Bernard Stretch & Others on behalf of the Purnululu Native Title Claimants v Tremjones Pty Ltd and Another - [2016] NNTTA 45

NATIONAL NATIVE TITLE TRIBUNAL

Bernard Stretch & Others on behalf of the Purnululu Native Title Claimants v Tremjones Pty Ltd and Another [2016] NNTTA 45 (11 October 2016)

Application No: WO2015/0908

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Bernard Stretch & Others on behalf of the Purnululu Native Title Claimants (WC1994/011) (native title party)

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The State of Western Australia (Government party)

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Tremjones Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Ms H Shurven, Member

Place: Perth

Date: 11 October 2016

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere substantially with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure attracted

Legislation:Aboriginal Heritage Act 1972 (WA), ss 5, 16, 17, 18
Native Title Act 1993 (Cth), ss 29, 31, 32, 237
Mining Act 1978 (WA)

Cases:Barbara Sturt and Others on behalf of Jaru v Baibao Resources Pty Ltd and Another [2015] NNTTA 38 (‘Sturt v Baibao’)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Gooniyandi v Faustus Nominees’)
Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (‘Hale v Western Australia’)
IS (name withheld for cultural reasons) and Others on behalf of Wajarri Yamatji v Terrence Harold Little [2016] NNTTA 24 (‘Wajarri Yamatji v Little’)
Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People (WC01/179); Robin Boddington and Others on behalf of the Wajarri Elders (Wo01/180)/Western Australia/Giralia Resources NL [2002] NNTTA 24 (‘Walley v Western Australia’)
Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 69 FLR 1 (‘Silver v Northern Territory’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representative of the Ms Angela Booth, Kimberley Land Council

native title party: Mr Tim Ognenis, Kimberley Land Council

Representatives of the Ms Angela Milne, State Solicitor’s Office

Government party: Mr Michael McMahon, Department of Mines and Petroleum

Representative of the Mr Russell Tremlett, Tremjones Pty Ltd

grantee party: Mr Randall Jones, Tremjones Pty Ltd

REASONS FOR DETERMINATION

I must determine whether or not the expedited procedure applies to the grant of exploration licence E80/4944 (the licence) to Tremjones Pty Ltd (Tremjones). The licence comprises approximately 59 square kilometres, located 106 kilometres north east of Halls Creek in the Shire of Halls Creek. The Purnululu registered native title claim wholly overlaps the licence. The State Government of Western Australia included an expedited procedure statement in their notice about the grant, and the Purnululu native title claim group (Purnululu) lodged an objection to the statement with the National Native Title Tribunal. I have been appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies.
By including the expedited procedure statement in its notice, the State asserts the activities permitted under the licence are not likely to interfere with the Purnululu community or social activities or sites or areas of particular significance to Purnululu, or involve major disturbance to the land or waters concerned (see ss 237(a), (b) and (c) of the Native Title Act 1993 (Cth)). All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated. In their objection to the expedited procedure statement, Purnululu argue that interference or disturbance in relation to one or more of the limbs of s 237 is likely.
A decision that the expedited procedure applies means the State can grant the licence and Tremjones can proceed to explore without negotiating with Purnululu (see s 32(4)). A decision that the expedited procedure does not apply means the normal negotiation procedure is required: the State and Tremjones must negotiate in good faith with Purnululu, with a view to reaching an agreement about the grant of the licence. Those negotiations may be done with or without mediation assistance from the Tribunal (see s 31).
My decision must be based on the criteria set out in s 237. Specifically, I must determine whether the grant of the licence is likely to:
(a)directly interfere with community or social activities carried on by Purnululu;
(b)interfere with areas or sites of particular significance in accordance with the traditions of Purnululu; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The State, Purnululu, and Tremjones provided submissions to the Tribunal for the inquiry. At the first listing hearing, the self-represented Tremjones indicated they wished to make further submissions on three issues, outlined as follows:
·Mr Russell Tremlett’s authority to speak on behalf of the company:
Tremjones’ statement of contentions, dated 22 June 2016 and signed by Mr Tremlett, states ‘Russell George Tremlett and Randal McKenzie Jones are equal partners in Tremjones Pty Ltd’. In their contentions in reply, Purnululu argued there is ‘no evidence to support this assertion’, attaching an Australian Securities & Investments Commission (ASIC) company extract. This extract, dated 23 February 2016, indicated Mr Jones was the sole director of Tremjones. Following the listing hearing, Tremjones provided the Tribunal and all parties with a further ASIC company extract showing that Mr Tremlett was appointed as a second director of Tremjones on 10 June 2016. I accept Mr Tremlett has authority to speak on behalf of Tremjones.
·Consultations with Purnululu:
Tremjones submits it has ‘consulted and discussed the [licence] with the Purnululu people’. At the listing hearing, there was some discussion in relation to this issue. In their contentions in reply, Purnululu contest the extent of such consultation, and submit Tremjones has provided no evidence on the matter. In relation to the relevance of consultation, I note the application of the expedited procedure is not concerned with obtaining the agreement of the native title party. Rather, as President Webb QC noted in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [70]-[72]), ‘the question is, should the right to negotiate apply because of the likely effect the exploration activities will have...’ Further, I agree with the Tribunal’s findings in Gooniyandi v Faustus Nominees (at [32]), that evidence relating to ‘the course of negotiations conducted in the shadow of objection proceedings’ are not ‘material or probative’ of the matters to be determined in expedited procedure inquiries. Tremjones’ recognition of the importance of complying with the Aboriginal Heritage Act 1972 (WA) and understanding of the issue of interference per s 237 may, however, be pertinent in assessing the likelihood of disturbance or interference if the licence were granted. The issue of consultation is further discussed at [36] below.
·Excision of blocks from the licence application:
At the listing hearing, Tremjones’ representative indicated that an application would be made to remove certain areas from the licence application. On 16 August 2016, the Tribunal was notified by the Department of Mines and Petroleum (DMP) that a request to excise five blocks from the licence application had been received and processed. A revised map showing the area to be granted was circulated to parties, indicating the northern portion of the licence would be excised upon grant. It appears approximately the top third of the licence will be excised, including a place called Fish Hole to which much of Purnululu’s evidence was directed.
A second listing hearing was subsequently convened, to ensure all parties had ventilated any final issues. All parties indicated that they had no further comments and wished to rely on their written submissions. I consider it is appropriate to determine the matters on the papers.
Purnululu provided a statement of contentions, together with an affidavit of Ms Shirley Drill, and a statement of contentions in reply, with an affidavit of Mr Murphy, the Principal Legal Officer of the Kimberley Land Council. Ms Drill states that she is a Kija Traditional Owner, and can ‘speak for the country from Calico Springs right back up the hills to Karrawe’, including the licence area. I accept both Ms Drill and Mr Murphy have authority to speak for Purnululu in this matter in their respective capacities.
Mr Murphy’s affidavit evidence refers to a heritage agreement between Purnululu and another explorer, whose tenement overlapped the proposed licence in this current matter. It also refers to the Kimberly Standard Heritage Protection Agreement and its terms. However, it does not appear that parties were able to come to any such agreement in this matter. As noted above, the question I must answer is not whether parties have reached agreement, or consulted with each other, but rather should the right to negotiate apply because of the likely effect these exploration activities will have?
Purnululu’s contentions argue the licence, and the exercise of the rights afforded to Tremjones by that grant of the licence, are contrary to s 237(a) and (b). That is, they argue the grant is likely to cause interference with the Purnululu people’s community or social activities; and it is likely to directly interfere with areas or sites of particular significance to the Purnululu people.
As noted at [2] and [4], I must also inquire into whether the grant will be likely to involve major disturbance, or create rights whose exercise is likely to involve major disturbance, to any land or waters concerned. However, while Purnululu raised this in their original objection application, they do not argue this point in the contentions. Based on the limited evidence before me on that issue, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
On the basis of the contentions and evidence provided by parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant of the licence:
(a)Is the grant likely to substantially and directly interfere with the carrying on of Purnululu’s community or social activities?
i)What are Purnululu’s community or social activities?
ii)Are there any other interests which may have already interfered with these activities?
iii)What are Tremjones’ proposed activities?
iv)Conclusion.
(b)Is there a real risk of interference to areas or sites of particular significance to Purnululu?
i)What areas or sites are identified by Purnululu as being of particular significance?
ii)Are these identified areas or sites of particular significance?
iii)Is there a real risk of interference to areas or sites of particular significance?
iv)Conclusion.

(a)Is the grant likely to substantially and directly interfere with the carrying on of Purnululu’s community or social activities?

In regard to s 237(a), I address the issue of whether the grant is likely to interfere with the carrying on of the Purnululu community or social activities. I note I may only have regard to community or social activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). In this inquiry, the relevant native title rights and interests, as recorded on the Register of Native Title Claims, may be summarised as including the right to: access, remain in and use the land for any purpose; access resources and take for any purpose resources in that area; engage in spiritual and cultural activities on that land; maintain and protect areas, places and objects of significance in or on that land; and protect resources and the habitat of living resources in that area.

What are Purnululu’s community or social activities?

Purnululu contend the evidence establishes that members of the group go to the licence area to fish and camp. Purnululu’s contentions also state the group conducts ‘intergenerational teaching on or very near’ the licence area.
In her affidavit, Ms Drill notes that in the dry season ‘we’ll go out to the north east part of the Tenement Area to a place in between the hills along the Frank River called Fish Hole’. She further notes there ‘is an access road just after you enter the reserve, just east of the Tenement Area’, which ‘comes back through the Tenement Area to Fish Hole’. Ms Drill states that Fish Hole ‘is a big water hole with lots of good fishing’, and that they take young kids with them and ‘show them country and teach them about country’. She notes there is also ‘a camping place there’, which she indicates was used both historically and in the present day, stating, ‘We go there often when we are at Karrawe during the dry season’.
I note Karrawe is located approximately twelve kilometres from the outer north eastern border of the licence. I agree with the State that the mere fact of proximity does not lead to the conclusion that any community or social activities will be affected, in the absence of evidence to that effect.

Are there any other interests which have already interfered with these activities?

As the State submits, I may take into account other lawful activities which are likely to have already impacted on the community or social activities of Purnululu (Walley v Western Australia). Evidence provided by DMP for the State shows that the licence includes a seven per cent overlap with a pastoral lease to Texas Downs/Mabel Downs and 89.7 per cent Vacant Crown Land.
DMP information also confirms the licence has been subject to seven previously granted exploration licences, active between 1985 and 2014 and overlapping the licence between 2.4 and 100 per cent. The previously issued licence which overlapped by 100 per cent was live between 2004 and 2014, when it was surrendered.
Purnululu contends the fact previous licences have been granted over the licence does not necessarily mean disturbance has occurred. I agree with this point, and must weigh up factors such as the size of this licence, the evidence relating to Purnululu’s activities in accordance with their traditions, and the proposed activities of the explorer in the current matter.

What are Tremjones’ proposed activities?

Mr Tremlett states Tremjones’ intended work programme is to initially carry out basic detecting on the previously disturbed areas. Depending on the results, there would be further exploratory work to identify prospective areas for drilling. Access to the licence would be via existing tracks. He notes that he makes a living from detecting for gold. The application for the licence states exploration will focus on gold, copper and silver.

Conclusion

I must consider the activities being undertaken on the licence by Purnululu, and weigh these against the activities Tremjones is likely to undertake if the licence is granted. It is an evidentiary question as to whether or not an objector will be affected in relevant ways by the grant of a licence (Hale v Western Australia at [112]).
The evidence provided by Purnululu regarding the location of where fishing and camping activities take place focuses predominantly on the Fish Hole area. I note the entire north east portion, which includes Fish Hole, is to be excised from the licence upon grant. As such, I find that, while Purnululu may engage in activities at the Fish Hole site, interference is unlikely to be caused by Tremjones’ activities in the grantable southern portion of the licence.
In the remainder of the licence, I accept that intergenerational knowledge transfer takes place more broadly. In Ms Drill’s affidavit, there is a general assertion that, ‘We go out to the Tenement Area often’. However, Purnululu’s evidence is lacking in detail as to: the frequency of the events referred to; the number of people who participate; how much of the overall licence area is required for the activity; why particular areas would be required to the exclusion of other areas at any given time; and how Tremjones’ exploration is likely to interfere with the carrying on of those activities. As has been indicated in previous Tribunal decisions, this type of information is in the particular knowledge of the native title holders; not providing evidence as to those facts may therefore lead to an unfavourable inference being drawn as the Tribunal applies a common sense approach to evidence (see, for example, Sturt v Baibao at [27]-[28]).
I conclude it is not likely that Tremjones’ exploration activities will interfere with Purnululu’s community or social activities. To the extent the community or social activities do occur on the licence, the size of the licence (even taking into account the proposed excision) and the nature of exploration activities, indicate it is not likely the grant of the licence will interfere with them. I agree with the State’s contentions that, in the absence of evidence to the contrary, camping and fishing are capable of coexistence with Tremjones’ proposed exploration activities.
Given the information and evidence provided in this inquiry, I conclude the grant of the licence is not likely to interfere with the carrying on of the Purnululu community or social activities.

b)Is there a real risk of interference to areas or sites of particular significance to the native title parties?

What areas or sites are identified by the native title parties as being of particular significance?

A native title party must provide sufficient evidence to: show that 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 them in accordance with their traditions (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17]). The word ‘particular’ in s 237(b) means not only ‘special or more than ordinary’, but that the particularity of the significance must be capable of identification (Western Australia v McHenry).
These are threshold requirements for the inquiry as to whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]).
Results from the Department of Aboriginal Affairs (DAA) Aboriginal Heritage Register locate the following registered sites within the licence:
·Site ID 12844 – Purnululu 9 – artefacts/ scatter
·Site ID 12845 – Purnululu 10 – artefacts/ scatter
·Site ID 12892 – Purnululu 2 – artefacts/ scatter
·Site ID 12893 – Purnululu 3 – artefacts/ scatter
·Site ID 12895 – Purnululu 5 – artefacts/ scatter
·Site ID 12896 – Purnululu 6 – artefacts/ scatter
·Site ID 12897 – Purnululu 7 – artefacts/ scatter
·Site ID 13581 – Frank River – mythological, painting, water source
The DAA Register also locates the following other heritage places within the licence:
·Site ID 12712 - Frank River 1 – artefacts/ scatter
·Site ID 12713 – Frank River 2 – artefacts/ scatter
·Site ID 12714 – Frank River 3 – artefacts/ scatter
·Site ID 12891 – Purnululu 1 – artefacts/ scatter
·Site ID 12894 – Purnululu 4 – artefacts/ scatter
·Site ID 12898 – Purnululu 8 – artefacts/ scatter

While not determinative of the matter, I take into account the above DAA registered sites and other heritage places in the licence. Mapping indicates these sites remain in the grantable portion of the licence (that is, they do not appear to be in the portion to be excised). However, I also note that they are not detailed in the evidence in relation to how they are of particular significance, whereas Fish Hole, which is in the excisable portion, is outlined in some detail.
Ms Drill’s affidavit states, ‘The hill country within the Tenement Area, either side of the road, is very significant to the Purnululu traditional owners’. From the mapping provided, I take the reference to ‘either side of the road’ to mean the road which divides the south of the licence from the northern part of the licence near Fish Hole. Ms Drill asserts the area is ‘a dangerous place...all the way back to the Bungles’, and it is therefore necessary to ‘go with the right people for country’. Ms Drill talks about ‘the old fellas’ who used to ‘walk that country up in those hills’ and camp there, and also footprints from the old people in the northern part of the licence.
Ms Drill also refers to the hills in the south of the licence, and states this is as an area where ‘no one should go’. She says there are two old ladies – who they call Yarralalil – who live in the caves, both in the hill country in the north east and south east portion of the licence. She adds, ‘If strangers go looking around in this area they will disturb Yarralalil’, who will ‘make something bad happen to those people, make them sick’. Ms Drill states there are also caves in the hills within the licence where there are important paintings from when the old people lived there.
Ms Drill goes on to explain the dreaming story for that country refers to a ‘fish who came from the west and he jumped through the gap between the hills and went to Blue Hole. The gap he jumped through is within the Tenement Area, in the south part. This is a significant place for us and you shouldn’t go looking around there’. Ms Drill further describes the dreaming story of the fish who ‘jumped through the gap between the hills’, which she states imbues the south of the licence where this occurred with significance.

Are these identified areas or sites of particular significance?

Purnululu’s evidence in regard to the significance of the hills area is broad and the location of places referred to are not clearly identified. I accept the evidence that the Yarralalil live in the hill country in the south east of the licence, and that important paintings may exist in the southern portion of the licence, however their specific location is not specified.
I find that Purnululu’s evidence regarding the south east portion of the licence contains insufficient information for me to conclude the hills, the caves in them, or the painting in the caves, in the south east of the licence, are sites of ‘particular significance’ for the purposes of s 237(b). The detail in Purnululu’s contentions (for example, at (24) and (25)) focus on the north east portion of the licences, including Fish Hole, as having the unique qualities. I accept this area may be of particular significance to Purnululu, however, it is to be excised from the licence on grant.

Is there a real risk of interference to areas or sites of particular significance?

The State submits that, in the event there are any sites or areas of particular significance in the licence area, interference with those areas or sites is not likely. Amongst other reasons, the State indicates they will impose a Regional Standard Heritage Agreement condition on the grant of the licence, which will entitle Purnululu to request Tremjones execute such an agreement.
In relation to prior consultations Tremjones submits it has undertaken with Purnululu, I note my comments above at [5] and, given the conflicting evidence from parties regarding the extent of such consultations, I have not placed particular weight on this factor in reaching my conclusion. However, I do consider that Tremjones has indicated a willingness to comply with the State’s regulatory regime and, having found no evidence to displace the presumption of regularity, have regard to this presumption in assessing the likelihood of future interference with areas or sites of particular significance on the licence.

Conclusion

I find that Fish Hole is an area of particular significance to Purnululu, however, that portion of the licence is proposed to be excised on grant of the licence. Tremjones will therefore be exploring in only the southern portion of the licence, and I find the activities of Tremjones are unlikely to interfere with the site for the purposes of s 237(b). On the evidence before me, I am not persuaded there are other sites or areas of particular significance on the licence for the purposes of s 237(b).

Conclusion

I find the evidence does not support a conclusion that the grant of the licence is likely to interfere with the carrying on of Purnululu community or social activities. I also find that the evidence does not establish the existence of sites of particular significance to Purnululu, in accordance with their traditions, other than Fish Hole, and conclude that interference is unlikely with Fish Hole as that portion of the licence is to be excised on grant. Finally, I find that the grant of the licence is not likely to involve major disturbance to the land and waters concerned.

Determination

The determination is that the act, namely the grant of exploration licence E80/4944 to Tremjones Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
11 October 2016