Bunuba Dawangarri Aboriginal Corporation v Arnold James Ramirez
[2020] NNTTA 49
•2 June 2020
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba Dawangarri Aboriginal Corporation v Arnold James Ramirez & Another [2020] NNTTA 49 (2 June 2020)
Application No: | WO2019/0950 |
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 (WCD2015/009)
(native title party)
- and -
Arnold James Ramirez
(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: | 2 June 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 not attracted |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 32, 151, 237 |
Cases: | Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 (‘Brooking v Western Australia’) Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Ltd and Another [2020] NNTTA 40 (‘Bunuba v Buxton Resources’) 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’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Elderberry Resources Pty Ltd and Another [2018] NNTTA 73 (‘Wanjina-Wunggurr v Elderberry’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 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 & Samuel Legge, Kimberley Land Council |
| Representative of the grantee party: | Martin Wiedemann, MKII Consulting Pty Ltd |
| Representatives of the Government party: | Emily Negus, State Solicitor’s Office; Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a determination about whether the expedited procedure under the Native Title Act1993 (Cth) (NTA) applies to the proposed grant of exploration licence E04/2639 (licence) to Arnold James Ramirez (Mr Ramirez).
The licence is located in the Kimberley region in Western Australia and Bunuba Dawangarri Aboriginal Corporation RNTBC (Bunuba) holds native title on trust for the Bunuba People in relation to the whole of the licence area (see Brooking v Western Australia).
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 14 June 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure under the NTA, which would enable the licence to be granted without first requiring negotiation between the State, Bunuba and Mr Ramirez.
However, on 14 October 2019, Bunuba lodged an objection to the State’s inclusion of the expedited procedure statement. The Tribunal is therefore required to determine whether the grant of the licence is an act attracting the expedited procedure (s 32(4) NTA) and I have been directed to constitute the Tribunal for that purpose.
For the reasons outlined below, my determination is that the grant of the licence is not an act attracting the expedited procedure
Issues for the determination
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)).
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.
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 ss 237(a) and (b). Accordingly, as there is no evidence before me to indicate that the grant of the licence is likely to cause major disturbance within the scope of s 237(c), this inquiry is focussed on ss 237(a) and (b).
Determination on the papers
All parties have provided contentions and evidence in accordance with the Tribunal’s directions and Bunuba also provided a reply.
The State’s evidence includes mapping, a Tengraph Quick Appraisal, a report from the Department of Planning, Lands and Heritage’s Aboriginal Heritage Inquiry System (AHIS report), 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. The State also intends to include a condition requiring entry into a Regional Standard Heritage Agreement (RSHA) if requested by Bunuba within a specified period.
Bunuba’s evidence consists of an affidavit of Mary Aiken, affirmed 4 December 2019. Ms Aiken says that she is a Bunuba traditional owner and a determined native title holder in relation to the licence area. Ms Aiken deposes that the licence is in country called Danggu muway, for which she is an elder and has responsibility. I accept that Ms Aiken has authority to speak for the licence area.
Mr Ramirez has provided an affidavit sworn 5 February 2020.
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 Mr Ramirez’ proposed exploration activities
It is useful at the outset to consider the nature of the licence and the evidence of Mr Ramirez’ proposed activities, as these are relevant to both ss 237(a) and (b).
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).
According to the Tengraph Quick Appraisal provided by the State, the licence is 651.15 hectares in size and located wholly within the area of the Jubilee Downs pastoral lease. The State’s mapping shows that the licence area is located near to the town of Fitzroy Crossing. The AHIS report reveals there are no Aboriginal sites registered under the Aboriginal Heritage Act 1972 (WA) (AHA) or ‘other heritage places’ in the licence area.
Mr Ramirez’ s 58 statement describes the licence area as “located in the West Kimberley Mineral Field approximately 4 km by road west of the township of Fitzroy Crossing.” The target mineral is pindan sand. The statement also includes a year 1 programme of work and budget of $17,500, which includes on-ground costeaning and sampling. Some additional information is provided regarding the intended activities in the second year of the term, including a possible bulk sampling programme.
Mr Ramirez’ contentions also provide additional information regarding his proposed activities as follows:
16. The activities proposed by the Grantee over the land the subject of the tenement application are the systematic exploration of the area for pindan sands. The exploration of this material is proposed to be carried out by excavating one small area at a time with mechanised means, being a back-how or excavator and front-end loader. The excavations shall be to a depth of approximately 3-4 metres with the areas sought for exploration sampling purposes estimated to be approximately 4-5 meters square.
17. Bulk samples shall be taken for testing purposes to determine the specific qualities of the sands, being clay content, moisture content, particle size, and suitability for building foundations or road base.
18. Importantly, the disturbance made during the exploration process are to be rehabilitated immediately following the sample being taken. This shall require filling in of any excavation, and contouring of the land form which shall enable to the regrowth of vegetation to its natural state.
Mr Ramirez’ evidence is that he is of Aboriginal descent and an elder member of the Ngarluma Yindjibarndi people who are traditional owners of an area west of the township of Roebourne. He says that he has settled from time to time in Fitzroy Crossing and had long standing personal and business relationships with members of the Bunuba People. In particular, Mr Ramirez refers to his relationship with a now deceased Bunuba person whom he regarded as a close friend. He says that through this relationship he has become conversant with the Bunuba People’s laws, customs and traditions and holds them in great respect.
Mr Ramirez contends that he remains prepared to enter into an RSHA with Bunuba and has offered to do so.
Predictive assessment
Section 237(a): is the grant of the licence likely to interfere directly with Bunuba’s community or social activities?
What community or social activities does Bunuba carry out?
Bunuba contends there is a high probability that the grant of the licence will interfere directly with its hunting and resource gathering (Bunuba contentions at 6). It argues that the licence area is a part of Bunuba country that is accessed regularly to conduct community and social activities, particularly as members of Bunuba live nearby at Fitzroy Crossing.
Ms Aiken deposes that the licence area is “a good place to get mayi (food)”. She says that Bunuba people go to the licence area to hunt animals and collect plants and she lists the various types of resources found there. Ms Aiken also says that Bunuba people collect thalaji and jirrindi on the licence area to make carvings, such as coolamon and boomerangs. She states that it is important that Bunuba people do not lose the ability to go to country and collect thalaji and make important cultural items (Aiken affidavit at 6-7).
Evidence is also given about Bunuba people collecting biriyali (conkerberry) from the licence area and its use in smoking and welcome ceremonies. Ms Aiken says that “[m]any Bunuba people, including myself, go out to the Tenement Area and collect it during cold weather time or after fire has gone through” (Aiken affidavit at 8).
Ms Aiken goes on to say that it is important that Bunuba people can go on to country, including the licence area, for mayi and bush medicines, which she says is an important part of Bunuba culture. Ms Aiken says that Bunuba people rely on these resources for their health and wellbeing and the licence area is “one of the main areas to get mayi as it is so close to Fitzroy Crossing and easy to get to.” She expresses concern at possible damage to the area and the resources and, in particular, the difficulty in having to travel much further to collect biriyali (Aiken affidavit at 9).
Mr Ramirez disputes the likelihood of direct interference with community and social activities. His contentions state his opinion that there is little or no community activity that occurs on the land. Mr Ramirez’ contentions include a map which he says shows Jubilee Downs pastoral lease in relation to the licence. The contentions also state that a “significant portion of the land” contains mustering and cattle yards such that community and social activities could not reasonably take place. Further, they state that the pastoralist has “advised” that gated access to the area has been padlocked, which would significantly curtail access.
There are a number of difficulties with these contentions. Firstly, they are unsupported by any evidence. The only matter in evidence is the existence of the pastoral lease which, I agree with Bunuba, is of limited weight in the circumstances (see Reply at 19-20). Further, while I can accept Mr Ramirez’ evidence that he has had long standing relationships with Bunuba people and that he may have knowledge of Bunuba laws and customs, there is no basis to prefer his evidence over that of Ms Aiken who is a Bunuba elder with responsibility for the licence area.
The State argues that Ms Aiken’s evidence lacks detail regarding the community and social activities. For example, it says there is no evidence of the frequency, duration or location of the activities. It argues Bunuba’s activities and Mr Ramirez’ activities are inherently capable of co-existence (State’s contentions at 25.2).
In reply, Bunuba points to the proximity of the licence to Fitzroy Crossing and ease of access as suggesting frequent and intensive use of the area and increasing the likelihood of interference. In that respect it relies on the Tribunal’s decision in Wanjina-Wunggurr v Elderberry at [13]. Bunuba also argues that there is insufficient evidence of Mr Ramirez’ proposed activities during the term of the licence and that I should therefore presume Mr Ramirez will exercise his rights to the full extent.
I accept Ms Aiken’s evidence that Bunuba people regularly access the licence area for undertaking community and social activities as described. I also agree with Bunuba that the close proximity of the licence area to Fitzroy Crossing is a relevant factor in support of Ms Aiken’s evidence. More detail would no doubt have assisted. However, Ms Aiken’s evidence is clear that the licence area is one of the main areas to get mayi due to its proximity to Fitzroy Crossing. She also describes the types of resources found there and references the occasions when biriyali is collected.
Is the grant of the licence likely to interfere directly with Bunuba’s community and social activities
Section 237(a) speaks of direct interference, explained by the Federal Court in Smith v Western Australia at [26] as follows:
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.
The decision in Smith v Western Australia confirmed that the Tribunal is entitled to take into account contextual factors such as the frequency and nature of the native title party’s activities, the grantee party’s proposed work programme, other activities conducted in the vicinity of the tenement and relevant statutory restrictions and restrictions.
The State argues that interference is unlikely because hunting and gathering activities and mineral exploration are inherently capable of coexistence. It also argues that while Bunuba has expressed concern regarding damage to resources, such as biriyali, Mr Ramierez had not demonstrated it is likely such damage would occur (State contentions at 25). However, I do note that Mr Ramirez was afforded an extension of time to submit his contentions and evidence, which means that the State did not have the benefit of his material before filing its contentions.
Mr Ramirez has outlined a program of “systematic exploration” as described above. He refers in his contentions to excavations to a depth of approximately 3-4 metres and an area of approximately 4-5 metres square. While Mr Ramirez contends that excavation will occur one ‘small’ area at a time and be rehabilitated immediately, no evidence is provided to support that contention. The conditions to be imposed on the licence require only that backfilling and rehabilitation occur no later than 6 months after excavation (unless otherwise approved).
Further, while there is a prescribed limit on the volume of material that may be extracted, it is nonetheless a considerable amount, particularly having regard to the size of the licence. Overall, the activities outlined by Mr Ramirez and as reflected in the s 58 statement describe a relatively intrusive exploration work programme consisting of a series of sizeable excavations. From this, there appears to be a real risk of interference with Bunuba’s community and social activities.
I have taken account of the existence of the pastoral lease but, as noted, it is of limited weight on the information available. Overall I consider the nature of the activities described by Mr Ramirez are more likely to be the proximate cause of interference with Bunuba’s community and social activities.
I therefore find that the grant of the licence is likely to cause interference within the scope of s 237(a) of the NTA.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Bunuba?
Bunuba contends that the evidence establishes there is a site of particular significance to it in the licence area, being a Ngarraggani story relating to wudarray (two grey kangaroos). However, no specific site or area in the licence area is identified.
Ms Aiken states that the licence area is a significant place for Bunuba people. She says there “is a Ngarraggani story that runs through the Tenement Area” which relates to and refers to “wudarray who are two big grey kangaroos who travelled through the Tenement area”. She describes their route “from the sand hill, past the airport, and up to Burawa Community, then back to the Fitzroy River” where they “crossed the river to another language group”. Ms Aiken says that the wudarray connects Bunuba people to Gooniyandi people.
While there is a map annexed as MA1 to Ms Aiken’s affidavit, the route described is not marked. I can identify certain of the features mentioned, including the airport, the river and the Burawa community. These are also shown on the State’s mapping. There is no sand hill marked on MA1. However, there is an area to the west of the licence described as sand ridges with an average height of 8 metres.
Mr Ramirez contends at 25 that it is “inconceivable” that Bunuba would not have sought to register any site in the licence area, given the number of sites registered in the vicinity of Fitzroy Crossing. There is no evidence of whether or not Bunuba sought to register any sites, only that there are none presently registered in the licence area. However, as the Tribunal has noted on many occasions, areas or sites may be of particular significance under s 237(b) regardless of whether they are registered under the AHA. The AHA also contains a specific definition of ‘Aboriginal site’ which differs from the scope of s 237(b). Accordingly, I do not give any weight to the fact that there are no registered or lodged sites in the licence area.
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.
The State accepts that the Ngarraggani story runs through the licence but says Bunuba has not specified any areas or sites of particular significance in the licence area, noting the only places mentioned are outside the licence area.
Bunuba points to an apparent inconsistency in these statements and suggests the State has relied on a misunderstanding of the application of s 237(b) to dreaming stories (Reply at 9). Bunuba cites (Reply at 11) a number of previous Tribunal decisions which it says support a finding of particular significance even where the exact location of a site is not identified. However, there appear to be a number of key differences between the evidence here and the cases cited. Those cases concerned particular areas or sites identified on the tenement area, some of which were associated with dreaming tracks. While the precise location of those areas or sites may not have been clear in all cases, the evidence was otherwise sufficiently compelling or comprehensive for the Tribunal to be satisfied of their particular significance.
In this case, even if I conclude that the sand ridges shown on the map are the sand hill mentioned by Ms Aiken, the most I can ascertain is that the route of the Ngarraggani story likely traverses the licence on route towards the airport, which is consistent with Ms Aiken’s evidence. Other than saying the licence area is a significant place to Bunuba people, no specific area or site of particular significance is mentioned. As such, the evidence seems to address the general significance of the area traversed by the Ngarraggani story rather than the particular significance of specific culturally significant areas (see Yindjibarndi v FMG at [130] and Bunuba v Buxton Resources at [28]).
Accordingly, on the evidence provided I am unable to conclude there is a site or area of particular significance within the meaning of s 237(b) on the licence area.
Determination
For the reasons outlined above, I determine that the grant of E04/2639 to Arnold James Ramirez is not an act attracting the expedited procedure.
Nerida Cooley
Member
2 June 2020
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