Buurabalayji Thalanyji Aboriginal Corporation RNTBC v Squadron Resources Pty Ltd
[2019] NNTTA 6
•14 February 2019
NATIONAL NATIVE TITLE TRIBUNAL
Buurabalayji Thalanyji Aboriginal Corporation RNTBC v Squadron Resources Pty Ltd and Another [2019] NNTTA 6 (14 February 2019)
Application No: | WO2017/0560 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Buurabalayji Thalanyji Aboriginal Corporation RNTBC (WCD2008/003)
(native title party)
- and -
Squadron Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 14 February 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 – expedited procedure does not apply |
Legislation: | Native Title Act 1993 (Cth) ss 29, 151, 237 |
Cases: | Bunuba Dawangarri Aboriginal Corporation RNTBC v Elderberry Resources Pty Ltd and Another [2018] NNTTA 76 (Bunuba v Elderberry) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 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) |
| Representative of the native title party: | Matt Kinder, Murcia Pestell Hillard |
| Representative of the grantee party: | Yvette Collins, Hetherington Exploration and Mining Title Services Pty Ltd |
| Representatives of the Government party: | Francis Cardell-Oliver, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
I have been appointed to decide whether the State Government of Western Australia can, using the expedited procedure, grant exploration licence E08/2895 (the licence) to Squadron Resources Pty Ltd (Squadron). Under s 237 of the Native Title Act 1993 (Cth) (the Act), the State can assert the expedited procedure applies to a licence if the grant is not likely to:
(a) interfere directly with the native title holders’ community or social activities; and
(b) interfere with areas or sites of particular significance, in accordance with their traditions; and
(c) involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The native title party in this inquiry is the Buurabalayji Thalanyji Aboriginal Corporation Registered Native Title Body Corporate (BTAC), who hold non-exclusive native title in trust for the Thalanyji community over 98.5 percent of the licence. BTAC lodged an objection against the State’s assertion that the expedited procedure applies to the licence. The licence is approximately 2214 hectares in size and is located in the Ashburton Shire, less than 3 kilometres southwest of Nanutarra Roadhouse. It is mainly overlapped by Pt Nanutarra pastoral lease.
Under the expedited procedure, the State can grant the licence to Squadron without negotiations with BTAC. My decision on whether this can occur must rest on the above three criteria set out in s 237 of the Act. In this decision, all references to legislation are to the Act, unless otherwise noted.
The parties’ submissions
BTAC submitted contentions and the affidavit of Ms Glenys Hayes. The affidavit is annexed with a topographical map of the licence and the surrounding area. It shows registered sites under s 5 of the Aboriginal Heritage Act 1972 (WA) (AHA) and additional sites that Ms Hayes has annotated on the map. Ms Hayes states she is a Thalanyji traditional owner and common law holder and has cultural authority to speak for the licence area on behalf of BTAC and the Thalanyji common law holders. I accept her authority. BTAC also provided contentions and supporting information in reply to the States materials.
The State lodged: a statement of contentions; Squadron’s licence application with the accompanying statement; mapping; a Tengraph Quick Appraisal form; search results and mapping from the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS search results); and a list of proposed endorsements and conditions intended to be imposed on the grant of the licence. Squadron did not provide submissions.
The inquiry directions required the parties to submit a statement of agreed facts and contemplated a listing hearing and hearing. The parties requested these directions be vacated and I agreed. I was satisfied the issues could be determined on the papers without a hearing (s 151(2)(b)).
Section 237(a): is the grant of the licence likely to interfere directly with Thalanyji’s community or social activities?
The phrase ‘not likely’ in sections 237(a), (b) and (c) of the Act require the Tribunal ‘to make a predictive analysis’ or assessment (FMG v Yindjibarndi at [39]). The Tribunal balances a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference.
What community or social activities do Thalanyji undertake?
According to the evidence, the area of the licence contains three permanent yintas (waterholes) along Mindurru (the Ashburton River). They are named Ngamarribla, Gulbuldallo and Ngungabithri and are marked by Ms Hayes on the mapping annexed to the affidavit. Because of their permanent nature, these ‘yintas make the area of the Squadron Application a particularly rich area in bush tucker … [and] one of the best places in Thalanyji country to hunt bunggurdi’ (red kangaroo). As such, ‘it is a good area to teach young Thalanyji people and learn how to hunt and fish’ (Ms Hayes at 46-47). The deponent frequently accesses the area for these activities ‘during both the wet and dry seasons’ and often brings other Thalanyji people ‘sometimes groups of up to 10-15 people’ (Ms Hayes at 58-59).
On the licence area, the deponent conducts intergenerational teaching about the significance of Mindurru, Ngamarribla, Gulbuldallo and Ngungabithri. She teaches Thalanyji ‘young people’ the associated rituals which are ‘the same rituals the old people taught me’ and that ‘Thalanyji people still follow’ (Ms Hayes at 61-65). There is extensive evidence explaining the specific cultural practices and prohibitions involved in these rituals, as well as the spiritual and physical repercussions for failure to adhere to them (Ms Hayes at 64-82).
I note that Mindurru (Ashburton River) is listed on the AHIS as a registered Aboriginal site (ID 37522) of mythological significance under s 5 of the AHA. It is marked on AHIS mapping with a restricted buffer zone that follows the Ashburton River from its mouth at Onslow and inland to a point which lies southeast of the licence. The State observes that, with ‘the possible exception of kangaroo hunting’, Thalanyji’s community and social activities ‘appear to take place in or very close to Mindurru, and well within registered site 37522’ (State Contentions at 21). I accept the evidence supports this contention. However, I note that the registered site covers 66 percent of the licence (as outlined in the Tribunal geospatial analysis attached to BTAC Contentions).
I also note the licence area is well serviced for roads and amenities. A number of minor roads run through the licence from Nanutarra Roadhouse (which is located on the west coastal highway less than 3 kilometres northeast of the licence). This is relevant to assessing the frequency of visits to the licence area (by both Thalanyji people and Squadron).
What will Squadron’s activities be?
The State include Squadron’s licence application and accompanying statement. These note Squadron will target ‘uranium, base and precious metals’, undertake desktop activities, and field based activities including surveys, soil and groundwater sampling. Only the first year’s expenditure is recorded.
Squadron provide no submissions indicating the areas they wish to target, the extent of their intended activities, or their proposed exploration timeframes. Without any further information, it is open to me to conclude Squadron intend to exercise the full suite of rights available to them upon the grant of the licence under sections 61 and 66 of the Mining Act 1978 (WA). These rights allow Squadron access to the licence area with their agents, employees, motor vehicles and other machinery for up to twelve years if renewal options are exercised. The rights include setting up camps, leaving machinery or equipment, digging pits, trenches and holes, sinking bores and tunnels, and removing up to 1000 tonnes of material (or more if the Minister approves). The licence area is 2214 hectares (7 graticular blocks). Given the size of the licence, these permitted activities will be proportionately more intensive than if the licence were over a larger area.
The State contends that because Squadron ‘is prohibited by the AHA, absent ministerial consent, from physically interfering with Mindurru’ they ‘would be unlikely to attempt to access the site at all’ (State Contentions at 21, 36). BTAC contend no weight should be given to this contention because, in the absence of evidence to the contrary, it is likely that Squadron will apply for consent (BTAC Contentions at 7). I accept that little weight should be given to the State’s contention, particularly because Mindurru overlaps 66 percent of the licence.
The State argues there has been previous exploration activity over the area, however, little information is provided in that regard. The State also make contentions about the proposed licence falling within the Pilbara Surface Water Area, requirements for Ministerial approval in relation to taking or using water in the area, and endorsements and conditions they intend to impose on the licence on grant (at 21-30).
I have dealt with these arguments in part in Bunuba v Elderberry (at [21]-[24]) and contrast my conclusions in that matter with the evidence in this matter, where Squadron have provided no detail regarding their proposed activities, and BTAC have provided substantial detail about Thalanyji people’s use of the licence, particularly in regard to water. None of the contentions outlined by the State in this current matter deal with whether or not BTAC would be consulted in relation to Ministerial approval or any proposed activities on the licence, apart from the State’s usual regulatory regime, which focuses on ground disturbing activities. BTAC’s reply outlines that in their view, under the relevant legislation relating to the regulation of water in Western Australia, there are no requirements for consideration of, or consultation regarding, Indigenous cultural concerns.
As outlined in Bunuba v Elderberry (at 24), my task in an expedited procedure inquiry is to make a predictive assessment. Evidence of intention is relevant to the question of likelihood (Silver v Northern Territory at [25]-[32]). The weight to be given to any evidence of intention will depend on the facts of the case. In this matter, Squadron has provided no information about how, where, or the extent of exploration activities within the licence. This is contrasted with the evidence and information provided by BTAC about the group’s social and community activities, the reasons why they are conducted so intensively on the licence, and the likely interference exploration would cause to those activities.
I am not satisfied the State’s regulatory regime would be sufficient to mitigate substantial interference with the social and community activities of Thalanyji people on this licence, and conclude that such activities are likely to be interfered with by Squadron’s exploration activities in the licence area.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]). Explaining its significance includes distinguishing it from other areas on the licence (Yindjibarndi v FMG at [17] and [125]).
What sites are identified by Thalanyji on the licence?
Mindurru (Ashburton River water catchment)
The evidence refers to Mindurru – which I take to mean the area of the Ashburton River water catchment at its highest flood point and any associated underground water within that area during the dry season. This is because the deponent describes ‘three phases in the flow of Mindurru: dry with permanent and semi-permanent yintas [waterholes], muddy flood following rains and clear flow’, states it includes ‘when parts of Mindurru are dry … where the underground water is stored’, and describes how the same rituals and prohibitions apply to both the wet and dry parts ‘in and around Mindurru’ (Ms Hayes at 43, 52 and 67-69, 72).
Yintas (waterholes)
The evidence names three yintas within the licence area - Ngamarribla, Gullbuldallo and Ngungabithri) (Ms Hayes at 37-38 and annotated mapping).
Is there evidence these sites are of particular significance in accordance with Thalanyji’s traditions?
The State accepts Mindurru is a site of particular significance in accordance with Thalanyji traditions (at 33). There is detailed evidence outlining the profound importance of Mindurru to Thalanyji creation beliefs as the travelling route for the spiritual being ‘Wanakanmura [who] creates the natural and moral order for Thalanyji country’. The being ‘travels up and down Mindurru underground throughout the year depending on the season… where the underground water is stored’ (Ms Hayes at 35-57). There is also detailed evidence of the rituals and prohibitions related to Mindurru which further explains its significance (Ms Hayes at 64-82). I have not replicated that detail here due to the sensitive nature of the material. I am satisfied Mindurru is a site of particular significance per s 237(b).
The State also accepts the three yintas within the licence area and along Mindurru are sites of particular significance in accordance with Thalanyji traditions (at 33). There is detailed evidence which explains the significance of the three yintas, both as resting places for Wanakanmura and as part of the interconnected underground conduit for its travels ‘depending on the season’ (Ms Hayes at 35-57). As such I am satisfied the three yintas are sites of particular significance per s 237(b).
Is interference with these sites of particular significance likely?
The evidence explains in detail the likely interference with Mindurru in accordance with Thalanyji traditions. The deponent extensively describes the rituals and prohibitions for Mindurru (Ms Hayes at 64-74). She explains the various spiritual and physical punishments that might be dispensed by Thalanyji people and by Wanakanmura for any failure to adhere to these rituals and prohibitions, and she details specific incidents that Thalanyji people believe were punishments manifested by Wanakanmura (at 18-21, 75-82).
The evidence also explains in detail the interference with Ngamarribla, Gullbuldallo and Ngungabithri in accordance with Thalanyji traditions. The deponent explains how the same rituals, prohibitions and punishments that apply to Mindurru also apply to these yintas (Ms Hayes at 64-82).
The State intends to impose a condition requiring Squadron to enter into a Regional Standard Heritage Agreement (RSHA) if BTAC request it within 90 days of grant. However, an RSHA would only require consultation with Thalanyji people when higher impact physical interference is contemplated. Low impact sampling, reconnaissance in vehicles, camping and surveying would not require consultation. I am satisfied, based on the evidence, that this would be substantial interference with Mindurru, Ngamarribla, Gullbuldallo and Ngungabithri in accordance with Thalanyji traditions. As McKerracher J outlined (at [75]-[76]) in FMG v Yindjibarndi:
….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…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.
My comments at [16]-[18] above concerning the endorsements and regulatory regime for the AHA and the water related areas, and the likelihood of interference per s 237(a), are similarly applicable in the context of s 237(b).
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?
BTAC did not make any contentions or provide evidence in relation to s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. Therefore I find disturbance under s 237(c) is unlikely.
Determination
The grant of exploration licence E08/2895 to Squadron Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
14 February 2019
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