Barbara Sturt & Others on behalf of Jaru v True North Resources Pty Ltd and Another
[2021] NNTTA 18
•7 May 2021
NATIONAL NATIVE TITLE TRIBUNAL
Barbara Sturt & Others on behalf of Jaru v True North Resources Pty Ltd and Another [2021] NNTTA 18 (7 May 2021)
Application No: | WO2020/0150 |
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 -
True North Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 7 May 2021 |
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 not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 32, 151, 237 Mining Act 1978 (WA) s 58 |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Freddie v Western Australia [2007] NNTTA 37; (2007) 213 FLR 247 (Freddie v Western Australia) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale v Western Australia) Pearl Gordon & Others on behalf of Malarngowem v True North Resources Pty Ltd and Another[2021] NNTTA 15 (Malarngowem v True North Resources) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Ward v Western Australia[1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Ania Maszkowski and Andrew Topfer, Kimberley Land Council |
| Representative of the grantee party: | Yvette Collins, HopgoodGanim |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Anthony Civiello, State Solicitor’s Office |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure outlined in s 32 of the Native Title Act1993 (Cth) (the Act) applies to the proposed grant of exploration licence E80/5406 (the licence) to True North Resources Pty Ltd (True North). The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the grant are not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
I have been appointed to conduct an inquiry and determine whether the expedited procedure applies, given an objection has been lodged with the National Native Title Tribunal by the Jaru native title claimants (WC2012/003) (Jaru) against its imposition. Jaru hold native title rights and interests in the licence area. The licence covers approximately 181 square kilometres, and is 120 kilometres south-westerly of Halls Creek.
Jaru assert the expedited procedure should not apply as interference or disturbance with s 237(a) and s 237(b) of the Act is likely. True North and the State argue the expedited procedure should apply. The Tribunal takes a common sense approach to the evidence, as discussed in Ward v Western Australia. Jaru have not taken issue with s 237(c) and have not made contentions in that regard. As such, I cannot conclude any interference in respect of s 237(c), and focus my decision on the two other limbs of s 237. If I find the expedited procedure applies, the proposed licence can be granted without parties being required to negotiate in good faith (as set out in s 32). If I find it does not apply, True North and the State must so negotiate with a view to reaching an agreement with Jaru about the grant of the licence. I have concluded the expedited procedure does not apply to the grant of the licence, for the reasons outlined below.
The inquiry process
I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151 of the Act, without the need for an oral hearing. All parties indicated they were content to proceed on the papers. I must base my decision on the s 237 criteria and make a predictive assessment in the context of s 237 of the Act. I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the native title rights and interests held by Jaru, and the rights conferred by the grant of the licence, the nature of the proposed exploration and the applicable regulatory regime (see Walley v Western Australia at [8]–[9]).
Jaru’s relevant native title rights and interests include the right to:
·access the application area
·move about on the application area
·use the application area for social, religious, cultural and spiritual customary and/or traditional purposes
·conduct ceremony on the application area
·participate in cultural activities on the application area
·maintain places of importance under traditional laws, customs and practices in the application area
·protect places of importance under traditional laws, customs and practices in the application area
·make decisions about the use and enjoyment of the land and waters by the native title holders on the application area
·maintain and transmit cultural heritage and knowledge of the application area
·conduct burials on the application area
·be buried on the application area
Jaru’s material
Jaru submitted contentions, and an affidavit and map from Mervyn Street who is a native title holder for the area. I accept Mr Street speaks for the licence area on behalf of Jaru. Jaru also submitted a reply to the materials provided by True North and the State.
This is a matter where the social and community activities described by Jaru are intimately connected to sites of particular significance of Jaru. The Jaru contentions make this point throughout (for example, at 7), and I accept the evidence supports that there are sites of particular significance on the licence which are integral to the practice of traditional law and culture. I outline the reasons for such conclusions below.
True North’s material
True North submitted a statement of contentions which outlines (at 6) their intended initial activities include desktop review, low impact reconnaissance, mapping and sampling. Depending on the results there may be drill testing and field trips, conducted in the dry season. It is stated such activities would be conducted ‘within limited timeframes’, however, no estimate is provided of those timeframes. It is also stated that ‘notification will be provided in advance to the traditional owners and rangers’.
The s 58 statement (see [10] below) outlines that True North will be looking for various metals on the licence, initially acquiring and then reviewing ‘all relevant available geophysical data, historical literature and data’. Following that, work would include ‘detailed ground based magnetic survey, mapping, rock chip and soil sampling’, which would be reviewed to locate target areas. In year two, ‘RAB [rotary airblasting] drilling is proposed dependant on the results from the sampling program in year one’. The contentions and s 58 statement are consistent in relation to the work to be conducted on the licence.
The State’s material
The State submitted initial materials including: mapping of the proposed licence area and surrounds; confirmation there is one registered site recorded on the Aboriginal Heritage Inquiry System (AHIS) (under the Aboriginal Heritage Act 1972 (WA)); a tengraph providing detail of the licence area; the draft endorsements and conditions the State proposes to impose on grant of the proposed licence; and the statement by True North which accompanied its application for the exploration licence (under s 58 of the Mining Act 1978 (WA) (Mining Act)). The State also provided contentions and associated attachments.
The site recorded under the AHIS is site 12647 – TJILATJI/CHRISTMAS CREEK, which is described as a mythological/skeletal/burial area, and it runs north to south inside the western boundary of the licence.
Is the grant of the licence likely to interfere directly with Jaru’s community or social activities?
I must assess whether there is likely to be direct or substantial interference with Jaru’s social and community activities (see for example, Yindjibarndi v FMG at [16]; Rosas v Northern Territory (at [67] and Smith v WesternAustralia (at 451)). If the evidence about the alleged activities is general and unspecific, then this is insufficient to find that the grant will create such direct or substantial interference (Freddie v Western Australia at [30]).
What community or social activities do Jaru undertake on the licence?
Jaru contentions (at 6) assert that True North’s exploration activities will directly interfere with the carrying on of cultural practices related to the Julandu site. Mr Street (at 9) refers to the north-west area of the licence as being important for the Julandu site. He locates that site in the north-west corner of the licence, not far from Wooden Yard. The State’s initial compliance confirms that Wooden Yard is on the licence, and mapping shows it is in the north-west area of the licence.
The State argues (at 23-25) that the north west area referred to by Mr Street is within another native title claim, and so (at 24) ‘There is no evidence which indicates that interference with this area, if any, would give rise to interference within the Jaru native title determination area’. The Jaru reply challenges this argument in their reply (at 4, 13-14). I note that it is not whether or not the relevant native title determination or claim area is interfered with which is the test. The test was considered in Hale v Western Australia(at [107]-[113]), where Barker J outlined:
…the State contends that because an inquiry by the arbitral body arises, and only arises, because of a particular objector’s objection, the “land or waters concerned”, to which s 237 relates, must necessarily be the “land or waters” which overlap the claim or determined area of an objector…
…In my view, s 32(4), which is fundamental to the arbitral responsibilities that the Tribunal has in this case, is not amenable to such a construction…
…The criteria in s 237(a) require the Tribunal to ask whether the grant of the tenement is likely to interfere directly with the carrying on of the community or social activities of the objector in relation to the land or waters concerned – that is to say the land or waters to which the act in question – the grant of the tenement – relates. The same is to be said of the criteria to be regarded in paras (b) and (c).
…Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body.
For the purposes of s 237(a) then, the matter which I must consider is whether the act is likely to interfere directly with the carrying on of the community or social activities of Jaru on the land or waters to which they claim native title, or which are to be found outside the area to which they claim native title but within the ground the subject of the proposed licence.
Jaru contentions also refer to intergenerational teaching occurring on the licence. Mr Street refers to intergenerational teaching briefly (at 8 and 16), and I am not satisfied this activity has been described as occurring to such an extent on the licence that exploration activity would interfere with it for the purposes of s 237(a).
Punishment practices associated with the Julandu site are described (at 9-12) and I accept such practice is intimately tied to the licence because of the location of the site on the licence. Jaru contentions describe how the location and identification of certain stones related to the Julandu site are only known to the members of Jaru, and outlines that interference with the stones is highly likely to interfere with social activities (at 8, and reply at 14). The Jaru reply outlines that True North has not provided detail regarding how any consultation with Jaru will take place, and also notes that consultation does not mitigate against interference with Jaru activities on the licence (at 12).
Conclusion
The Jaru reply (at 13) outlines that if the site of Julandu suffers from interference (which I have held is likely to be the case, as outlined in my consideration of s 237(b) below)), that site may no longer be able to be used by the traditional owners for their traditional social and community activities, including those related to punishment practices. While the evidence about community and social activities is not greatly detailed, I would not describe it as ‘general and unspecific’. Rather, I conclude the evidence is sufficient to establish that because of the particular significance of sites such as Julandu, and the Jawala area, for example, interference with those areas would also lead to interference with the social and community activities tied to those areas.
As outlined in Freddie v Western Australia (at [27]), ‘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’. The evidence establishes that exploration activities on the licence are likely to cause substantial impact on Jaru activities, because of the nature of those activities in the context of the sites of particular significance.
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 claimants in accordance with their traditions (see 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 (see Silver v Northern Territory at [91]). The evidence must identify 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 the native title claimants in accordance with their traditions (see, for example, Yindjibarndi Aboriginal Corporation v FMG at [17]).
What areas or sites have the native title parties identified in relation to the licence area?
Jaru contentions (at 11) outline the following sites or areas which they argue are of particular significance to the Jaru community, and I outline some commentary from the States contentions in relation to each:
·Julandu site (in the north west of the licence near Wooden Yard) – the State (at 36) implies this is not a site of particular significance as it is not within the Jaru claim area – I reject that argument for the reasons outlined at [14] above
·Jawala dreaming (in the centre and eastern part of the licence) – the State (at 37) accepts this is a site of particular significance
·Artefacts – the State asserts (at 38) there is insufficient information to locate the artefacts – I accept that argument
·Sharumob (the Haughton Ranges) – they run along the centre south of the licence – Mr Street states there is a massacre site near the ranges – the State accept (at 40) that this area is a site of particular significance
·Burial site (associated with a hill in the Haughton Ranges) – the State accepts that ‘generally speaking, burial sites are significant to traditional owners’ (at 41) and that the burial site is an area of particular significance
·Jallun songline – the State make no specific reference as to whether or not they accept the songline is of particular significance
·Christmas Creek – the State asserts (at 39) that the creek and an associated area (Julunjan) are not sufficiently described for me to conclude they are an area of particular significance. They also assert (at 10) that ‘the section of Christmas Creek which runs through the proposed tenement area is not within the Jaru overlap area’ – I have given my view on this argument at [14] above.
Am I satisfied that there are sites of particular significance on the licence?
I consider the evidence from Mr Street establishes the following are sites of particular significance on the licence:
(a)Julandu – particular rocks in a certain place associated with a story from the old people and with a songline (at 9-13)
(b)Jawala dreaming – a particular area, described and located (at 14-15)
(c)The burial site – a particular area, described albeit briefly (at 22), but which Mr Street has direct knowledge of through his father who buried the person, and whose location is described and I accept is on the licence
(d)Christmas Creek/massacre site/Sharumob/Jallun – with the circumstances of the massacre described, as well as the importance of Christmas Creek, Sharumob and Jallun to traditions of Jaru (at 17-24)
Is it likely the activities of True North will interfere with sites of particular significance?
For the purposes of s 237(b), I must consider whether the act is likely to interfere with sites of particular significance to Jaru on the land or waters to which they claim native title, or which are to be found outside the area to which they claim native title but within the ground the subject of the proposed licence.
The True North contentions (at 5) assert that ‘exploration targets do not affect Christmas Creek, other waterways visible in topographic maps of the Tenement or the Haughton Range’. No explanation is provided as to why that is the case. Drill testing is said to be dependent on the initial surveys and reviews of information. It is also said (at 6) that ‘Any field trips or drill programs will take place in the dry season within limited timeframes and notification will be provided in advance to the traditional owners and rangers’. No explanation or mechanism has been arranged or agreed with Jaru for that purpose.
The True North contentions (at 10) go on to outline that if their ‘exploration plans change and TNR [True North] wants to conduct exploration within the waterways or ranges within the Licence, the traditional owners…will be consulted prior to those areas being accessed’. This suggests to me that rather than exploration targets not affecting certain areas, the best that could be said is that it is not expected such will be affected but if it turns out they will be, Jaru will be consulted. That does not suggest there is unlikely to be interference with such areas. Rather, it suggests to me that there is a real chance such areas could be interfered with.
The State argue (at 46) that Christmas Creek is protected under the AHA, and True North make various assertions about their intended compliance, and understanding of, the State’s regulatory regime. True North’s contentions in that regard (at 7-9) were identical to those made for the inquiry in Malarngowem v True North Resources. The State make similar arguments in their contentions (at 44-51). I adopt my reasoning and comments as made at [26]-[27] of that decision, in relation to True North and the State’s assertions for the purpose of this current inquiry.
Jaru clearly outline various consequences in the context of the Jaru traditions, and what can and should not be done on the licence, on and around the sites described. For example, the Julandu rocks can be looked at and the story listened to ‘but they are not be touched as it could cause harm. It is a dangerous place’ (Mr Street at 13). Similar information is provided about parts of the Jawala dreaming site, the Haughton Range, and Massacre site, including what constitutes interference at these areas respectively (at 15 and 19-21), and when consultation with Jaru is required (at 24-26, for example). Mr Street has provided much detail in those paragraphs of his evidence, and I have not repeated that detail here on the basis that it appears likely to be culturally sensitive, and also deals with a historical massacre, the circumstances of which are likely to be sensitive to the Jaru community.
Conclusion
I accept that the sites and areas outlined at [22] above are of special or more than ordinary significance to the Jaru native title claimants in accordance with their traditions. Mr Street and the Jaru contentions have located these areas, I am satisfied they are on the licence, and their particular significance has been explained. I am also satisfied that exploration activities allowed under the Mining Act are likely to interfere with these sites.
As McKerracher J outlined in FMG v Yindjibarndi (at [79]) ‘the impact must be substantial or non-trivial. The meaning of these terms must be taken in the context of the particular site and the laws and customs in relation to that site’. At [75]-[76], McKerracher J also noted:
That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions...
Given the evidence outlined by Jaru for s 237(b), as summarised in this decision, my conclusion is that the impact of True North’s exploration activities is likely to be substantial in the context of Jaru traditions for the sites of particular significance of: Julandu; Jawala dreaming; the burial site; and Christmas Creek/massacre site/Sharumob/Jallun.
Determination
My determination is that the grant of E80/5406 to True North Resources Pty Ltd is not an act that attracts the expedited procedure.
Helen Shurven
Member
7 May 2021
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