Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Ltd

[2020] NNTTA 40

NATIONAL NATIVE TITLE TRIBUNAL

Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Ltd and Another [2020] NNTTA 40 (16 April 2020)

Application No: WO2019/0873

IN THE MATTER of the Native Title Act 1993 (Cth)

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

Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2012/006)

(native title party)

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Buxton Resources Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Nerida Cooley, Member
Place:	Brisbane
Date:	16 April 2020

Catchwords:

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

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 32(4), 151(2), 237

Mining Act 1978 (WA) s 57, 58, 61, 66

Cases:

Andy Andrews & Ors/Exploration & Resource Development Pty Ltd/Northern Territory [2002] NNTTA 170; (2002) 170 FLR 138 (‘Andrews v Northern Territory’)

Ben Ward & Ors v Western Australia & Ors [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’)

Bunuba Dawangarri Aboriginal Corporation RNTBC v Elderberry Resources Pty Ltd and Another [2018] NNTTA 76 (‘BDAC v Elderberry’)

Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another [2016] NNTTA 16 (‘Tjurabalan v Rich Resources’)

Wurrunmurra v State of Western Australia [2012] FCA 1399 (‘Wurrunmurra v State of Western Australia’)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)

Representative of the native title party:

Ms Meredith Brown, Kimberley Land Council

Representative of the grantee party: Ms Saskia De Reuck, Independence Group NL

Representatives of the Government party: Ms Emily Negus, State Solicitor’s Office;
Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

1. This is a decision about whether the expedited procedure under the Native Title Act1993 (Cth) (NTA) applies to the grant of exploration licence E04/2631 (licence) to Buxton Resources Ltd (Buxton).

2. 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 31 May 2019.

3. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure. If the expedited procedure applies, the licence may be granted without negotiation under s 31 of the NTA.

4. Bunuba Dawangarri Aboriginal Corporation RNTBC (Bunuba) holds native title on trust for the Bunuba People in relation to the whole of the licence area (in accordance with the Federal Court’s determination in Wurrunmurra v State of Western Australia). 

5. On 29 September 2019, Bunuba lodged an objection against the State’s inclusion of the expedited procedure statement with respect to the licence.

6. I have been directed to constitute the Tribunal for the purposes of determining, under

   
   

   s 32(4) of the NTA, whether the grant of the licence is an act attracting the expedited procedure. For the reasons outlined below, I have determined that the expedited procedure applies to the grant of the licence.

Issues and approach

1. 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 Bunuba’s community or social activities in relation to the licence area (s 237(a));

   (b)interfere with areas or sites of particular significance to Bunuba, in accordance with their traditions (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)).

2. The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. In deciding whether the expedited procedure applies, I am required 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.

3. 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 s 237(b). Accordingly, it is not necessary for me to further consider ss 237(a) and (c).

Determination on the papers

1. All parties have provided contentions in accordance with the Tribunal’s directions and Bunuba also provided a reply. 

2. The State provided evidence including mapping, a Tengraph Quick Appraisal, search results from the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System, 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.

3. Bunuba’s evidence consists of an affidavit of Dilliny ‘Jimmy’ Andrews, affirmed 4 December 2019.  Mr Andrews says that he is a Bunuba traditional custodian and a determined native title holder in relation to the licence area.  I accept that Mr Andrews has authority to speak for the licence area.

4. 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

1. The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.

2. According to the State’s evidence, the licence is 653.21 hectares in size and located wholly within the Leopold Downs – Aboriginal Corporation pastoral lease.

3. Buxton’s s 58 statement reveals that its target minerals are copper, nickel, gold, lithium and base metals. The s 58 statement also outlines the exploration programme for year 1 at an estimated expenditure of $15,000, including a review of historical information and the acquisition of a high quality airborne electromagnetic survey. Field reconnaissance will follow during the second year and then, depending on the results of the initial work, drill testing may be undertaken.

4. In its contentions, Buxton adds that it will comply with the relevant regulatory regime and conditions on the licence and further, is willing to engage with Bunuba with a view to commissioning heritage surveys (Buxton contentions at 15, 18, 21).

5. Overall, while some detail is provided of Buxton’s proposed activities during the initial 2 years of the term, it is reasonable to conclude for the purposes of the predictive assessment that Buxton may avail itself of all of its rights under the licence.

Predictive assessment

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Bunuba?

1. The accepted approach to s 237(b) is summarised in Yindjibarndi v FMG at [17] – [18]. In particular, an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders. There must be a real risk of interference, but even slight interference may be unacceptable in the context of s 237(b).

What areas or sites are identified by Bunuba on the licence area?

1. Bunuba contends that the grant of the licence will interfere with a Ngarranggani (dreamtime) story relating to ganaganyja and associated cultural site, both of which it says are located in the licence area and of particular significance to Bunuba (Bunuba contentions at 5).

2. Mr Andrews’ evidence in relation to these areas is as follows:

   5.   Ngarranganni story that runs through the Tenement Area relates to the three ganaganyja or emus. The three ganaganyja travelled to together through Bunuba country. The ganaganyja must have travelled from the south into Bunuba country. The three ganaganyja ate manina or bush plum as they travelled through country, including the Tenement Area. The Ngarranggani dreaming of the ganaganyja connects Bunuba country with other people in the Kimberley. The ganaganyja Ngarranggani needs to be protected to make sure that the Bunuba people remain interconnected with other groups in the Kimberley. Other mining mob have already done damage to the ganaganyja Ngarranggani in other parts of Bunuba country, it is important that no further damage is done. The path of the ganaganyja Ngarranggani is marked on the map at Annexure JAl.

   6.   There is an important site connected with the ganaganyja Ngarranggani located within the Tenement Area. I was told by my father not to tell anyone about. It is located in the hilly country and is a physical mark of where the ganaganyja travelled. I respect my father and his wishes, so I can't tell you more about what or exactly where it is located within the Tenement Area. This knowledge is held by a small number Bunuba people only. No gardia (white person) should know about this site or is allowed near it.

3. The map annexed as JA1 to Mr Andrews’ affidavit shows a hand drawn line from the west some distance to the south of the licence area which then u-turns and passes through the licence area.  It is worth noting at this point that the scale of the map at JA1 is such that I am unable to decipher anything other than the general path of the dreaming.  The specific location of the dreaming on the licence area is not apparent from the map.

4. Buxton accepts Mr Andrews’ evidence and his authority (Buxton contentions at 11). However, it argues that the evidence lacks specificity with respect to the location of any sites in the licence area and their particular significance, as required for s 237(b). It also contends that no information is provided about the site mentioned in paragraph 6 of the affidavit, noting that Bunuba could have sought directions regarding confidentiality in order to provide this information (Buxton contentions at 12(b)).

5. Buxton goes on to say that, nevertheless, it would be able to avoid this site and can undertake to keep the information confidential if the location is advised (Buxton contentions at 12(b)).  As noted above, Buxton also states in its contentions that it is willing to engage with Bunuba with a view to commissioning heritage surveys.

6. Similarly, while accepting that the evidence establishes the ganaganyja Ngarranggani story runs through the licence area as shown on JA1, the State argues that Bunuba has not provided sufficient evidence of sites or areas in the licence area that are linked to the story (State contentions at 28). Further, the State contends that the particular significance of any areas or sites in the context of Bunuba’s traditions has not been explained (State contentions at 30). 

7. In relation to the site mentioned by Mr Andrews in paragraph 6 of his affidavit, the State accepts the importance of this site, but argues the detail provided is insufficient.  It also echoes Buxton’s comments regarding the availability of non-disclosure orders (State contentions at 31).

8. Bunuba addresses these arguments in its reply.  It refers to Mr Andrews’ evidence that the ganaganyja Ngarranggani plays an important role in maintaining relationships and connections with other Kimberley groups and requires protection.  Bunuba also relies on the Tribunal’s decision in BDAC v Elderberry where the expedited procedure did not apply. It says that Member Shurven determined the particular significance of an emu dreaming story that related to the interaction of different language groups (Bunuba reply at 4). Bunuba states that it is not clear that the emu dreaming story in BDAC v Elderberry is the same as in Mr Andrews’ evidence.  However, it says the evidence is similar and argues that this reaffirms its contention regarding the particular significance of the ganaganyja Ngarranggani and associated site (Bunuba reply at 4).

9. I agree that there are some similarities between the two emu stories although, as Bunuba says, it is not clear they are the same.  In this case, I can accept from Mr Andrews’ evidence that the licence will cover the general path of the ganaganyja Ngarranggani.  However, there is insufficient evidence of the location of the dreaming by reference to the licence area for me to conclude that there are areas or sites of particular significance in the licence area (see Tjurabalan v Rich Resources at [61]-[62], quoting Andrews v Northern Territory at [124].)

10. By contrast, the emu dreaming story in BDAC v Elderberry was, as Bunuba notes, connected with a physical mark, being a rock art painting within the licence area.  The rock art site was marked on the map and its significance described and explained in detail.  It was the rock art site which Member Shurven found to be a site of particular significance in that case.  Member Shurven was not satisfied that the evidence regarding the Ngarranggani tracks throughout the Napier Range was sufficient to establish the those tracks as sites of particular significance, stating that the evidence was brief and general in nature (at [48]). 

11. In this matter the only evidence which directly relates the ganaganyja Ngarranggani to part of the licence area is Mr Andrews’ evidence about the associated important site.  Bunuba argues that the restricted nature of the site is itself evidence of this significance.  As to the location of that site, Bunuba contends that “it can reasonably be assumed that the site is located along, or in close proximity to, the identified ganaganyja Ngarranggani” (Bunuba reply at 3).  Bunuba draws a similarity with the rock art painting in BDAC v Elderberry.  However, as already noted, the rock art site in that matter was marked on a map and its significance explained.  That is not the case here in relation to the important site mentioned in Mr Andrews’ affidavit. 

12. I acknowledge that Mr Andrews is respecting his father’s wishes regarding disclosure of the site. To the extent his concerns may have been mitigated by non-disclosure orders, then that would have been an option for Bunuba. As it stands, the nature of the site is not described in any detail and, notwithstanding Bunuba’s arguments about its assumed location, I am not able to locate it on the licence area (particularly given the scale of the map, as noted above). I am therefore not able to conclude that it is a site of particular significance for the purposes of s 237(b).

13. It follows that the evidence is insufficient for me to conclude the grant of the licence is likely to cause interference with the meaning of s 237(b).

Determination

1. I determine that the grant of E04/2631 to Buxton Resources Ltd is an act attracting the expedited procedure.

Ms Nerida Cooley
Member
16 April 2020