions in reply to the material submitted by Montezuma and the State.
Parties conferred and attempted to draft a statement of agreed facts to submit to the Tribunal, as per inquiry directions. They were unable to agree on such a statement and I vacated the direction. I was satisfied this inquiry could be determined on the papers.
The Tribunal’s geospatial services provided mapping of the area for my use. Tribunal staff circulated the mapping for parties’ comment by 29 November 2018. No party objected to its use for this inquiry.
Section 237(a): is the grant of the licence likely to interfere directly with Jaru’s community or social activities?
To find s 237(a) interference is likely, there must be a direct and substantial interference with social or community activities (Yindjibarndi v FMG at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities to determine whether the activities can coexist without direct or substantial interference (Rosas v Northern Territory at [71]).
What are Montezuma’s intended activities?
Montezuma intend to explore for rare earth oxide. They state that, following activities such as desktop research and ground mapping, a drilling program ‘would be planned on old drill lines (where possible)’. Access will be via existing tracks and roads. They state their initial investigations will be in the area of a known mineralisation deposit, where previous drilling was undertaken. However, Montezuma note that in ‘later years, a more regional approach will be undertaken to investigate the potential for additional resources.’ On this basis, I conclude Montezuma intend to exercise the full suite of rights available to them upon the grant of the licence under s 66 of the Mining Act 1978 (WA).
What are Jaru’s community and social activities?
In their contentions, Jaru assert the licence ‘is part of the main fishing, hunting, camping and intergenerational teaching area’ (at 14). They also assert the ‘Aboriginal community of Budgilbidi is 22 kilometres from the Tenement’ which ‘suggests that the Tenement may be used more frequently than other areas further away’ (at 10-11). Indeed, proximity and ease of access from Aboriginal communities can suggest frequent and intensive use of the area (Forrest v Brockman Exploration at [43]). However, there needs to be evidence to support any assertions that social and community activities are conducted on the licence, and that these activities will suffer interference (see Gooniyandi v Inventum Resources at [29]).
The evidence is very broad and does not provide detail on the social or community activities of Jaru. The evidence does refer broadly to the existence of various flora and fauna on the licence, but does not provide detail on the nature or extent of the social or community activities associated with hunting or gathering of those resources. Evidence also refers generally to camping, and to ceremony passed down through the generations, but again, there is no detail provided.
Conclusion
Apart from general statements, there is no evidence about the nature, frequency or intensity of the activities Jaru undertake on the licence area. As such, I cannot conclude that Montezuma’s exploration activities would directly or substantially interfere with them.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Jaru?
An area or site of ‘particular significance’ is one 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 one 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 are on the licence?
The affidavit evidence refers to the following areas or sites:
· ‘many special sites in the Tenement Area. There are rocks with drawings on them that the old people did’ (at 5);
· ‘many burial sites throughout the tenement area’ of ancestors (at 6-7);
· a historic ‘gathering place for all of the tribes’ (at 9).
It is also said there are ‘billabongs in the Tenement Area, they are all sacred’ with ‘stories connected to them, and drawings on the rocks’ nearby ‘like a map for how to find water in the desert’ (at 10). One billabong referred to is named as ‘Paranga Pool’ (at 11). While it is not specifically referred to as being within the licence, the implication is it is within the licence area. Tribunal mapping, which was provided to all parties for the purposes of this inquiry, could not locate any billabongs on the licence area. Mapping provided by parties also did not locate Paranga Pool as a site or area on the licence. Without sites being located and described, it is not possible for me to conclude they are sites of particular significance for the purposes of s 237(b).
There is reference in the affidavit to ancestors murdered along the Canning Stock Route. Mapping shows the Stock Route is approximately 60 kilometres southeast of the licence. There is also reference to the area south of Lamboo Station which is ‘sacred’. However the station is approximately 100 kilometres north of the licence, and the evidence is too general to apply it to the licence area.
Is there evidence areas or sites on the licence are of particular significance in accordance with Jaru’s traditions?
Because of the lack of evidence in relation to the rocks with drawings on them, the ‘many burial sites’ in the licence area, and the gathering place, I do not conclude these are sites of particular significance for the purposes of s 237(b), although I have no doubt they are important areas for Jaru, and to the deponent in particular. Given the lack of specificity in the evidence, and the issues around whether or not some of the areas named in the affidavit are on the licence, I conclude there is insufficient evidence to conclude these are sites of particular significance as required by s 237(b). For example, it is said in the affidavit (at 7) there ‘are many burial sites throughout the tenement area. They are all sacred’. In relation to the burial sites, I adopt the principles outlined at [131] of Western Desert v Teck: there is no doubt of the importance of burial sites, but I cannot take that next step in this matter to conclude they are sites of particular significance for the purposes of s 237(b).
Similarly, there is insufficient evidence to find the drawings or the historic gathering place are sites of particular significance. These sites are also described in a general way. There is no information that explains or distinguishes these sites as being of special or more than ordinary significance to Jaru in accordance with their traditions (Cheinmora v Striker Resources at 34–35).
Conclusion
I have concluded that there are no sites on the licence, or with a nexus to the licence, which are sites of particular significance for the purposes of s 237(b). As such, I do not need to examine whether or not any sites will be subject to interference by the activities of Montezuma.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Jaru state they do not make any contentions in relation to 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. Therefore I find disturbance under s 237(c) is unlikely.
Determination
The grant of exploration licence E80/5092 to Montezuma Mining Company Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
14 December 2018
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