Barbara Sturt & Others on behalf of Jaru v Steven William Bernard Parnell and Another
[2020] NNTTA 33
•18 March 2020
NATIONAL NATIVE TITLE TRIBUNAL
Barbara Sturt & Others on behalf of Jaru v Steven William Bernard Parnell and Another [2020] NNTTA 33 (18 March 2020)
Application No: | WO2018/0838 |
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 -
Steven William Bernard Parnell
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 18 March 2020 |
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 |
Legislation: | Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237 |
Cases: | Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923 (‘Jaru v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG Pilbara’) |
| Representative of the native title party: | Douglas D’Antoine, Kimberley Land Council |
| Representative of the grantee party: | Hong-Jim Saw, Gold Valley Holdings Pty Ltd |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulations and Safety Reywin Rico, State Solicitor’s Office |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E80/5220 (licence) to Steven William Bernard Parnell (Mr Parnell).
The State of Western Australia (State) gave notice under s 29 of the NTA of its intention to grant the licence, with a notification day of 27 June 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure, which would allow the licence to be granted without requiring negotiation under s 31 of the NTA.
The licence is located wholly within the area of a native title determination application made by the Jaru native title claim group (WAD42/2019). On 22 October 2019, the registered native title claimant for the Jaru claim (Jaru) lodged an objection against the State’s inclusion of the expedited procedure statement.
I have been directed to constitute the Tribunal for the purpose of determining whether the grant of the licence is an act attracting the expedited procedure (s 32(4) NTA). For the reasons outlined below, my determination is that the licence is an act attracting the expedited procedure.
Issues in the inquiry
The grant of the licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a) NTA);
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b) NTA); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c) NTA).
In this matter, Jaru does not make any contentions in relation to s 237(c) and therefore my consideration of the issues is limited to s 237(a) and (b).
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. I am required to undertake a predictive assessment by considering what is likely to occur (in the sense of a real, not remote, chance) as a result of the grant of the licence. The grantee party’s intentions may be relevant to that assessment.
Determination on the papers
I made directions for the conduct of the Tribunal’s inquiry which provided for all parties to provide contentions and evidence.
Jaru provided a statement of contentions together with an affidavit of Rossie Ryder, affirmed on 10 October 2019 (although it is dated 11 October 2019). Mr Ryder says he is a Jaru native title holder in relation to the licence area and a traditional owner for Lamboo through both sides of his family. I accept Mr Ryder’s evidence. Jaru also provided contentions in reply.
The State’s evidence included mapping, a Tengraph Quick Appraisal, a report and plan from the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS Searches), the licence application and accompanying statement under
s 58 of the Mining Act 1978 (WA) (Mining Act), as well as details of proposed endorsements and conditions to be imposed on the grant of the licence. The State has also provided an extensive list of registered and lodged heritage sites and heritage surveys within a 25km buffer of the licence area.
Mr Parnell provided contentions only.
The parties agree to the matter being determined on the papers and, having reviewed the material, I am satisfied that the inquiry can be adequately determined without a hearing (s 151(2) NTA).
The licence and Mr Parnell’s proposed exploration activities
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
According to the Tengraph Quick Appraisal provided by the State the area of the licence is 1297.17 hectares. It is located wholly within the Lamboo – Aboriginal Corporation pastoral lease. I note that the Federal Court has made a determination that Jaru People hold exclusive native title rights in the licence area, although the determination is not yet effective (see Jaru v Western Australia).
The s 58 statement which accompanied the licence application indicates that Mr Parnell is targeting gold and base metals. The proposed expenditure for the initial work program totals $15,000, however it is not clear whether this is limited to the first year of the term.
Additional information regarding the proposed exploration program is provided in Mr Parnell’s contentions as follows:
13.The proposed exploration in the initial year of grant will be limited to desktop reviews. The hard cover of the region necessitated sufficient desktop research before any mobilization to site.
14.The second year of grant of the licence may lead to a site reconnaissance trip to evaluate access conditions and attend to targets.
a.As above at 11, where no specific heritage clearance has been completed, the Grantee Party will only access the tenement via the road.
b.Any field trips should be able to be planned for camping off site on public areas.
15.I provide a schedule of activity, based on activity completed during the first two terms of other licences held the GTP;
Activity
Year 1
Year 2
Year 3
· WAMEX review
· Compilation of publicly available GIS data into project database
· Complete a photo-geological/structural interpretation of the project area
Review of all historical exploration reports / data and definition of target areas
Field\Reconnaissance\Mapping Trip
Heritage Survey
This information is limited to the early part of the initial term. Further, apart from year 1, the details provided appear to be speculative as they are based on activities under other tenements held by Mr Parnell. Accordingly, it is reasonable to conclude, for the purposes of undertaking a predictive assessment, that Mr Parnell may avail himself of the full suite of rights available under the licence.
Predictive assessment
Section 237(a): is the grant of the licence likely to interfere directly with Jaru’s community or social activities?
What community or social activities do Jaru carry out on the licence area?
Jaru says that Mr Ryder’s evidence indicates that the licence is in an area of its country that is accessed regularly (Jaru contentions at 8). It says further that Jaru people live in communities nearby at Lamboo station which allows for regular access to hunt fish and resource gather, even when other parts of Jaru country are inaccessible.
Mr Ryder’s affidavit includes the following evidence in relation to community and social activities and his concerns regarding the grant of the licence:
9.There are animals in the Tenement Area. Near where Old Ballarra Road goes through the Tenement Area, that’s a big flat plane where animals go through – plane kangaroo, hill kangaroo, turkey, emus. The old people would sleep out on the flat there, make a fire and drink tea, have an old dinner camp out there. The animals come through that Tenement Area because there are water sources there, bores and creeks.
10.In the Tenement Area there’s bush honey, it’s in the white, hard old wood tree. You can cut the tree with an axe. And there’s bush gum on that little tree, you can chew that little round one. The emus and turkey come from a long way away to eat that. We got Koongooberry there too, little berries, they’re little sweet ones.
11.There’s lots of creeks in the Tenement Area. That creek which runs through the Tenement Area, Hangman Creek, the old people know that creek. And then there’s those little creeks, when a big rain comes around Garden Creek the water runs from there in a southwest direction and makes those creeks all through the Tenement Area.
12.In Hangman Creek which runs through the Tenement Area, there’s fish there, Mutmut and little crabs, yellow ones, they come out in rain season. They’re hiding in a hole, you grab them quick and we cook them up on the coals and the Mutmut.
13.If the mining company does something around this Hangman Creek, and pollutes the water in Hangman Creek, that Hangman Creek runs down to Mary River and the Mary River runs down to Fitzroy, right down to Willare. We need to protect those fish and all that life. That’s the country of our Traditional Owners. That’s why we don’t want anybody going in there and making a mess in that country.
Jaru contends that the particular geography of the licence area is known and navigated by members of Jaru throughout the year, in both seasons for hunting, fishing and resource gathering (Jaru contentions at 9). It says that if Mr Parnell uses the area without Jaru’s knowledge it may disrupt the movement habits of the wildlife or interfere with season waterways and the willingness of members of Jaru to access the area and undertake the community activities outlined. Further, such access by Mr Parnell is likely to lead to direct interference with Jaru who “access the area at all times of the day and all times of the year as it is one of the only constantly accessible parts” of Jaru’s country (Jaru contentions at 10).
Mr Parnell disputes that interference with community or social activities is likely, saying he will spend less than 10 days per annum on the tenement and on-ground activities will not start until the second year of grant (Mr Parnell contentions at 2). However, these submissions are not particularly helpful as they do not address activities that may be undertaken later in the licence term. As noted above, I have concluded that Mr Parnell may exercise the full suite of rights available to him under the licence.
The State contends that Jaru has not provided sufficient evidence to demonstrate the community and social activities said to be undertaken, including in relation to the frequency, duration and the relevant parts of the licence area. The State also points out that only a small section of Hangman Creek will be covered by the licence.
In reply, Jaru disputes the level of specificity required by the State and says that degree of specificity is not necessary for me to make a finding that community and social activities occur on the licence area (State contentions at 27). Jaru says that its evidence “demonstrates that the area of the Proposed Tenement is accessed regularly to hunt, fish and resource gather which… is sufficient to indicate that their activities would be interfered with should the proposed Tenement be granted” (Jaru reply at 4).
Putting aside the question of whether such evidence would be sufficient, the difficulty with Jaru’s contentions is that they are not supported by Mr Ryder’s evidence. I can infer from Mr Ryder’s evidence that some community and social activities occur in the licence area from time to time. As extracted above, Mr Ryder speaks of animals in the area and the old people camping in the area. He refers to cooking up Mutmut and the little crabs which come out in rain season. He also refers to animals being in the licence area because of water sources. However, there is nothing in Mr Ryder’s affidavit to support Jaru’s contentions of access “at all times of the day and year” or even regular access. Similarly, I see nothing in the evidence to support Jaru’s contention that the licence area is one of the only constantly accessible parts of Jaru’s country.
The accepted approach to the application of s 237(a) is summarised in Yindjibarndi v FMG at [16]. The interference contemplated by s 237(a) must be direct. This requires an evaluative judgment that the grant of the licence is likely to be the proximate cause of the interference. The interference must also be substantial, rather than trivial.
In this case, the evidence provided of Jaru’s community and social activities is insufficient for me to conclude that the grant of the licence will directly interfere with those activities.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Jaru?
The accepted approach to s 237(b) is also summarised in Yindjibarndi v FMG at [17] – [18]. An area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders. There must be a real risk of interference, but even slight interference may be unacceptable in the context of s 237(b).
What areas or sites have been identified as being of particular significance to Jaru?
Jaru contends that the massacre site at Hangman Tree and its surrounds is a site of particular significance to Jaru (Jaru contentions at 11). It also says that the evidence establishes that there are several sites of particular significance linked to the massacre which run through the licence area (Jaru contentions at 12). However, Jaru does not explain what those sites are or where they are on the licence area and Mr Ryder does not mention other sites.
Mr Ryder explains the location and the particular significance of Hangman Tree as follows:
6.Hangman Creek runs through the Tenement Area. There’s a crossing at Hangman Creek. You go across Hangman Creek and you’ve got a big white tree over there. That’s Hangman Tree. That’s a massacre site where black fellas were hanging from that tree. They used to wrap chains around their necks. You can see the marks from the chains on the tree, the marks are still there. Sometimes in the afternoon and the morning you can hear the spirits singing. They’re crying there, it’s a sad site for us. The old people see that mark of the chains real clear where all the people got killed. Our old people walked all around there, all the way from Stuart Creek, to the west through the Tenement Area and to Hangman Tree. If the mining company went ther, and they’re mucking around, they could get hurt. The spirits will be there, they’ll be watching. You got to be very careful.
7.The mining mob have to be welcomed to those areas like what our old fellas did. An old fella going out to that country would welcome himself, he’d be talking to the old people, tell them he’s got visitors here. You do it because that country belongs to those old people. That’s why you look after that country there. If you touch something, you get swollen foot or hand, or something will happen to you, you could get killed. That’s why the mining company needs to know, if you go around that area. A white fella who works with the mining mob, we would tell them don’t go over there or there.
8.The mining mob have to talk to the Traditional Owners first before checking that country, so they can be free, and so bad things don’t happen to them. My brother in Halls Creek, Eddy Yarloot, a Traditional Owner for Jaru could show the mining mob the site where Hangman Tree is and where those spirits are. Eddy’s my cousin’s, he’s a Traditional Owner for this country. Eddy and our mob will keep them safe.
Mr Parnell does not refer specifically to Hangman Tree in his contentions. However, he does acknowledge that there may be heritage sites in the licence area and sets out the manner in which he proposes to conduct his activities to avoid heritage impacts, including the conduct of heritage surveys (Mr Parnell contentions at 10-12).
The State points out that there is a registered site called Hangman Tree shown on the State’s mapping which is located some distance outside the licence area (State contentions at 51). It argues that it is reasonable to assume that registered site is the site referred to by Mr Ryder. In reply, Jaru says that while it is possible to conclude that Mr Ryder’s evidence relates to the registered site, it cannot be concluded that the areas or sites of particular significance described by Mr Ryder are confined to the area of the registered site (Jaru reply at 12).
However, while Mr Ryder speaks of the significance of the country generally at paragraph 14, the only site of particular significance mentioned is Hangman Tree, which he specifically identifies as a “big white tree” across from a crossing at Hangman Creek. Further, Mr Ryder refers to the old people walking “all the way from Sturt Creek, to the west through the Tenement Area and to Hangman Tree”. This evidence suggests that Hangman Tree is outside the licence area itself and this description is consistent with the location of the registered site Hangman Tree being to the north west of the licence.
Jaru contends that the significance of the Hangman Tree site “clearly extends to the surrounding area within the boundaries of the Proposed Tenement”. It further notes that “Hangman Creek which runs through the licence is linked in name, further demonstrating that these sites are inextricably linked” (Jaru reply at 14).
According to the State’s mapping, the registered site Hangman Tree appears to be approximately 3-4 kilometres from the north-west corner of the licence area. I find that Hangman Tree is a site of particular significance to Jaru, and I accept this may extend into the area surrounding the site including the adjacent parts of Hangman Creek which Mr Ryder refers to in his description of the site. However, based on the evidence I am not satisfied that the site or area of particular significance extends into the licence area or includes the entirety of Hangman Creek.
In light of my findings in relation to Hangman Tree, it is not necessary to consider the likelihood of interference from the grant of the licence.
Determination
I determine that the grant of exploration licence E80/5220 to Steven William Bernard Parnell is an act attracting the expedited procedure.
Ms Nerida Cooley
Member
18 March 2020
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