Barbara Sturt & Others on behalf of Jaru v Eastmin Pty Ltd and Another - [2016] NNTTA 3

NATIONAL NATIVE TITLE TRIBUNAL

Barbara Sturt & Others on behalf of Jaru v Eastmin Pty Ltd and Another [2016] NNTTA 3 (21 January 2016)

Application No: WO2014/0502

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 & 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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Eastmin Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Ms H Shurven, Member

Place: Perth
Date: 21 January 2016

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 cause major disturbance to land or waters – expedited procedure attracted

Representatives of the Ms Angela Booth, Kimberley Land Council

native title party:

Representatives of the Ms Anita Kearney, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines & Petroleum

Representative of the Mr Hong-Jim Saw, Hetherington Exploration & Mining Title Services

grantee party: Pty Ltd

Legislation:Mining Act 1978 (WA) s 66
Mining Regulations 1981 (WA) r 20
Native Title Act 1993 (Cth) ss 31, 32, 150, 237
Cases: Balanggarra Aboriginal Corporation Registered Native Title Body Corporate v Bar Resources [2014] NNTTA 62 (‘Balanggarra Aboriginal Corporation v Bar Resources’)

FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 ('FMG v Yindjibarndi Aboriginal Corporation’)

Josephine Forrest & Ors on behalf of Yi-Martuwarra Ngurrara; Butcher Wise & Ors on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 100 (‘Forrest v Brockman Exploration’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’)
Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 (‘Nyikina Mangala v State of Western Australia’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Western Australia v Ward (1996) 70 FCR 265; [1996] FCA 1879 (‘WA v Ward’)
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Wiluna v Asia Investment’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG’)
Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd [2001] NNTTA 42 (‘Young v South Coast Metals’)

REASONS FOR DETERMINATION

This is a determination about whether the expedited procedure applies to exploration licence 80/4853 (‘the licence’). The licence is approximately 310 square kilometres in size (which excludes the area of E80/2232, which overlaps it). The expedited procedure, as set out in s 237 of the Native Title Act1993 (Cth) (‘the Act’) applies if the grant of the licence is not likely to, in relation to the land or waters concerned: interfere directly with the carrying on of the community or social activities of the persons who are holders of native title; or interfere with areas or sites of particular significance in accordance with their traditions, to the persons who are the holders of native title; or involve major disturbance or create rights whose exercise is likely to involve such major disturbance. If such interference or disturbance is found to be likely, the expedited procedure does not apply. The expedited procedure is an exception to the right to negotiate. In the right to negotiate, the grantee for the licence and State Government parties are required to negotiate with native title holders and claimants with a view to reaching agreement about the doing of the future act (that is, the granting of the licence).
In this matter, the licence falls within the claim area of the Jaru native title claimants, who lodged an objection to the application of the expedited procedure with the National Native Title Tribunal (‘the Tribunal’). The licence overlaps the Jaru native title claim by approximately 229 square kilometres. The Jaru native title claim is approximately 28 825 square kilometres in total. The grantee party is Eastmin Pty Ltd (‘Eastmin’) and the State Government is that of Western Australia (‘the State’). I note the underlying tenure of the licence comprises two Indigenous held pastoral leases: Carranya, which overlaps by 63.7 per cent; and Lamboo, which overlaps by 37.4 per cent.
The parties attempted to resolve the objection to the expedited procedure statement by agreement, including through negotiations and through the conference process allowed by s 150 of the Act. However, parties were unable to reach agreement.
To answer the question of whether the grant can be made in an expedited way, I was appointed by the Tribunal President, Raelene Webb QC, to be the Member conducting the inquiry. I provided parties with a copy of a map produced by the Tribunal’s Geospatial Unit to be used in the inquiry. The State requested some shading be applied to the map to contrast certain areas, and an updated map was provided to all parties. No objection was taken to me relying on those maps. The parties were content to proceed on the papers and no hearing was required.
The Jaru native title claimants contend the expedited procedure does not apply, particularly by virtue of s 237(a) of the Act (relating to community and social activities) and s 237(b) of the Act (relating to sites of particular significance). The affidavit of Mr Brian Darkie is provided in support of their position. Mr Darkie states he has authority to speak for this country, through his mother. Annexed to Mr Darkie’s affidavit is a map showing the exploration licence and surrounding areas with some pen markings made by Mr Darkie, which are referred to in the affidavit. I accept the authority of Mr Darkie to speak for the area of the licence.
I must also inquire into whether the grant will be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned (s 237(c) of the Act). However, the Jaru native title claimants’ contentions do not raise s 237(c), rather they focus on s 237(a) and s 237(b) of the Act. In his affidavit (at 21), Mr Darkie states he is worried what exploration activities would do to creeks, rivers, waterholes, bush tucker and bush medicine. Neither the State nor Eastmin address s 237(c). Based on the evidence before me, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.

Social or community activities: where do they occur and are they likely to be interfered with by the grant of this licence?

President Webb set out the requirements for an assessment of s 237(a) of the Act (see Yindjibarndi Aboriginal Corporation v FMG (at [16]). In summary:
a.‘the focus is on “community and social activities” which are essentially physical activities’;
b.‘the term “community” is contextual and “community activities” is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence needs to be provided to identify the individuals as a community (Silverv Northern Territory at [59])’;
c.‘the term “social activities” is focussed towards activities of the native title group, though it can encompass activities carried out by an individual or small group in certain circumstances, such as where the activity is relevant beyond the person involved (Silverv Northern Territory at [60])’; and
d.‘the level of interference with community and social activities must be substantial rather than trivial (Silver v Northern Territory at [57]...)’.
Mr Darkie’s affidavit says the licence area is called Yaraling country by the Jaru native title claimants (at 7). He says the old track to the Wangkatjunka Community is used to access the licence area. He states he lives at Billinuna Community which is about 80 kilometres north west from the licence area (at 8–9). I note this community is mapped as Billiluna, and either spelling will be used in this decision depending on the reference it is taken from. On the Tribunal maps, Wagkatjunka Community is shown to be located about 113 kilometres to the north west of the licence. Billiluna is shown on the Tribunal map to be located about 50 kilometres south east of the tenement, closer than Mr Darkie recalled.
Mr Darkie outlines being taken camping, hunting, and bush tucker collecting in this area by his mother and old people when he was a child, and being told stories about this country (at 10). He says he teaches his children these stories and that he took them camping and hunting there last year before the start of the wet season (at 10). He says he takes his children to collect bush tucker in the licence area (at 11) and that there is lots of bush tucker, such as kangaroo, bush turkey and goanna (at 12) as well as bush potatoes and bush tomatoes in the area (at 14). He says there are lots of bush medicines everywhere on the licence area, including leaves from conkerberries, which are used to make smoke to heal and prevent sickness in babies and children, as well as adults (at 15).
Mr Darkie talks about a particular ‘really good’ camping and hunting spot around Shiddi Creek, where there is a nice waterhole and hills (at 13). Shiddi Creek is outside the licence. Tribunal maps show the closest part of Shiddi Creek to be about 12 kilometres from the south end of the licence and I can see a large portion of that Creek is a site registered with the Department of Aboriginal Affairs (‘DAA’). Mr Darkie says his, as well as other families go camping, hunting and collecting bush tucker there all the time and that his family went there last year (at 13). He says they go swimming and fishing when there is lots of water (at 13).
As President Webb noted (in Yindjibarndi Aboriginal Corporation v FMG at [59]), the Tribunal may infer native title rights might be exercised on a licence but:
that does not answer the question posed by s 237(a), namely whether ‘the grant of the exploration tenement and the proposed exploration activities are likely to hamper or adversely affect the native title party in continuing, or going on with, the conduct of community activities...in the sense there is a real risk of this happening’ (see Tullock v Western Australia at [108]). There needs to be quantifiable evidence before the Tribunal of ongoing community and social activities on, or having a nexus with, the relevant area in order to assess whether there is a real risk of those activities being adversely affected by the exploration activities if the grant is made.
Clearly, activities occur on the licence in this present matter, and particularly at Shiddi Creek, which is some distance from the licence. However, it must also be determined that those activities will be adversely affected by the grant of the licence.
The Jaru native title claimants’ documents contend the limited ability to access the licence area during wet season (Mr Darkie’s affidavit at 10) increases likelihood of interference with community and social activities, because both the Jaru people and Eastmin may be accessing the licence at similar times (see contentions at 29, and relying on Balanggarra Aboriginal Corporation v Bar Resources). However, the facts in Balanggarra Aboriginal Corporation v Bar Resources can be distinguished from the facts in the present matter.
In Balanggarra Aboriginal Corporation v Bar Resources there were no submissions from the grantee party, the unique nature of the licence area was outlined, the community was 25 kilometres from the licence and the community’s ease of access to the licence was explained. Also explained was the regular and unrestricted evidence of social and community activities, and the State did not outline an intention to include a Regional Standard Heritage Agreement (‘RSHA’) condition on grant of the licence. As noted in Balanggarra Aboriginal Corporation v Bar Resources, these decisions are often difficult and require a clear delineation of facts and evidence in support of assertions. In the present matter, some assertions made in the contentions are not clearly supported in the evidence. For example, contentions indicate Mr Darkie and his family ‘relies’ on bush tucker in the licence area. However, the evidence suggests hunting and gathering bush tucker is done ‘all over our country’, including in the licence area.
Eastmin, in its statement of contentions, states the cost of on-ground exploration is a barrier to the full exercise of the rights granted by the licence holding (at 10 and 13). The activity proposed in the first three phases of exploration will be limited in disturbance area and period of activity (at 11). Eastmin estimates on ground activity would likely be between four and six weeks in any 12 month period, at the highest level of activity (at 12). Eastmin states it will notify the Jaru native title claimants of any on ground works before undertaking them (at 25).
The State contends there is no evidence Mr Darkie and his children go to the licence area ‘regularly’ and the inference should be drawn that visits are occasional only (at 13). It contends there is no evidence Mr Darkie or any other member of the Jaru native title claimants rely on food from the licence area, and there is no indication bush tucker is only available from this area (at 20). The State also notes Shiddi Creek is outside the licence and infers the circle that Mr Darkie drew on the map annexed to his affidavit indicates the approximate location of the camping spot and associated sacred site (at 14) (I note the circle is some distance from the licence). The State suggests the chance of any contact between Eastmin and members of the Jaru native title claimants is remote, minimised by Eastmin’s commitment to carry out heritage surveys and give notice to the Jaru native title claimants of their intention to access the licence (at 15). The State has imposed a condition to the grant of the licence, that Eastmin execute an RSHA if the Jaru native title claimants request Eastmin to do so, as outlined at [26] of this decision. While that is more relevant to sites of particular significance, if executed, it is likely to assist in increasing the chance the Jaru native title claimants and Eastmin will not be conducting activities in the same area at the same time.
The State suggests the activity Mr Darkie details of teaching his children about stories in and around the licence area is not dependent on him being within the licence area, so this activity will not be interfered with (at 21). In the Jaru native title claimants’ contentions (at 15), it is suggested that the group care for country and special places, but the State contends (at 22), there is no evidence of any specific caring for country or caring for special places activities in Mr Darkie's evidence. I agree with the State’s observations in that regard.
The State identifies an existing overlapping exploration licence, E80/2232, occupying part of the licence, on which Eastmin will not be allowed to explore (at 16). The State proposes to attach a number of endorsements and conditions to the grant of the licence, but none of them are relevant to the issues of interference with community or social activities.
The Jaru native title claimants suggest (at 16 of their contentions) their evidence is not general or unspecific in nature, and cite that is in contrast to the types of evidence provided in Wiluna v Asia Investment. The Jaru native title claimants’ contentions state it is clear they occupy, use and enjoy the licence area on a regular basis and to an extent that their community life within the licence would likely be interfered with (at 18). The Jaru native title claimants also contend they rely on food and medicine from the licence area and they wish to define and undertake meaningful consultation and communication with Eastmin (at 24). However, I find evidence presented in Wiluna v Asia Investment about social and community activities was similar to the evidence presented in the current matter. That is, the evidence was of a general nature, and did not persuade the Member conducting the inquiry that the expedited procedure did not apply because of substantial interference with social or community activities. In examining the evidence in Wiluna v Asia Investment, it is clear the decision the expedited procedure did not apply rested instead on evidence of interference with sites of particular significance. An anthropologist and senior member of the native title claim group gave evidence in relation to this, and it was largely uncontested by the State.
I find Mr Darkie’s evidence about hunting, camping, and collecting bush tucker in the licence area indicates the Jaru native title claimants conduct community or social activities, arising from their registered native title rights and interests, in and around the licence. While the activities are likely to occur intensively on and around Shiddi Creek, that area is approximately 12 kilometres outside the licence. Given the activities proposed by Eastmin, it is unlikely there will be interference with the creek or the DAA site associated with it from the grant of the licence. Eastmin’s evidence also states that on ground activity on the licence is likely to be between four and six weeks a year. Given the size of the licence, and even when taking into account that neither the Jaru native title claimants nor Eastmin can access the area during the wet season, I find it is unlikely the activities of both parties will intersect. If they did intersect, I find it is unlikely interference would be substantial.
Based on these considerations I do not conclude the grant of the licence is likely to interfere with the community or social activities of the native title party.

Areas or sites of particular significance: have they been established by the evidence and is it likely the grant of the licence will interfere with those sites?

Mr Darkie says ‘there are some very special places in and near the tenement area which are very important to us and need to be protected’ (at 16). He talks about: his mother teaching him about the important places when he was young; being responsible for looking after the special places and making sure no one goes there; and teaching his children about the stories and places (at 16–17). He states if something happened to these special places he and his family would feel very sad and hurt (at 17 and 19). He talks about a dreaming story that travels near the west side of the licence area, about a snake facing east called Darngku (at 18). He says the story comes from the south and travels north up to Billinuna ‘and across and up west near the tenement area and across to Wangkatjunka Community’ (at 18). Mr Darkie says you ‘need to check with the old people, Butcher Wise and Joe Brown, to make sure the story doesn’t cross through the west side of the tenement’ (at 18).
Mr Darkie talks about another sacred site near the good camping and hunting spot, around Shiddi Creek, which is ‘a very important place which no one can go near or around’ (at 20). Mr Darkie talks about needing an agreement with any company who wants to go on the native title party’s country so they can be told about special places, good hunting spots and bush tucker and so they can help to look after country (at 21).

The Jaru native title claimants contend the western boundary of the licence and immediate western surrounding area, including the southern boundary of the licence and the immediate surrounding southern area near Shiddi Creek, are all areas of particular significance and importance to the Jaru native title claimants in accordance with their traditions and are likely to be interfered with if the licence is granted (contentions at 54). The Jaru native title claimants’ contentions note the exact boundaries and locations of the special places described in Mr Darkie’s affidavit are only within the knowledge of the Jaru native title claimants (at 55).
The Jaru native title claimants contend (at 69–71) the Aboriginal cultural heritage protection regime under the Aboriginal Cultural Heritage Act 1972 (WA) (‘the AHA’) will be ineffective in protecting the areas or sites of particular significant located on or close to the licence because the definition of places protected by the AHA (in s 5) is ‘more restrictive’ than s 237(b) of the Act. Certainly, it has been accepted by the Tribunal that ‘the concepts outlined in s 17 of the AHA do not “cover the field” of interference as understood by section 237(b)’ (see Yindjibarndi Aboriginal Corporation v FMG at [118], citing Young v South Coast Metals at [57]). Places recognised under the AHA include: places where Aboriginal people have left objects; sacred, ritual or ceremonial sites; places of historical, anthropological, archaeological or ethnographic interest; and places where objects are traditionally stored (s 5). The Jaru native title claimants argue in their contentions that s 237(b) of the Act is broader because it is about a site or place being of particular significance to the native title party. Further, they state the AHA does not protect sites from interference but rather from a person evacuating, destroying, damaging, concealing or altering a site (s 17 AHA) (at 73).
Eastmin state it will offer and attempt to complete heritage surveys before commencing ground-disturbing activity, as it is committed to complying with a regional standard heritage agreement equivalent. This intention to complete surveys is repeated several times in their contentions (at 16, 19 and 27). Eastmin state a negotiated agreement with the Jaru native title claimants did not occur because the establishment and recurring fee structures of the negotiated agreement are ‘far too high for an exploration company of its size and for an expedited process future act’ (at 17, see also 27). Eastmin state the costs of an application to damage or destroy an Aboriginal site make doing so impractical (at 18).
Eastmin contends that, for identified heritage sites, they conduct exploration on a site avoidance basis (at 23). They also state they will conduct surface disturbance in accordance with their obligations and after discussion with the native title party (at 24). Eastmin acknowledges (at 25) there may be sites of particular significance located on the licence not recorded on the register kept under the AHA and that they will:
·Notify the native title party about proposed on-ground works;
·Advise the native title party of dates they intend to be on-ground and will endeavour to plan exploration around times when the native title party will be in the area;
·Take additional care when conducting on-ground activity with respect to the native title party’s requests;
·Limit the use of motor vehicles where possible;
·Where possible, complete rehabilitation of any disturbances as exploration occurs;
·Avoid any sites or areas of significance if the native title party provides notice and coordinates; and
·Register heritage surveys completed, in compliance with the AHA.
The State contends (at 10–11) it will make a condition of grant of the licence that Eastmin executes an RSHA if the Jaru native title claimants request Eastmin to do so. The State submits (at 25) the evidence does not establish the existence of any sites or areas of particular significance to the Jaru native title claimants within the licence area. In relation to the dreaming story outlined by Mr Darkie, the Sate suggests (at 26) a story is neither an area nor site within the meaning of s 237(b) of the Act and that, in any event, Mr Darkie is unsure whether the story related to any part of the licence area. The State asserts (at 28) it follows there is no risk of any interference with any areas or sites of particular significance. It also says (at 30–33) if there is an area or site of particular significance, it is not likely to be interfered with because the Jaru native title claimants may choose to invoke an RSHA, Eastmin has committed to carrying out heritage surveys, and Eastmin is bound by the AHA. The State outlines (at 30) what RSHAs, as relevant to this case, generally require: notifying the native title party about proposed on-ground works and providing detailed information about works before starting them; consulting with the native title party about surveys of the land before carrying out ground disturbing works; and carrying out surveys with the participation of the native title party prior to commencing activities.
I am satisfied the area on and around Shiddi Creek is a site of particular significance for the Jaru native title claimants. As has been noted by all parties, the area is not located within the licence. I conclude, on the basis of all evidence, it cannot be reasonably inferred that Eastmin’s proposed activities on the licence would interfere with that site. That is, there is no clear nexus between that site of particular significance and the activities of Eastmin.
In Yindjinbarndi Aboriginal Corporation v FMG, President Webb QC outlined the relevant factors to be taken into account regarding issues associated with sites of particular significance in accordance with the native title holders traditions, and interference to such sites (at [17]). Taking this into account, along with the Federal Court's conclusion in FMG v Yindjibarndi Aboriginal Corporation at [76]), I note it is possible for an area or site of particular significance located outside a proposed licence to be taken into consideration where: there is evidence of how the relevant activities under the grant would affect the relevant site according to those traditions; and the activities off-site are, in fact, an integral part of the activities on-site. Examples of such activities outlined, for example, in Silver v Northern Territory at [89] are ‘construction of roads, truck movements to and from the proposed licence...’ However, there is no such evidence in this matter.
Apart from the site of particular significance which I have outlined above as existing at Shiddi Creek, I find the Jaru native title claimants have not provided evidence establishing the existence of any sites or areas of particular significance, located near or on the proposed licence. There is no evidence establishing that a particular site or area within the licence is distinguished from other areas within the claim as having more than ordinary significance to the Jaru native title claimants in accordance with their traditions. These matters are preconditions for inquiring whether the grant of the licence is likely to cause interference with identified areas or sites of particular significance (Yindjinbarndi Aboriginal Corporation v FMG at [125]). In other words, if there is insufficient evidence to make a finding that sites or areas of particular significance exist on the proposed licence, as in the current case, I will not proceed to address the condition of interference.
I conclude there is no real risk of interference with sites or areas of particular significance to the Jaru native title claimants in accordance with their traditions in this matter.

Conclusion

For the reasons above, I find the evidence does not support a conclusion that the grant of the licence is likely to interfere with the carrying on of the native title holders’ community or social activities or with areas or sites of particular significance to them in accordance with their traditions. I also find the licence is not likely to involve major disturbance to the land and waters concerned.

Determination

The determination of the Tribunal is that the act, namely the grant of licence E80/4853 to Eastmin Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
21 January 2016