Barbara Sturt & Others on behalf of Jaru v Northgate Resources Pty Ltd and Another

[2019] NNTTA 45

NATIONAL NATIVE TITLE TRIBUNAL

Barbara Sturt & Others on behalf of Jaru v Northgate Resources Pty Ltd and Another [2019] NNTTA 45 (1 July 2019)

Application No: WO2018/0381

IN THE MATTER of the Native Title Act 1993 (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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Northgate Resources Pty Ltd

(grantee party)

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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:

1 July 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 applies – the act is an act attracting the expedited procedure

Legislation:

Native Title Act 1993 (Cth) ss 29, 32, 151, 237
Mining Act 1978 (WA) ss 61, 66

Cases:

Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 (Cheinmora v Heron Resources)

Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources)

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

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (Tullock v Western Australia)

Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (Maitland Parker v Iron Duyfken)

Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Ward v State of Western Australia (1996) 69 FCR 208

Ward and Others/Swiftel Ltd/Northern Territory [2002] NNTTA 104; (2002) 169 FLR 303 (Ward v Northern Territory)

Representatives of the native title party:

Ashley Mumford, Kimberley Land Council
Angela Booth, Kimberley Land Council

Representative of the grantee party: Hong-Jim Saw, Gold Valley Holdings Pty Ltd

Representatives of the Government party:

Matthew Smith, Department of Mines, Industry Regulation and Safety

Amelia Devlyn, State Solicitor's Office

REASONS FOR DETERMINATION

1. The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of their intention to grant exploration licence E80/5154 to Northgate Resources Pty Ltd (Northgate) over an area where the Jaru people claim native title. The licence is approximately 65 square kilometres in size, located 98 kilometres southwest of Halls Creek, on the Lamboo Aboriginal Corporation pastoral lease and the Margaret River pastoral lease.

2. The State’s notice included a statement that the grant is an act attracting the expedited procedure (s 32 of the Act).  Jaru lodged an objection with the National Native Title Tribunal to the inclusion of this statement.

3. I was appointed to determine whether the expedited procedure applies. To decide that, I must examine the three criteria in s 237 of the Act which states, in summary, that the expedited procedure applies 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.

4. As outlined in Silver v Northern Territory (at [21]), which I adopt for the purposes of this inquiry (emphasis in original):

   …section 237 requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences outlined in paragraphs (a) – (c) set out above. The proper approach to the application of section 237 was explained by French J in Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442. His Honour pointed out (at 450): "The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement." … [T]his approach was also endorsed by R D Nicholson J in Little v Western Australia [2001] FCA 1706 at [69].

5. For the reasons outlined below, my decision is that the expedited procedure applies to the grant of the licence.

The parties’ submissions

1. Jaru submitted contentions and the affidavits of Mr Frank Sampi and Mr Steven Woodhouse. Mr Sampi and Mr Woodhouse both state they are Jaru Traditional owners. I accept their authority to speak for the area.

2. Northgate provided submissions and the State lodged a statement of contentions with supporting documents.

3. The inquiry directions required Jaru to submit a reply, the parties to submit a statement of agreed facts and to attend a listing hearing and hearing. After parties conferred, they requested these directions be vacated. I agreed as Jaru advised they did not wish to lodge a reply, and also I was satisfied the issues could be determined on the papers without a hearing (s 151(2)(b) of the Act).

Section 237(a): is the grant of the licence likely to interfere directly with community or social activities?

1. The predictive assessment required is whether the grant of the licence and the exploration activities undertaken are likely to interfere with Jaru’s community or social activities (in the sense of there being a real risk of interference). Direct interference involves an evaluative judgement that the grant 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 (see Smith v Western Australia at [23], [26]).

What community and social activities do Jaru carry out on the licence?

1. Jaru’s materials outline the following activities are conducted on and around the licence: camping, hunting (for example, emu, goanna and turkey), fishing, gathering resources, protecting important places, prospecting for gold and intergenerational teaching. 

2. The Tribunal has long held that the phrase ‘community or social activities’ in s 237(a) means those activities that arise from registered native title rights and interests (see for example Tullock v Western Australia at [93]-[102]). I consider that community or social activities which are not outlined to be a manifestation of registered native title party rights and interests cannot have a place in my assessment of s 237(a) (see for example Tullock v Western Australia at [96]).

3. The State argue that ‘not all activities of the members of a native title claim group can be relied upon in an expedited procedure objection inquiry’ (citing Ward v Northern Territory at [59]).  Part of the evidence in this inquiry is that Jaru people prospect for gold on the licence. However, I cannot discern a clear link between the Jaru registered rights and interests and such prospecting activities. Because of this, I do not consider the likelihood of interference with such prospecting activities in my considerations below.

4. Jaru contend the features in and near the licence area make the licence ‘a particularly suitable place for carrying out … community and social activities’ (at 10). The evidence is Jaru people live at Yiyili community (29 kilometres from the licence). For example, Mr Woodhouse, Mr Sampi, their family, Neil Gordon and other Jaru people go out ‘regularly’, ‘every day’ or ‘nearly every day’ to hunt emus, goannas, turkeys, kangaroos and porcupines. They hunt for goannas around White Hill Bore and on a plateau south of Snake Creek, where goannas are plentiful because the ‘cane toads haven’t been there yet’ (Mr Woodhouse at 5, 9; Mr Sampi at 5-6, 10, 12). The licence contains flora which are gathered including bush tomato, bush orange, sugar bag, medicine and special trees for making clap sticks, boomerangs and coolamons (Mr Sampi at 9, 14, 15).

5. The evidence includes that Jaru hunt on the way to the fishing holes in Willy Creek (north of the licence) and Fish Pool (northeast of the licence): ‘I visit the licence every time I go fishing at Willy Creek because there is a good track that runs through the tenement Area’ (Mr Woodhouse at 11-12). Jaru people, including the deponents’ family ‘go out camping regularly’ on the licence (particularly when they have time off work or when there is bush fruit around) and ‘often go camping at White Hill Bore’ (Mr Sampi at 11, 17).  I accept there is also fishing on the licence when the pools are full of water (Mr Sampi at 8).

6. The State’s information and mapping indicates:

   ·White Hill Bore is located on the very edge of the licence in the north east

   ·Willy Creek (and the pools along it) run between 3-5 kilometres northwest of the licence

   ·Fish Pool lies just outside the licence to north west, and

   ·Snake Creek is located approximately 10 kilometres northwest of the licence.

7. These four areas are linked via a winding track that runs mostly outside the north of the licence. The track intersects with the northern boundaries of the licence, including at points near White Hill bore and Fish Pool.

What will Northgate’s activities be?

1. Northgate’s submission contains limited information about their proposed activities. They state the first year ‘will be limited to desktop reviews’ and the second year ‘may lead to a site reconnaissance trip’. If these initial results attract ‘additional capital’ they would then ‘have sufficient capital to alleviate heritage, native title and NTP [native title party] concerns’ (at 11-14). They assert they are unlikely to interfere with community and social activities because they ‘will spend less than 5 days per annum on the tenement’ (at 2).

2. In the absence of any evidence beyond the first two years, it is open for me to conclude that if this initial exploration proves successful, Northgate intend to exercise the full suite of rights available to them upon the grant of the licence under sections 61 and 66 of the Mining Act 1978 (WA). These rights allow Northgate to access the licence with their agents, employees, motor vehicles and other machinery for up to twelve years if renewal options are exercised. The rights include setting up camps, leaving machinery or equipment, digging pits, trenches and holes, sinking bores and tunnels, and removing up to 1000 tonnes of material per licence (or more if the Minister approves).

Conclusion

1. From the way the evidence is cast, and by looking at the State’s mapping, it appears that Jaru people’s use of the licence area is as part of a wider area that runs north of the licence along the track. Although use of this wider area for hunting and gathering is regular, it is not represented as being intensive. Similarly, fishing activities are conducted both on and off the licence.  Given the length of the track, the fact that it runs over a large area in the north of the licence, and the way the hunting and gathering activities are described (being from 3 days up to a week in duration), I cannot conclude that Northgate would interfere with these activities in a direct or substantial way, given they intend to spend less than 5 days a year on the licence, and given the size of the licence.

2. Whilst camping occurs at White Hill Bore, I note the bore is located along the boundary of the licence in the north. Given its peripheral location, and how the evidence about ‘regular camping’ does not provide much detail, I cannot conclude Northgate would substantially or directly interfere with camping.  Similarly, with intergenerational teaching and protecting important places, the location and intensity of those activities is not specified, and I am unable to conclude such activities will be subject to interference by activities of Northgate.  

3. Looking after places is said to occur on the licence, and it is said there are sacred places on the licence – little information is provided about the nature of those activities, or the sacred places. I outline more on the sacred places in the analysis of s 237(b) below. I appreciate that some of these places may be burial sites or old camping sites, however, the locations are described very broadly as are the activities associated with them.

4. The evidence overall leads me to conclude that Northgate’s exploration activities coexisting with Jaru community and social activities is likely, and direct or substantial interference with Jaru community or social activities is unlikely.

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Jaru?

1. The words ‘particular significance’ means the area or site must be of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). It must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]). As the Federal Court noted in FMG v Yindjibarndi (at [14]-[15]):

   …the Tribunal is obliged to consider the detailed factual circumstances of each case … to determine whether any of the sites were of particular significance and whether any interference was likely if the proposed exploration licences were granted.

2. The evidence is broadly cast as follows:

   ·‘There are sacred places on the tenement’ (Mr Sampi at 18);

   ·‘There are burial sites of our old people’ (Mr Sampi at 20); and

   ·‘There are camping places at Mt Hawick and Mt Carmel … where the old people have left things’ (Mr Sampi at 21).

3. A native title party in an expedited procedure inquiry must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Maitland Parker v Iron Duyfken at [39]; Cheinmora v Heron Resources at [43]).

Conclusion

1. With the exception of the old camping places, I do not find the ‘sacred places’ or ‘burial sites’ are known and able to be located on the licence. In relation to the sites at Mt Hawick and Mt Carmel, there is little information about how the grant of the licence is likely to interfere with those sites under Jaru traditional laws and customs. I appreciate there may be sensitivities around how those traditional laws and customs are applied and relate to sites, but these need to be outlined in at least some detail for me to conclude that; a) they are sites of particular significance; and b) they are likely to suffer interference from Northgate’s activities.

2. I accept the Jaru contentions and evidence that sites exist on and near the proposed licence. And I have no doubt all of these places are important to Jaru people. However, the evidence before me does not disclose a sufficient basis to reach a conclusion that these are sites of particular significance for the purposes of s 237(b). Having concluded that, I cannot conclude interference with sites of particular significance is likely.

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?

1. Jaru state they do not make any contentions in relation to s 237(c) (at 2). 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

1. The grant of exploration licence E80/5154 to Northgate Resources Pty Ltd is an act attracting the expedited procedure.

Helen Shurven
Member

1 July 2019