Bunuba Dawangarri Aboriginal Corporation v Phosphate Australia Limited
[2017] NNTTA 18
•5 May 2017
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba Dawangarri Aboriginal Corporation v Phosphate Australia Limited and Another [2017] NNTTA 18 (5 May 2017)
Application No: | WO2016/0024, WO2016/0036 and WO2016/0121 |
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 -
Phosphate Australia Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT ONE OF THE ACTS IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE AND ONE OF THE ACTS IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven |
Place: | Perth |
Date: | 5 May 2017 |
Catchwords: | Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether act is likely to interfere substantially with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure not attracted – expedited procedure attracted |
Legislation: | Native Title Act 1993 (Cth) ss 237(a), 237(b), 237(c), 31(1)(b) Mining Act 1978 (WA) s 66 |
Cases: | Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins [2005] NNTTA 90 (‘Wurrunmurra v Wasse’) Daisy Lungunan and Others on behalf of Nyikina and Mangala/ Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Lungunan v Geotech International’) Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond [2013] NNTTA 113 (‘Lungunan v Richmond’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd [2007] NNTTA 82 (‘Barunga v FMG Resources’) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Wiluna v Asia Investment’) WF (deceased) & Ors on behalf of Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2013] NNTTA 83 (‘Wiluna v Kingx 2’) Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2011] NNTTA 170 (‘Wiluna v Kingx 1’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representative of the native title party: | Ms Julia Taylor, Kimberley Land Council |
| Representative of the grantee party: | Ms April French, Austwide Legal Pty Ltd |
| Representatives of the Government party: | Ms Amanda Kickett, Department of Mines and Petroleum Ms Jane Langworthy, State Solicitors Office |
REASONS FOR DETERMINATION
Background
This decision considers whether or not the expedited procedure applies to the grants of exploration licences E04/2415 and E04/2416 (the licences) to Phosphate Australia Limited (Phosphate Australia). The State of Western Australia considers the grants are acts attracting the expedited procedure and included a statement to that effect in their public notice of the licences.
The licences abut each other and are located approximately ten kilometres south west of Windjana Gorge within the Kimberley Downs Pastoral Lease. E04/2415 comprises approximately 5,549 hectares: 99.5 per cent of it is overlapped by the Bunuba #2 Part A native title determination area (WCD2015/009), and 0.5 per cent by the Bunuba native title determination area (WCD2012/006). E04/2416 comprises approximately 11,101 hectares: 47.8 per cent of it is overlapped by Bunuba #2 Part A, and 52.2 per cent by the Warrwa Combined registered native title application area (WC2014/004).
Objections against the State’s assertion that the expedited procedure applies to the grant of the licences were lodged on behalf of Bunuba #2. The Bunuba Dawangarri Aboriginal Corporation Registered Native Title Body Corporate (BDAC) holds non-exclusive native title rights and interests in trust on behalf of the Bunuba #2 native title holders (Bunuba #2). BDAC is the native title party in this matter. The Warrwa Combined applicants did not lodge an objection.
I was appointed by the President of the National Native Title Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies to the grant of these licences. My decision must be based on the criteria set out in s 237(a)–(c) of the Native Title Act 1993 (Cth). All references to legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.
My decision is that the expedited procedure does not apply to the grant of E04/2416, and that it does apply to the grant of E04/2415, for the reasons outlined below. The normal negotiation procedure is required for the grant of E04/2416. That is, the State and Phosphate Australia must negotiate in good faith in accordance with s 31, with all the native title parties with a view to reaching agreement about the grant of that licence.
Submissions and issues
The State, BDAC and Phosphate Australia provided submissions to the Tribunal. The Tribunal’s geospatial unit also provided mapping to assist me. The mapping was circulated to all parties and no party took issue with it.
BDAC’s submissions comprise a statement of contentions, a joint affidavit of Kevin Oscar and Jimmy Andrews, and an affidavit of Keith Bedford. All deponents state they are traditional owners for the Bunuba People and Mr Oscar states he is ‘the big boss for the area’ of the licences. I accept all three have authority to speak on behalf of the Bunuba #2 native title holders in this matter.
BDAC made contentions in relation to ss 237(a) and s 237(b). No submissions were made in relation to s 237(c). Based on the limited evidence before me, I find the grants of the licences are not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned under s 237(c). On the basis of the submissions provided by parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grants of the licences:
(a)Are the grants likely to directly interfere with the carrying on of Bunuba #2’s community or social activities?
i)What are Bunuba #2’s community or social activities?
ii)Are there any other interests affecting these activities?
iii)What are Phosphate Australia’s proposed activities?
iv)Conclusion.
(b)Are the grants likely to interfere with areas or sites of particular significance to Bunuba #2?
i)What sites or areas are identified?
ii)Are these sites or areas of particular significance under s 237(b)?
iii)Conclusion.
(a) Is the grant likely to directly interfere with the carrying on of Bunuba #2’s community or social activities?
I can only consider community or social activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). Bunuba #2’s non-exclusive determined native title rights and interests, as recorded on the National Native Title Register, include rights to: access, move freely, live, camp and erect shelters and other structures; hunt, gather, fish, take and use flora and fauna; take use, share and exchange natural resources including water; engage in cultural activities; conduct and participate in ceremonies including burials; and visit, maintain and protect places and sites of importance from physical harm. While these activities can be of a small group or a collective experience, the interference must be substantial and not trivial (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]).
What are Bunuba #2’s community or social activities?
Hunting, gathering bush foods and medicine, camping and teaching about these activities
Mr Oscar, Mr Andrews and Mr Bedford describe the country of the licences as ‘rich’ for hunting and gathering. Mr Oscar and Mr Andrews state they, their sons and grandsons and ‘many other Bunuba people’ use the area ‘all year round’ for this purpose (at 20–24). Mr Bedford states that he goes ‘all year round with my family, my brothers’ children … and our elders come as well’ (at 9). He says the area has ‘many clearings and places to camp’ and they ‘camp all over the Tenement Area depending on the season’ (at 12) and ‘we teach the younger kids about the plants and the animals and the Bunuba stories for the Tenement Area’ (at 10). He explains the ‘best time’ for hunting is winter when hunting occurs for bani (goanna), nyalangarra (big goanna), wanyjirri (kangaroo) and galamuda (turkey) (at 11). Both of the affidavits outline bush foods ‘are plentiful and grow at different times of the year’, including a ‘huge area’ of jinjinjarra (bush potato) biriyali (konkaberry), manina (bush plum), jurnta (bush onion) wanggu (capok tree) and sugar bag (Mr Bedford at 12, Mr Oscar and Mr Andrews at 21-23). Intergenerational teaching includes teaching when ‘they are good to eat’ and ‘where they grow within the Tenement Area’ (Mr Bedford at 12).
Mr Oscar and Mr Andrews also state that within the area of the licences, Bunuba women harvest wax from ngirridu (spinifex) to make lumbillumbi (medicine) for colds and flu. They describe that Bunuba men harvest the wattle tree timber, which grows in the scrub country within the area to make hunting spears, and harvest the wax to bind the spear heads (at 24-25).
Obligations to look after and to teach country; conducting, preparing for and teaching about ceremonies
Mr Bedford states, ‘I have responsibilities for looking after country in the Tenement Area and to the north east’ and ‘when it is not hunting time, we still go out … to our home to visit and look after the country in the Tenement Area’ (at 9 and 13). He provides physical evidence of caring for country by stating that teaching their children about bush food includes ‘how to look after them so they are always there for the next years’ (at 12).
Mr Oscar and Mr Andrews refer to the Wanga site ‘very close to the boundary of M04/467 in the Tenement Area’ which has been ‘given back’ to Bunuba by the Kija people (at 11). They explain that through ‘our law, men’s law, we are working to wake em up’. Whilst they ‘can’t talk more about this’ particular activity for cultural reasons, they state that ‘any mining or exploration in this area if not respecting that Bunuba law could stop this happening and interrupt our Bunuba law for this area’ (at 11).
Mr Oscar and Mr Andrews also refer to activities related to the Bunuba men’s initiation area south and south west of Mt North, in the south eastern part of the licences (at 7). They state the area is ‘critical’ to the passing of Bunuba law and culture to their sons and grandsons who they take to the area to ‘learn the law’ (at 7-8 and 19).
Mr Oscar and Mr Andrews state Bunuba men make ceremonial spears using wax from ngirridu (spinifex) and wattle tree timber, and janjani (lemon grass like bush cotton) ‘for dressing up for ceremony’. They expressly state ‘these plants need to be maintained and available in the Tenement Area’ for ‘our law’ at the initiation site and the ‘other men’s places’ that are located within the licences (at 24–25). They also state they use the ‘ochre quarries’ for painting and ceremony (at 10).
Mr Oscar and Mr Andrews state that the Jinninjarra (bush potato) ‘dreaming needs to be maintained for the harvest’ but they cannot talk to Malngarri (white people) or women about that maintenance activity or activities (at 7 and 21). They say they take their sons and grandsons to the area ‘so they can learn about the law and the language for the places, the Junba and the country’ because ‘[as] we said in the Tenement Area there is an initiation site’.
Are there any other interests affecting these activities?
I may take into account other lawful activities which are likely to impact on or have already impacted on the community or social activities of the Bunuba #2 native title holders. Phosphate Australia highlight there have been two previous exploration licences and one mining licence which overlapped part of the proposed licences, and that there was significant expenditure on those previous tenements. They submit the existence of the previous tenure involving substantial exploration and disturbance of the area ‘is indicative that the community and social activities of the … Native Title Party are capable of coexistence with the exploration activities proposed by the Grantee Party’ (at 30).
I note Bunuba #2 hold non-exclusive rights over the licences, the licences fall almost entirely within a pastoral lease, and there is no current live mining tenure.
The area of E04/2415 has been subject to 11 previous exploration licences overlapping between 0.6 per cent and 95.7 per cent of the licence, active during periods between 1984 and 2013. It has also been subject to 12 mining leases between 1988 and 2013, overlapping the licence by between 0.5 per cent and 17.5 per cent.
The area of E04/2416 has been subject to 16 previous exploration licences overlapping between 0.8 per cent and 56.6 per cent of the licence, and active for periods between 1984 and 2012. It has also been subject to 16 mining leases between 1988 and 2013, overlapping between 0.1 per cent and 8.8 per cent. DMP records indicate various costeans and trenches exist on both licences, but it is not clear where those are located.
Phosphate Australia contends ‘there has been significant past exploration conducted over the tenements’ (at 29). They refer particularly to the State’s records of expenditure for previous tenements E04/1006, E04/993 and M04/429. These tenements overlapped the proposed licences as follows, although it is not clear from mapping provided as to where the overlaps occurred:
·E04/1006 overlapped E04/2415 at 1.4 per cent and E04/2416 at 20.8 per cent;
·E04/993 overlapped E04/2416 at 41.4 per cent; and
·M04/429 overlapped E04/2415 at 16.7 per cent and E04/2416 at 0.5 per cent.
While I accept Phosphate Australia’s contention that extensive exploration or mining activity was conducted previously, I do not accept their argument, or the State’s argument, that it necessarily follows that the Bunuba people’s community or social activities are ‘capable of coexistence’ with Phosphate Australia’s activities. There is limited information provided about the nature of the prior exploration activities. For example, it is not indicated whether agreements between the grantee parties and native title party were in place prior to or during activities, nor is it clear where the exploration activities were conducted. The Bunuba #2 contentions outline that heritage surveys were in place in relation to some of the previous exploration and that ‘former tenements were the subject of Heritage Protection Agreements which prevented interference’. This has not been challenged by other parties. The Tribunal has found on numerous occasions that the existence of former tenements, without details about the nature and extent of activities, does not support an argument that a proposed licence is unlikely to cause interference under s 237.
What are Phosphate Australia’s proposed activities?
Phosphate Australia provides their initial work program statements, as attached to their licence applications. I note any subsequent exploration programs will depend on the findings of the initial work program and it would be open for Phosphate Australia to use the full suite of rights available to them under the grant of the licences (see s 66 of the Mining Act 1978 (WA)).
Phosphate Australia state (at 12) they have ‘experience in working with traditional owners and native title parties’. They provide copies of letters to the BDAC attaching executed RSHAs in favour of the Bunuba and Bunuba #2 native title. They state (at 14) they are ‘willing to negotiate and enter into the RSHA’.
Conclusion
In reaching a conclusion, I must consider the community and social activities being undertaken on the licences by Bunuba #2, and weigh these against the activities Phosphate Australia is likely to undertake if the licences are granted, to determine whether or not interference is likely. Where a native title party provides only general evidence about community and social activities, the Tribunal is more likely to conclude these activities can coexist with a grantee party’s exploration activities without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
In addition to outlining the evidence in relation to Bunuba #2’s social and community activities (see paragraphs [10]–[16] above), BDAC contend the ‘Tenement Area’ has unique qualities and therefore the community and social activities which take place there ‘will necessarily be of a higher intensity compared with the rest of the determination area’ (at 20–21, citing Wiluna v Kingx 1 to support their contention).
Where the size of a proposed licence is much smaller than the native title party’s claim or determination area, as in this inquiry, the Tribunal will not usually conclude there is likely to be interference with social or community activities unless the native title party provides specific evidence showing they conduct such activities with particular intensity on the licence or on parts of the licence (Wiluna v Kingx 1 at [39]). In Wiluna v Kingx 1, I found particular sites on the licence area had unique qualities as compared to the rest of a native title party’s claim area and concluded there was a likelihood of interference with activities that occurred in connection with those sites (see also, Wiluna v Kingx 2 [48]–[54]). However, the evidence provided by the native title party in Wiluna v Kingx1 outlined the nature of their social and community activities, including how the activities were connected with unique areas on the licences (as opposed to the entire licence area), and how the grantee party’s activities might interfere with them.
In contrast, Bunuba #2 assert broadly that the whole of the ‘Tenement Area’ is a ‘unique area’, and provide little substantial evidence in support of this. I note the affidavits and contentions provided by Bunuba #2 do refer to various sites and that certain areas are critical to the Bunuba people’s law and culture. This is detailed in the consideration of s 237(b). However, while this evidence establishes there is an area of particular significance on the proposed licences in accordance with s 237(b) (see reasoning below), it does not establish there are unique areas where social or community activities occur intensely for the purposes of s 237(a).
I accept the Bunuba people undertake community and social activities on the licences, namely: camping, hunting, gathering bush food and medicine; looking after country; preparing for and conducting ceremonies; and conducting intergenerational teaching about these activities. However, BDAC provide little specific evidence regarding the location, intensity, frequency and nature of these activities. There is also little specific evidence about how the activities of the grantee party would interfere with the various social and community activities asserted.
For example, the affidavit evidence identifies ochre quarries that are still used for painting or ceremony, but no information is provided about the intensity or extent of such activities. By way of further example, Mr Oscar and Mr Andrews state only Bunuba men have the right to go and protect the men’s places, however, no detail is provided about what social or community activities are conducted or when they are conducted, in order to exercise that protection. Men’s law is said to be waking up the Wanga site, however, there is again little information about the frequency or intensity of the nature of the activities involved in waking up the area. Mr Oscar and Mr Andrews state that Bunuba language is used to make strangers safe, but there is no information provided about where this is conducted. Information is also provided about the three emu story, including that it relates to the bush plum, but there is no detail about the location of the plum or when or how the plum is gathered.
BDAC broadly state the area of the licences ‘has been used for social and community activities such as camping, ceremony hunting, and collecting bush food medicine’ and the area is used to collect materials for weapons and ceremony and harvesting bush potatoes. However, there is little information given about the location of such activities in the area of the licences, or whether such materials are only or particularly found on this area. While Mr Oscar and Mr Andrews assert it is good hunting ground and that ‘sons and grandsons’ hunt all year round, there is nothing in the evidence to suggest exploration activities will interfere with such social or community activities.
Finally, I note the licences are over 5,500 hectares (E04/2415) and 11,000 hectares (E04/2416) in size. The ‘Tenement Area’ that BDAC refers to and links to Bunuba #2’s social and community activities, is thus some total of 16,000 hectares. With evidence of only a general nature before me, I find the large size of the licences make it less likely that exploration activities would interfere with social or community activities – that is, the activities might be conducted across some 16,000 hectares as there is little to point me to specific areas, apart from general assertions that some activities relate to men’s areas.
For s 237(a) to apply, there must be direct, likely and substantial interference with social or community activities. As the Tribunal has previously found, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see, for example, Wiluna v Asia Investment at [13] and Lungunan v Richmond at [29]). Because of the broad nature of the activities described in the material before me, and considering the size of the licences, I cannot draw the conclusion that the exploration activities of Phosphate Australia would cause such interference. The evidence is not sufficiently specific to permit of a conclusion there will be interference of the kind contemplated by s 237(a) (in contrast to the evidence led in Barunga v FMG Resources at [26]; Wurrunmurra v Wasse at [20], for example).
(b) Are the grants likely to interfere with areas or sites of particular significance to the native title holders?
Section 237(b) requires me to conduct my assessment in two stages. First, I must decide if there are any areas or sites of particular significance to the Bunuba #2 within the licence. Such areas or sites must be of more than ordinary significance in accordance with Bunuba #2’s traditions. If I answer this in the affirmative, I am then required to consider whether there is likely to be (in the sense of a real risk of) interference with those areas or sites.
What sites or areas are identified?
The affidavit of Mr Oscar and Mr Andrews, and of Mr Bedford, describe eight sites or areas within the licences. The evidence relating to each of these is outlined as follows.
Illimbiri Junba
Mr Oscar and Mr Andrews describe Illimbiri Junba as a songline ‘for the entire northern Bunuba plateau’, which ‘passes right through the Tenement Area’ (at 4 and 5). Mr Bradford states, ‘Illimbiri Junba for this area comes from my mother’s country in the north east from Milliwindi and extends right through my grandmother’s country which includes all of the Tenement Area’ (at 6).
Bunuba men’s initiation area
Mr Oscar and Mr Andrews state there is a men’s initiation area to the south and south west of Mt North, in the south eastern part of the licences (at 7). They state this area ‘is critical to our law and culture’ and they ‘cannot talk to Malngarri (white people) or women about this area’. Mr Oscar and Mr Andrews state the initiation area contains paintings ‘about this men’s business of the Bunuba Wanjina (Wanalirri) and animal species connected to this law’.
State documents show E04/2416 contains one painting site registered by the Department of Aboriginal Affairs (DAA) without gender restrictions. Mr Oscar and Mr Andrews state DAA’s ‘non-gender restricted’ recording of the site ‘is not right, this is men’s business, a men’s place and for those other places and paintings, they have not been registered … as they should not be known by Malngarri and women.’ They maintain only Bunuba men have the right to go to and protect these areas’ (at 7–8).
Mapping shows Mt North is located approximately one kilometre to the north east of the licences. Mapping also shows the DAA registered painting site is located within E04/2416 and close to the border of E04/2415, approximately four kilometres south west of Mt North. This supports the location of the men’s initiation area being on E04/2416.
Bunuba men’s places north of 81 Bore and north of 67 Mile Bore
Mr Oscar and Mr Andrews state the areas north of 81 Bore and also 67 Spring (67 Mile Bore) are also Bunuba men’s places with ‘paintings showing Bunuba Wanjina, our law and our culture’ (at 9). The 81 Bore is not located on the mapping, however, 67 mile bore is located approximately one kilometre south of E04/2416. There is little further information about these sites.
Jinijinjarra dreaming site
Mr Oscar and Mr Andrews state the dreaming site for the Jinijinjarra (bush potato) is located near the Bunuba men’s initiation area and the dreaming ‘needs to be maintained for the harvest’ (at 7 and 21).
Bunuba women’s area
Mr Oscar and Mr Andrews state there ‘is also a Bunuba women’s area in the Tenement Area south of Mt North, but we can’t talk about that either; that is their law, their stories’ (at 15).
Wanga site
Mr Oscar and Mr Andrews state there is a Wanga site ‘given back’ to Bunuba by the Kija people to work on ‘to wake ‘em up’ (at 11). They state that they cannot talk more about this activity because it is ‘men’s law’. However, they state any mining or exploration in this area that is not authorised under Bunuba law ‘could stop this happening and interrupt our Bunuba law for this area’ (at 11). They state the site is ‘very close to the boundary of M04/467 in the Tenement Area’. According to mapping, the whole of M04/467 lies in the centre of E04/2415, which supports the assertion that the Wanga site is within that licence. State documents indicate M04/467 covers 8.3 per cent of E04/2415. There is little further information about the Wanga site in the evidence.
Ballalam
Mr Oscar and Mr Andrews describe a place known as Ballalam in ‘the Northern Tenement Area’ (which puts it in a location on or close to E04/2416). Mr Oscar and Mr Andrews describe the ‘Bunuba people’s two dog dreaming’, which ‘tells the story of how Bunuba language was spread to all corners of Bunuba country’. They state Ballalam ‘is one of the places that that story stops’ (at 13).
Three emu dreaming
Mr Oscar and Mr Andrews outline a three emu dreaming story, stating one emu ‘travelled through the Tenement Area’ and ‘The three emus ate the Manina (bush plum) and as they travelled through the country, including the Tenement Area they spread this plant all around; that’s why it grows in the Tenement Area’ (at 14). Mr Oscar and Mr Andrews state the ‘three emu story is very important to our dreaming and culture’.
Are these sites or areas of particular significance under s 237(b)?
In Yindjibarndi Aboriginal Corporation and FMG Pilbara (at [17]–[18]), President Webb outlined the requirements of s 237(b), including that the native title party must provide sufficient evidence to locate areas or sites of particular significance, and to adequately describe and explain the nature of their significance.
In addition to the evidence give in relation to specific sites, Mr Oscar and Mr Andrews (at 12) provide broad evidence of the repercussions of unauthorised entry to culturally restricted sites. Referring to a mine (located immediately south east of the licences), they state:
…we negotiated with [the grantee of that mine] and told them that they could not go to certain areas. They didn’t listen to us and when they damaged an area, the raven came out and Bunuba people were seeing things; going mad; getting broke; and the water started flowing. This area is very close to the southern edge of the Tenement Area. If the Grantee Party is not working with us then something like this could happen again.
I acknowledge the grantee party outlined in the above evidence is not the grantee in this current inquiry, however, I accept it as general evidence about the consequences of unauthorised entry to culturally restricted sites.
To the extent allowable under customary law, Bunuba #2 has adequately described the location and significance of the Bunuba men’s initiation area. The evidence outlined above indicates this area is located in the easterly portion of E04/2416. I conclude this men’s initiation area is within the north eastern portion of E04/2416 and is of particular significance for the purposes of s 237(b).
However, on the evidence before me, I cannot conclude the other areas outlined above are sites or areas of particular significance to Bunuba #2 for the purposes of s 237(b), as these areas are referred to in only general terms. While careful examination of evidence in relation to s 237(b) may involve consideration of cultural sensitivities, making such a conclusion requires more than a general statement that an area is of particular significance, or that it may be damaged by inappropriate works or access. While it appears some areas within E04/2415 are of importance to Bunuba #2, and may be connected with the Bunuba men’s initiation area, I cannot be confident, based on the evidence, to conclude those sites are on E04/2415, or that they are of particular significance.
Conclusion
Having established there is a site of particular significance on E04/2416, I must now consider whether it is likely the activities of Phosphate Australia will interfere with that site. There must be a real chance or risk of interference, that is, not just a possible chance. In deciding this question, I refer to Phosphate Australia’s proposed activities, and consider any factors that may ameliorate or increase the risk of interference.
I note this assessment may be quite different to the conclusion to be drawn in relation to s 237(a). As McKerracher stated in FMG Pilbara v Yindjibarndi Aboriginal Corporation (at [75]–[76]):
the nature of interference referred to under s 237(a) NTA is not the same as the nature of interference referred to under s 237(b) NTA. The risks addressed in the two subsections are quite different. The range of community and social activities referred to in s 237(a) NTA is very broad, whereas s 237(b) NTA is directed only at areas or sites of ‘particular significance’. It follows that interference that may be trivial in the context of a social activity may be substantial in the context of a site of ‘particular significance’. That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions. This, as suggested in Parker, may require an evaluation of the extent of particular significance of the site.
As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
Phosphate Australia state their activities will include exploring for gold and other base metals. Depending on the initial exploration phase of rock chip sampling, soil sampling and analysis, Phosphate Australia indicate they may conduct drilling according to their works program for the first two years of the grants. They have indicated that exploration would accelerate should a discovery be made during those firs two years. I consider it likely Phosphate Australia will conduct exploration to the full extent of their rights should the licence be granted.
I note the State proposes to impose a condition on E04/2416 allowing BDAC to request Phosphate Australia to enter into a Regional Standard Heritage Agreement (RSHA) with Bunuba #2 determined land holders within the first 90 days of grant (State contentions at 14). BDAC contend (at 53) the ‘RSHAs used in other areas (e.g. the Goldfields or Pilbara) are not endorsed by the NTP and do not address specific cultural and heritage concerns of the NTP’.
Given the nature of the site of particular significance in this matter, and its importance to the traditions of the Bunuba people, I conclude interference is likely should normal s 31 negotiations not occur between the Bunuba people and Phosphate Australia prior to any exploration activities being conducted on E04/2416. Although activities such as soil sampling and rock chipping are often regarded as ‘low-impact’ activities, it is important to note that interference, which may appear trivial to a person who is not a member of a native title party, may be substantial having regard to the native title party’s traditions. This would seem to be particularly so given the men’s area as described in E04/2416.
I have considered Bunuba #2’s affidavit evidence, including the statement regarding the repercussions of entering sites of cultural significance and balanced this evidence with the stated activities of Phosphate Australia. I have also considered the State’s proposal to attach a RSHA condition to the grant of E04/2416 under its heritage regime. On the material before me, I do not conclude that mere entry onto the site of particular significance to Bunuba #2 will lead to interference. However, I do find that it is likely Phosphate Australia’s exploration activities, such as rock chipping, and other ‘non ground disturbing’ activities would be sufficient to cause direct interference with the men’s initiation site, which would not be protected from such activity by the State’s heritage regime.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2416 to Phosphate Australia Limited, is not an act attracting the expedited procedure.
The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2415 to Phosphate Australia Limited, is an act attracting the expedited procedure.
Helen Shurven
Member
5 May 2017
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