Bunuba Dawangarri Aboriginal Corporation RNTBC v Keswick Pty Ltd
[2020] NNTTA 77
•16 December 2020
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba Dawangarri Aboriginal Corporation RNTBC v Keswick Pty Ltd & Others & Another [2020] NNTTA 77 (16 December 2020)
Application No: | WO2019/0606 |
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)
(native title party)
- and -
Keswick Pty Ltd, Phillip Ernest Robinson, Darryl William Robinson, William John Chilvers, Helen Loveday Gouldham
(grantee party)
- and -
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 December 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 involve major disturbance to land or waters – expedited procedure – the act is an act attracting the expedited procedure – expedited procedure applies |
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, 146, 237 |
Cases: | Banjo Wurrunmurra & Ors on behalf of Bunuba People/Western Australia/Faurex Pty Ltd & Michael Morawa, [2011] NNTTA 87 (Bunuba v Faurex 1) Banjo Wurrunmurra & Ors on behalf of Bunuba People/Western Australia/Faurex Pty Ltd & Michael Morawa, [2011] NNTTA 90 (Bunuba v Faurex 2) Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 Carter on behalf of the Warrwa Mawadjala Gadjidgar and Warrwa People Native Title Claim Groups v State of Western Australia [2020] FCA 1702 (Warrwa Determination) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (‘Smith 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: | Meredith Brown & Ania Maszkowski, Kimberley Land Council |
| Representatives of the grantee party: | Phillip Robinson & Helen Gouldham |
| Representatives of the Government party: | Francis Cardell-Oliver, State Solicitor’s Office; Lauren Pike, Department of Mines, Industry Safety and Regulation |
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 E04/2599 (licence) to Keswick Pty Ltd, Phillip Ernest Robinson, Darryl William Robinson, William John Chilvers and Helen Loveday Gouldam (grantee party).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice that the Minister for Mines and Petroleum may grant the licence, with a notification day of 27 March 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure, which would enable it to be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA.
There are two native title parties relevant to the licence area. Bunuba Dawangarri Aboriginal Corporation RNTBC (Bunuba) holds native title in trust on behalf of the Bunuba People in relation to the majority (90.91%) of the licence area (see Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia). In accordance with the Warrwa Determination made on 1 December 2020, native title in relation to the balance of the area is now held in trust by the Warrwa People Aboriginal Corporation.
On 26 July 2019, Bunuba and the registered native title claimant for the Warrwa Combined native title determination application (which was at that time a relevant native title party) each lodged an objection against the inclusion of the expedited procedure statement (s 32(3) NTA). Accordingly, 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 and I have been directed to constitute the Tribunal for that purpose.
I note that on 12 June 2020 the Warrwa Combined native title party withdrew its objection and did not further participate in the inquiry.
For the reasons outlined below, my determination is that the expedited procedure applies to the grant of the licence.
Determination on the papers
The State has provided contentions and evidence which includes a topographical map, a Tengraph Quick Appraisal, searches of the Aboriginal Heritage Inquiry System (AHIS search), the licence application together with 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 the grantee party 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 Kevin Lele Dann and Robin Dann, affirmed 18 August 2020 (Dann affidavit). Kevin and Robin Dann say they are Traditional Owners for the Bunuba People through their mother’s side. They say their mother was from the country where the licence is located, being muway Mawanban – muway meaning country in the Bunuba language.
The grantee party did not participate in the inquiry.
The State has also provided an Agreed Statement of Issues and Facts (Agreed Statement), which is helpfully agreed as between the State and Bunuba. The State says the document was circulated to the grantee party, but no comment was received.
The State and Bunuba agree that it is appropriate for me to determine this matter on the papers as permitted by s 151(2) of the NTA. The grantee party has not expressed a view. Having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
Issues for 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.
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). Consequently, there is no evidence before me to indicate the grant of the licence is likely to involve major disturbance under s 237(c) and the State and Bunuba agree that such disturbance is not likely (Agreed Statement at 2).
Accordingly, this inquiry is focussed on interference within the scope of ss 237(a) and (b) as discussed further below.
The licence and the grantee party’s proposed exploration activities
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 1306.44 hectares;
(b)the underlying land tenure consists of Kimberley Downs pastoral lease;
(c)53.78% of the licence area is subject to The West Kimberley National Heritage Listing.
The AHIS search for the licence area identifies one registered Aboriginal site (ID13164) under the Aboriginal Heritage Act 1972 (WA). This is a file and boundary restricted site named Mt North described as “Mythological, Other; AVOIDANCE AREA”. The mapping indicates that the majority of the area covered bysite ID13164 is located outside the licence area, with a small portion extending into the south-west corner of the licence.
There is also one lodged ‘Other Heritage Place’ (ID12970) named Muntjaweela Bore in the north-west of the licence area. This place is described as “Camp, Water Source” and is not stated to be subject to any restrictions.
I note that Muntjaweela is also spelt as Munjaweela and Munjuweela in the evidence.
Evidence of the grantee party’s intentions may be relevant to my predictive assessment for s 237. The State and Bunuba have agreed that one of the issues in this inquiry is whether I should presume that the grantee party will exercise all of the rights available to it under s 66 of the Mining Act, but they do not agree on the nature and extent of the grantee party’s activities (Agreed Statement at 1(c), 4(b)).
According to the s 58 statement, the grantee party proposes to explore for diamonds. A maximum of eight visits is proposed for the first year to collect and record data, undertake sampling and measure core samples. No other information is provided by the grantee party about its proposed activities.
The State contends at 20 that the grantee party’s work program proposes very limited access to the licence area. However, the work program relates to the first year of the term only. Bunuba argues that, in the absence of evidence regarding activities proposed throughout the term of the licence, I should presume the grantee party will exercise all of the rights available to it under the grant (Bunuba contentions at 8, 22).
The grantee party’s s 58 statement does indicate a low level of activity, at least in the first year, but there is no evidence of what may occur after that time. The grantee party has elected not to participate in the inquiry nor provide any further evidence of its intentions. Given the very little information available, it is reasonable to proceed on the basis that the grantee party may exercise the full suite of 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?
It is agreed between Bunuba and the State that there is a hunting ground in the licence area near Munjuweela Bore and that any hunting and fishing activities are limited to the north western part of the licence area around Munjuweela Bore (Agreed Statement at 3).
However, the parties do not agree on the extent or frequency of any hunting or fishing activities or the likely effect of the grantee party’s activities on wildlife including bush turkey, kangaroo and emu.
In particular, the State argues (at 18) that there is no specific evidence of any current hunting, fishing or gathering activities in the licence area or of the frequency of such activities.
In reply (at 5), Bunuba points to Kevin and Robin Dann’s evidence at 5-7, being in the present tense. In those paragraphs the deponents identify the Munjuweela Bore area as somewhere they go past en route to Windjana Gorge or Fitzroy Crossing. They describe the path to the creek shown as McSherry Creek on the map at Annexure KD and RM-1 to the Dann affidavit (cited as RM and KD-1 in the body of the affidavit) where “you can get bream, catfish and cherubbin”. They say there is a good hunting ground towards the bore which is “a well-known secret spot of ours – we don’t want everybody knowing about it because the hunting is good there.”
As Bunuba states, these paragraphs of the Dann affidavit are framed in the present tense and I accept that they describe the area and the various paths taken when the area is visited. However, there is no clear evidence of the extent to which these visits occur. Paragraphs 9 and 10 of the Dann affidavit indicate the frequency of visits to the area when the deponents lived at the Windjimgayre community (being about weekly). The deponents go on to say at paragraph 13 that the cold season is the best time to visit as the soil is too soft in the wet season. Similar comments about the cold season are made in paragraphs 12 (regarding galamuda (bush turkey)) and 14 (regarding biriyali (konkerberry)).
I can infer from the evidence that the deponents continue to visit the area around Munjuweela Bore for hunting, fishing and gathering activities. However, while these activities occurred regularly in the past, the evidence now suggests visits are more likely to be limited to the “cold season”. There is no specific evidence of the frequency of current visits but, given the deponents no longer live at the Windjimgayre community, I can infer that such visits are less than weekly. There is also no suggestion from the evidence that large numbers of Bunuba people undertake community or social activities in the area. The evidence, particularly the reference to it being a “secret spot” suggests it is mainly the deponents and their family who visit the area.
Is the grant of the licence likely to interfere directly with Bunuba’s community or social activities?
Section 237(a) speaks of direct interference. In Smith v Western Australia, the Federal Court observed at [26] that:
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.
I have already addressed the issue of activities proposed by the grantee party. However, while the grantee party may exercise the range of rights available under the licence, it does not necessarily follow that there will be a direct interference with Bunuba’s community and social activities that is substantial in its impact.
Bunuba contends that the grantee party’s use of the licence area without Bunuba’s knowledge may disrupt the movement habits of wildlife and interfere with the willingness of members of Bunuba to access the area. It also argues that access, particularly in the cold season, is likely to lead to direct interference with Bunuba’s access to the area and may detrimentally affect the availability of flora and fauna.
However there is no evidence on which to conclude that any of those consequences are likely.
Overall, the evidence of current community or social activities undertaken by Bunuba is limited and insufficient to conclude that interference of the kind contemplated by
s 237(a) is likely.
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.
Bunuba contend that both the registered site Mt North (which it calls Munjaweela Hill) and the ‘other heritage place’ Muntjaweela Bore as outlined above at [19] are sites of particular significance to Bunuba.
Kevin and Robin Dann’s evidence regarding these sites is as follows:
15.The main places around there are Munjaweela (Mt North) and a bore a bit further north that has the same name. So when we say Munjaweela we mean that whole area from the Bore to the Hill is Munjaweela that’s what old people used to call that whole area Munjaweela. Old people used to talk about Manjaweela, they used to camp there. At that hill there are spear heads, sharpening tools, grinding tools, knives and artefacts. Kevin found them about 10 years ago with Anthony McLarty, a Bunuba Traditional Owner. We don’t camp there now, you can only go there on a day trip. We don’t want to disturb that area. Mining or tourists are not permitted to go to Mt North, even with Traditional Owners. We are trying to stop people going there because of those artefacts. The artefacts are right near that hill Munjaweela which is marked on the map at “Annexure RM and KD-1”.
16.You get a feeling there at Munjaweela hill, for an outsider it is a dangerous place. Around Mount North we want to make it a no-go zone for that mining mob around there. That no-go zone extends out from Mount North out to a 2.5km radius. We have marked that no-go zone on the map at “Annexure RM and KD-1”.
17.If you are not a Bunuba person then you need to get smoked by a senior Bunuba person before you go out to that area. If a person, like the Explorer, doesn’t get smoked, a spirit might come to them at night, they will probably have a bad dream. You shouldn’t go there without being smoked. You hear of people getting visitors in the night. That’s because they didn’t do smoking ceremony.
18.There are a big mob of little spirit men called Rayi out there in Munjaweela.
19.The places that we’ve talked about in the Tenement Area are important to the Bunuba People.
Bunuba contends that Munjaweela Bore is shown to be a significant area because Bunuba use it as a meeting place for hunting, gathering and cooking (as discussed above). However, that does not make it a site of particular significance for s 237(b).
On this point I accept the State’s contention that nothing in the Dann affidavit establishes Munjaweela Bore as a site of particular significance in accordance with Bunuba’s traditions.
The evidence is somewhat more specific in relation to Munjaweela Hill (Mt North), which is identified as a dangerous place. The map at Annexure KD and RM-1 to the Dann affidavit includes a hand drawn circle with the hill at its centre, to indicate the 2.5 kilometre no-go zone referred to in the affidavit. Mt North itself is shown outside the south west corner of the licence area. As I have already noted, a small portion of the area covered by site ID13164 falls within the licence area.
The intention of the no-go zone is not entirely clear. Kevin and Robin Dann refer to “spear heads, sharpening tools, grinding tools, knives and artefacts” being located “at the hill” and also “right near that hill”. They speak of not wanting to disturb the area and “trying to stop people going there because of those artefacts”. However, the no-go zone is also mentioned in the context of Munjaweela Hill being a dangerous place for an outsider and the possible consequences for a person entering the area without first being smoked by a senior Bunuba person. As noted, the AHIS search describes the registered site Mt North (ID13164) as an ‘Avoidance Area’.
The State raises a number of issues in relation to the Munjaweela Hill site, including its location and significance (State’s contentions at 27-30). The State points to the location of the hill outside the licence area, noting that the Dann affidavit refers to the artefacts being located at the hill. It says that while the 2.5km no-go zone may be of comfort to Bunuba, that does not make the whole of that no-go zone a site of particular significance for s 237(b). I agree generally with those contentions.
The State also contends that while registered site ID13164 overlaps the licence area to a small degree, the site itself may not be within licence area (noting the AHIS search records the boundary as restricted).
Bunuba argues that any doubt as to the precise location of the site is not fatal to it being found to be of particular significance. However, there is no apparent ambiguity as to the location of Mt North. The evidence points to the site identified in the evidence being Munjaweela Hill shown as Mt North on Annexure KD and RM-1. That is the location specifically mentioned in the Dann affidavit and the hand drawn no-go zone is shown as centred around Mt North. The evidence refers to the artefacts “right near that hill” and that “Mining or tourists are not permitted to go to Mt North”. The location of the site as being outside the licence is acknowledged by Bunuba, which argues (reply at 14) that Mt North “remains at risk of interference due to its location in close proximity to the [licence]”.
It is the no-go zone proposed by Bunuba which is located in the licence area. However, nothing in the evidence suggests that the whole of the no-go zone described in the Dann affidavit is a site or area of particular significance to Bunuba. To the contrary, the no-go zone is described as a means of keeping people away from the hill and the artefacts.
Bunuba says that the fact the site is registered is relevant to a finding of particular significance and that the absence of specific cultural information on the register (an issue raised by the State) does not have a bearing on the legitimacy of the registration. I agree the registration of the site may be relevant.
However, the issue here is not the lack of detail in the information on the register but the lack of explanation of the particular significance of the site in accordance with Bunuba tradition. In its reply at 14, Bunuba refers to “the significance of Mount North culturally” but the cultural significance is not explained. The registered site ID13164 is described as Mythological and includes an avoidance area in its description. The mythological nature of the site might be viewed as broadly consistent with Kevin and Robin Dann’s evidence about the site being dangerous. However, the explanation given for the significance of the site is to keep people away from the artefacts.
In Bunuba People v Faurex Pty Ltd 1 and 2, the Tribunal was satisfied that Mt North was of particular significance to Bunuba. In each of those cases Mt North was outside the relevant tenement area but the evidence had referred to songs associated with Mt North.
Under s 146 of the NTA it is open to me to adopt the Tribunal’s previous findings in relation to Mt North. However, even if I were to do so, that would address only Mt North which is outside the licence area.
There is nothing on the evidence here to support a finding that the area around Mt North (within either the boundary of site ID13164 or the no-go zone) which extends into the licence area is a site or area of particular significance in accordance with Bunuba’s traditions.
Further, there is nothing whatsoever in the material to suggest, as put by Bunuba, that Munjaweela Hill or Mt North (being outside the licence area) is at risk of interference from the grant of the licence. For example, there is no evidence of any proposed off-site activities which might interfere with Mt North.
Accordingly, on the evidence provided, I am not satisfied that there is a site or area in the licence area that is of particular significance to Bunuba in accordance with its traditions. It is therefore not necessary for me to further consider the risk of interference arising from the grant of the licence.
Determination
I determine that the grant of exploration licence E04/2599 is an act attracting the expedited procedure.
Nerida Cooley
Member
16 December 2020
0
6
0