George Brooking & Others on behalf of Bunuba #2 and Bunuba Dawangarri Aboriginal Corporation v Marten Hendrick Ynema and Another

[2016] NNTTA 38

NATIONAL NATIVE TITLE TRIBUNAL

George Brooking & Others on behalf of Bunuba #2 and Bunuba Dawangarri Aboriginal Corporation v Marten Hendrick Ynema and Another [2016] NNTTA 38 (5 September 2016)

Application No: WO2016/0013; WO2016/0014

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

George Brooking & Others on behalf of Bunuba #2 (WC2012/004)

(first native title party)

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Bunuba Dawangarri Aboriginal Corporation (WCD2012/006; WCD2015/008)

(second native title party)

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Marten Hendrick Ynema

(grantee party)

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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:	5 September 2016

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to directly interfere with community or social activities – whether act is likely to interfere with areas or sites of particular significance – whether act is likely to involve major disturbance to land and waters – expedited procedure not attracted

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 155, 237

Mining Act 1978 (WA)

Aboriginal Heritage Act 1972 (WA)

Cases:

Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (‘Andy Campbell v Murchison Metals’)

Isaac Hale  and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (‘Hale v Mings Mining Resources’)

Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)

Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’)

Robinson v Fielding [2015] WASC 108 (‘Robinson v Fielding’)

Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 (‘Wanjina-Wunggurr v Braeburn Resources’)

Yindjibarndi Aboriginal Corporation RNTBC and FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representatives of the first native title party and second native title party:

Ms Angela Booth, Kimberley Land Council

Mr Tim Ognesis, Kimberley Land Council

Representative of the grantee party: Mr Ngaire Koch, Secure Tenement Management Pty Ltd

Representatives of the Government party:

Mr Michael McMahon, Department of Mines and Petroleum

Ms Sarah Power, State Solicitors Office

REASONS FOR DETERMINATION

1. This decision considers whether the State Government of Western Australia can grant exploration licence E04/2412 (the licence) to Marten Hendrick Ynema without the normal requirement for negotiations between all parties. The public notice issued for the licence included a statement which indicated the State considers the negotiation parties need not negotiate in good faith with a view to obtaining the agreement of relevant native title parties to the grant of the licence, and that the expedited procedure should apply instead on the basis that the grant will have minimal impact on native title.

2. The licence is approximately 10,758 hectares in size and is located 85 kilometres north west of Fitzroy Crossing in the Derby-West Kimberley Shire. Two native title parties lodged objections with the National Native Title Tribunal against the assertion that the expedited procedure applies to the grant of the licence. The native title parties are:

   (a)the Bunuba #2 registered native title claimants, whose claim (WC2012/004) overlaps 51.94 per cent of the licence; and

   (b)the Bunuba Dawangarri Aboriginal Corporation RNTBC (Bunuba Dawangarri), as the native title holders of the Bunuba and Bunuba Part B native title determinations (WCD2012/006 and WCD2015/008), which overlap 14.08 per cent and 33.98 per cent of the licence respectively.

   The native title parties are collectively referred to as the Bunuba native title parties in this decision.

3. My task is to determine whether the grant of the licence is an act attracting the expedited procedure (in which case the State can grant the licence to Mr Ynema without negotiations with the Bunuba native title parties) or is not an act attracting the expedited procedure (meaning Mr Ynema, the Bunuba native title parties and the State must negotiate in good faith with the view of reaching agreement about the grant of the licence). My decision on this must rest on the criteria set out in s 237 of the Native Title Act 1975 (Cth). All references to sections of legislation in this decision will be to that act unless otherwise stated. Specifically, I must determine whether the grant of the licence is likely to:

   (a)Directly interfere with community or social activities carried on by the Bunuba native title parties ;

   (b)Interfere with areas or sites of particular significance in accordance with the traditions of the Bunuba native title parties; or

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

4. The Bunuba native title parties provided a statement of contentions, accompanied by the affidavits of Mr Isaac Hale and Mr Johnny Bell. Mr Hale states he is a Bunuba person and he knows the area of the licence. He provides evidence regarding sites and community activities on the licence. Mr Bell states he is a Bunuba elder and speaks for the Bunuba country of the licence area. He provides broad information about the licence. I accept the affidavits as provided and I accept both deponents have authority to speak in their stated capacity for the area of the licence.

5. The State also provided contentions in this matter, as well as various maps and information in support of their contentions, as did Mr Ynema through his representative. I have considered the material provided by all parties and I am satisfied it is appropriate to deal with these matters ‘on the papers’ (that is, without a formal hearing) pursuant to s 151(2).

6. The Bunuba native title parties’ contentions argue the grant of the licence, and the exercise by Mr Ynema of the rights afforded to him by that grant, are contrary to ss 237(a) and 237(b). That is, they argue the grant of the licence is likely to be the cause of interference with the Bunuba native title parties’ community or social activities; and, it is likely to directly interfere with areas or sites of particular significance to the Bunuba native title parties.

7. Under s 237, I must also inquire into whether the grant will likely involve, or create rights whose exercise is likely to involve, major disturbance to land or waters concerned (s 237(c)). However, the Bunuba native title parties have not argued this contention and based on the limited evidence before me regarding s 237(c), I find the grant of the licence is not likely to involve such disturbance.

8. On the basis of the contentions and evidence provided by the parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant of the licence:

   (a)Is the grant likely to directly interfere with the carrying on of community or social activities by the Bunuba native title parties?

   i)What are the community or social activities of the Bunuba native title parties?

   ii)Are there any other interests that have already interfered with these activities?

   iii)What are Mr Ynema’s proposed activities?

   iv)Conclusion.

   (b)Will the grant interfere with areas or sites of particular significance to the Bunuba native title parties?

   i)What areas or sites are identified?

   ii)Are any of these areas or sites of particular significance?

   iii)Is there a real risk of interference to areas or sites of particular significance?

   iv)Conclusion.

(a)Is the grant likely to directly interfere with the carrying on of community or social activities by the Bunuba native title parties?

1. What are the community or social activities of the Bunuba native title parties?

1. I may only have regard to community or social activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). The Bunuba native title parties’ contentions state the Bunuba native title parties access the licence for various social and community activities, including hunting and fishing. There is, however, only broad support for that argument in the affidavits provided.

2. The Bunuba native title parties’ contentions also say that intergenerational teaching and peer-to peer knowledge transfer occurs regularly on that area, including teaching traditional law, culture, language and stories. Again, there is only the broadest support for such contentions in the affidavit material.

1. Are there any other interests that have already interfered with these activities?

1. The Bunuba native title parties’ contentions argue that former tenements granted in the area do not necessarily mean disturbance has occurred. I agree with this contention as a general proposition, but also note there is a current live exploration licence overlapping the licence in this present inquiry by 18.2 per cent, as well as various previously granted exploration licences from 1982 until 2013, some of them covering 30–40 per cent of the licence. There have also been various mining claims granted since 1973, although the overlap of each of these was never greater than 1.1 per cent. State evidence indicates there are three minor roads and 14 tracks, as well as an aircraft landing ground, a runway and two fences on the licence. As such, it is clear some activity has occurred over the area. It is also covered by two pastoral leases, Brooking Springs (overlapping 45.9 per cent of the licence), and Blina (overlapping 46.8 per cent).

2. The State’s contentions argue the Bunuba native title parties’ contentions are broad in relation to social and community activities and focus on previously granted tenements over the area as an indicator of previous disturbance. For example, they point to tenement E04/1656 which: overlapped the proposed licence by 48.5 per cent; was granted to an explorer in 2008 and surrendered in 2012; and had a total expenditure of over $250,000.

1. What are Mr Ynema’s proposed activities?

1. Mr Ynema outlines: there are several station tracks already in existence that would be used for exploration purposes; he would likely stay at Ellendale Station during periods of site reconnaissance; and he has no intention of preventing access of the Bunuba native title parties to the licence area, unless such restrictions were necessary due to work in progress. Mr Ynema indicates his initial site visits will be twice a year for two to four weeks at a time, and once prospective targets are defined by desk-top studies, he would scrape samples from sites of interest and then pan to check for his target gemstone. He states the scrapings would be two to three inches deep, and would have no more site disturbance than caused by the cattle that are run on the current overlapping pastoral leases. If samples are prospective, they will be drilled using Rotary Air Blasting drilling, and the drill holes will be less than two inches in diameter. Mr Ynema states a drill rig that is attached by a trailer behind a four wheel drive vehicle will be used, and that all drill holes will be immediately capped to prevent injury to wildlife and stock.

1. Conclusion

1. Based on a consideration of the information provided by all parties, and the general nature of the information provided by the Bunuba native title parties, I cannot conclude social or community activities occur on the licence with such frequency or that are unique to the area, so that they would be interfered with by Mr Ynema’s activities. While I have no doubt the Bunuba native title parties conduct social and community activities across their determined and claimed lands, there is insufficient information and evidence in this matter to confirm what activities are conducted on this particular licence, or related to this particular licence, or that the activities of Mr Ynema will likely interfere with any social or community activity conducted by the Bunuba native title parties in a substantial manner (particularly given the previous activity which has occurred). As such, I find there is not likely to be interference with the social or community activities of the Bunuba native title parties from the grant of this licence.

(b)Will the grant interfere with areas or sites of particular significance to the Bunuba native title parties?

1. Section 237(b) requires me to conduct my assessment in two stages. First, I must decide if there are any areas or sites of particular, that is more than ordinary significance, to the Bunuba native title parties, in accordance with their traditions, within the licence. If I answer this in the affirmative, I am then required to consider whether there is likely to be (in the sense of a real risk of) interference with those areas or sites.

1. What areas or sites are identified?

1. Mr Ynema notes three heritage surveys have been conducted within the boundaries of this licence and no sites or places have been registered on the Department of Aboriginal Affairs (DAA) heritage register to date. I accept that and note this is not determinative of an assessment of s 237(b), but is one of the pieces of information I can assess and weigh up in making my decision. In addition, I appreciate there are reasons why a native title party may not wish to describe a site to a Government department or similar body (see, for example, Robinson v Fielding).

2. Mr Hale describes two sites: the Wanjina painting at Stumpy Rock; and the site of a massacre of the Bunuba native title party’s ancestors. Mr Ynema states he would welcome the delineation of these sites to afford them the protection due.

3. As the Bunuba native title parties’ contentions point out, a site does not have to be registered or recorded on the DAA heritage register to qualify as an area or site of particular significance under s 237(b). Those contentions also explain, referring to Hale v Mings Mining Resources (at [88]), that there are a variety of reasons why the Bunuba native title parties may not wish to describe or disclose the exact location of significant areas or sites. The Bunuba native title parties’ contentions state it is not appropriate under traditional law and custom for third parties to access the sites of particular significance without following the correct procedure. They state that permission to enter country and observance of processes under traditional law and custom is required to avoid interference with sites of particular significance, the precise boundaries of which are only known to the Bunuba native title parties.

4. The Bunuba native title parties’ contentions also argue the Regional Standard Heritage Agreement (RSHA) condition, which the State intends to place on the grant of the licence, should be afforded little weight due to the nature of the sites on the licence, whose precise boundaries are not readily identifiable. They argue the RSHA is not endorsed by the Bunuba native title parties and does not address specific cultural concerns of Kimberley native title parties. The Bunuba native title parties’ representatives outline that the Kimberley Land Council (KLC) has developed a standard heritage protection agreement for the Kimberley region.

5. Mr Ynema and the Bunuba native title parties’ representative appear to have discussed the KLC preferred agreement, but could not reach agreement on costs associated with surveys. It also appears that Mr Ynema and the Bunuba native title parties discussed including this licence in an existing heritage protection agreement, which was completed in 2011 for another tenement, but again, parties were unable to reach agreement.

1. Are any of these areas or sites of particular significance?

A.Wanjina Painting Site

1. The State accepts the Wanjina painting may be of particular significance to the Bunuba native title parties, but say it can be avoided as a matter of common sense, it is protected by the State regulatory regime, and there is no evidence it will be interfered with.

2. I conclude the painting is a site of particular significance under s 237(b) to the Bunuba native title parties.

   B.Massacre Site

3. The State does not accept the massacre site is a site of particular significance because the Bunuba native title parties have not identified the location of the site with any particularity. The State argues that, even though the Bunuba native title parties contend a site may be significant without precise identification where the evidence is otherwise compelling, the level of generality and lack of compelling evidence in this case means the site should not be held to be of particular significance. The State refer to a number of cases relating to the generality of evidence (Andy Campbell v Murchison Metals; Wanjina-Wunggurr v Braeburn Resources) and note that while Mr Hale’s affidavit refers to the massacre site, Mr Bell’s affidavit does not. Referring to Wanjina-Wunggurr v Braeburn Resources, the State suggests that the evidence must be more than a mere assertion that a site is of particular significance.

4. I have looked at those previous Tribunal decisions carefully, and at the assertions of Mr Hale. Two aspects of the evidence in this matter stand out. Firstly, Mr Hale has sworn the massacre site ‘is a place on that country in the Tenement Area...’ (at 8). Secondly, neither the State nor Mr Ynema has asserted specifically that the massacre site is not on the licence. The State has raised the issue that the massacre site has not been precisely located, but has not gone so far as to say it is not located somewhere on the licence. The State has also indicated concern that while Mr Bell has authority to speak for the country on which the licence is located, he has not identified the massacre site. However, I am not so concerned regarding the difference between the two affidavits. Mr Hale, who I have accepted also has the authority to speak for the licence on behalf of the Bunuba native title parties, has given his evidence in more specific terms. While Mr Bell’s evidence is overall more general and does not address the massacre site, it in no way conflicts with Mr Hale’s evidence.

5. In Yindjibarndi Aboriginal Corporation and FMG Pilbara President Webb stated (at [125]) that it is a precondition of the inquiry that the native title party identify any areas or sites of particular significance.  The Bunuba native title parties have identified the site as a massacre site and stated it is ‘in the Tenement Area’. 

6. In Yindjibarndi Aboriginal Corporation and FMG Pilbara President Webb outlined (at [127]) that the native title party is required to provide evidence of areas or sites of particular significance, and to adequately describe and explain the nature of the significance. I note the Bunuba native title parties could have applied for s 155 confidentiality orders to preserve the confidentiality of further details they may have provided in relation to this massacre site. They have not done so in this case. This makes my role as decision maker more difficult. However, my view is that the Bunuba native title parties have gone beyond merely asserting that an area has particular significance.

7. Mr Hale provides some detail about the massacre site, which I do not repeat here to protect sensitivities, save to say he describes that men and women were killed there and the manner of these deaths, and the consequences of persons ‘not from that country’ entering that area. He also states who gave this knowledge to him (and the fact that person is now passed away). Mr Hale states a heritage survey is required over the licence and that traditional owners like Mr Bell should be involved to ensure the right process is followed. While Mr Bell is identified as a person with knowledge of the right process to be followed in protecting the massacre site, this does not seem to me to require him to provide information about the massacre site at this stage, as Mr Hale has provided that.

1. Mr Ynema states three surveys have been done over the licence.  From the information he has provided regarding those surveys, all three of them were ethnographic based searches, and one of those had an archaeological component.  There is no documentation about what was found during the surveys, and I note the only survey to have an archaeological component was done in 1981 and is titled ‘A Catalogue of Archaeological and Ethnographic Sites found during exploration in....’ and then lists four exploration permits.  There is no information about the sites that were catalogued.

2. The evidence from Mr Hale identifies the massacre site as being within the licence.  It also provides strong and disturbing evidence that makes it clear why this site is a site of particular significance to the Bunuba native title parties.  I, therefore, conclude that the massacre site is a site of particular significance to the Bunuba native title parties in accordance with their traditions.

1. Is there a real risk of interference to areas or sites of particular significance?

   A.Wanjina painting site

1. I have concluded the Wanjina painting is a site of particular significance, and so I must draw a conclusion about the likelihood of interference with this site from Mr Ynema’s exploration activities.

2. As noted earlier in this decision, Mr Ynema has provided submissions which broadly describe the activities he intends to undertake on the licence. The State will impose a condition on the grant of the licence requiring Mr Ynema to execute a RSHA in favour of the Bunuba Dawangari Aboriginal Corporation RNTBC, if requested not more than 90 days after the grant of the licence. I do not consider his scraping and drilling activities are likely to interfere with the painting site. I find the regulatory regime, including the proposed RSHA condition relied upon by the State, is likely to be sufficient to avoid interference with the Wanjina painting.

   B.Massacre site

3. While there is evidence of various previous exploration activities, and pastoral activities, on the licence (see [11]–[12]), there is no evidence the massacre site has suffered interference from any of those activities. As such, I turn specifically to Mr Ynema’s evidence about what he intends to do, and the State’s regulatory regime, to draw conclusions about the likelihood of interference with the massacre site. Mr Ynema is going to scrape and drill the earth, and then possibly use Rotary Air Blasting drilling on target holes of prospective areas. Mr Ynema will be able to conduct such activity under the grant of the licence, and will be able to remove up to 1000 tonnes of material from the licence. The massacre site is said to be associated with a hole into which bodies were thrown. I conclude the massacre site is a site where even slight interference could disturb the site.  Even activities which are considered by Mr Ynema to be non ground disturbing activities would likely disturb the massacre site. As such, the State’s regulatory regime would not be sufficient to protect the site. Further, should Mr Ynema drill or scrape in the massacre area, the results could be devastating in terms of the Bunuba native title parties’ traditions.

1. Conclusion

1. Based on a weighing of the evidence provided, I find there is a real risk of interference to the massacre site of particular significance to the Bunuba native title parties from the exploration activities of Mr Ynema. I conclude there should be further discussion between Mr Ynema and the native title parties in order to locate the massacre site and take necessary precautions, and so this licence is not one to which the expedited procedure should apply.

Summary of Conclusions

1. I have considered the community or social activities carried on within the licence as described in the evidence before me, and I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. I have found two sites of particular significance exist on the licence, and I am satisfied the grant of the licence is likely to interfere with one of those sites. There is no evidence the grant of the licence, or the exercise of any rights created by the grant, is likely to involve major disturbance to the land or waters concerned.

Determination

1. The act, namely the grant of exploration licence E04/2412, to Martin Hendrick Ynema is not an act attracting the expedited procedure.

Ms Helen Shurven
Member
5 September 2016