Connie Jugarie & Others on behalf of Ngarrawanji v Pathfinder Exploration Pty Ltd and Others
[2019] NNTTA 71
•18 September 2019
NATIONAL NATIVE TITLE TRIBUNAL
Connie Jugarie & Others on behalf of Ngarrawanji v Pathfinder Exploration Pty Ltd and Others [2019] NNTTA 71 (18 September 2019)
Application No: | WO2018/0570 |
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Connie Jugarie & Others on behalf of Ngarrawanji (WC1996/075)
(Native Title Party)
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Pathfinder Exploration Pty Ltd and Norvale Pty Ltd
(Grantee Parties)
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State of Western Australia
(Government Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 18 September 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 – expedited procedure – the act is an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) s 66 |
Cases: | Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (Cheinmora v Heron Resources) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Maitland Parker /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (Maitland Parker v Iron Duyfken) 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) Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Angela Booth, Kimberly Land Council |
| Representative of the grantee party: | Yvette Collins, Hetherington Exploration & Mining Title Services Pty Ltd |
| Representatives of the Government party: | Karess Dias, State Solicitor’s Office Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of their intention to grant exploration licence E80/5126 to Pathfinder Exploration Pty Ltd (Pathfinder) and Norvale Pty Ltd (Norvale) (the grantees) over an area where the Ngarrawanji people claim native title. The licence is approximately 4226 hectares in size, located in the Halls Creek Shire.
The State’s notice included a statement that the grant is an act attracting the expedited procedure (s 32 of the Act). Ngarrawanji lodged an objection, to the inclusion of this statement, with the National Native Title Tribunal (the Tribunal).
I was appointed to determine whether the expedited procedure applies. To decide that, I must examine the three criteria in s 237 of the Act which state, in summary, that the expedited procedure applies if the grant is ‘not likely’ to:
(a) interfere directly with the Ngarrawanji community or social activities;
(b) interfere with areas or sites of particular significance, in accordance with the Ngarrawanji traditions;
(c) involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The phrase ‘not likely’ in sections 237(a), (b) and (c) of the Act require me to make a predictive assessment (Yindjibarndi v FMG at [15]). For the reasons outlined below, my decision is that the expedited procedure applies to the grant of the licence.
The parties’ submissions
Ngarrawanji submitted contentions and the affidavit of Mr Greg Tait. Mr Tait states that he is a Ngarrawanji Traditional Owner and a member of the Ngarrawanji Native Title Claim Group. I accept his authority to speak for the licence area. Ngarrawanji also provided contentions in reply. Ngarrawanji argued the expedited procedure should not apply to this licence on the basis that the grant will likely cause the interference contemplated in ss 237(a) and (b) of the Act.
The grantee parties made no substantive submissions (apart from those as outlined at [8]-[9] below), and the State lodged a statement of contentions with supporting documents.
The inquiry directions required parties to submit a statement of agreed facts and contemplated a listing hearing and hearing. The parties conferred and requested these directions be vacated. I agreed, being satisfied the issues could be determined on the papers without a hearing (s 151(2)(b) of the Act).
After parties had lodged their submissions and evidence, the grantee parties lodged an excision request with the State. The State confirmed that the request would be applied upon the grant of the licence. The effect of the excision is outlined below:
Area of the licence for consideration in this inquiry
Area of the licence available on grant
4226.65 hectares
1256.94 hectares
48.99 percent falls within the Ngarrawanji native title claim area
99.77 per cent within the Ngarrawanji native title claim area
So in effect, the size of the area available for the grantees to explore will be smaller, but proportionally, the area of the licence which covers the native title claim area will be larger.
I called a directions hearing so parties could outline whether or not the proposed excision affected how they wanted me to consider any of their submissions and evidence (given all materials had been provided prior to the excision request). Ngarrawanji requested further time to consider the excision request and provide a response in writing, which they did briefly by email on 2 August 2019, and then provided Amended Contentions on 3 September 2019. The grantees provided a brief comment on 5 September 2019. The State provided Amended Contentions on 20 August 2019.
Given the excision request, the Tribunal prepared a map to be used in conjunction with the mapping provided by the parties, showing places referred to in Mr Tait’s affidavit. No objection was received from parties regarding my use of that map as part of my considerations in this inquiry.
Section 237(a): is the grant of the licence likely to interfere directly with community or social activities?
The Tribunal balances a native title party’s evidence of community or social activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference (see for example, Yindjibarndi v FMG at [16]). The test is outlined in Rosas v Northern Territory (at [67]):
The leading case on the proper interpretation of section 237(a) is Smith v WesternAustralia [2001] FCA 19; (2001) 108 FCR 442. French J made these observations about the proper interpretation of this paragraph (at 451):
"The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section."
What community and social activities do Ngarrawanji carry out on the licence?
Ngarrawanji assert they regularly participate in the following community and social activities on the licence: hunting, gathering resources, and intergenerational teaching.
Hunting and gathering resources
Mr Tait states that he and his family ‘still go out looking for bush medicine and bush tucker on the Tenement Area’ and that he does this ‘every couple of weeks’ (at 14-15). He asserts there are a number of resources located on or near the licence and used by Ngarrawanji people, including:
·firewood (at 16);
·a certain type of wood used as a natural mosquito repellent (at 17);
·shrubs used for when children have a cold to clear the nostrils and throat (at 18);
·wood from certain trees used for smoking ceremonies conducted by Ngarrawanji people (at 18); and
·fresh water mussels, bush yams, sugarbag, bush berries and bush coconut (at 19-20).
Mr Tait’s evidence is that, as a child, he ‘would go hunting and walking all through the Tenement Area’ and that he continues to do so in the present day (at 16). Mr Tait states he hunts on the licence ‘every couple of weeks’ (at 15).
The State contend that Ngarrawanji has not provided any detail as to the location and proximity of these activities to the licence, the number of people that engage in these activities, the frequency or duration of these activities, or whether the licence is the only area where these activities are undertaken (at 29).
Intergenerational teaching
Mr Tait outlines that the area of the licence is used for intergenerational teaching (at 21). This involves bringing along children to ‘teach them about collecting’ certain resources, and ‘how to tell the difference between the different trees’. He explains how he was shown where to get sugarbag when he was younger, and how the children are told ‘the stories that are connected to the area’ as they gather bush medicine and bush tucker (at 14). Mr Tait states that, in these instances, he is ‘passing on that knowledge I learned from my old people about collecting bush foods and medicines’ (at 21).
The State contend that Ngarrawanji have not provided any details as to the location, duration, or frequency of intergenerational teaching within the licence (at 32).
What activities do the grantee parties intend to undertake on the licence?
The grantee parties have not provided any information detailing the activities they intend to undertake on the licence. In the absence of such materials, I have assumed the grantee parties will undertake the full scope of activity to which they are entitled under the grant of an exploration licence (as per Silver v Northern Territory (at [30]). These activities are set out in s 66 of the Mining Act 1978 (WA), and reg 20 of the Mining Regulations 1981 (WA) outlines the amount of material able to be removed from the exploration licence (up to 1000 tonnes in total).
The State concede that the Tribunal’s predictive assessment should be made on the above assumption, but argue this is ‘not fatal’ to their contention that interference under s 237(a) is unlikely, given their arguments noted above at [15] and [17].
Is the grant of the licence likely to interfere directly with Ngarrawanji’s community or social activities?
The State contend the grant of the licence is not likely to interfere with any of Ngarrawanji’s social or community activities (at 34). The State submit Ngarrawanji’s evidence lacks sufficient detail as to the number of people that engage in hunting, gathering, and intergenerational activities, and the frequency or duration of those activities (at 34.4). I note that while Ngarrawanji’s contentions outline there are physical and spiritual consequences if certain areas are interfered with, these statements are made in quite broad terms. (I also address this in my consideration of s 237(b)).
Further, the State argue that Ngarrawanji has the opportunity of enforcing a Regional Standard Heritage Agreement (RSHA) against the grantees by invoking the proposed RSHA condition the State intend to impose on the licence (at 35.1). However, they provide no explanation about how this would mitigate interference with Ngarrawanji’s community or social activities.
In their reply, Ngarrawanji contend it is ‘very likely’ that exploration activities by the grantee parties will interfere with social and community activities, given the ‘high frequency’ and ‘broad range’ of the latter (at 18). This is also reinforced in the Ngarrawanji Amended Contentions.
Conclusion
I do not find the evidence has established hunting and gathering resources, or intergenerational teaching is focused on the licence such that exploration activities would interfere with these activities in a direct or substantial way. The use of the licence area appears to be part of a wider area in and around the licence where social and community activities are conducted.
Where there does appear to be some concentration of activities (such as the traditional men’s area, collecting wood and conducting ceremony in the Halls Creek area, and collecting sugarbag east of the Highway), each of these areas are in the portion of the licence to be excised. There is no evidence that any exploration activity would be conducted in those excised areas, given that portion of the licence will not be available to the grantees upon grant.
The evidence overall leads me to conclude it is unlikely that exploration activities by the grantees, upon the grant of the licence, would cause direct or substantial interference with Ngarrawanji community or social activities.
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]).
What areas or sites have been identified as being of particular significance to Ngarrawanji?
Mr Tait deposes that the licence area ‘is all a men’s business area’ (at 4) and he also states a ‘lot of the tenement area has always been for cultural men’s practices’ (at 5). Ngarrawanji assert the following areas and sites are of particular significance, as supported by the following paragraphs of Mr Tait’s affidavit:
·a law ground at the creek south of Mardiwah Loop (at 5);
·a traditional men’s area on the Duncan Road at the hills just outside of Halls Creek (at 6);
·dreaming story connecting China Wall and Pulara Hill (at 7);
·rainbow serpent dreaming site at Ngoonjawah Spring (at 8); and
·rainbow serpent dreaming site at Caroline Pool (at 8).
Law ground south of Mardiwah Loop/ Traditional men’s area on the Duncan Road
Mr Tait identifies a ‘creek on the way out to Mardiwah Loop’, stating that he ‘went through law here’ and that he ‘was made there in my culture’ (at 5). I am satisfied this area is likely to be within the licence, as there is a portion of the licence south of Mardiwah Loop and mapping indicates a waterway nearby.
Mr Tait states there is a traditional men’s area ‘[o]n the Duncan road, on the hills just outside of Halls Creek’ (at 6). While the State notes that Duncan Road is ‘long’ and that there is ‘no specification as to where this area may be’ (at 51), mapping shows Duncan Road and Halls Creek town site intersect on the licence.
I accept there is an area on the licence to the west of Halls Creek which is a law ground, and an area to the east of Halls Creek which is a men’s area. While the evidence is somewhat sparse, read together I accept there is sufficient evidence to support a finding that each of these areas are sites of particular significance to Ngarrawanji for the purposes of s 237(b).
Dreaming story sites connected to China Wall and Pulara Hill; Rainbow serpent dreaming sites at Ngoonjawah Spring and Caroline Pool
Mr Tait describes ‘there is a story that connects China Wall and Pulara Hill on the Tenement Area’, and it ‘goes right down to South Australia’ (at 7). Mr Tait outlines the importance of this story. Mapping indicates China Wall and Pulara Hill are approximately 5 and 10 kilometres from the licence respectively.
After the directions hearing, the Ngarrawanji representative emailed the Tribunal, outlining that their instructions were members of the community did not consider the excision would reduce the risk of interference to the dreamings associated with Pulara Hill. They provide some further information about the direction and location of the dreamings, however, again this is very broad, with some locations not featured on mapping (for example Red Hill and Ngarrawanji Hill). The representative indicated that the dreaming runs through Ngoonjawah Spring and that while the Spring is within the excision area, it extends further than the excision ‘and through the tenement area’.
According to Mr Tait, there are dreaming stories of snakes that made the rivers and ‘that live in the rivers in the Tenement Area’ (at 8). One of these snakes resides at Ngoonjawah Spring and another at Caroline Pool. I note Caroline Pool is approximately 10 kilometres from the licence area, and there is a Ngoonjawah Rockhole on the southern border of the licence, which I take to be the same place as Ngoonjawah Spring (with no evidence to the contrary).
I accept there is a dreaming connected from Ngoonjawah Spring on the licence, up through Caroline Pool and Pulara Hill. The evidence in relation to the dreaming is broad and sparse, particularly as to its reach on the western portion of the licence (which is not subject to excision). On balance, I accept Ngoonjawah Spring itself has been sufficiently described to be a site of particular significance for the purpose of s 237(b). In relation to the other areas connected to the dreaming, both on and off the licence, there is little information provided in this inquiry to meet the s 237(b) requirement of particular significance.
Is the grant of the licence likely to interfere with areas or sites of particular significance?
A native title party in an expedited procedure inquiry must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Maitland Parker v Iron Duyfken at [39]; Cheinmora v Heron Resources at [43]).
Having established that the law ground south of Mardiwah Loop and the traditional men’s area on the Duncan Road are sites of particular significance, as well as Ngoonjawah Spring, I must turn my mind to whether or not it is likely these sites will suffer from interference by exploration activities allowed on grant of the licence.
Ngarrawanji contends there may be ‘harmful physical and spiritual consequences’, both for Ngarrawanji and non-Ngarrawanji people, if sites are interfered with (Ngarrawanji Contentions at 17). This includes ‘damage through exploration activity or by [non-Ngarrawanji] members accessing those sites without first being shown those sites by a [Ngarrawanji] member’ (at 17). Mr Tait outlines ‘if people go to the wrong place and don’t have the right people with them, then they could get hurt’ (Mr Tait’s affidavit at 10). He further says there are ‘powerful spirits’ in the Halls Creek township that are ‘there to protect the country’ (at 11 and 13). Mr Tait recounts that his brother was chased from ‘the creek in Halls Creek town by one of these spirits’, and that others ‘have been chased and bashed up’ by the same spirit (at 12).
The State contend interference within the meaning of s 237(b) is not likely. They submit there is insufficient evidence to show the above sites are located within the portion of the licence to be granted. They contend the grant of the licence is not likely to interfere with the above sites if they are of particular significance (at 3).
The major factor in my consideration of interference is the proposed excision of the eastern portion of the licence upon grant. The State note the excision places ‘Duncan Road and its surrounding areas’ outside of the portion of the licence which will remain following excision (at 51). I note that also applies to the area south of Mardiwah Loop, and to Ngoonjawah Spring.
Conclusion
I conclude there are areas of particular significance, but the State’s proposed excision of a portion of the area of the licence on grant will remove the area in which those sites are located from the area to be granted to the explorers. The grantees cannot conduct any exploration activities over the excised area, and that includes the areas of particular significance. In addition, there is little specific information about the nature and extent of any likely interference in accordance with Ngarrawanji traditions to those areas once they are excised.
I conclude there is unlikely to be interference with areas of particular significance to Ngarrawanji by the grantees’ exploration activities.
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?
Ngarrawanji do not make any contentions under 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 E80/5126 to Pathfinder Exploration Pty Ltd and Norvale Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
18 September 2019
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