Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another
[2019] NNTTA 111
•27 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (27 November 2019)
Application No: | WO2018/0812 |
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 (WCD2012/006; WCD2015/009)
(native title party)
- and -
Oladipo Minerals Pty Ltd
(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: | 27 November 2019 |
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) 29, 31, 32, 151, 237 Aboriginal Heritage Act 1972 (WA) 5, 17, 18 Mining Act 1978 (WA) 57, 58, 61, 66 |
Cases: | Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 (Bunuba #2 v State of Western Australia) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal v Gianni) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Globe Uranium Ltd, [2007] NNTTA 37 (Wiluna v Western Australia) Wintawari Guruma Aboriginal Corporation RNTBC v The Hon Benjamin Sana Wyatt [2019] WASC 33 (Wintawari Guruma v Wyatt) Wurrunmurra v State of Western Australia [2012] FCA 1399 |
| Representatives(s) of the native title party: | Mr Sam Legge, Kimberley Land Council |
| Representative(s) of the grantee party: | Mr Andrew Jones |
| Representatives(s) of the Government party: | Mr Anthony Civiello, State Solicitor’s Office Mr 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 Act1993 (Cth) (NTA) applies to the grant of exploration licence E04/2529 (licence) to Oladipo Minerals Pty Ltd (Oladipo).
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 22 June 2018.
The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure. This would, subject to any successful objection, allow the licence to be granted without negotiation under s 31 of the NTA.
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 two native title determinations made by the Federal Court (Wurrunmurra v State of Western Australia and Bunuba #2 v State of Western Australia).
On 12 October 2018, Bunuba lodged an objection against the State’s inclusion of the expedited procedure statement with respect to the licence.
The President of the Tribunal, the Honourable John Dowsett AM, QC, has directed me 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, my determination is that the grant of the licence is not an act attracting the expedited procedure.
Issues and approach
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 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)).
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. My task, in considering whether the expedited procedure applies, 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.
Determination on the papers
All parties have provided contentions in accordance with the Tribunal’s directions and Bunuba also provided a reply.
The State provided evidence including mapping, a Tengraph Quick Appraisal, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), 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.
Bunuba’s evidence comprises an affidavit of Mr George Brooking, affirmed 30 July 2019. Mr Brooking says that he is a senior Bunuba traditional owner and a determined native title holder in relation to the licence area, and I accept he has authority to speak for the area.
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 Oladipo’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 prescribes the activities which may be undertaken by the holder of an exploration licence.
In addition to the endorsements and conditions mentioned above, the State has also indicated that it intends to include the condition set out at paragraph 15 of its contentions which relates to entry into a regional standard heritage agreement (RSHA condition).
The Quick Appraisal document states that the licence is 27790.56 hectares in area. The underlying land tenure is predominately pastoral lease except for 6.41% of the area which is held as “A” Class Reserve Conservation Park. Bunuba holds exclusive native title rights in relation to the pastoral lease areas and non-exclusive rights in relation to the reserve.
Oladipo’s s 58 statement states that the licence area is located 100km north of Fitzroy Crossing and is considered prospective for base metal occurrences. The s 58 statement also includes an outline of the proposed exploration activities and a budget for year 1 exploration.
Oladipo’s contentions provide some additional information in relation to its intentions and the proposed work program. Oladipo says that it has identified the project primarily for vanadium mineralisation potential, but also considers it prospective for nickel-copper and precious metals. Oladipo has attached a map to its contentions to show the areas identified as prospective for vanadium. However, it reserves the right to explore the entire licence area “where exploration does not adversely impact social (i.e. community living areas/camps), cultural or heritage areas.” (Oladipo contentions page 4).
Oladipo goes on to explain that it proposes to conduct exploration in two phases. The first phase is reconnaissance/target generation which is the proposed year 1 work program outlined in the s 58 statement, with an estimated cost of $85,000. Phase 2 would involve more detailed exploration, potentially including a series of targeted drilling programs, following the submission of work programs to the Department of Mines, Industry Regulation and Safety. I note that both phases contemplate heritage work being undertaken and that the year 1 exploration budget of $85,000 set out in the s 58 statement includes an allocation of $20,000 for heritage costs (although it is not clear what this is intended to cover).
At paragraph 36.4 of its contentions, the State describes the exploration activities planned by Oladipo as “low scale and infrequent”. However, based on the information provided in Oladipo’s contentions, this does not appear to be an accurate description.
Predictive assessment
Section 237(a): Is the grant of the licences likely to interfere directly with the community or social activities of Bunuba?
What community or social activities do Bunuba carry on in the licence area?
Bunuba’s contentions are brief and rely on Mr Brooking’s evidence.
Mr Brooking deposes that he knows the licence area very well. It is in country called Munmaral muway. Mr Brooking explains that muway are regions within Bunuba country defined by Ngarranggani, or dreamtime, and that a Bunuba person’s strongest connection to an area of country is defined by their muway association. Mr Brooking says that Bunuba people acknowledge him as an elder for Munmaral muway and that he and his family have responsibility to look after that country.
Mr Brooking also states that his younger brother, Peter Brooking, runs cattle on Milliwindi station, part of which is located in the licence area. He says that Bunuba people frequently access the licence area near the Milliwindi station homestead (Brooking affidavit paragraph 5).
In relation to community and social activities on the licence area, Mr Brooking says that Bunuba people collect different types of food, bush tucker and medicine on the licence area. He mentions the hunting and collecting of wawanyi (goanna), wirrayi (hill kangaroo), walnga (black bream), gadjarri (water lillies), nhaa (sugar bags), galmanda (bush turkey), ngalalanyburru (rock python), langi (freshwater eel), wayurru (long neck turtle) and junggu (short neck turtle).
Mr Brooking also says that many Bunuba People, including his family go out regularly to the licence area and collect bush medicine “at this time”. He mentions in particular biriyali (conkerberry), barrala (spinifex wax), binybali (shinny spinifex), janjali (bush lemongrass), ngungugngu (bush vicks), garranga (eucalyptus), girri (sap) and gurru (Cyprus pine). The map of the licence area marked GB1 annexed to Mr Brooking’s affidavit shows where Sandra Brooking recently collected biriyali wood for smoking ceremonies. This area is marked with an ‘x’ towards the north-west corner of the licence.
Will the grant of the licence interfere directly with the carrying on of Bunuba’s activities?
The accepted approach to the application of s 237(a) is summarised in Yindjibarndi v FMG, at [16]. The interference contemplated by s 237(a) must be direct. This requires an evaluative judgement that the grant of the licence is likely to be the proximate cause of the interference. The interference must also be substantial, rather than trivial.
In its contentions, Bunuba argues that the evidence demonstrates that the grant of the licence will directly interfere with the carrying on of community and social activities of members of the Bunuba within the licence area. Mr Brooking expresses concern that a mining company might damage the licence area and the important resources found there. He gives the example that if the biriyali was damaged Bunuba people may not be able to perform important ceremonies and may get sick as a result (Brooking affidavit paragraph 8).
The State argues that Bunuba’s evidence is insufficient with respect to the frequency, duration, location and number of participants involved in hunting and collecting activities. In particular, it disputes that the evidence supports Bunuba’s contention at paragraph 7 that community and social activities are “frequently carried out” and says that there is insufficient evidence as to how the grant of the licence might damage the area and the important resources (States contentions paragraph 32).
Similarly, the State says that reference by Mr Brooking to bush medicine being collected “at this time” (as noted above), lacks specificity with respect to the duration and seasonality of the activities (State’s contentions paragraph 35).
Bunuba does not address any of these points in its reply.
At pages 10-12 of its contentions, the State also argues that, to the extent Bunuba’s evidence demonstrates community and social activities are carried on, then direct interference is unlikely for a range of reasons.
The State refers particularly to Oladipo’s proposal to conduct a HIA (which I understand to be a heritage impact assessment) for lower level exploration which will identify anthropological concerns early. However, the relevance of this point is not clear as I understand from Oladipo’s contentions that this process was proposed in the context of its incomplete heritage protection agreement with Bunuba.
The State also mentions Oladipo’s willingness to enter a heritage protection agreement with Bunuba on the same terms as any other region’s RSHA, which shows a willingness to consult with Bunuba. However, the source of that statement is not apparent on the material before me.
In any event, while I accept that at least some of the activities described by Mr Brooking occur in the licence area, particularly the collection of biriyali wood in the area identified on Annexure GB1, his evidence regarding the activities carried on is expressed mostly in general terms. I agree with the State’s submission that there is insufficient specificity about the conduct of the activities to enable me to conclude that the grant of the licence would result in direct and substantial interference as required for s 237(a).
Accordingly, I find that interference within the meaning of s 237(a) is unlikely.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Bunuba?
The accepted approach to s 237(b) is also 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?
Bunuba contends there are a number of sites of particular significance to Bunuba members in the licence area. Mr Brooking states that the licence area is a very significant area for Bunuba people and includes many sacred sites, including “rock art sites, Ngarranggani stories, burial sites, old camping places, old ceremony grounds and garuwa (water) sites.” (Brooking affidavit paragraph 10).
Mr Brooking also discusses the following specific sites marked on Annexure GB1:
(a)Wanjina rock art painting which connects the Bunuba people with Ngarinyin people and is also associated with a sacred men’s story. Mr Brooking says that this area is protected by a spirit and rai (little people) and that strangers, women and unauthorised Bunuba people are at risk of getting sick, lost or injured if they enter this area;
(b)burial sites, all of which are known only to Bunuba people. Mr Brooking says at paragraph 13:
There are a number of burial sites in the areas labelled “Ord Gap” and “Pittard Bluff” at Annexure GB1. The bones are of those Bunuba people who were massacred by the bilma (early settlers). These burial sites are very important to us. It is important that Bunuba people remember the massacre events. Bunuba people have a spiritual connection to those bones and have a responsibility to look after them. No strangers should enter these areas. If these bones were disturbed or interfered with the story may get lost. The rai still protect the burial sites at the areas identified above. If strangers were to enter these areas without the permission of the Traditional Owners there would be serious repercussions and those breaking the traditional access protocols would be at risk of getting sick, lost or injured.
(c)a guruwa (water) site associated with an unggud (rainbow serpent) on a portion of Homestead Creek. Mr Brooking says this site is extremely dangerous, even for Bunuba people, who only fish on one side of the creek. This site is said to be of special cultural significance to Bunuba people and must be protected;
(d)an old camping ground for Bunuba ancestors in the area around Pittard Bluff. Mr Brooking also makes reference to old ceremony grounds located in the licence area, although it is not clear if these grounds are in the same location as the camping ground.
Oladipo has not made any contentions about the particular sites identified by Bunuba, although it does support the State’s contentions.
The State accepts that both the Wanjina rock art site and the guruwa site are sites of particular significance for the purposes of s 237(b). However, the State contends that the location of the burial sites is insufficiently particularised for the purposes of s 237(b) because the burial sites are located “between ‘Ord Gap’ and ‘Pittard Bluff’”.
In its reply, Bunuba argues that the State’s reading of the location of the burial sites is incorrect as Mr Brooking clearly says the burial sites are located at both locations, not between them. Therefore, Bunuba says, the burial sites are geographically defined. I agree with that contention. Mr Brooking’s evidence (as extracted at [38](b) above) is that the specific burial sites mentioned are located in the areas labelled Ord Gap and Pittard Bluff, not at some unspecified location between those areas. I understand from Mr Brooking’s evidence that there may be other burial sites, the locations of which are not specified.
I am therefore satisfied that the Wanjina rock art site, the guruwa site and the burial sites at Ord Gap and Pittard Bluff, as marked on Annexure GB1, are areas or sites of particular significance to Bunuba within the meaning of s 237(b) of the NTA.
In relation to the camping or ceremony grounds around Pittard Bluff, the State argues that these are not areas or sites of particular significance for s 237(b) as the significance of the sites to the Bunuba people is not explained. Bunuba has not addressed that point in its reply. I agree with the State on this issue. There is some ambiguity in Mr Brooking’s evidence in relation to the camping and/or ceremony site and he does not explain the particular significance of the site or sites. Accordingly, I am not satisfied that the camping/ceremony grounds are areas or sites within the meaning of s 237(b).
Is the grant of the licence likely to interfere with these areas or sites of particular significance?
Having decided that there are areas or sites of particular significance to Bunuba in the licence area, I must consider whether the grant of the licence is likely to interfere with those areas or sites.
As observed by Bunuba in its reply, the areas identified by Oladipo as prospective for vanadium appear to correspond, at least in part, with the location of the sites of particular significance identified.
Oladipo says generally that it does not believe its exploration activities will interfere with sites of significance and says it will be exploring in accordance with the Aboriginal Heritage Act 1972 (WA) (AHA), the NTA and industry best practice.
In its contentions, Oladipo has also set out its concerns with aspects of the Heritage Protection Agreement provided by Bunuba. The State and Oladipo say that Oladipo has demonstrated its willingness to enter into a heritage protection agreement. In its reply, Bunuba says that it will not discuss the negotiations in detail, as they are confidential, but notes that many of Oladipo’s concerns had not previously been raised with Bunuba and that Oladipo had not responded to its previous attempts to progress negotiations. Bunuba says this demonstrates an unwillingness on the part of Oladipo to liaise with Bunuba and finalise the agreement.
Oladipo has included an amount in its first year budget for heritage costs, although it does not say what that amount is intended to cover. The more detailed work program for the full term of the licence, as set out in its contentions, also includes heritage surveys for ground disturbing exploration. No detail is provided about how, and under what process or with what consultation, Oladipo will undertake surveys of the licence area. As noted above, while the State contends that Oladipo has indicated a willingness to enter a heritage protection agreement with Bunuba on the same terms as any other region’s RSHA, the source of that assertion is not apparent.
The State argues, at paragraphs 46-51 of its contentions, that interference within the meaning of s 237(b) is unlikely due to the protection afforded by the AHA. It says that the sites identified by Bunuba “may” fall within the meaning of ‘Aboriginal site’ under s 5 of the AHA such that s 17 makes it an offence to excavate, destroy, damage, conceal or in any way alter that site without Ministerial consent under s 18 of the AHA. In that respect, the State says that if Oladipo applied for consent under s 18, the Aboriginal Cultural Material Committee (ACMC) would need to be satisfied of the adequacy of consultation with any relevant Aboriginal persons, prior to making a recommendation to the Minister. The State says this would likely include Bunuba.
Further, the State says that it must be assumed that Oladipo will not contravene s 17 of the AHA without authorisation. It argues, citing Wiluna v Western Australia, that I should adopt what it calls the “normal” conclusion i.e. that the regime under the AHA will normally be sufficient to ensure that s 237(b) interference is unlikely. Of course, there are many circumstances in which the Tribunal has found that the operation of the AHA is not sufficient to ensure that interference contemplated by s 237(b) is unlikely. Each case must be considered on its facts.
As to the circumstances of this case, the State says that the sites identified by Bunuba “may” fall within the meaning of Aboriginal site in s 5 of the AHA but does not say on what basis. There is nothing in the State’s submissions to provide any analysis in relation to the likelihood one way or another of the application of s 5.
In relation to the ACMC process, the State has not provided any basis for its statement that the ACMC would need to be satisfied about the adequacy of consultation. There is no express requirement in the AHA for consultation with any relevant Aboriginal parties, although I understand consultation may occur as a matter of procedural fairness. In any event, it is ultimately the Minister who makes the decision under s 18(3) of the AHA. Further, as held in the recent decision by the Supreme Court of Western Australia in Wintawari Guruma v Wyatt, even if the ACMC’s decision were invalid, that may not prevent or infect a subsequent decision by the Minister.
However, the heart of the State’s submission seems to be that the regime under the AHA means the Tribunal can assume Oladipo will not interfere with the sites of particular significance without first seeking consent under s 18 of the AHA. Even if I accept that is the case and even if Bunuba is afforded procedural fairness in that process, the State does not explain how that mitigates the likelihood of interference under s 237(b) of the NTA on the facts of the present case. Interference that is sanctioned under s 18 of the AHA may nonetheless be interference within the meaning of s 237(b) of the NTA.
As mentioned above, the State proposes to include an RSHA condition on the licence and argues that this may also reduce the risk of interference In Nyamal v Gianni, I noted the limited efficacy of such a condition in the context of interference under
s 237(b) and I consider the same position applies here. For completeness, I note that, since Nyamal v Gianni, the State’s website does now appear to include the South West Aboriginal Land and Sea Council Agreement. However, again, it would appear to require amendment before it could apply in this case, given the role of the South West Aboriginal Land and Sea Council under the agreement.
Having regard to the nature of the areas and sites of particular significance in this case and all of the circumstances outlined above, I find that the grant of the licence is likely to interfere with areas or sites of particular significance to Bunuba within the meaning of s 237(b) of the NTA.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Bunuba do not make any contentions in relation to s 237(c) and there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to any of the land or waters concerned. Therefore, I find disturbance within the meaning of s 237(c) is unlikely.
Determination
I determine that the grant of licence E04/2529 to Oladipo Minerals Pty Ltd is not an act attracting the expedited procedure.
Nerida Cooley
Member
27 November 2019
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