Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited
[2020] NNTTA 57
•22 September 2020
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited and Another [2020] NNTTA 57 (22 September 2020)
Application No: | WO2019/0436 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2015/009, WCD2015/008 WCD2012/006)
(native title party)
- and -
Buxton Resources Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 22 September 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 – the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237 |
Cases: | Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Thomson Aviation Pty Ltd, [2011] NNTTA 38 (‘Bunuba v Thomson Aviation’) Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield, [2012] NNTTA 27 (‘Bunuba v Salmon & Duffield’) Ben Ward; Clarrie Smith and Ors v Western Australia & Ors (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’) Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 (‘Brooking v Western Australia’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG v Yindjibarndi’) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (‘TMPAC v Lake Wells’) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (‘Smith v Western Australia’) Wurrunmurra v State of Western Australia [2012] FCA 1399 (‘Wurrunmurra v Western Australia (2012)’) Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 (‘Wurrunmurra v Western Australia (2015)’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representative of the native title party: | Meredith Brown, Kimberley Land Council |
| Representative of the grantee party: | Saskia De Reuck, IGO Limited |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety |
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 E04/2579 (licence) to Buxton Resources Limited (Buxton).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licence, with a notification day of 25 January 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure (expedited procedure statement). If the expedited procedure applies, then the licence may be granted without first requiring negotiation in good faith under s 31 of the NTA.
Bunuba Dawangarri Aboriginal Corporation RNTBC (Bunuba) holds native title in trust on behalf of the Bunuba People in relation to the majority of the licence area, including exclusive native title to Leopold Downs pastoral lease (see Wurrunmurra v Western Australia (2012), Brooking v Western Australia and Wurrunmurra v Western Australia (2015)). On 24 May 2019, Bunuba lodged an objection in accordance with
s 32(3) against the inclusion of the expedited procedure statement.
In light of Bunuba’s objection, the Tribunal is required, under s 32(4) of the NTA, to determine whether the grant of the licence is an act attracting the expedited procedure. I have been directed by the President of the Tribunal to constitute the Tribunal for that purpose and, for the reasons outlined below, my determination is that the expedited procedure does not apply.
Issues in the inquiry
Under s 237 of the NTA, 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));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. The Tribunal’s role is to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.
The Tribunal takes a common sense approach to the evidence as discussed in Ward v Western Australia. In its objection application, Bunuba raised issues relevant to each limb of s 237, but now argues only interference within the meaning of ss 237(a) and (b) (Bunuba contentions at 4). Accordingly, there is no evidence before me to indicate the grant of the licence is likely to cause major disturbance under s 237(c) and this inquiry is focussed on interference within the scope of ss 237(a) and (b).
Determination on the papers
The State has provided contentions and evidence which includes maps, a Tengraph Quick Appraisal, a report and plan from the Aboriginal Heritage Inquiry System (AHIS report), the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and details of proposed endorsements and conditions to be imposed on the grant of the licence. The State also proposes to include a condition requiring Buxton to enter into a type of Regional Standard Heritage Agreement if requested by Bunuba within a certain period (RSHA condition).
Bunuba has provided contentions (including by way of reply) and an affidavit of Mr Dilliny “Jimmy” Andrews, affirmed 6 February 2020. Mr Andrews says that he is a Bunuba Traditional Custodian and a determined native title holder in relation to the licence area. He explains that the licence is in country called Milininy muway, for which he now has responsibility – muway being regions within Bunuba country which were created by the Ngarranggani (dreamtime). I accept that Mr Andrews has authority to speak for the licence area.
Buxton has provided contentions but no evidence.
All parties agreed to the matter being determined on the papers as permitted by
s 151(2) of the NTA. Having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
The licence and Buxton’s proposed exploration activities
It is convenient at the outset to consider the nature of the licence and Buxton’s proposed activities as these are relevant to my consideration of both ss 237(a) and (b).
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 outlines the rights conferred on the holder of an exploration licence, which include the right to ‘excavate, extract or remove… earth, soil, rock, stone, fluid or mineral bearing substances’ up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The Tengraph Quick Appraisal provided by the State reveals a range of information about the licence area, including that:
(a)the area of the licence is 25,443.34 hectares;
(b)the underlying land tenure consists of Leopold Downs pastoral lease (52.35%), Brooking Springs pastoral lease (45.07%), unallocated crown land (2.45%) and Leopold Downs Road;
(c)the Biridu Aboriginal Community is located within the licence area and it is proposed to convert the area of the community (currently the unallocated crown land) to leasehold land; and
(d)59.62% of the licence area is earmarked for the proposed Fitzroy River National Park.
Buxton’s s 58 statement identifies its target minerals as copper, nickel, gold and base metals and outlines its year 1 work program, estimated at $80,000. The statement says that during the second year Buxton will “implement an infill auger/AC drilling campaign to test positive reconnaissance results in Year 1” and indicates that further detailed work plans will be contingent on the results from years 1 and 2.
As there is very little information about the extent of Buxton’s proposed exploration activities during the term of the licence, it is reasonable to proceed on the basis that it may exercise all of the rights available to it under the licence.
Predictive assessment
Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the native title holders?
What community or social activities do Bunuba carry out in the licence area?
Mr Andrews’ evidence in relation to community and social activities is set out below:
5. The Biridu Community is located within the Tenement Area. Biridu is on an area that used to be part of Leopold Downs pastoral station. Biridu was established in the 1970s. Biridu faces many challenges as funding has been cut in recent years, the community does not need to be exposed to additional pressures that mining mob would put on them. I grew up on Biridu, I have connection to Biridu and the surrounding are. It is important that the next generation are given the opportunity to grow up on country, learn about country, visit and check up on sites as well as learn about Bunuba traditional laws and customs. These are all things I did growing up on Biridu. Bunuba people still take young people out to Biridu to teach them about their country and culture.
6. When it's dry season my family lives out there, near Pigeon Creek. There are three houses that are always full during the dry season. We live off the country, on what we fish and hunt on the weekends. The country around Biridu Community is a good place to get lots of bush foods. Other Bunuba people also live of the land during the dry season. At all times of the year Bunuba people regularly go out to collect brim, catfish, goanna, wangle (bush yam), conkerberry's, turkey, sugarbags, bush onion and gindi (bush plum) in the Tenement Area.
The mapping included with the State’s evidence shows Pigeon Creek near to Biridu.
Bunuba argues that its members live in the Biridu community and, as the community is located within the licence area, it allows for regular access to the licence area and indicates the area is used frequently (Bunuba contentions at 9).
Bunuba also argues that the particular geography of the licence area, including Biridu, Pidgeon Creek and Mililiny (discussed further below), is frequented throughout the year for fishing, hunting and intergenerational teaching (Bunuba contentions at 10).
The State contends that Mr Andrew’s evidence at 5 is very general in nature, with a lack of detail regarding the inter-generational activities described. It also raises a number of issues relating to the scale of activities undertaken at Biridu and elsewhere (State’s contentions at 25-26).
I agree that parts of Mr Andrews’ evidence are general in nature and lack detail. However, it is evident that Bunuba People visit and stay at Biridu, including for substantial periods of the year. Mr Andrews also speaks of the Biridu community in a manner which indicates a permanent presence, consistent with Bunuba’s contentions. Further, Mr Andrew’s evidence is not limited to Biridu. He refers to Pigeon Creek and the area surrounding Biridu and refers to activities being undertaken at “all times of the year in the Tenement Area”. Given the extent to which Bunuba holds native title, including exclusive native title, in relation to the licence area, there is no reason to conclude that activities would be confined to Biridu or its immediate surrounds, although that may be where Bunuba People are based. Also, while Mr Andrews’ description indicates activities are more intensive in the dry season, they are not said to be limited to the dry season. Increased exploration activity might also be expected during the dry season.
I am satisfied that the community and social activities as described by Mr Andrews occur throughout the licence area, although certain activities such as living on the licence area, may be concentrated in and around Biridu. The question for s 237(a) is whether the grant of the licence is likely to interfere directly with those activities.
Is the grant of the licence likely to interfere directly with Bunuba’s community and social activities?
Section 237(a) speaks of direct interference, explained by the Federal Court in Smith v Western Australia at [26] as follows:
The criterion of direct interference in par (a) may be thought of more fruitfully as functional than as definitional. That is to say, it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.
The decision in Smith v Western Australia confirmed that the Tribunal is entitled to take into account contextual factors such as the frequency and nature of the native title party’s activities, the grantee party’s proposed work program, other activities conducted in the vicinity of the tenement, relevant statutory restrictions and restrictions contained in the proposed grant.
Bunuba contends that there is a high probability that the grant of the licence will interfere directly with intergenerational teaching, fishing, hunting and the gathering of resources (Bunuba contentions at 8). It expresses concern at the risk of disruption to wildlife and the willingness of Bunuba People to access and undertake community activities (Bunuba contentions at 11), although those concerns are not specifically raised by Mr Andrews, who says only that the Biridu community does not need additional pressure from mining activities.
Buxton acknowledges the existence of the Biridu community in the licence area and says that “no exploration activities will be undertaken on or near the community so as to affect community life.” Other than the area of Biridu itself which can be identified, is it is not clear what Buxton means when it says no activities will be undertaken “near” the community. As already noted, the evidence indicates activities occur throughout the licence area. In any event, there is no evidence from Buxton to support its statement.
Buxton also argues that its exploration activities are unlikely to restrict community and social activities due to their temporary nature and that the area of any restriction would be limited to the particular area involved from time to time, for safety reasons (Buxton contentions at 7-8).
Bunuba says that previous Tribunal decisions have found that tenements located near communities are likely to interfere with social and community activities, although no specific decisions are mentioned. I agree that the likelihood of interference may be increased where there is an active community within or near to a tenement area. However, the issue will always depend on the specifics of the case. For example, in Bunuba v Thomson Aviation the Tribunal found interference was unlikely despite there being two communities within the tenement area. Conversely, in Bunuba v Salmon and Duffield, where a number of communities (including Biridu) were located within a 45km radius of the tenement area, the Tribunal found that interference was likely.
Exploration activities are often of a limited and temporary nature. For that reason, the Tribunal has commonly found that the grant of an exploration licence is unlikely to interfere with community and social activities in the direct and substantial way contemplated by s 237(a).
Mr Andrew’s evidence is general in nature and in different circumstances may be insufficient to support a conclusion that interference is likely. However, it must be considered in context. In this case, as discussed at [22] above, the context includes the existence of the community of Biridu within the licence area, in an area where Bunuba holds exclusive native title and where there is limited evidence of Buxton’s proposed exploration activities beyond year 1. Considering all of these factors as a whole, there is, in my view, a likelihood that the grant of the licence will result in direct interference with Bunuba’s community and social activities as contemplated by
s 237(a), such that the parties should negotiate in accordance with s 31(1).
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to native title holders?
As discussed 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.
In his evidence at 7, Mr Andrews says there are many sites of particular significance on the licence area, including a number of Ngarranggani stories, junba or songlines and rai muway (little people living areas). Both the State and Buxton take issue with this broad statement and I agree it is insufficient for the purposes of s 237(b).
However, Mr Andrews does go on to specify two specific areas or sites, being Mililiny and Prairie Hill as discussed below. Bunuba’s contentions also focus on these two areas or sites.
Mililiny
Bunuba contends that the whole of the area from Millyie Hill to Prairie Hill West (including Prairie Hill) is an area of particular significance known as Mililiny. This area, which extends across the northern part of the licence area, is marked on the map annexed to Mr Andrews’ affidavit and labelled ‘Mililiny sacred site’. Bunuba contends that Mililiny as marked on the map is a sensitive area with a number of features, which may themselves be areas or sites of particular significance.
Mr Andrews’ evidence regarding this area is as follows:
8. There is one Ngarranggani story about bush mermaids, that live at Mililiny, who act as a caretakers for that area, which is marked on the map as Mililiny. Before anyone enters onto that Mililiny country you need to introduce yourself to the bush mermaid spirits. The Mililiny area is very spiritually alive and Bunuba people and strangers need to respect the access and cultural protocols. If people don't introduce themselves to those bush mermaids on Mililiny country they could get sick. No exploration activities should be done within the hilly country of Mililiny it is too culturally important and the spirits would get angry. There would be serious cultural consequences and country would get angry and not provide the resources that Bunuba people need to live off. Country could also become sick and there would likely be an increase in bad bushfires or drought.
9. There is another Ngarranggani story that relates to a goanna. This story is also located in Mililiny country. The goanna Ngarranganni helps ensure that goanna is plentiful on Mililiny country. Bunuba people introduce themselves to the Ngarranggani and ask country to provide enough goanna. If the Ngarranggani was damaged Bunuba people may no longer get enough goanna and bush food from country. This would have a big impact on how Bunuba people live. Bunuba people could lose the ability to get what they need from country and would have to go to the shops instead. Not all Bunuba people can afford to do this. The mining mob need to come and talk with the Bunuba Traditional Owners to make sure this Ngarranggani is safeguarded.
The area marked on the map annexed to Mr Andrews’ affidavit includes Millyie Hill and Hooper Hills as well as Prairie Hill and Prairie Hill East, which are marked with an asterisk. The area relating to the goanna Ngarranggani story is marked with a circle near Prairie Hill.
Buxton does not accept that the whole of the Mililiny area shown on the map is an area of particular significance. However, it says that now it is aware of the locations of the bush mermaid story and goanna story as marked on the map it will avoid exploration activities in these areas (Buxton contentions at 13). As noted, the location of the goanna story is marked on the map by a circle, however, from my reading the mermaid story relates to the whole of the area marked ‘Mililiny sacred site’, an area that covers approximately half of the licence area. Given Buxton does not accept the whole of that area as a site of particular significance, I am not clear to what it refers when it says it will avoid exploring in the area of the mermaid story.
The State argues that there is a lack of clarity regarding the location of Mililiny and the goanna story, however, as these areas are marked on the map annexed to Mr Andrews’ affidavit I do not accept that contention. It also argues that the extent of the hilly country within Mililiny is not explained and no significance is attributed to the low lying areas. In reply, Bunuba argues that the whole of Mililiny is identified as significant and the bush mermaid story relates to the whole area. It says that the fact that hilly areas are singled out does not mean the low lying areas are not significant. I accept Bunuba’s contentions on this issue because Mr Andrews does not state that the mermaid story is relevant only to the hilly area. He clearly says that “[i]f people don't introduce themselves to those bush mermaids on Mililiny country they could get sick” and separately that “[n]o exploration activities should be done within the hilly country of Mililiny it is too culturally important and the spirits would get angry”.
The State also argues that the particular significance of Mililiny as required for
s 237(b) has not been explained. I do agree that the information is limited. I am satisfied of the particular significance of the area identified with the goanna story as the significance of the story, in relation to the provision of goanna has been explained.
The evidence in relation to the particular significance of the whole of the Mililiny area is less clear. However, Mr Andrews has clearly marked the area on the map as a sacred site. His evidence is that the whole of Mililiny is “very spiritually alive” and that there are access protocols associated with the bush mermaids. Coupling that with the particular significance of the area associated with the goanna story and Prairie Hill, as discussed below, I am satisfied that the evidence is sufficient to find that Mililiny is an area or site of particular significance to Bunuba.
Prairie Hill
Bunuba identifies Prairie Hill as an area of particular significance within Mililiny. It says Prairie Hill is a gender restricted area under the Bunuba People’s traditional law and custom.
Mr Andrews says that “Rai or little people protect the Prairie Hill area” which “is the most significant site on the Mililiny muway.” Mr Andrews also says that only Bunuba men who have the right cultural authority can visit Prairie Hill.
The AHIS report identifies a registered site named Prairie Hill/Pirirru in the licence area. This site is described as being of a ceremonial/mythological type. The AHIS report indicates the site is not gender restricted however the file and boundary are restricted. No coordinates are disclosed due to the restricted location.
As noted, an area or site within the meaning of s 237(b) must be of special, or more than ordinary significance, to the native title holders. In that context particular significance is distinguished from the significance of country generally (see Yindjibarndi v FMG at [130]).
Buxton does not appear to dispute the particular significance of the Prairie Hill site but notes that it will ensure exploration activities avoid the area of the registered site (Buxton contentions at 13(d)).
The State questions the particular significance of the Prairie Hill site because Mr Andrews’ evidence refers to the rai or little people “connecting and protecting the lands, junba and songlines all over Bunuba country” (State contentions at 34).
I agree with the State to the extent that it is not clear that the rai protect only areas or sites of particular significance, however, I don’t take Mr Andrews to suggest that the particular significance of the Prairie Hill area arises solely from its protection by the rai. Mr Andrews identifies Prairie Hill as the “most significant site” in the Mililiny muway and highlights the restricted access to the site. This is broadly consistent with the details of the registered site, which is identified as subject to access restrictions (although not gender restrictions).
Accordingly, taking account of the evidence as a whole, I accept that Prairie Hill is a site of particular significance to Bunuba.
The likelihood of interference from the grant of the licence
Having found that there are areas or sites of particular significance in the licence area, it is necessary to consider whether the grant of the licence is likely to interfere with those sites. Depending on the evidence, mere entry onto the area may be interference for s 237(b) (FMG v Yindjibarndi at [76]).
The State argues that the likelihood of interference with these areas or sites of particular significance will be mitigated by the regulatory regime, including the Aboriginal Heritage Act 1972 (WA) (AHA), the conditions and endorsements to be imposed on the licence and the additional RSHA condition. The State also argues that previous mining activity “may mean the grant of the [licence] is unlikely to cause substantial further interference”. I do not accept that argument for the same reasons discussed in TMPAC v Lake Wells at [99].
Buxton also relies on the history of mining and land tenure in the licence area although it does not specifically explain how that history is relevant to the risk of interference from the grant of this licence. In relation to its intentions, Buxton says that it will comply with the AHA and highlights the nature of the exploration activities outlined in its 58 statement. However, as already discussed, the s 58 statement is limited to Buxton’s initial activities.
In response to the arguments raised by the State, Bunuba says that neither the AHA regime, nor entry into an RSHA will address its heritage concerns (Bunuba reply at 23–25). In particular, it relies on the nature and concentration of the sites of particular significance and the sensitive information regarding the boundaries of those sites (see also Bunuba contentions at 15-17). I accept those contentions here. Mr Andrews’ evidence as discussed at [39] and [43] above and the restricted location of the Prairie Hill site support Bunuba’s contentions.
Accordingly, given the nature of the areas or sites of significance, the risk of interference, and the limited information regarding Buxton’s proposed activities, I do not consider that the State’s regulatory regime, including the tenement endorsement and conditions, the AHA and the RSHA condition are sufficient to mitigate the likelihood of interference under s 237(b).
Determination
I determine that the grant of E04/2579 to Buxton Resources Limited is not an act attracting the expedited procedure.
Ms Nerida Cooley
Member
22 September 2020
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