Connie Jugarie and Others (Ngarrawanji) and Others v Anglo Australian Resources Nl and Another

[2017] NNTTA 5

NATIONAL NATIVE TITLE TRIBUNAL

Connie Jugarie and Others (Ngarrawanji) and Others v Anglo Australian Resources NL and Another [2017] NNTTA 5 (16 February 2017)

Application Nos:              WO2015/0975; WO2015/0976; WO2016/0034

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Connie Jugarie and Others (Ngarrawanji) (WC1996/075)

(first native title party)

- and -

Barbara Sturt and Others (Jaru) (WC2012/003)

(second native title party)

- and -

Scotty Birrell and Others (Koongie - Elvire) (WC1999/040)

(third native title party)

- and -

The State of Western Australia

(Government party)

- and -

Anglo Australian Resources NL

(grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms H Shurven, Member

Place:  Perth

Date:  16 February 2017

Catchwords: Native title – future act – proposed grant of exploration licence – 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 applies

Legislation:Native Title Act 1993 (Cth)

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA)

Cases:Annie Milgin and Others on behalf of Nyikina Malgana v Dempsey Minerals Ltd and Another [2015] NNTTA 19 (‘Milgin v Dempsey Minerals’)

Barbara Sturt and Others on behalf of Jaru v Tremjones Pty Ltd and Another [2016] NNTTA 35 (‘Jaru v Tremjones’)

Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15 (‘Ryder v Brosnan’)

Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’)

Scotty Birrell & Ors on behalf of Koongie - Elvire v State Resources Pty Ltd [2014] NNTTA 116 (‘Koongie - Elvire v State Resources’)

Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2011] NNTTA 170 (‘Wiluna v Kingx’)

Representative of the     
native title parties:          Ms Gemma Acland, Kimberley Land Council

Representatives of the     Ms Jane Godfrey, State Solicitor’s Office

Government party:          Ms Amanda Kickett, Department of Mines and Petroleum

Representative of the     

grantee party:                  Ms April French, Austwide Legal Pty Ltd

REASONS FOR DETERMINATION

1. This decision is about whether or not the expedited procedure applies to the grant of exploration licence E80/4960 (the licence) to Anglo Australian Resources NL. The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure and included a statement to that effect in its public notice. The Ngarrawanji, Jaru and Koongie - Elvire native title claimants (collectively, the native title parties) each lodged an objection to the inclusion of the expedited procedure statement with the National Native Title Tribunal. The registered native title claims overlap the licence as follows: Ngarrawanji by 18.3 per cent; Jaru by 36 per cent; and Koongie - Elvire by 45.7 per cent.

2. I was appointed by the President of the Tribunal, Raelene Webb QC, to conduct the inquiry to determine whether or not the expedited procedure applies. A decision that the expedited procedure applies means negotiation under s 31 of the Native Title Act 1993 (Cth) is not required: the State can grant the licence, and Anglo Australian Resources can proceed with their activities, without negotiating with the native title parties. A decision that the expedited procedure does not apply means all parties must negotiate in good faith with a view to reaching agreement about the grant of the licence (see s 31(1)(b) of the Native Title Act 1993 (Cth)). All subsequent references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.

3. By including the expedited procedure statement in their notice, the State asserts the activities permitted under the licence are (as per s 237) not likely to:

   (a)interfere directly with community or social activities carried on by the Ngarrawanji, Jaru and Koongie - Elvire;

   (b)interfere with areas or sites of particular significance in accordance with Ngarrawanji, Jaru and Koongie - Elvire traditions; or

   (c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

   In objecting to the expedited procedure statement, the native title parties argue that interference or disturbance with one, or all, of the s 237 elements is likely.

4. My decision is based on an assessment of all three s 237 elements, and I have concluded there is unlikely to be interference with community or social activities, sites of particular significance, or the relevant land and waters. As such, the expedited procedure applies. The reasons for my decision are outlined below.

5. All parties provided submissions for this inquiry and I have considered that material. 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.

6. The native title parties’ submissions comprise a statement of contentions and the affidavit of Mr Harold Cox. Mr Cox states while making the affidavit he was sitting with ‘some other senior Traditional Owners for the country’ of the licence. I accept Mr Cox has authority to speak for the area of the licence on behalf of the native title parties.

7. While Anglo Australian Resources has provided detailed contentions on all limbs of s 237, the native title parties make submissions only in relation to s 237(a) regarding their community and social activities. They do not make submissions in relation to s 237(b) regarding sites of particular significance, or in relation to s 237(c) about major disturbance to land or waters. Based on the limited evidence before me from the native title parties, I find the grant of the licence is unlikely to interfere with areas or sites of particular significance and is unlikely to involve major disturbance to the land or waters concerned. On the basis of the evidence provided, I focus on s 237(a) and address the following issues to determine whether or not the expedited procedure applies to the grant of the licence:

   (a)Is there likely to be direct interference with the native title parties’ community or social activities?

   i)What activities do the native title parties undertake on the licence?

   ii)What are Anglo Australian Resources’ proposed activities upon the grant of the licence?

   iii)Conclusion

(a)Is there likely to be direct interference with the native title parties’ community or social activities?

1. What activities do the native title parties undertake on the licence?

1. The native title parties assert that their members access the licence for activities such as hunting all year around, camping and living off the land (contentions at 15). In his affidavit, Mr Cox states (at 7–8):

   The Tenement Area is a very good hunting area. That is flat country, blacksoil. There is good feed for the animals, soft grass. The river dries up in the dry season but there is always water around Tea Tree Bore and underneath the blacksoil. This means that there are animals here all year around, including kangaroo, turkey and emu. It also means this area around Tea Tree Bore, including the Tenement area, is a good camping area… The young fellas like going to this area and live off the land, hunting and gathering sugar bag.

2. According to Tribunal mapping, Tea Tree bore is located approximately two kilometres north of the licence. The Laura River and a number of waterways run through the licence. The Laura River Tributary is recorded on the Department of Aboriginal Affairs database as an artefact/scatter site. According to the State’s Quick Appraisal documentation, the licence contains 15 perennial (permanent) lakes, nine major and 50 minor non-perennial (seasonal) watercourses and one spring.

1. What are Anglo Australian Resources’ proposed activities upon the grant of the licence?

1. In their initial work program statement submitted with their licence application, Anglo Australian Resources states ‘there will be minimal ground disturbing activity for the licence’ (Anglo Australian Resources contentions at 25). I note any subsequent exploration programs will depend on the findings of the initial work program and it would be open for Anglo Australian Resources to use the full suite of rights available to them under the grant of the licence (see s 66 of the Mining Act 1978 (WA)).

2. Anglo Australian Resources’ contentions state (at 24) their exploration program will be subject ‘to aboriginal heritage clearance processes and other access issues’. They state they are willing to honour an existing agreement with Koongie - Elvire, which provides for the addition of new tenements even though the Koongie - Elvire’s representative ‘advised that their client cannot accept a new tenement’ into the agreement (at 6–9 and 14). Anglo Australian Resources also state they attempted to negotiate a heritage protection agreement with the Ngarrawanji and Jaru representative and, when no agreement could be reached, they executed a Regional Standard Heritage Agreement (RSHA) in favour of the two groups and forwarded the RSHA to the groups’ representative (at 13).

3. I note the State proposes to impose a condition allowing any one of the native title parties to request Anglo Australian Resources to enter into a RSHA within the first 90 days of grant (State contentions at 14). If the native title parties choose to request the condition, then consultation could occur. Although the native title parties contend (at 29) the ‘RSHAs used in other areas (e.g. the Goldfields or Pilbara) are not endorsed by the [native title parties] and do not address specific cultural and heritage concerns of the NTP’, they did not provide evidence about their concerns in context of this licence. The State also intends to impose other conditions and endorsements on the grant of the licence (as outlined at Appendix A to this decision).

1. Conclusion

1. The native title parties assert the evidence provided in this matter establishes the licence area has unique qualities compared to other parts of the claim areas, such that the activities cannot take place anywhere else on the claimed areas (native title parties’ contentions at 22–24). They contend the Tribunal has previously determined specific areas on which community or social activities take place may have unique qualities (citing Wiluna v Kingx at [39]).

2. The evidence refers to the licence area being ‘a very good hunting area’ and ‘a good camping area’ and the licence appears to share some of the qualities of Tea Tree Bore (for example, flat country, blacksoil, good feed and water). According to Mr Cox, this encourages animals ‘all year around’. It appears these qualities then extend at least some two kilometres from Tea Tree Bore, and onto and including the licence area. While the fact an area has unique qualities may be an indicia that activities cannot be carried out elsewhere on the claim area, the nature of the activities undertaken must also be considered to determine whether interference is likely (see Wiluna v Kingx at [39]). While Mr Cox states the ‘young fellas like going to this area and live off the land’ (at 8), there is little evidence that the native title parties undertake their hunting, gathering or camping activities exclusively or intensively on the area of the licence.

3. The native title parties contentions state (at 25–26) that a number of specific activities permitted under s 66 of the Mining Act 1978 (WA) would be likely to interfere with their social and community activities, and point to Mr Cox’s affidavit in support. Mr Cox states, ‘Strangers need to speak to us before they go out on country. They need to talk with the right people for the country, we have to know what’s happening on our country’. However, they provide no other evidence regarding how the native title parties social or community activities might be interfered with if the licence is granted without the normal negotiation procedure.

4. In Wiluna v Kingx (at [39]), I found ‘the size of the proposed licence area in the context of the much larger native title claim makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities.’ This is consistent with previous Tribunal decisions. The licence in the current inquiry is approximately 87.74 square kilometres, which is a relatively small area when compared to the Ngarrawanji claim which is approximately 4,065 square kilometres, the Jaru claim which is approximately 28,825 square kilometres, and the Koongie – Elvire claim which is approximately 1,012 square kilometres. There appear to be areas outside of the licence, for example, around Tea Tree Bore, where animals can be found all year and where hunting and camping occur. There is nothing to suggest the social or community activities of camping, hunting or gathering could not also be undertaken elsewhere within the licence, when the explorer was undertaking their activities in a certain portion of the licence.

5. Information about the native title parties’ community or social activities is within the particular knowledge of the native title parties. As Carr J stated in Ward v Western Australia at [26], ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. In this matter, the native title parties provided contentions in relation to s 237(a), however, these contentions are not supported in any detail by the evidence provided. As the Tribunal noted in Ryder v Brosnan at [19] (see also Milgin v Dempsey Minerals at [33]):

   Contentions by representatives of a party do not constitute primary evidence. In expedited procedure inquiries (as in native title proceedings generally) the best evidence provided on behalf of native title party interests generally comes from the native title holders themselves.

   Based on the limited affidavit evidence about hunting, gathering and camping, I could not say the activities are carried out so intensively in an area of the licence that Anglo Australian Resources’ activties would be likely to interefere with them.

6. On numerous occasions, the Tribunal has balanced a native title party’s evidence of social or community activities such as hunting, gathering and camping against a grantee party’s proposed exploration activities, and has concluded both activities can coexist without direct or substantial interference (see, for example, Rosas v Northern Territory at [71]). I have balanced the evidence provided in this matter, having regard to the nature of the native title parties’ community and social activities, the activities Anglo Australian Resources could undertake on the licence if they exercised their full suite of rights, and the size of the licence. I conclude both parties’ activities are likely to be able to coexist, and that interference with the native title parties’ social or community activities on the licence is unlikely.

Determination

1. The determination is that the act, namely the grant of exploration licence E80/4960 to Anglo Australian Resources NL, is an act attracting the expedited procedure.

Helen Shurven
Member
16 February 2017

Appendix A: Endorsements and Conditions State intends to impose on grant of licence

ENDORSEMENTS

1. The Licensee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

2. The Licensee's attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

1. The Licensee attention is drawn to the provisions of the:

   • Waterways Conservation Act, 1976
   • Rights in Water and Irrigation Act, 1914
   • Metropolitan Water Supply, Sewerage and Drainage Act, 1909
   • Country Areas Water Supply Act, 1947
   • Water Agencies (Powers) Act 1984
   • Water Resources Legislation Amendment Act 2007

1. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

2. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

1. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:

1. Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:

   • 50 metres from the outer-most water dependent vegetation of any perennial waterway, and
   • 30 metres from the outer-most water dependent vegetation of any seasonal waterway.

In respect to Proclaimed Surface Water Areas (SWA/15, Fitzroy River And Tributaries) the following endorsements apply:

1. The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.

2. All activities to be undertaken with minimal disturbance to riparian vegetation.

3. No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.

In respect to Proclaimed Ground Water Areas (GWA//10, Canning-Kimberley) the following endorsement applies:

1. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.

CONDITIONS

1. All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.

2. All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environment Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.

3. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.

4. Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.

5. The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.

1. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

   • the grant of the Licence; or
   • registration of a transfer introducing a new Licensee;

advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

1. No interference with Geodetic Survey Station SMM-MOUNT RAMSAY 59 and mining within 15 metres thereof being confined to below a depth of 15 metres form the natural surface.

2. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Watering Place Reserve 1594 and Repeater Station Site Reserve 40320.