Frank Sampi & Others on behalf of Koongie-Elvire v Richard James Fauntleroy and Another
[2019] NNTTA 62
•16 August 2019
NATIONAL NATIVE TITLE TRIBUNAL
Frank Sampi & Others on behalf of Koongie-Elvire v Richard James Fauntleroy and Another [2019] NNTTA 62 (16 August 2019)
Application No: | WO2019/0065 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Frank Sampi & Others on behalf of Koongie-Elvire (WC1999/040)
(native title party)
- and -
Richard James Fauntleroy
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 16 August 2019 |
Catchwords: | Native title – future act – proposed grant of prospecting 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 applies – the act is an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 151, 237 Mining Act 1978 (WA) ss 48, 66 |
Cases: | Cheinmora 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) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Les Tullock on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22; (2011) 257 FLR 320 (Tullock v Western Australia) 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) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) 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 Ltd [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Ashley Mumford, Douglas D'Antoine and Angela Booth, Kimberley Land & Sea Council |
| Representative of the grantee party: | Richard James Fauntleroy |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulations & Safety Emily Archer, State Solicitor’s Office |
REASONS FOR DETERMINATION
I comprise the National Native Title Tribunal (Tribunal) for this decision under s 32(5) of the Native Title Act 1993 (Cth) (the Act). The decision is that the expedited procedure applies to the State of Western Australia’s proposed grant of prospecting licence P80/1858 to Richard James Fauntleroy.
The licence covers approximately 0.763 square kilometres in the Kimberley region, 20 kilometres east of Halls Creek. The licence is situated entirely over land and waters where the Koongie-Elvire Group claim native title rights and interests, and where the Elvire Aboriginal Corporation hold their pastoral lease.
The State included an expedited procedure statement in their notice of the proposed grant. Koongie-Elvire objected to that statement. Under s 237 of the Act, a future act (in this case, the grant of the licence) is an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with community or social activities carried on by the native title claimants (s 237(a));
(b)interfere with areas or sites of particular significance in accordance with the traditions of the native title claimants (s 237(b));
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
Koongie-Elvire argue the expedited procedure should not apply as the grant will interfere with s 237(a) and s 237(b). They do not pursue their objection 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 is likely to involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(c) is unlikely. I focus this inquiry on s 237(a) and s 237(b).
Preliminary evidentiary matters
Koongie-Elvire submitted a statement of contentions attaching a joint affidavit of Ross James, Steven Woodhouse and Kenny Boomer (the Joint Affidavit). Mr James, Mr Woodhouse, and Mr Boomer all state they are members of the Koongie-Elvire claim group and are traditional owners for the licence area. I accept their authority to speak for the area and accept the Joint Affidavit.
Koongie-Elvire also submitted an unsworn affidavit of Stuart Morton. Mr Morton states he is a traditional owner for the area including the licence. Mr Morton’s unsworn affidavit is annexed to the affidavit of Ashley Mumford, Koongi-Elvire’s legal representative. Mr Mumford advises that he met with Mr Morton to take instructions and wrote the affidavit, but could not locate Mr Morton to affirm it. Section 109(3) of the Act states the Tribunal is not bound by technicalities, legal form or rules of evidence when it carries out its functions. There is nothing on the facts to indicate the unsworn affidavit is incorrect or incomplete and no party took issue with it. I accept Mr Morton’s authority to speak for the area and I accept the unsworn affidavit.
Mr Richard Fauntleroy provided a signed statement from himself, and an affidavit from his father Mr Kenneth Fauntleroy which outlined the proposed prospecting activities intended on the licence, as well as attaching photographs of the area which were helpful to my considerations.
The State provided contentions and evidence, and Koongie-Elvire provided a reply to the materials from the State and from Messrs Fauntleroy.
The inquiry directions required parties to submit a statement of agreed facts and to attend a listing hearing and hearing. After parties conferred, they requested these directions be vacated. I agreed on the basis I was satisfied the issues could be determined on the papers, without a hearing (s 151(2)(b) of the Act).
Section 237(a): is the grant of the licence likely to interfere directly with community or social activities?
To find s 237(a) interference is likely, there must be direct and substantial interference with social or community activities (see Yindjibarndi v FMG (at [16])). Direct interference involves an evaluative judgement that the grant is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (see Smith v Western Australia at [23], [26]). The Tribunal must balance the grantee party’s proposed activities with any evidence of community and social activities, to determine whether the activities can coexist without direct or substantial interference (see Rosas v Northern Territory at [71]).
What community and social activities do Koongie-Elvire carry out on the licence?
Koongie-Elvire’s contentions list the following activities as being undertaken on and around the licence area: camping, hunting, fishing, gathering resources, prospecting for gold and intergenerational teaching (at 7). I do note that in terms of interference, much of the Koongie-Elvire materials refer to ‘exploration’ rather than prospecting, and the type of activities which can be conducted under each type of grant are different in their nature and extent (see for example, s 48 and s 66 of the Mining Act 1978 (WA)).
The Tribunal has long held that ‘community and social activities’ must be those that arise from registered native title rights and interests – and those that do not cannot have a place in the s 237(a) assessment (see for example, Tullock v Western Australia at [93]-[102]). Whilst the Joint Affidavit states Koongie-Elvire members prospect for gold on and around the licence, I cannot find any link between gold prospecting and Koongie-Elvire’s registered native title rights and interests. I will not, therefore, consider the likelihood of any interference with this activity.
In the Joint Affidavit, the deponents refer to camping and fishing in the area around Black Hill Yard and Old Halls Creek, which are approximately 6-7 kilometres northwest of the licence. Mr Morton describes camping and hunting in the area when he was young (at 8). The Joint Affidavit deponents (at 10) refer to Koongie-Elvire members using the area of the licence for hunting when travelling from Ringer Soak or Palm Springs (which are approximately 6-7 kilometres south west of the licence). They outline how kangaroos are attracted to the permanent water in the area and how goanna is hunted during the wet season (at 10).
Mr Morton states Koongie-Elvire members hunt and eat kangaroo, emu and bush turkey on the licence area (at 9). The Joint Affidavit deponents also state that following ‘good rain’ they and their families fish for black bream and catfish on the licence and up to Old Halls Creek and Black Hill Yard (at 8). They state ‘there are water holes in the area of the Tenement Area that are good fishing spots and ‘when we get good water in the area’, they take their families and children to the area every weekend for fishing, picnics, camping and swimming (at 8-9). They teach their children and the younger generations how to fish and teach them the stories about country.
The collection of bush tucker on and around the licence including gini (bush plum), bush potatoes, junda (bush onions), conkerberries, nunjali (bush tomatoes), bush cucumbers, figs and sugar leaf is described in the Joint Affidavit (at 12-14). The deponents also detail the collection of bush medicines such as conkerberry bush, bloodwood sap, turpentine bush, lemon grass and a plant used for the treatment of colds (at 14-17).
The Koongie-Elvire contentions refer to the proximity of the town of Halls Creek from the licence (approximately 20 kilometres) (at 9). Koongie-Elvire contend that this proximity facilitates regular access by the native title claimants to the licence area. However, much of the evidence focuses on generally on access to the licence and surrounding areas, and there is little focus on the licence itself, or on the nature and extent of social and community activities actually on the licence.
The State contend that Koongie-Elvire have not established that the social and community activities are conducted on the licence, or in such a way that they will suffer from interference by prospecting activities (at 2).
What activities will Mr Fauntleroy undertake on the licence?
Mr Richard Fauntleroy states (at 5) that prospecting on the licence will be undertaken by his father, Mr Kenneth Fauntleroy who ‘has lived and worked on a neighbouring tenement [M80/467] for the last 3 years’. State mapping shows M80/467 directly abuts P80/1858 on its western side. Mr Fauntleroy and his family will join his father ‘a few times a year on holiday’. Mr Kenneth Fauntleroy provided an affidavit outlining his proposed activities on the licence. He states:
I intend to use a small wet plant the size of a 6x4 trailor and [a] small kanga digger with a bucket the size of a shovel to try to extract gold out of the wash that comes off the steep rocky hills. This wash is transported by heavy rains and after a thunderstorm all evidence of our prospecting will be washed away.
The full suite of rights under a prospecting licence are outlined in s 48 of the Mining Act 1974 (WA). I appreciate the above is evidence that Messrs Fauntleroy do not currently intend to exercise all the ground disturbing rights permitted under a prospecting grant (such as digging pits, trenches and holes, and sinking bores and tunnels). However, there is nothing to restrict them doing so at a later date, should they wish. I also note that Mr Kenneth Fauntleroy lives next to the licence, is retired, and that the purpose of applying for the licence is so he ‘can enjoy his retirement prospecting on the licence’. It is, therefore, reasonable to infer that he is likely to fully exercise the right to enter and re-enter the land and to extract the prescribed amount of 500 tonnes over the term of the licence (including extensions) (see Mining Regulations 1981 (WA), Regulation 14).
Conclusion
Much of Koongie-Elvire’s evidence of community and social activities, such as camping and fishing, centre on the area of Black Hill Yard and Old Halls Creek, which are north of the licence. The evidence broadly refers to waterholes and creeks in the area (which make the area good for hunting). I note that Koongie-Elvire’s mapping shows there are a number of waterholes and creeks around the licence area, however, none appear to be on the licence. Further, no waterholes or creeks are listed on the State’s Quick Appraisal document, and photographs and evidence provided by Mr Fauntleroy suggest there are no waterholes or creeks on the licence. In any event, even if there is water on the licence, the activities said to occur in relation to water are expressed very generally.
The evidence in relation to intergenerational teaching is also very broad and does not specifically relate to the licence area. In relation to hunting and gathering, I find the evidence indicates the licence is used for such purposes as part of the area in general between Palm Springs and Old Halls Creek, which are off the licence.
Such broad evidence leads me to conclude that Koongie-Elvire’s camping, hunting, fishing, gathering and intergenerational teaching activities are carried out over a wider area than on the licence, and are likely to co-exist with Messrs Fauntleroy prospecting activities with minimal interference (Rosas v Northern Territory at [71]). I find interference with community and social activities is unlikely.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Koongie-Elvire?
As the Federal Court noted in FMG v Yindjibarndi (at [14]-[15]), this is a two-staged process where the Tribunal is obliged to first determine whether any of the sites identified are of ‘particular significance’, and then determine whether any interference is likely.
The words ‘particular significance’ means the area or site must be of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). It must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]). This means there must be sufficient detail and specificity (see for example Maitland Parker v Iron Duyfken at [39]; Cheinmora v Heron Resources at [43]).
The evidence of sites is broad and general:
·There are ‘many places’ on the licence and nearby that are ‘special’ (Joint Affidavit at 18; Mr Morton at 11), including spirits which live in caves (Mr Morton at 7).
·There are places where old people are buried ‘in that area’ (Joint Affidavit at 7; Mr Morton at 6).
·There are old camping places in the area and old corroboree and law grounds (Joint Affidavit at 6; Mr Morton at 5-6).
·There is a women’s law place ‘near Black Hill Yard, not far from the tenement area’ (Joint Affidavit at 4).
I accept Koongie-Elvire’s contentions and evidence that sites exist in the broad area around the proposed licence, and possibly also on the licence. I have no doubt these sites are important to the native title claimants according to their traditions. However, the evidence before me does not provide me with a sufficient basis to conclude these are either specifically located on this licence, or that they are sites or areas of particular significance for the purposes of s 237(b). Having concluded that, I cannot conclude interference with any areas or sites of particular significance is likely.
The State have indicated they will place a number of endorsements and conditions on the grant of the licence, including the Regional Standard Heritage Agreement Condition. Messrs Fauntleroy are also on notice that there may be sites or areas on the licence which are not readily identifiable by a non-native title claimant. The Koongie-Elvire reply focuses on what they outline are the inadequacies of the State’s regulatory regime. However, given that I have concluded there are no sites of particular significance on this licence, I do not need to canvass the issue of interference further.
Conclusion
I conclude that it has not been established there are sites of particular significance on this licence. As such, interference of the kind outlined in s 237(b) will not occur.
Determination
The grant of prospecting licence P80/1858 to Richard James Fauntleroy is an act attracting the expedited procedure.
Helen Shurven
Member
16 August 2019
0
0
0