Cape York United Number 1 Claim v Big Bull Resources Pty Ltd
[2022] NNTTA 65
•26 October 2022
NATIONAL NATIVE TITLE TRIBUNAL
Cape York United Number 1 Claim v Big Bull Resources Pty Ltd and Another [2022] NNTTA 65 (26 October 2022)
Application No: | QO2022/0006 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Cape York United Number 1 Claim (QC2014/008)
(native title party)
- and -
Big Bull Resources Pty Ltd
(grantee party)
- and -
State of Queensland
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven, Member |
Place: | Melbourne |
Date: | 26 October 2022 |
Catchwords: | Native title – future act – proposed grant of exploration permit – expedited procedure objection application – regulatory regime for exploration activity – Native Title Protection Conditions – Tribunal satisfied matter can be adequately determined in the absence of the parties – whether act likely to interfere directly with the carrying on of community or social activities – evidence broadly cast – whether act likely to interfere with sites or areas of particular significance – camping grounds – Dreamtime story place – massacre site – blackwater swamps – sacred waters – sand – sites with limited or broad evidence – low impact or non-ground disturbing activities – relevance of previous exploration activities – interference assessed by native title party traditions – whether act likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters – evidence largely in form of assertions – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 109, 142, 151, 237 Mineral Resources Act 1989 (Qld) ss 141, s 141AA |
Cases: | 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; (2014) 227 FCR 182 (FMG Pilbara v Yindjibarndi Aboriginal Corporation) Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22; (2011) 257 FLR 320 (Tullock v Western Australia) Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243; (2005) 146 FCR 576 (Little v Oriole Resources) Michael Ross & Others on behalf of the Cape York United #1 Claim v Oosen Lewis Mining Pty Ltd & Another [2022] NNTTA 11 (Ross v Oosen Lewis) Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Gamboola Resources Pty Ltd and Another [2018] NNTTA 10 (Ross v Gamboola) Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson and Others [2021] NNTTA 59 (Nyalpa Pirniku v Anderson) Rosas v Northern Territory (2002) 169 FLR 330; [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) Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (Yindjibarndi v FMG Pilbara) |
| Representatives of the native title party: | Mr Daniel Barker and Ms Kirstin Malyon, Cape York Land Council |
| Representative of the grantee party: | Mr Andrew Kerr, Moray & Agnew Lawyers |
| Representative of the Government party: | Ms Sarah Svensson, Crown Law |
REASONS FOR DETERMINATION
The State of Queensland (the State) gave notice of its intention to grant exploration permit EPM 27908 to Big Bull Resources Pty Ltd (Big Bull), under s 29 of the Native Title Act1993 (Cth) (the Act). The State’s notice included statements that a) the grant will be subject to the Native Title Protection Conditions (Protection Conditions), and b) it considers the grant to be an act attracting the expedited procedure. The State has also indicated the permit is proposed to be granted in accordance with the ‘Eligibility criteria and standard conditions for exploration and mineral development projects—Version 2’.
The Protection Conditions are applied by the State, through ss 141(1)(j) and 141AA of the Mineral Resources Act 1989 (Qld), as conditions to satisfy the requirements of the expedited procedure under s 237 of the Act. An act attracting the expedited procedure is a proposal that affects native title, also known as a future act, which can be validly done without going through the normal negotiation process under the Act.
This decision concerns whether the State can validly grant the proposed permit without negotiations between the State, Big Bull and the registered native title claimants for the Cape York United Number 1 claim QUD673/2014 (Cape York) for the area of the proposed permit, as would otherwise be required under the right to negotiate provisions of the Act. The proposed permit is approximately 35 kilometres north of Cooktown, and approximately 120 square kilometres in size. The notice specifies that the grant would authorise the holder to explore for minerals for a term not exceeding five years and to seek renewal of the permit for a term not exceeding five years. Where the State asserts that a proposal attracts the expedited procedure, any registered native title claimant for the area may object to the inclusion of the statement by the end of the four-month notification period.
Cape York lodged an objection application with the National Native Title Tribunal. In their contentions for the inquiry into whether the expedited procedure applies or not, Cape York explained (at 8) that ‘the Daarba People and the Thanil People are recognised by the Hopevale Determination as the Native Title Holders for that part of the EPM area within the Hopevale Determination and are the groups who speak for that part of the EPM area which is within the CYU#1 Claim Area’.
The Tribunal President appointed me to constitute the Tribunal for the purpose of conducting an inquiry into the objection and determining whether or not the expedited procedure applies. In making that determination, I must have regard to the following matters, which are set out in s 237 of the Native Title Act, in summary:
(a)Is the proposed grant likely to interfere directly with the carrying on by the native title holders of their community or social activities?
(b)Is the proposed grant likely to interfere with areas or sites of particular significance to the native title holders in accordance with their traditions?
(c)Is the proposed grant likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
In determining whether the expedited procedure applies to the proposed permit, the Tribunal must undertake a predictive assessment of what is likely be done, rather than what could be done, as a result of the grant (see Smith v Western Australia at [23]; Little v Oriole Resources at [49]-[51], [57]). Evidence as to how a grantee party intends to exercise the rights conferred may be relevant to that assessment although, as the Tribunal observed in Walley v Western Australia (at [8]-[9]), the relevance and weight of that evidence will depend on the circumstances of the particular case.
The inquiry process
Member Kelly recently summarised the regulatory regime which applies in the State of Queensland, in Ross v Oosen Lewis (at [20]-[46]), and I adopt that commentary and information for the purposes of this inquiry.
Throughout the inquiry process, various extensions of compliance dates were requested and either agreed to by parties and granted, or were subject to argument between the parties, including the grantee party outlining that time was becoming of the essence in a commercial sense.
At the end of the inquiry process, Cape York requested a hearing, and the following was sent to all parties following consideration of that request:
Member Shurven has considered party materials, and in particular the many pages of information, evidence and mapping provided by the native title party. This matter has already been subject to extensions of compliance directions, and the Member considers all parties, including the native title party, have had a reasonable opportunity to present their case (as per s 142 of the Native Title Act (‘the Act’)). Section 109 of the Act mandates that the Tribunal may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved – the grantee party have previously outlined the time is of the essence in a commercial sense, and the Member considers parties have been provided with sufficient time to present their case. The Member notes the native title party is unable to provide submissions explaining the reason for the request for a hearing until next week, and the other parties would then need time to respond.
The Tribunal must hold a hearing ‘if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties’ (s 151 of the Act - emphasis added). The Member considers the information, evidence and materials provided by all parties is directly relevant to her consideration of s 237 of the Act, and that the inquiry can be adequately determined in the absence of the parties, on the basis of the materials provided.
Native title party materials
Cape York provided contentions, supported by the affidavits of native title holders Mr Desmond Bowen and Mr Kenneth McLean, who speak for the area of the permit. The affidavit evidence had substantial mapping attached explaining and supporting the assertions made by Mr Bowen and Mr McLean. Cape York also provided a reply to the materials and assertions of Big Bull and the State.
I have not repeated some of the evidence provided by Mr Bowen and Mr McLean in any detail as it appears to have cultural sensitivities. Where I have outlined some information in summary form, I have done so to make my considerations and reasoning clear.
Grantee party materials
Big Bull provided contentions supported by various annexures and mapping. The information outlined the grant of the permit would be for five years, with the possibility of an extension of a further five years.
Big Bull’s approved work program, as provided in the State’s materials for this inquiry, include mapping reconnaissance, camp and accommodation, vehicle hire and drilling. This work program was updated in September 2022 (Annexure 2 to the grantee party contentions). Materials provided by parties also indicated that Big Bull did not know the number or location of likely drill-hole sites until the initial exploration stage had been undertaken and assessed. Mapping provided by Big Bull to the native title party (Annexure 5 of the native title party contentions) provided ‘some rough maps of where we may initially attempt exploration’. Big Bull have made it clear they will be ‘taking drilling samples from the sand dunes’ (letter from Big Bull to Cape York at Annexure 7 of the native title party contentions).
This mapping was clarified in the updated September 2022 work program, which showed further information about the exploration target areas.The updated work programme also outlines that Big Bull intends to hire vehicles and take soil samples in at least the first two years of exploration.
The States materials
The State provided a statement of contentions supported by a range of mapping, heritage and tenure information.
Interference with community or social activities: s 237(a)
The Tribunal’s task under s 237(a) is to determine whether the grant of the proposed licence is likely to interfere directly with the carrying on of the native title party’s community or social activities. The interference must be substantial and not trivial in its effect on the activities (see Smith v Western Australia at [26]).
The Tribunal has long held that the phrase ‘community or social activities’ in s 237(a) means only those activities that arise from registered native title rights and interests (see for example Tullock v Western Australia at [93]-[102]). As such, I consider that community or social activities which are not a manifestation of registered native title party rights and interests cannot have a place in my consideration of s 237(a) (see for example Tullock v Western Australia at [96]). Part of the evidence in this inquiry refers to ‘youth education programs’. It is not clear whether these are commercial undertakings, or whether they are limited to inter-generational teaching within the community of the native title party. As I ultimately did not conclude s 237(a) was offended for this inquiry, I have not gone into a detailed consideration of that aspect of the evidence, and make this as a general comment in relation to the Tribunal’s consideration of s 237(a).
What social or community activities do the native title party carry on in the permit area?
Cape York contentions outline that the native title party conduct hunting, youth education programs and cultural heritage mapping for protection of sites. Cape York argue these would be conducted in such a way so that exploration activities would cause substantial interference to them (at 81, 92-96, 100-105). Mr McLean’s affidavit includes mapping which indicates hunting grounds – this area is close to and may just intersect with an area Big Bull has indicated they are likely to conduct activities.
Cape York argue there is limited access to the area and the weather affects the times which the area can be accessed. It may be this argument suggests both the native title party and the explorer would be in the area at the same time. Big Bull will be able to conduct preliminary activities such as:
·walking the area of the authority
·driving along an existing road or track in the area
·taking soil or water samples
·geophysical surveying not involving site preparation
·aerial, electrical or environmental surveying
·survey pegging
without notifying the native title party, who argue even these kinds of activities would lead to substantial interference with hunting, youth education programs and cultural mapping.
The Federal Court has observed that the concept of direct interference ‘involves an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference’ (see Smith v Western Australia at [26]). Though French J (as he then was) cautioned against applying a ‘precise and semantic cause and effect in every case,’ the interference must be substantial in its effect on the community and social activity.
I have carefully considered the evidence provided by all parties, and in my view, the evidence relating to cultural mapping, hunting and the conduct of youth education programs is broadly cast. As described, they are unlikely to be directly and substantially interfered with by exploration activities. This is because of the size of the permit and the description of the activities, which do not appear to be intensively conducted in a particular place on the permit. For example, the hunting area extends well beyond the area Big Bull are likely to undertake exploration.
Interference with areas or sites of particular significance: s 237(b)
In considering s 237(b), I apply the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at 34-35).
·To be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91]).
·If I am satisfied the site or area is of particular significance, I must analyse very carefully the potential interference, because of the importance it has to the native title holders. The nature of the site or area, the nature of the potential interference and the laws and traditions of the native title holders are relevant considerations (Silverv Northern Territory at [88]).
·Even slight interference may be unacceptable but it must involve physical intervention (Silverv Northern Territory at [88]).
·There must be a real chance or risk of interference with the site or area, not just a possible chance (Smith v Western Australia at [23]).
·I will give weight to State’s heritage and regulatory regime (Walley v Western Australia at [11]).
What areas or sites have the native title party identified in relation to the permit area?
I outline below a summary of, and my consideration of, the sites and areas which have been asserted by Cape York to be of particular significance in relation to the permit.
The Wyuii
Mr Bowen (at 35) outlines detailed information about the Wuyii, and it is noted on mapping (Annexure DB-5). It is explained (at 37) that ‘Wuyii is an old camping ground where the clans would meet and share stories. There is a bora ground near there but it is not in the EPM area. That whole area is not for mining or exploration. There is shell middens and evidence of their old camps all over that area. Wuyii is not a public place’. Mr Bowen is clear what is on the permit (Wuyii) and what is not (bora ground).
Mr McLean (at 18) outlines that ‘Our lore tells us that water from this story cannot be touched. Even I do not touch the black waters.’ Mr McLean explains (at 35) that activities such as hunting are not undertaken on and around the Wuyii so as not to disturb that place.
I accept, given the consistency of the evidence, the mapping, and the information provided, that the area of the Wuyii is not an ordinary area in accordance with the native title party traditions, and that it is an area of particular significance for the purposes of s 237(b) in relation to the permit. I consider interference with the area below.
The Dugul story
Mr Bowen’s affidavit (at 35) outlines a detailed description of the Dugul Sisters Dreamtime story, and the Dugul Sisters story place is noted in mapping (Annexure DB-6). The connection with the Wuyii is also outlined.
Mr McLean (at 16) provides a great deal of information about the Dugul story as well as mapping (at Annexure KM-2). He also outlines (at 19) a massacre and its connection with both the Wuyii and the Dugul story, and the significance of black water swamps. Annexure KM-3 is a map of the Dugul Story and associated sacred waters, which Mr McLean states (at 20) ‘These are just the sites and areas that you can see from the satellite images. When you are on Country there is a lot more back water sites. All of these areas are sacred to us. Lore connects all the clans throughout Country’.
Mr McLean explains (at 35) that activities such as hunting are not undertaken on the Dugul story place so as not to disturb that area. He also explains (at 21 and 30, for example) the integral part sand plays in the relationship between the Dugual story and the water in the area.
I accept, given the consistency of the evidence, the mapping, and the information provided, that the area of the Dugul story is not an ordinary area in accordance with the native title party traditions, and that it is an area of particular significance for the purposes of s 237(b) in relation to this permit. I consider interference with the area below.
Peters Garden and Freshwater mussels area
Mr Bowen describes Peter’s Garden (at 26), and gives some personal information about the site (at 28 and 31). Mr McLean (at 33) explains ‘this place is very important to Daarba People. This is a place that only Daarba people can go. Even Daarba people should not stay there at night. People who are not Daarba should not go there at all’.
Mr Bowen (at 27) also gives information about an area near Peter's Garden which is important for mussels and which is said to contain shell middens. The map at Annexure DB-4 shows where the area is. Mr Bowen explains ‘This is a Daarba Place’ and so mining should not be conducted there.
I appreciate these sites are important to the native title party. However, limited or little information has been provided about why they are of more than ordinary significance in accordance with the native title party traditions. As such, I could not conclude these sites are of particular significance for the purposes of s 237(b).
Dugong Camp, Freshwater springs, and Thigeeyi
Mr Bowen (at 22-24) explains the process of Dugong hunting and the link with Lookout Point and a freshwater spring. Mapping (at Annexure DB-2) shows these areas. Mr Bowen (at 40-41) and mapping (at Annexure DB-7) shows two sand dunes in the permit area, names them as Thigeeyi, and asserts they are a significant area.
I appreciate these sites are important to the native title party. However, limited or little information has been provided about why they are of more than ordinary significance in accordance with the native title party traditions. As such, I could not conclude these sites are of particular significance for the purposes of s 237(b).
Burial areas and an old camp
Mr Bowen (at 43-44) identifies two burial areas and notes the areas on mapping (at Annexures DB-8 and DB-9). One area is a named person with specific information about the location – it is not clear whether or not it is a marked grave. Mr Bowen explains ‘This whole area has old artefacts. I have a property near there and when I work in the garden I find artefacts from when the old people used to live out there’. This area is also identified as being near an old camp and soaks. The other area is said to likely be a burial area – it appears that is not certain, and it is based upon the existence of artefacts (including bones) that were moved historically to this point.
On balance, given the information provided about the specific grave, it is reasonable to conclude it is likely a marked gravesite. Even were I to conclude it was a site of particular significance in accordance with the native title party traditions, which I do not, I find it is unlikely such would be interfered with by exploration activities.
In relation to the other site, described only as a likely burial area, I find the evidence too broad to conclude it is a site or area of particular significance.
Is the grant of the permit likely to interfere with areas or sites of particular significance?
The native title party contentions (for example, at 18-21) outlines they are uncertain of the extent of Big Bull’s high impact activities, and also the sampling activities. What is certain is that Big Bull will be sampling sand from the permit area. It is clear from the native title party evidence that sand plays an integral part in their traditions for the area, including the Wuyii and the Dugul dreaming story.
I have no doubt that any interference from high impact activities such as drilling itself will be covered by the States conditions and regulatory regime. However, activities considered to be low impact or non-ground disturbing such as sampling are unlikely to mitigate against interference to the Wuyii or the Dugul dreaming story. As noted (at [19] above for example), preliminary activities such as taking soil samples, walking the area, surveying and even driving on an existing road or track are activities which Big Bull can conduct with little reference to the native title party.
There is argument between parties, particularly Big Bull and Cape York, about the extent and nature of the sampling. However, Mr McLean (at 24-29) outlines in detail the importance of sand to the native title party traditions. His mapping at Annexure KM-3 shows Dugul story sites and some of these intersect with the areas Big Bull have indicated will be the initial target of their preliminary works.
Big Bull’s contentions (at 27) argue that the ‘nature and extent of exploration activities which will be conducted include sampling by way of hand auger (year 1 to 4) and vacuum drilling (years 2 – 4) as detailed in Annexure 3’. I note the hand auger work will be to a depth of between 1 to 5 metres (as outlined in their Annexure 2 detailed work program). Big Bull also argues that such activities have been undertaken on another tenement with the permission of the native title party. I note that in this present inquiry, the native title party have not given their permission, in the sense that there has been no agreement between the native title party and Big Bull to undertake such activities. This has, in effect, lead to the present inquiry. Parties did not reach agreement and, as such, the expedited procedure statement would attach to the grant of the permit unless a decision were made otherwise in an inquiry such as this.
Big Bull to some extent relied on the recent decision in Ross v Oosen Lewis, arguing I should make similar findings that the expedited procedure did not apply. However, while I adopt the summary of the regulatory regime in that decision (as noted above at [7]), I distinguish the outcome of the inquiry in that matter from the outcome in this present inquiry. For example, Member Kelly in Ross v Oosen Lewis indicated (at [117]) that considerations in relation to s 237(b) ‘must relate to a specified area or site rather than pertaining to spiritual and cultural concerns about the broader area or landscape’. There must also be sufficient information about interference (at [122]-[124]).
In this present matter, for the reasons outlined, I was satisfied areas of particular significance had been identified, and the native title party traditions in relation to those sites were described and outlined sufficiently in terms of what would be interference in accordance with those traditions. As outlined by McKerracher J in FMG Pilbara v Yindjibarndi Aboriginal Corporation (at [75]), what constitutes interference is assessed by reference to the native title party’s traditions:
… 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.
Big Bull argue (at 42) there has been previous exploration over parts of the permit. However, as I outlined in Nyalpa Pirniku v Anderson (at [16]), it has long been understood that even if an area has been previously subject to exploration or mining activity, it does not mean the area has lost its traditional significance or that further disturbance would not constitute interference. The evidence in this matter provided by the native title party suggests to me that the relevant area retains its particular significance.
The State argue (at 5.17) that their regulatory regime will mean there is not likely to be interference, including the operation of the Protection Conditions, and the various statutory restrictions. Big Bull argue (at 33) there is no evidence they will exercise their rights outside of that permitted by the regulatory regime. I accept this, but I still must still consider whether, with Big Bull acting within the regime, it is likely that sites of particular significance will suffer from interference as described in s 237(b) of the Act.
I am satisfied from the information provided, that Big Bull will be travelling to at least the areas marked on their mapping as likely exploration target areas, and taking samples from those areas. It is also open to them to travel across and explore any area of the permit and conduct their preliminary low impact exploration activities, once the permit is granted. In so doing, I am satisfied that given the evidence provided about the sensitivity of the Wuyii and the Dugul dreaming area, such activities would be interference for the purposes of s 237(b) of the Act.
Major disturbance to the land and waters concerned: s 237(c)
The issue of whether the grant of the proposed permit is likely to involve, or create rights whose exercise is likely to involve, major disturbance requires the Tribunal to make an evaluative judgment by reference to the expectations of the whole Australian community, including Aboriginal people (see Little v Oriole Resources at [52]-[54]).
The particular concerns of the Aboriginal community, including matters such as community life, customs, traditions and cultural concerns, are relevant to that evaluation, provided they relate to the actual physical disturbance arising from the exercise of rights granted or created by the proposed future act (Rosas v Northern Territory at [84]-[85]). In evaluating the disturbance, the Tribunal is entitled to have regard to the context of the proposed grant, including previous land use, the characteristics of the relevant land and waters, and the relevant regulatory regime (see Yindjibarndi v FMG Pilbara at [21] and the cases cited therein).
Cape York rely on the Tribunal’s decision in Ross v Gamboola, where the Tribunal decided, among other things, that the tenement in that matter would be subject to interference of the kind outlined in s 237(c). The native title party in that matter relied on expert evidence in the form of a detailed report about the water on the tenement, its cultural significance, features of the water, and how such was likely to be disturbed by activities such as drilling. The other parties in that inquiry did not contest the expert evidence or provide expert evidence of their own, save to refer to the State’s regulatory regime.
In this present inquiry, while the affidavit evidence of the native title party refers to concerns about water on the permit, and the likelihood of interference, there is no expert evidence or reports as there was in Ross v Gamboola. The evidence is in the form of assertions, and I could not conclude there was sufficient evidence for me to draw a conclusion that the grant of EPM 27908 is likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters.
Determination
The determination of the Tribunal is that the grant of exploration permit EPM 27908 to Big Bull Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
26 October 2022
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