Bunuba Dawangarri Aboriginal Corporation RNTBC v Gamut Resources Pty Ltd

[2021] NNTTA 3

NATIONAL NATIVE TITLE TRIBUNAL

Bunuba Dawangarri Aboriginal Corporation RNTBC v Gamut Resources Pty Ltd & Another [2021] NNTTA 3 (8 February 2021)

Application No: WO2020/0661

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 (WCD2012/0006)

(native title party)

- and -

Gamut 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:

8 February 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 29, 31, 32, 151(2), 237

Cases:

Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources)

Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory)

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208

Wurrunmurra v State of Western Australia [2012] FCA 1399

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

Representatives of the native title party:

Ania Maszkowski, Kimberley Land Council

Meredith Brown, Kimberley Land Council

Representative of the grantee party:

Yorke Zhao, Stellar Mining Management Pty Ltd

Representatives of the Government party:

Reywin Rico, State Solicitors Office

Bethany Conway & Matthew Smith, Department of Mines, Industry Regulation & Safety

REASONS FOR DETERMINATION

Background

1. The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of their intention to grant exploration licence E04/2673 to Gamut Resources Pty Ltd and included in their notice a statement that the grant is an act attracting the expedited procedure (see s 32 of the Act). By including this expedited procedure statement, the State assert the normal s 31 negotiation process between the State, Gamut Resources and Bunuba Dawangarri Aboriginal Corporation (who hold native title rights and interests in the area) is not required. The State asserts the grant of the proposed licence 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 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)).

2. The Bunuba Dawangarri Aboriginal Corporation (Bunuba) hold exclusive native title rights and interests in trust for the Bunuba People over the proposed licence, which entitles them to the right to possession, occupation, use and enjoyment of the area to the exclusion of all others (except in relation to flowing and underground waters) (Wurrunmurra v State of Western Australia).  The proposed licence is approximately 26769 hectares in size, and in the Shire of Derby-West Kimberley. Bunuba exercised their right to object to the expedited procedure statement (s 32(3)). As a result, the National Native Title Tribunal (the Tribunal) must conduct an inquiry and determine whether or not the expedited procedure applies (s 32(4)).  

3. Having been appointed to determine this matter, I must look at what is likely to result from the grant of the licence and decide whether there is material to support a real chance or risk of the interference outlined in s 237 (see Yindjibarndi v FMG at [15]). I must have regard to the rights conferred by the grant, the nature of the proposed grant and the applicable regulatory regime (see Walley v Western Australia). Silver v Northern Territory (at [91]) is often referred to in order to explain this predicative assessment (emphasis in original):

   …section 237 requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences outlined in paragraphs (a) – (c) set out above. The proper approach to the application of section 237 was explained by French J in Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442. His Honour pointed out (at 450): "The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement." … [T]his approach was also endorsed by R D Nicholson J in Little v Western Australia [2001] FCA 1706 at [69].

4. Bunuba argue the expedited procedure should not apply because the grant of the licence will likely cause interference as outlined in s 237 and, therefore, the normal s 31 negotiations should occur. The State and Gamut Resources argue the expedited procedure should apply. My decision, for the reasons outlined below, is that the expedited procedure does not apply.

Preliminary Matters

Parties’ submissions

1. Bunuba provided contentions, the joint affidavit of Valerie and Rosa (Josephine) Williams and a reply to Gamut Resources’ and the State’s contentions. Ms Valerie and Rosa Williams attest they are Bunuba determined native title holders and are connected to the area of the licence known as ‘Galamunda muway through our father’s side’.  (I note that Galamunda is also spelled Galamanda throughout materials).  They also ‘affirm this affidavit in the presence of other members of the Williams-Leopold family who are also Bunuba traditional owners’. As such, I refer to this material broadly as the Bunuba evidence.  

2. Gamut Resources provided a statement of contentions.

3. The State provided contentions and accompanying materials including mapping, a quick appraisal outlining the underlying tenure, searches of the Aboriginal Heritage and Inquiry System held under the Aboriginal Heritage Act 1972 (WA), proposed draft conditions and endorsements the licence, and the explorer’s statement in support of their licence application.

4. Parties submitted they were content for the inquiry to proceed on the papers without hearing. I was of the view the issues for determination could be adequately determined on the papers (s 151(2)).

The s 237 predictive assessment

Gamut Resources’ proposed exploration activities and intentions

1. Gamut Resources’ contentions (at page 2) explain their proposed activities broadly in saying they ‘do not propose to use mechanised equipment or to disturb vegetated areas which is in compliance with the standard conditions of grant’. Gamut Resources’ contentions (at page 2) refer to conducting ‘prospecting activities’, however, on grant they will be entitled to conduct exploration activities, as that is the licence type for which application has been made.

2. I note the State’s standard conditions of grant allow the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance and for the excavation of costeans upon written approval from the State. The statement in support of their licence application (provided by the State) notes Gamut Resources intend ‘systematic regional surface sampling in the first year … followed up by additional infill surface sampling and frame of area then Diamond drilling to define targets’.  As such, it appears some form of drilling is likely to occur, and that the explorer will be canvassing the whole of the licence area for sampling – in any event, it is not asserted their activities will be limited to any particular areas of the proposed licence.

Past and current use of the area

1. Bunuba hold exclusive native title over the area and there is considerable factual material to support the inference that they enjoy unfettered and easy access to the area. The State’s quick appraisal document notes there has been negligible exploration or prospecting over the area. Eleven surrendered or forfeited exploration licences and one expired prospecting licence were granted over the area between 1988 and 2007 and held for no more than 16 months. Ten of these overlapped the proposed licence at less than two per cent. Gamut Resources contentions note ‘there are no improvements or other facilities on the land’ (at page 2).  

Section 237(a) – likelihood of interference with community or social activities

1. To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native tile party’s evidence of social or community activities against a grantee party’s proposed exploration activities.

2. Two Aboriginal communities, Galamanda and Wamali (now called Yiramalay), are approximately twelve kilometres from the proposed licence, using the track coming off the Fairfield Leopold Downs Road.  These communities are specifically referred to in the Bunuba evidence as providing a robust base for Bunuba people to access the proposed licence and undertake a variety of community and social activities in the wet and the dry season on the licence, including hunting (goanna, turkey and snake), fishing, and eating and using conkerberries (briyali)  for medicine. I note the State’s materials confirm there is a track through the proposed licence, and four creeks.

3. The evidence supports that the communities use the proposed licence area to live ‘off the land’ (at 13), and the frequency of visiting the area for such social and community activities is reiterated over and again as being ‘all the time’ (at 9 and 13), and ‘a lot’ (at 10, for example).  The way the Bunuba evidence is outlined, I have no doubt Bunuba community members access the proposed licence because it is rich in food, and is ‘one of the main areas for conkerberries and goanna’ (at 11).  This is supported by its close proximity to Galamanda and Wamali, and that to date, the community, who have exclusive native title rights and interests in the area, have had relatively unfettered access, using ‘old tracks which go from [Galamanda] community’ (at 8).  Ms Valerie and Wilma Williams grew up at Wamali community (at 6) and they describe how they were taught about the country by their grandparents (at 6) and how they in turn conduct intergenerational teaching ‘in the tenement area’ (at 12).

4. The Bunuba evidence also outlines (at 13) how:

   We last took the kids out a few months ago during COVID-19 because it was safe out there. We stayed out at Galamanda community for a few months and went on country all the time to hunt and fish. It is close so we can do day trips and have a base in Galamanda. Sometimes we camped on the Tenement Area too. The whole time we stayed out at Galamanda we lived off the land of the Tenement Area, we caught big mob of bream in the creeks there then.

5. Both the State and Gamut Resources argue the Regional Standard Heritage Agreement, which the explorer is willing to sign, will offer Bunuba sufficient protections against s 237 interference. The State suggest (at 11.4) that:

   …a coordinated communication to discuss planned activities on the land by either the

   NTP and Grantee Party will ensure conflicts in land use can be avoided.

   However, there is no mechanism in place to put in effect such a communication regime. The State also argues conditions and endorsements it will place on the licence on grant, as well as its regulatory regime in general, will be sufficient to mitigate any effect of Gamut Resources activities on Bunuba’s social and community activities.  I do not accept this argument, as the conditions and endorsements go more to giving notifications to Bunuba of proposed activities, rehabilitation of the area after activities, and Gamut Resources needing to seek permissions and licences from the State before conducting various activities.  Nothing in this mitigates the interference likely to Bunuba’s described social and community activities on the proposed licence.

6. I am satisfied there is sufficient evidence supporting that conducting exploration activities allowed on the licence, in the vicinity of areas where Bunuba social or community activities are conducted, is likely to cause direct and substantial interference with those social or community activities, given the number of activities conducted on the proposed licence, and the intensity of those activities (largely due to the close proximity to the communities).  

Section 237(b) – likelihood of interference with sites or areas of particular significance

1. The assessment of s 237(b) is whether or not there are areas or sites of ‘particular significance’ – meaning of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35).

What sites or areas are on the licence?

1. The Bunuba evidence refers to Boab trees in the proposed licence along Kurrajong Road, upon which the ‘old people’s names who passed away are printed’ (at 18). There is a road on mapping provided by parties, which crosses Kurrajong Creek and goes through the licence, and I have assumed this is Kurrajong Road, although the evidence with respect to the Boab trees is very broad.  I appreciate there appears to have been cultural sensitivities which precluded the trees being marked specifically on a map in relation to the proposed licence.  Where any party has sensitive material, the Tribunal is open to considering confidentiality directions to protect that information being published in the inquiry decision, although I appreciate that does not necessarily mitigate such sensitivities.

2. The Bunuba evidence also states ‘there could also be burial places in the limestone hills in the Tenement Area because when the old people were walking around, they used to go through there and wrap people up and bury them’ (at 21). This statement is more akin to a suggestion, based on the topography of the area (which appears to contain hills). It is too uncertain to conclude there are burial sites on the licence.

3. The Bunuba evidence also refers generally to Yurrangi Homestead and a ‘burial at Dingo Gap’ which are ‘close to the Tenement Area.’ However, these reference points are outside the proposed licence area and there is no information regarding their nexus to the licence.

Are any of the sites or areas on the licence of ‘particular significance’ under s 237(b) and if so are they likely to be subject to interference?

1. If an area or site is 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]).

2. I accept the Boab trees as outlined in the evidence are of importance to Bunuba people. However, there is insufficient explanation about the nature of the Boab Trees’ significance to meet the requirement of ‘particular significance’ under s 237(b).

3. There are no sites on the licence that meet the requirement of ‘particular significance’ under s 237(b) and so interference is unlikely.

Section 237(c) – likelihood of major disturbance to land and waters concerned

1. Bunuba make no contentions regarding s 237(c). Applying the common sense approach to evidence required by administrative tribunals, there is nothing before me which raises an inference that major disturbance to the land and waters is likely (Ward v Western Australia).

2. As such, it is open to find the grant of the licence is unlikely to involve major disturbance to the land and waters concerned.

Determination

1. My determination is that the grant of exploration licence E04/2673 to Gamut Resources is not an act that attracts the expedited procedure.

Helen Shurven
Member
8 February 2021