Barbara Sturt and Others on behalf of Jaru v Tremjones Pty Ltd and Another
[2016] NNTTA 35
•29 August 2016
NATIONAL NATIVE TITLE TRIBUNAL
Barbara Sturt and Others on behalf of Jaru v Tremjones Pty Ltd and Another [2016] NNTTA 35 (29 August 2016)
Application No: WO2015/0752; WO2015/0753; and WO2015/0754
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Barbara Sturt and Others on behalf of Jaru (WC2012/003) (native title party)
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The State of Western Australia (Government party)
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Tremjones Pty Ltd (grantee party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms H Shurven, Member
Place: Perth
Date: 29 August 2016
Catchwords: Native title – future acts – proposed grants of prospecting licences – expedited procedure objection applications – 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 attracted
Legislation:Native Title Act 1993 (Cth)
Mining Act 1978 (WA)
Cases:State of Western Australia/Winnie McHenry on behalf of the Noongar People, NNTT WO98/125, [1999] NNTTA 210 (‘Western Australia v McHenry’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representatives of the Ms Angela Booth, Kimberley Land Council
native title party: Mr Tim Ognenis, Kimberley Land Council
Representatives of the Ms Sarah Power, State Solicitor’s Office
Government party: Mr Michael McMahon, Department of Mines and Petroleum
Representatives of the Mr Russell Tremlett
grantee party: Mr Randall Jones
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the grants of prospecting licences P80/1828, P80/1829 and P80/1830 (the licences) to Tremjones Pty Ltd (Tremjones). For the reasons outlined below, I find the expedited procedure applies to the grant of each licence.
Each of the licences comprise approximately 200 hectares. The licences are adjacent to each other in a north-south direction and are located near 6 Mile Creek on Ruby Plains Station in the Shire of Halls Creek. The Jaru native title claimants’ registered native title claim entirely overlaps each of the licences.
The State Government of Western Australia included an expedited procedure statement in their notice about the grant of each licence. On behalf of Jaru, the Kimberley Land Council (KLC) lodged objections to that statement with the National Native Title Tribunal. 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.
By including the expedited procedure statement in their notice, the State asserts the activities permitted under the licences are not likely to interfere with Jaru’s community or social activities, their sites or areas of particular significance, or involve major disturbance to the land and waters of the licence. In objecting to the expedited procedure statement, the KLC argue, on behalf of Jaru, that interference or disturbance is likely (see ss 237(a), (b) and (c) of the Native Title Act 1993 (Cth)). All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.
A decision that the expedited procedure applies to a licence means the State can grant that licence and Tremjones can proceed without negotiating with Jaru (see s 32(4)). A decision that the expedited procedure does not apply to a licence means the normal negotiation procedure is required: the State and Tremjones must negotiate in good faith with Jaru, with a view to reaching an agreement about the grant of that licence. In my decision, I must consider each of the licences because each grant is a separate act.
My decision must be based on the criteria set out in s 237. Specifically, I must determine whether the grant of each licence is likely to:
(a)interfere directly with community or social activities carried on by Jaru;
(b)interfere with areas or sites of particular significance in accordance with Jaru’s traditions; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The State, the KLC and Tremjones have each provided submissions to the Tribunal for the inquiry. In accepting all the submissions, I note the Tribunal is not bound by technicalities, legal forms or rules of evidence (s 109(3)).
On behalf of Jaru, the KLC argue the licences, and the exercise of the rights which result from the licences, are likely to directly interfere with Jaru’s community or social activities and areas or sites of particular significance to them (s 237(a) and (b)). They make no argument about disturbance to the relevant land or waters (s 237(c)). Based on the limited evidence before me, I find the licences are not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
The circumstances of this matter are different to many other objection matters, which often involve grantee parties who are not of Aboriginal or Torres Strait Islander origin. In the usual course of events, a grantee party would always negotiate through a native title party’s nominated representative and it would be inappropriate if they circumvented the representative and approached members of the native title party. However, this situation is unusual in that the grantee party states he has cultural obligations to the native title party in question, and he states these obligations require him to discuss his activities with its members. For example, a Jaru native title claimant who sits on the KLC Board of Directors joined the grantee party at one of the directions hearings.
Tremjones is a two person entity, constituted by Russell Tremlett and Randall Jones. In Tremjones’ submissions, Mr Tremlett provided a signed statement in which he describes himself as a Bunuba man from Fitzroy Crossing. Mr Tremlett states, ‘I have lived in the [Jaru] area all my life and have 4 children. Their mother is Jaru so my children and grandchildren are Jaru’ (at 8). He states, ‘I am bound by these Aboriginal laws’ and as such ‘I have consulted and discussed the tenements with the Jaru people to ensure I am cooperating with my obligations under Cultural law’ (at 5 and 7).
On the basis of the submissions provided, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant of each licence:
(a)Is there likely to be direct interference with the carrying on of Jaru’s community or social activities?
i)What are Jaru’s community or social activities and where to these take place?
ii)Are there any other interests that may have already interfered with Jaru’s activities?
iii)What are Tremjone’s proposed activities?
iv)Conclusion
(b)Is there likely to be interference with areas or sites of particular significance to Jaru?
i)Are there areas or sites on the licences which are of particular significance to Jaru?
ii)Conclusion
(a)Is there likely to be direct interference with the carrying on of Jaru’s community or social activities?
What are Jaru’s community or social activities and where do these take place?
On behalf of Jaru, the KLC provided the affidavit of Mr Kenny Boomer. Mr Boomer states, ‘I am a Traditional Owner through my grandfather’s side. I can speak for the Tenement Area[s]’ (at 4). Mr Tremlett raises arguments that there are other Jaru people who have a better right to speak for the country of the licences. However, the KLC, who are the legal representatives of the Jaru native title claim group, have relied on Mr Boomer’s evidence, and he has deposed he can speak for the licences. I understand the issue of who can speak for country is a complex one, and I accept the evidence of Mr Boomer on the basis that it has been deposed and held forward by the claim group’s legal representative.
Mr Boomer states Jaru call the area of the licences Buduwadu or hill country (also referred to as Baduwadu): ‘Badudwadu is from 6 Mile Creek and north back to Halls Creek. South of 6 Mile Creek is Yugal (Ruby Plains) – flat Spinifex country’. He says 6 Mile Creek runs through the licences and ‘is very good for fishing’, specifying that Jaru catch perch, fresh water mussels and fresh water prawns (at 5-8). He states (at 8):
6 Mile Creek is important because it is spring water. The other creeks around there dry up. Especially because they put a dam up at Mary River. In the dry season, those other creeks dry up but 6 Mile Creek it goes down in the dry but is has fresh, clean water all year round.
Mr Boomer states 6 Mile Creek ‘is a popular area. For example, when mob come up from Bililuna, they stop there at the highway near the creek. It’s a good rest area for a feed and swim’ (at 9). It also appears that the fishing is not confined to one area of Six Mile Creek.
Mr Boomer states the country around 6 mile Creek and the licences ‘is good for hunting too. We catch all sorts out there, goanna, kangaroo and turkey’. He expresses concern that ‘if people come out exploring and prospecting’ on the area ‘and burn the country the wrong way, the kangaroo and other animals will leave and the hunting won’t be good anymore’ (at 7). However, there is little information about the frequency or intensity of hunting activities in relation to the proposed licences. Similarly, there is little information about the activity of swimming, resting or intergenerational teaching.
Mr Tremlett states he has ‘prospected around 6 mile area for 40 years and lived out there for two years’. He says the area of the licences is ‘all flat’ and ‘not the hill country’ that Mr Boomer talks of in his affidavit (at (9)):
I know the area he talks about it is nowhere near these tenements. He talks about going fishing, swimming, hunting and freshwater springs with prawns. The area he is talking about here is where the Tanami road crosses the 6 mile. Kenny would probably stop there when they come in from Bililuna. By road this would be about 6 miles from the tenements. When we go out to the tenement we have to take all the water that we need for drinking, cooking and washing. This part of 6 mile dries up a few months after the rain stops and leaves a few small holes. There is no fresh water to drink and you can’t catch fish.
Contoured mapping provided by the Tribunal’s geospatial unit concurs with Mr Tremlett’s description. This mapping was circulated to parties and was not contested by any party. The mapping shows that portions of 6 Mile Creek runs through P80/1829 and P80/1830, however, much of the area of the licences lie south of 6 Mile Creek. This area appears to be flat country according to the mapping. Photographs in Mr Tremlett’s signed statement, which are said to be of the licence areas, and which assertion has not been challenged by other parties’ contentions, also indicate flat country.
The area north of 6 Mile Creek heading north east to Halls Creek (some 40 kilometres away) is contoured largely as hilly country. The intersection of 6 Mile Creek and the Tanami Road (which connects to the Great Northern Highway) is about four kilometres east of the licences. On the evidence, I conclude the social and community activities described by Mr Boomer are likely to take place north and east of the licences, in the hilly area of Six Mile Creek around the Tanami Road. Even if they did take place on the licences, there is very little information about the location, frequency or intensity of such activities.
Are there any other interests that may have already interfered with Jaru’s activities?
I must take into account other lawful activities which might have already impacted on Jaru’s community or social activities.
P80/1828 has been subject to: five previous exploration licences active between 1984 and 2015, overlapping between 87 and 100 per cent; three prospecting licences active between 1993 and 2011, overlapping between 6 and 30 per cent; and one mining lease active between 1984 and 1987, overlapping at 30 per cent.
P80/1829 has been subject to: six previous exploration licences active between 1994 and 2015, overlapping between 15 and 84 per cent; two prospecting licences active between 2003 and 2011, each overlapping at 37 per cent; and one mining lease active between 1984 and 1987, overlapping at 35 per cent. Of these, four of the exploration licences, both prospecting licences and the mining lease are the same as those which overlapped P80/1828. One pending exploration licence overlaps P80/1829 at 8 per cent.
P80/1830 has been subject to: three previous exploration licence active between 1994 and 2011, all overlapping at 100 per cent; two prospecting licences active between 1997 and 2007, overlapping at 32.6 per cent each; and two mining leases active between 1984 and 1993, overlapping at 0.1 and 11.6 per cent respectively. One pending exploration licence overlaps this licence at 28 per cent (the same as that which overlaps P80/1829).
The State has provided some expenditure records for past activities on these licences, which ranged from $75,000 to $278,000, which suggests some relatively extensive exploration or mining activity was undertaken by previous explorers.
What are Tremjone’s proposed activities?
If granted, Mr Tremlett’s lawful rights under his prospecting licences are set out in s 48 of the Mining Act 1978 (WA). However, Mr Tremlett states, under ‘Customary Aboriginal Law I have no rights to stop the local Jaru people from entering the tenement[s] and using the land. I would not want to anyway’ (at 8).
Mr Tremlett’s proposed activities appear to be low impact. He states (at 6):
My intended work programme is to initially carry out basic detecting on previously sampled areas. Depending on the results over the next few years, there may be further exploratory work to identify prospective areas for dry blowing work... My proposed prospecting areas in the tenements will be very small and over the previously worked areas... I will be accessing the tenement[s] via existing tracks and a fence goes through the middle of the tenements... part of Ruby Plains station.
I accept Mr Tremlett’s prospecting can be over previously worked areas, and even if he encroached onto land which had not been worked, I accept that prospecting activities traditionally are low impact in nature. I note that exploration and mining activity has been conducted on all three licences, which are of a greater impact than prospecting activities. I also note there are two deposits from previous exploration referred to in Mr Tremlett’s statement, in relation to P80/1830, which is supported by the State’s quick appraisal document for that licence.
Mr Tremlett states, ‘I have consulted and discussed the tenements with the Jaru people to ensure I am cooperating with my obligations under Cultural law’. He appends a document which contains a statement signed by five Jaru people who he states can speak for the area of the licences. The statement is countersigned by a person listed as an Applicant for the Jaru native title claim and reads:
The following people are the main traditional owners for the land around 6 mile creek which Russell Tremlett is endeavouring to obtain an prospecting lease [sic]. The traditional owners listed below give permission for Mr Russell Tremlett to look for minerals on their land, and by signing this they agree there is no sites of significance in the lease area.
Conclusion
As outlined by President Webb in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16]), the level of interference with community and social activities must be substantial rather than trivial. On the evidence, I find the area described by Mr Boomer is likely to be north and east of the licences and as such, the activities he describes are unlikely to be interfered with by Tremjones’ prospecting activities.
Even should the activities be conducted directly on the licences, the land has been subject to previous exploration, prospecting and mining activities, and further prospecting activity is unlikely to cause substantial interference with the hunting, fishing, swimming, teaching or resting activities as outlined by Mr Boomer. It is also clear that, regardless of any decision I am legally bound to make under the Act, Mr Tremlett is bound by customary law and any activities Jaru may wish to undertake on the area are unlikely to be interfered with according to that law.
I conclude the grant of each licence is not likely to interfere with the carrying on of Jaru’s community or social activities.
b)Is there likely to be interference with areas or sites of particular significance to Jaru?
Are there areas or sites on the licences which are of particular significance to Jaru?
A native title party must provide sufficient evidence to: show that an area or site exists on the licence; explain its significance and distinguish it from other areas within the licence; and show it is of more than ordinary significance to them in accordance with their traditions (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17]). The word 'particular' in s 237(b) means, not only ‘special or more than ordinary’, but that the particularity of the site or area must be capable of identification (Western Australia v McHenry). These requirements are the threshold for a finding that the grant of a licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). Therefore, if there is no evidence of areas or sites of particular significance within the licences, then I do not need to proceed with the next step of the inquiry and look at the question of interference.
As noted, Mr Tremlett provides a statement signed by five Jaru people, and countersigned by an Applicant, and this statement outlines there are no sites of significance in the area of the licences.
Mr Boomer refers to one site, being Guarry Hole ‘along 6 Mile Creek’ associated with a dreaming story. He says a ‘snake created that hole and lives there... Strangers get sick if they go out without us’ (at 12). However, he has difficulty locating the site within the licences, stating it is ‘hard to say from the map’ whether it is within the licences ‘or just outside it’. Furthermore, I have concluded the area described by Mr Boomer in his affidavit is not likely to be in the area of the licences – he describes the hilly area north east of the licences, whereas the licences appear to be on flat country.
Conclusion
As outlined by President Webb in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [17]), a site of particular significance must be known and must able to be located and the nature of its significance explained. In this inquiry, only the broadest of information has been provided about Guarry Hole. As President Webb outlined, it ‘is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site’. Again, in this inquiry, whether or not the site is on one of the proposed licences, insufficient information has been provided to show that it is a site of particular significance to the native title party.
On balance, I conclude there is no evidence of sites or areas of particular significance in any of these licences. Therefore, I do not need to consider the question of whether or not there is likely to be any interference to a site or area of particular significance from Tremjones’ prospecting activities.
Conclusion
I find the evidence does not support a conclusion that the grant of any of the licences is likely to interfere with the carrying on of Jaru’s community or social activities, or that there exists areas or sites of particular significance to Jaru in accordance with their traditions. I also find the grants of the licences are not likely to involve major disturbance to the land and waters concerned.
Determination
The determination is that the acts, namely the grant of prospecting licences P80/1828, P80/1829 and P80/1830 to Tremjones Pty Ltd, are acts attracting the expedited procedure.
Helen Shurven
Member
29 August 2016
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