Bunuba Dawangarri Aboriginal Corporation RNTBC v Odette Three Pty Ltd
[2022] NNTTA 62
•30 September 2022
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba Dawangarri Aboriginal Corporation RNTBC v Odette Three Pty Ltd & Another [2022] NNTTA 62 (30 September 2022)
Application No: | WO2021/1242 |
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 -
Odette Three 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: | Melbourne |
Date: | 30 September 2022 |
Catchwords: | Native title – future act – expedited procedure objection application – consideration of s 237(a) and s 237(b) – consideration of evidence from previous inquiries – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 151(2), 237 Mining Act 1978 (WA) s 66 Mining Regulations 1981 (WA) r 20 |
Cases: | Banjo Wurrunmurra & Ors on behalf of Bunuba People/Western Australia/Faurex Pty Ltd & Michael Morawa, [2011] NNTTA 87 (Banjo Wurrunmurra v Faurex 1) Banjo Wurrunmurra & Ors on behalf of Bunuba People/Western Australia/Faurex Pty Ltd & Michael Morawa, [2011] NNTTA 90 (Banjo Wurrunmurra v Faurex 2) Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia[2015] FCA 1481 (Brooking v Western Australia) Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC and FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Carolyn Ryland and Maddy Wonders, Kimberley Land Council |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety David Reger, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
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 E04/2696 to Odette Three Pty Ltd (Odette) 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, Odette 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)).
The Bunuba Dawangarri Aboriginal Corporation (Bunuba/NTP [native title party]) hold non-exclusive native title rights and interests in trust for the Bunuba People over the proposed licence (Brooking v Western Australia). The proposed licence is approximately 48.96 square kilometres in size, in the Shire of Derby-West Kimberley. Bunuba exercised their right to object to the expedited procedure statement (s 32(3) of the Act). 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) of the Act).
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 of the Act (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 predictive 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].
Bunuba’s expedited procedure objection application argued 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. Their inquiry submissions did not pursue the objection in relation to s 237(c). Based on the available evidence, I could not conclude the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area. The remainder of this decision focuses on s 237(a) and s 237(b).
The State argue the expedited procedure should apply, and Odette made no submissions. My decision, for the reasons outlined below, is that the expedited procedure does not apply.
Preliminary Matters
Parties’ submissions
I was of the view the issues for determination could be adequately determined on the papers and no hearing was necessary (s 151(2)).
Bunuba materials
Bunuba provided contentions and a reply to the State’s materials, as well as evidence which had been provided in previous Tribunal inquiries, which dealt with tenements that were either adjacent to the proposed licence in this current inquiry, or which overlapped the proposed licence. The presentation of the evidence is somewhat complex, so I take care to clearly explain it. An index or table of the various evidence, and the previous inquiries they applied to, would have assisted the Tribunal. It is important that parties, where possible, provide clear markers to an administrative decision maker about how evidence from previous inquiries may be adopted for the purposes of a new decision.
The State’s contentions (at 24-30) refers to some concerns about typographical errors in the materials described at [9]-[10] below. I agree that this further complicated consideration of which evidence related to which materials. To overcome this issue, in my analysis of s 237(a) and (b), I have focused my consideration on the actual named and described places and activities from the evidence itself, rather than on which inquiry or numbered tenement the evidence was purported to be filed for.
The affidavit of Kevin Dann (affirmed 23 August 2021) was provided for Tribunal inquiry WO2021/0993 - the tenement in that matter is adjacent to the western side of the proposed licence. Mapping was provided in support of the evidence. WO2021/0993 did not proceed all the way through the inquiry process, as the expedited procedure statement was withdrawn by the State on 16 December 2021.
The materials from Bunuba for WO2021/0993 also included a previous affidavit from Mr Dann for inquiry WO2010/1190 (Banjo Wurrunmurra v Faurex 1). WO2010/1190 was determined by me in 2011, and referenced evidence from Johnny Bell, which Bunuba rely on in this present inquiry. The tenement in WO2010/1190 inquiry overlapped the proposed licence by 13.34 per cent (to the north).
Bunuba also rely on the evidence presented, and my decision in, inquiry WO2010/1024 (BanjoWurrunmurrav Faurex 2). Mr Dann’s evidence for that matter is outlined in that decision, and there is no mapping from that matter to assist me. The tenement in that previous inquiry overlapped the remainder of the proposed licence by 86.66 per cent.
As such, the totality of the proposed licence is covered by areas of previous tenements, subject to previous inquiries, and the decision in those previous inquiries was that the expedited procedure did not apply. That conclusion was drawn on the basis that sites of particular significance existed on the relevant area which were likely to be interfered with by exploration activities (under s 237(b)).
The State’s materials
The State provided contentions and accompanying materials including mapping, a quick appraisal outlining the underlying tenure, searches of the Aboriginal Heritage and Inquiry System (AHIS) held under the Aboriginal Heritage Act 1972 (WA), proposed draft conditions and endorsements for the licence, and the explorer’s statement in support of their licence application. There are no sites registered or recorded on the AHIS for the area of the proposed licence. The State contentions outline (at 14) that a registered artefacts/scatter/painting site (ID 13813) is approximately 2.5 kilometres from the proposed licence.
While Odette did not provide any contentions or materials, the State’s materials showed that the explorer is targeting diamonds, lead, zinc and base metals. The application the explorer made to the State for the proposed licence also showed that the work programme was likely to initially include: data/literature searches and geophysical surveys; and then ‘geophysics, field regolith mapping, rock chip and soil geochemistry [sampling and assaying] would be planned over the geological terrane amenable to conventional soil sampling’. Following these year one activities:
the Applicant intends to implement a drill campaign (AC [air core], RAB [rotary air blasting] or RC [reverse circulation]) to test geophysical and or structural targets together with soil/rock-chip geochemical anomalies identified in Year 1. Further detailed exploration shall be contingent on the results from Years 1 & 2. There is nothing further in relation to the grantee’s likely activities.
The State note (at 17) in the absence of materials from the explorer, it is open to the Tribunal to assume the grantee party will undertake the full scope of activity to which it is entitled, under the grant of an exploration licence as set out in s 66 of the Mining Act:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
I have made the assumption that Odette is likely to exercise the full suite of rights available to them, and make my assessment of s 237(a) and (b) on the basis that they will not breach the regulatory regime of the State in so doing.
Section 237(a) – likelihood of interference with community or social activities
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 v FMG 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.
The evidence in relation to social and community activities relating to hunting, fishing, practice of law and resource gathering for the three previous matters (WO2021/0993, WO2010/1190 and WO2010/1024) were broadly cast. I adopt Mr Bell’s evidence provided in Banjo Wurrunmurra v Faurex 1 (at [22]) and my consideration of that evidence (at [26]-[27] and [29]). I also adopt Mr Dann’s evidence (provided at [22] in Banjo Wurrunmurra v Faurex 2) and my consideration of that evidence (outlined in that decision at [26]-[28] and [31]). On the basis of that evidence, I concluded there was unlikely to be direct and substantial interference to social and community activities on and around those tenements from exploration activity.
I also note Mr Dann’s affidavit for WO2021/0993 which outlines evidence (at 8-13) regarding social and community activities which occur on and around that tenement (adjacent to the west border of the proposed licence). That evidence was also broad.
The State argue (at 36-43, 48-50) that the evidence is so general there is no basis upon which I could conclude social and community activities would be subject to interference. I accept that argument. There is nothing in the evidence provided for WO2021/0993, or in Banjo Wurrunmurra v Faurex 1 and Banjo Wurrunmurra v Faurex 2, which would lead me to conclude social and community activities on the proposed licence would be subject to interference as contemplated in s 237(a) of the Act.
Section 237(b) – likelihood of interference with sites or areas of particular significance
In considering s 237(b), I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at 34-35).
·To be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91]).
·If I am satisfied the site or area is of particular significance, I must analyse carefully the potential interference, because of the importance it has to the native title holders. The nature of the site or area, the nature of the potential interference and the laws and traditions of the native title holders are relevant considerations (Silverv Northern Territory at [88]).
·Even slight or apparently non-trivial interference may be unacceptable (FMG v Yindjibarndi at [64]-[76])
·There must be a real chance or risk of interference with the site or area, not just a possible chance (Smith v Western Australia at [23]).
·I will give weight to the State’s heritage and regulatory regime (Walley v Western Australia at [11]).
What sites or areas are on the licence and are they likely to be subject to interference by exploration activities of Odette?
Bunuba assert (at 13) that ‘there are a number of sites and areas of particular significance to the NTP within and nearby to the Tenement Area including’:
· Stories connected to the stock route
· Artefact scatters
· Mount North (Manjawillya)
· Mount Percy (Goornygadi)
· Rock art paintings
· Windjana Gorge Water Tank
· Windjina Gorge
I deal with each of these sites and areas, including whether or not I consider each to be a site of particular significance and then if so, whether or not I consider the site or area is likely to be subject to interference by activities of Odette.
Stories connected to the stock route, and artefact scatters
State contentions argue (at 53-55) that the stock route has not sufficiently been identified, although they do accept an inference could be made that the stock route is where the evidence refers to a stock route reserve. The State’s tengraph shows Stock Route Reserve 12475 (a C class Reserve) travels through the proposed licence, and mapping shows a feature consistent with a stock route travels through the south area of the proposed licence. Mr Bell (at 13) states ‘There is a stock route which runs through the exploration licence area. The stock route is important to Bunuba people and there are lots of stories connected to the stock route.’
State contentions assert (at 56-59) the evidence about artefact scatters is broad and I should not be satisfied there are scatters located on the proposed licence. The Bunuba reply (at 19) asserts that a reasonable interpretation is that such artefacts are throughout the area, including where the proposed licence overlaps the tenement in WO2010/1024. I note this also includes where the stock route runs through.
The Bunuba reply also asserts (at 20-21) that:
The nature of artefact scatters means they are not always able to be easily identified by persons who are not Traditional Owners for that country. This makes the risk of interference, including inadvertent interference, highly likely.
The NTP contend that the only way that the artefact scatters may be located, and risk to these artefacts minimised, is for Bunuba Traditional Owners to conduct a heritage survey on their own terms. This can be conducted by way of a heritage protection agreement with the Grantee Party in exchange for the NTP’s consent to the grant of the tenement.
While the information is not detailed, taken as a whole, I am satisfied that the stock route and surrounds, in relation to the proposed licence, is an area of particular significance in accordance with Bunuba traditions. It is not contested that artefacts exist in the area, and the stock route runs through the southern part of the proposed licence and is tied to Bunuba stories. The question then is, are artefacts or the stories associated with the stock route likely to suffer from interference from exploration activities?
The State’s draft conditions and endorsements shows that the following condition intends to be applied on grant:
Consent to explore on Stock Route Reserve 12475 granted subject to the following condition:
6. No exploration activities being carried out on Stock Route Reserve 12475 which restrict the use of the reserve.
It is not entirely clear, however, what type of activities would be prohibited on the stock route by this condition. I could reasonably assume that setting up a camp or drill rig on the stock route may be such an activity, whereas driving across it or undertaking temporary survey activity across it would not be a prohibited activity.
There are no other relevant conditions or endorsements from the State, or information from Odette, to assist me in deciding that interference is not likely in this area. I accept that driving across an area containing artefacts, or conducting survey activity, is likely to cause such interference in accordance with the traditions of the native title party, particularly should that occur on or near the stock route.
Mount North (Manjawillya) and Mount Percy (Goornygadi)
The State argues (at 60) that both these areas are approximately eight kilometres from the proposed licence. I accept this based on mapping provided by parties, and note there is nothing in the available evidence which suggests there is a nexus between exploration activities Odette are likely to undertake on the proposed licence, and these sites. As such, while I accept they are sites of particular significance (adopting my reasoning from Banjo Wurrunmurra v Faurex 1 and Banjo Wurrunmurra v Faurex 2), I do not conclude either Mount North or Mount Percy are likely to be subject to interference for the purposes of this inquiry, given the location of the proposed licence.
Rock art paintings
The State argues (at 67-70) that the way the rock art is described in the previous affidavits, it could be within the proposed licence, or outside of it. I accept the descriptor of the rock art covers some kilometres and the evidence is not clear that the rock art is within the proposed licence.
Bunuba argue (at 22-25) that the sensitive nature of rock art sites may have caused the evidence to lack detail, and that such may not necessarily be fatal to a conclusion that a site or area is of particular significance, where the evidence is otherwise compelling.However, given the vague nature of the location of the rock art, and no further compelling information or evidence, I cannot conclude it is of particular significance in relation to this inquiry under s 237(b).
Windjana Gorge Water Tank and Windjina Gorge
The State argue (at 61-66) that these areas are some 25 kilometres from the proposed licence. I accept that mapping shows named sites at that distance from the proposed licence, and that this is consistent with the evidence provided for the previous inquiries, which were significantly closer to Windjana Gorge Water Tank and Windjina Gorge.
I accept these areas are some distance from the proposed licence, and note there is nothing in the available evidence which suggests there is a nexus between exploration activities Odette are likely to undertake on the proposed licence, and these areas. As such, while I accept they are sites of particular significance (adopting my reasoning from Banjo Wurrunmurra v Faurex 2), I do not conclude either Windjana Gorge Water Tank or Windjina Gorge are likely to be subject to interference for the purposes of this inquiry, given the location of the proposed licence.
Determination
My determination is that the grant of exploration licence E04/2696 to Odette Three Pty Ltd is not an act that attracts the expedited procedure.
Helen Shurven
Member
30 September
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