Barbara Sturt & Others on behalf of Jaru v Grant Jonathan Mooney/Zlatomir Aurel Sas and Another
[2019] NNTTA 9
•6 March 2019
NATIONAL NATIVE TITLE TRIBUNAL
Barbara Sturt & Others on behalf of Jaru v Grant Jonathan Mooney/Zlatomir Aurel Sas and Another [2019] NNTTA 9 (6 March 2019)
Application No: | WO2018/0396 |
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 -
Grant Jonathan Mooney/Zlatomir Aurel Sas
(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: | 6 March 2019 |
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 – the act is an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) s 237 Mining Act 1978 (WA) s 66 |
Cases: | Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (Little v Lake Moore Gypsum) Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti Australia) 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 Smith v Western Australia[2001] FCA 19; (2001) FCA 19 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) WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (WF (Deceased) v Emergent Resources) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Ms Ania Maszkowski and Mr Ashley Mumford, Kimberley Land Council |
| Representative of the grantee party: | Ms Yvette Collins, Hetherington Exploration and Mining Title Services Pty Ltd |
| Representatives of the Government party: | Mr Francis Cardell-Oliver, State Solicitor’s Office Mr 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 E80/5162 (the licence) to Grant Jonathan Mooney and Zlatomir Aurel Sas. 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;
(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 wholly overlaps the licence. They lodged an objection against the State’s assertion that the expedited procedure applies to the licence. The licence is approximately 65 square kilometres in size, located in the Halls Creek Shire and is wholly overlapped by Ruby Plains pastoral lease (N049918). Two temporary reserves also overlap the licence by 100 percent. The licence has previously been the subject of four exploration licences, overlapping the proposed licence by up to 95 percent.
Under the expedited procedure, the State can grant the licence to Mr Mooney and Mr Sas 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.
The parties’ submissions
Jaru submitted a statement of contentions, attaching the affidavit Ms Ivy Lannigan. Ms Lannigan is a Jaru traditional owner and I accept she has authority to speak for the licence area.
Mr Mooney and Mr Sas submitted a statement of contentions. The State lodged 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. The State also proposes to include a condition requiring Mr Mooney and Mr Sas to execute a Regional Standard Heritage Agreement (RSHA), should one be requested by Jaru, and should relevant timeframes be met for that request. Jaru submitted a statement of contentions in reply to Mr Mooney, Mr Sas and the State.
All parties requested I vacate an inquiry direction to provide a statement of agreed facts and issues, and instead for me to proceed on the papers. I was satisfied this inquiry could be determined on the papers and vacated the relevant directions.
Section 237(a): Is the grant of the licence likely to interfere directly with Jaru’s community or social activities?
I am required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at [27]).
What community or social activities do Jaru undertake on the licence?
In their contentions, Jaru assert the community and social activities carried out on the licence by the Jaru people are:
·hunting, fishing and collecting resources and bush tucker;
·camping and stopping over; and
·inter-generational teaching.
Jaru contend the licence area is utilised frequently by members of the native title party for the community and social activities listed above (at [8]). For activities such as hunting and fishing, Ms Lannigan asserts the licence area is used as often as every weekend by a number of Jaru families (at 9). Due to the ‘ease of access’ to the licence area via Tanami Road, Jaru explain they utilise the licence area throughout the year - most frequently in the cold weather time (see Lannigan affidavit at 10). I note Tanami Road runs vertically through a portion of the north-west of the licence area. Due to the high frequency use in the licence area, Jaru suggest the activities conducted by Mr Mooney and Mr Sas are likely to interfere with the carrying out of community and social activities.
In the affidavit evidence, Ms Lannigan states:
·Many Jaru people go to the licence area for hunting kangaroo, goanna and blacksnake head, and to collect bush tucker like sugarbag, bush oranges, bush coconuts, bush bananas and bush plums (see 5 and 6).
·Ms Lannigan also asserts the licence area is a good spot for fishing, particularly Douri Dam for teaching fishing skills. I note on maps provided by Jaru and the State, Douri Dam is located in the licence area;
·There is a big hill near the licence area, Duniyaru, which is a ceremony place (see 14) (more outlined on this at [14] below and elsewhere in this decision);
·Mining companies should ask the Traditional Owners before they go onto the licence area and perform exploration activities such as drilling (see 15);
·Along Tanami Road in the licence area you sometimes see lights following your car. They are spirits there to protect people who travel along that road (see 16);
·The Jaru people have a responsibility to look after the licence area and ensure people don’t go there without the permission of the Traditional Owners so no harm is done to people or the land (see 17); and
·Mining companies should not go to the licence area without a proper heritage survey being done first (see 18).
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 by the relevant exploration activities (see Gooniyandi v Inventum Resources at [29]).
What activities do Mr Mooney and Mr Sas propose to undertake on the licence?
Ms Sas states the objective of the grantee party is to systematically explore the licence area for buried paleochannels and other placer deposits that hold potential for gold and other heavy mineral deposits. Following the grant, the exploration program planned for the first year will involve:
·Review of all past exploration data and collation;
·Photo interpretation and satellite imagery;
·Regional geophysical interpretation; and
·Regional ground passive seismic survey.
Future low-impact ground geophysical surveys may then be undertaken using existing tracks and running survey lines by foot from the station tracks.
Mr Sas states the proposed exploration activities will not be located near Douri Dam, and so will not cause interference with the fishing and inter-generational teaching. Mr Sas does not say why the proposed exploration activities will not be located near Douri Dam, although he does contend Douri Dam is part of the operational activities of the Ruby Plains pastoral lease and is used for watering cattle. He asserts the exploration activities proposed in the first year of the licence are low impact and will not affect Jaru’s use of the area for hunting, collecting bush tucker and medicines as the grantee party’s proposed activities will use existing station tracks and operate geophysical equipment by foot. Mr Sas contends the hill named Duniyaru is outside the boundaries of the licence.
Are Mr Mooney and Mr Sas’s activities likely to interfere with Jaru’s or can they coexist?
The State contend it is hard to see how the grantee parties’ activities could cause interference with the activities of fishing and generational teaching at Douri Dam, stopping over in the licence area or the use of roads in the area. It asserts there is no evidence that suggests Mr Mooney and Mr Sas are likely to block off access to the licence area or will interfere with the water or fish stocks at Douri Dam. Further the State says Jaru have not articulated how it believes the grant of the licence will lead to direct interference with the hunting and gathering activities on the licence.
The Jaru reply asserts Mr Mooney and Mr Sas have provided little information on the exploration activities it intends to carry out, and only in the first year of exploration. It contends the Tribunal cannot conclude from this limited information that the proposed exploration activities will not interfere with Jaru’s activities, particularly in later years when exploration activities will become more intrusive.
Conclusion
I accept there is nothing to preclude the grantee from exercising the full suite of rights available under the grant of the licence, once the initial exploration activity program is complete. However, given the size of the licence and the stated nature and extent of the Jaru community and social activities, I do not conclude that exploration activities as allowed under s 66 of the Mining Act for an exploration licence would substantially interfere with those social or community activities. It appears the activities of the Jaru community are conducted generally within the licence, and some are specifically concentrated around Douri Dam. Given the general conduct of some activities, as expressed in the evidence, I am satisfied that they can co-exist with exploration activities through the life of the grant.
In relation to Douri Dam specifically, Mr Sas has undertaken the grantee will not be conducting exploration activities there. Even if Mr Sas had not made this statement, and accepting the grantee may exercise their full rights on grant, there is insufficient evidence for me to accept there would be likely to be substantial interference of community or social activities on and near the Dam, particularly given the unchallenged evidence that the Dam is already a focal point for pastoral activities, which I infer coexist with the social and community activities of the Jaru community.
Finally, exploration activities won’t be conducted at the hill Duniyaru by this grantee during this grant, because it is outside the licence area, and so any activities conducted by Jaru on or near the hill will not be interfered with by the grant of this licence. There is insufficient evidence to connect the effect of exploration activities on community or social activities conducted on a site outside the licence area
I conclude there will not be interference for the purposes of s 237(a) from the activities of the grantee in this inquiry.
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 in accordance with the native title party traditions (Yindjibarndi Aboriginal Corporation v FMG (at [17]); Silver v Northern Territory at [91]).
As the Tribunal reaffirmed in Barnes v AngloGold Ashanti Australia at [49] (referring also to WF (deceased) v Emergent at [45]):
in order to satisfy the requirements of s 237(b) of the NTA [Native Title Act] in relation to the question of whether sites of particular significance exist in the area, the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance.
What areas or sites are identified?
Jaru’s evidence refers to a hill named Duniyaru which is used in conducting ceremonies and as a law ground. Jaru assert this is a site of particular significance. The State’s Register of Aboriginal Sites shows no registered sites or other heritage places in the whole of the licence area. However, it is well established that a site or area may be of particular significance without being recorded on the Register (see Little v Lake Moore Gypsum at [67]).
Are any of the identified sites areas or sites of particular significance?
Jaru asserts the hill named Duniyaru is significant to the native title party in conducting ceremonies, and has significance as a law ground in accordance with Jaru’s traditions. The native title party reply outlines and confirms that the hill is not on the licence, but is near the licence, and they assert unauthorised access to it would cause interference for the purposes of s 237(b). Ms Lannigan states the Jaru people have a responsibility to look after the licence area and ‘make sure that people don’t go there without the permission of the traditional owners and so that no harm is done to people or the land’ (at 17). Jaru contend that as Mr Mooney and Mr Sas may exercise all of the rights available to them under the grant of the licence, their exploration activities are likely to interfere with this site.
Mr Sas contends the hill known as Duniyaru is outside the boundaries of the proposed licence. The State agree with this contention and asserts the evidence does not establish that Duniyaru is inside, as opposed to near, the licence area. Further, the State say the evidence does not elaborate on why the site is significant or how the grant of the licence would be likely to interfere with it. If the site does lie within the licence area, the State assert it would be afforded a degree of protection by the RSHA.
In reply, Jaru say although the evidence suggests Duniyaru is near to, rather than within the licence area, the exploration activities will interfere with the site. Jaru assert if they are not properly consulted, Mr Mooney and Mr Sas may unknowingly access the licence area through Duniyaru.
Conclusion
I accept Duniyaru is important to Jaru, however, there is insufficient evidence to conclude this is a site of particular significance in accordance with Jaru traditions, as is required by s 237(b). As summarised in Yindjibarndi Aboriginal Corporation v FMG (at [125]), s 237(b) requires me ‘to assess whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular significance to the native title party in accordance with its traditions. The precondition in the inquiry is the identification of relevant areas or sites of particular significance’. As the precondition has not been met, given the very broad and limited information provided about Duniyaru, I do not need to analyse the likely risk of interference with the site, and will make no further comment on the proposed RSHA condition and the States regulatory regime in respect of interference.
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
For the reasons stated above, I find the grant of exploration licence E80/5162 to Grant Jonathan Mooney and Zlatomir Aurel Sas is an act attracting the expedited procedure.
Helen Shurven
Member
6 March 2019
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