Bernard Stretch and Others on behalf of Purnululu v Tremjones Pty Ltd and Another
[2018] NNTTA 79
•14 December 2018
NATIONAL NATIVE TITLE TRIBUNAL
Bernard Stretch and Others on behalf of Purnululu v Tremjones Pty Ltd and Another [2018] NNTTA 79 (14 December 2018)
Application No: | WO2018/0261 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Bernard Stretch and Others on behalf of Purnululu (WC1994/011)
(native title party)
- and -
Tremjones Pty Ltd
(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: | 14 December 2018 |
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) 237 |
Cases: | 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 (Rosas v Northern Territory) 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) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Douglas D’Antoine and Ashley Mumford, Kimberley Land Council |
| Representative of the grantee party: | Russell Tremlett, Tremjones Pty Ltd |
| Representatives of the Government party: | Jeff O’Halloran, State Solicitor’s Office Matthew Smith, 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 E80/5116 (the licence) to Tremjones Pty Ltd. 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; and
(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 Purnululu 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 326 hectares in size located in the Halls Creek Shire. 80.4 percent of the licence is vacant crown land, and the remainder is C class conservation reserve.
Under the expedited procedure, the State can grant the licence to Tremjones without negotiations with Purnululu. My decision on whether this can occur must rest on the three criteria set out in s 237 of the Act. In this decision, all references to legislation are to the Act, unless otherwise noted.
The parties’ submissions
Purnululu submitted a statement of contentions, attaching the affidavit Mr Warren Drill. Mr Drill is a Purnululu traditional owner and I accept he has authority to speak for the licence area.
Tremjones submitted a statement by Mr Russell Tremlett (who is an equal partner of Tremjones with Mr Randal Jones). 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. Purnululu submitted a statement of contentions in reply to Tremjones and the State.
Parties conferred and attempted to draft a statement of agreed facts to submit to the Tribunal, as per inquiry directions. They were unable to agree on such a statement and I vacated the direction. I was satisfied this inquiry could be determined on the papers.
Section 237(a): is the grant of the licence likely to interfere directly with Purnululu’s community or social activities?
To find s 237(a) interference is likely, there must be a direct and substantial interference with social or community activities (Yindjibarndi v FMG at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities to determine whether the activities can coexist without direct or substantial interference (Rosas v Northern Territory at [71]).
What are Tremjones’ intended activities?
Mr Tremlett states Tremjones’ intended work programme is to initially carry out basic detecting and, depending on the results, there may be further exploratory work to identify prospective areas for drilling. Access to the licence would be via existing tracks. Given this general description, there is nothing to say that Tremjones intend to limit the rights available to them upon the grant of the licence. Therefore, I will proceed on the basis that Tremjones intend to exercise the full suite of rights under s 66 of the Mining Act 1978 (WA).
What are Purnululu’s activities?
In their contentions, Purnululu assert the licence ‘is part of the main fishing, hunting, camping and intergenerational teaching area’ (at 15). They also assert the Aboriginal communities of Kawarre, Lumuku and Warrenranginy are 12, 18 and 22 kilometres from the licence ‘demonstrating the likelihood of interference is more likely’ (at 12). Proximity and ease of access from Aboriginal communities can suggest frequent and intensive use of the licence (Forrest v Brockman Exploration at [43]): however, there still needs to be evidence that social and community activities are conducted and that these activities will suffer direct and substantial interference (Gooniyandi v Inventum Resources at [29]).
The affidavit evidence contains general statements that:
· Intergenerational teaching is conducted on the licence about camping, language, stories, hunting and cooking (at 6);
· A family group camp, fish, or hunt in the licence area ‘about once a month’ on their way to Kawarre community and if it is late ‘we will camp in the area and get a fresh start in the morning’ (at 10-11);
· ‘Everyone goes fishing there… The last time we went fishing was in the wet’ (at 12);
· Members of the community visit the licence and obtain black bream, perch, catfish, turtles, crocodile, water goanna, bush banana, bush potato, bush onion, sugar bag, minjarda (like a blackberry), kangaroo, gardinunja (emu), kalamuda (bush turkey), jardinbar (land goanna), piliny (medicine for colds and pain which is sold) and malburra (medicine to smoke babies) (at 12-15).
Are Tremjones’ activities likely to interfere with Purnululu’s or can they coexist?
The deponent expresses concern that exploration in the area will affect ‘all the fish swimming upstream and downstream’ and will make the ‘fishing spots in the Tenement Area and downstream … dirty and no good for fishing’ (at 13). The State contends such interference is unlikely given they propose draft endorsements concerning storage and disposal of hazardous substances and minimising disturbance or contamination of waterways (Contentions at 41). I accept this contention and note that 100 percent of the licence is proclaimed surface water area SWA/29 (Ord River and Tributaries) (Tengraph Quick Appraisal). The endorsements over this area prohibit taking or diverting water from, or obstructing or interfering with, the waters, bed or banks of a watercourse or wetland unless via a permit issued by the State. I also note the watercourses that run through the licence are not permanent and there are no permanent pools (Tengraph Quick Appraisal). This indicates fishing is only undertaken when there is water, and it corresponds with the deponent’s statement that the ‘last time we went fishing there was in the wet’ (at 12).
The deponent also expresses concern that exploration will block ‘the only road to Kawarre’ (at 8) and that if exploration activities are undertaken on the licence then his family and other claim group members ‘will not be able to travel to Kawarre’ (at 9). In their contentions, Purnululu contend the latter statement is evidence that ‘the Native Title Party will be unwilling to carry out its community and social activities on the Tenement Area should the Grantee undertake exploration activities’ (Contentions at 19). I do not agree. My reading of the statement is that the deponent is concerned about physical access to travel to Kawarre. Mr Tremlett states the ‘road to Kawarre is the same access road to Purnululu National Park. This is a public road no person or company would be allowed to restrict access on this road’. This statement I accept on face value.
The Purnululu reply asserts community or social activities are conducted in such a way that exploration activities will interfere with them. However, that is not borne out by the evidence in this matter.
Conclusion
Overall, the evidence is that the licence area is a stopover place on the way to Kawarre and as such, community and social activities are undertaken on an intermittent basis. I conclude it is not likely that Tremjones’ exploration activities will interfere with Purnululu’s community or social activities in a direct or substantial way (Yindjibarndi v FMG at [16]). I agree with the State’s contention that, in the absence of evidence to the contrary, the nature of Purnululu’s activities are capable of coexistence with Tremjones’ (Rosas v Northern Territory at [71]).
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Purnululu?
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 (Silver v Northern Territory at [91]).
What areas or sites are on the licence?
The affidavit evidence briefly outlines the following areas or sites on the licence:
· ‘many sacred places’ (at 16, 24);
· a historic ceremonial ground ‘at the top part of the Tenement Area’ (at 17);
· a dreaming story about the Frank River which connects to a site north of the licence (at 18);
· ‘a song line for the Tenement Area’ (at 19);
· ‘a bad spirit’ in the form of an old bush woman who inhabits the hills (at 20);
· paintings in the hills (at 22);
· ‘a lot of artefacts … where the old people used to walk up and down’ the Frank River (at 23).
AHIS Searches show one registered site and one heritage place under the Aboriginal Heritage Act 1972 (WA): they are, respectively, Frank River registered site 13581 with a restricted location described as ‘Mythological, Painting, Water Source’ and Frank River 3 heritage place 12714 described as ‘Artefacts/Scatter’.
Is there evidence these areas or sites are of particular significance in accordance with Purnululu’s traditions?
I accept the sites as listed at [16] above are important to Purnululu, however, there is insufficient evidence to conclude these are sites of particular significance as required by s 237(b). This is because the evidence simply states the sites exist, but does not go on to distinguish or explain why the sites are of special or more than ordinary significance to Purnululu in accordance with their traditions (Cheinmora v Striker Resources at 34–35; Silver v Northern Territory at [91]). The Purnululu reply indicates that protocols or cultural concerns about dissemination of information can explain why a native title party may not provide detailed evidence. However, those concerns can be raised early in an inquiry and ventilated. Measures such as non-disclosure orders can be put in place also.
The Purnululu reply goes into some detail about interference and the State’s regulatory regime, however, because there is insufficient evidence to conclude there are areas or sites of particular significance on the licence, I do not need to consider the question 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?
Purnululu 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
The grant of exploration licence E80/5116 to Tremjones Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
14 December 2018
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