Gooniyandi Aboriginal Corporation RNTBC v Sandrib Pty Ltd

[2017] NNTTA 52

NATIONAL NATIVE TITLE TRIBUNAL

Gooniyandi Aboriginal Corporation RNTBC v Sandrib Pty Ltd and Another [2017] NNTTA 52 (30 August 2017)

Application No: WO2016/0421

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Gooniyandi Aboriginal Corporation RNTBC (WCD2013/003)

(native title party)

- and -

Sandrib Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	30 August 2017

Catchwords:

Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to directly interfere 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 attracted

Legislation:

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

Mining Act 1978 (WA) s 66

Cases:

Cheinmora v Striker Resources NL & Ors; Dann v Western Australia [1996] FCA 1147; (1996) ALR 21 (‘Cheinmora v Striker Resources’)

Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara’)

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

Sharpe v Western Australia [2013] FCA 599 (‘Sharpe v Western Australia’)

Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’)

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’)

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

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

Representatives of the native title party:

Mr Tim Ognensis, Kimberley Land Council
Ms Angela Booth, Kimberly Land Council

Representative of the grantee party: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd

Representatives of the Government party: Mr Jeff O’Halloran, Legal Practitioner, State Solicitor's Office
Mr Michael McMahon, Native Title Officer, Department of Mining, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. This decision considers whether the expedited procedure applies to the grant of exploration licence E80/4990 (the licence) to Sandrib Pty Ltd (Sandrib). 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 the public notice of the licence.

2. The licence covers approximately 220.54 square kilometres of land and is situated 114 kilometres south east of Fitzroy Crossing. The Gooniyandi people’s native title determination (WCD2013/003) wholly overlaps the licence. In Sharpe v Western Australia the Federal Court of Australia determined the Gooniyandi people hold exclusive native title over 99.55 per cent of the licence, and non-exclusive native title over the remaining 0.45 per cent. The Gooniyandi Aboriginal Corporation Registered Native Title Body Corporate (Gooniyandi RNTBC) holds the native title rights and interests on trust for the Gooniyandi people over this area. The National Native Title Tribunal accepted an objection from the Gooniyandi RNTBC, on behalf of the Gooniyandi people, to the State’s inclusion of the expedited procedure statement in its notice of the licence.

3. 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 is not required; that is, the State can grant the licence, and Sandrib can proceed with its activities, without negotiating with the Gooniyandi RNTBC. A decision that the expedited procedure does not apply means all parties must negotiate in good faith with a view to reaching agreement with the native title holders 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 Act1993 (Cth) unless otherwise stated.

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

   (a)interfere directly with community or social activities carried on by the Gooniyandi people;

   (b)interfere with areas or sites of particular significance in accordance with the Gooniyandi people’s 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 Gooniyandi RNTBC argues that interference or disturbance with one, or all, of the s 237 elements is likely.

5. 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; interference with sites of particular significance; or, major disturbance to the relevant land and waters. As such, I determine the expedited procedure applies. The reasons for my decision are outlined below.

Preliminary evidentiary matters

1. All parties provided submissions for this inquiry and I have considered that material. The Gooniyandi RNTBC’s submissions comprise a statement of contentions and the joint affidavit of Mr Sam Cox and Mr Mervyn Street. Mr Cox and Mr Street both attest to being Traditional Owners for the Gooniyandi people and have connection to, and a right to speak for, the licence area. I accept Mr Cox and Mr Street have authority to speak for the area of the licence on behalf of the Gooniyandi people.

2. In its statement of contentions, the Gooniyandi RNTBC notes Mr Cox and Mr Street’s affidavit was originally affirmed in relation to an earlier expedited procedure objection inquiry before the Tribunal. The Gooniyandi RNTBC explains the tenement at issue in that inquiry (which related to E80/4926) was withdrawn before the Tribunal made a determination. The Gooniyandi RNTBC relies on a map annexed to the affidavit, as well as a Quick Appraisal generated by the then Department of Mines and Petroleum (now the Department of Mines, Industry Regulation and Safety (DMIRS)), to show the boundaries of E80/4926 correspond with the licence in this matter and the two tenements overlap by 100 per cent. On this basis, the Gooniyandi RNTBC contend the affidavit is relevant and should be relied upon in this matter.

3. The State argues Mr Cox and Mr Street’s affidavit should be given limited weight as it was affirmed nearly two years ago, on 5 November 2015. The State cites Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara in support of this contention. In that matter, the Tribunal found documents produced in previous proceedings should not be relied on solely for the purposes of determining whether community or social activities are carried on. Member McNamara observed (at 52):

   evidence of past activity does not necessarily support an inference about contemporary activity or the likelihood of future activity. However, evidence of past activity may be relevant to the extent that it demonstrates an ongoing pattern of activity, particularly in combination with evidence of contemporary activity

4. In regards to the matter before me, I agree that due to the age of Mr Cox and Mr Street’s affidavit, and as it is not supported by further contemporary evidence, the affidavit has limited probative value for determining whether contemporary community or social activities occur on the licence. However, I believe the affidavit can be afforded greater weight in determining the existence of sites or areas of particular significance. Unless presented with evidence suggesting otherwise, I accept that evidence such as a site’s location and its significance to a native title party is unlikely to change, particularly over a two year time period.

5. The Gooniyandi RNTBC has made submissions in relation to s 237(a), regarding their community and social activities, and s 237(b), regarding sites of particular significance. It has not made submissions in relation to s 237(c) about major disturbance to land or waters. As 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’. Based on the limited evidence before me, I find the grant of the licence is unlikely to involve major disturbance to the land or waters concerned.

6. On the basis of the evidence provided, I focus on ss 237(a) and 237(b), and address the following issues to determine whether or not the expedited procedure applies to the grant of the licence:

   (a)Is the grant likely to substantially and directly interfere with the Gooniyandi people’s community or social activities?

   i)What activities do the Gooniyandi people undertake on the licence?

   ii)What are Sandrib’s proposed activities?

   iii)Conclusion.

   (b)Is the grant likely to interfere with sites or areas of particular significance to the Gooniyandi people?

   i)What areas or sites have the Gooniyandi RNTBC identified?

   ii)Are these areas or sites of particular significance?

   iii)Conclusion.

(a)      Is the grant likely to substantially and directly interfere with the Gooniyandi people’s community or social activities?

1. What activities do the Gooniyandi people undertake on the licence?

1. The Gooniyandi RNTBC contends the Gooniyandi people regularly access the licence for activities such as hunting, gathering bush tucker and conducting intergenerational teaching. Mr Cox and Mr Street’s affidavit states:

   Gooniyandi people, including from the nearby Aboriginal communities such as Moongardie, Ganinyi and Yiyili, regularly enter the tenement area to carry out social and community activities, such as hunting and collecting bush tucker. People from these communities go to the Tenement Area at least every weekend.

2. The affidavit of Mr Cox and Mr Street describes Gooniyandi people using the licence area to hunt emu, goanna and kangaroo. It states there are many good hunting places within the licence including a waterhole called Gangua in the southwest portion of the licence. It states Gooniyandi people collect bush apple, white bush tomato and Gindi (bush plum) from all around the licence area, but that the area around Poonta Creek in the western end of the licence is particularly good for collecting bush tucker. Mr Cox and Mr Street’s affidavit states, ‘We take our young people with us to the Tenement Area to teach them to hunt and collect bush tucker … We also tell them our stories and pass on our knowledge’.

3. The Gooniyandi RNTBC contentions, referring to Mr Cox and Mr Street’s affidavit, assert members of the Gooniyandi people hunt and collect bush tucker ‘at least every weekend’. The contentions also state Gooniyandi people live close to the licence area in five nearby communities, namely Moongardie Ganinyi, Yiyili, Girriyoowa and Kurinyjarn. They state the close proximity of Aboriginal communities to the area is relevant as it indicates the licence is used more frequently than other parts of the determined area and increases the likelihood exploration will directly interfere with their social and community activities.

4. I note Tribunal mapping shows the communities of Ganinyi, Yiyili, Girriyoowa and Kurinyjarn are located between seven and 14 kilometres east of the licence, and the Moongardie community is located approximately three and a half kilometres south of the licence. The Quick Appraisal document produced by DMIRS shows the licence contains a number of non-perennial major watercourses as well as a well/bore bearing the name Poonta.

5. The Gooniyandi RNTBC also submits the licence area has many unique qualities compared with the rest of the Gooniyandi determination area because there are places that are particularly good for hunting and gathering bush tucker, including Gindi and white bush tomato. In support of this submission, Gooniyandi RNTBC seek to rely on the Tribunal’s decision in Wiluna v Kingx. In that determination, I found an area on the licence in question had unique qualities as compared with the native title party’s broader claim area. On that basis, and considering the nature of the activities carried out on the unique area, I determined interference with those activities was likely.

6. The State rejects the Gooniyandi RNTBC’s argument that the licence contains unique qualities, and distinguishes the present inquiry from the decision in Wiluna v Kingx. I agree the evidence in the current inquiry is not as substantial as that in Wiluna v Kingx, and does not establish that the licence has unique qualities, albeit that it is near a number of Aboriginal communities.

1. What are Sandrib’s proposed activities?

1. Sandrib’s contentions state the licence area is geologically prospective for base metal mineralisation. Sandrib states it initially intends to conduct geological mapping and sampling at known and previously explored locations. It states, in conjunction with this work, it will also carry out a ground geophysical survey by way of an Induced Polarisation Survey (IP Survey). Sandrib explains an IP Survey is ‘a non-ground disturbing electrical method that may assist in the identification of deeply buried mineralized zones of interest’. Sandrib states it may also undertake airborne magnetic surveys, mapping and ground reconnaissance sampling to determine other potential drill sites. It states this is low impact exploration and would not involve the grading of any new tracks. I note the State’s evidence shows 51 tracks already exist on the licence.

2. I note it would be open for Sandrib to use the full suite of rights available to them under the grant of the licences (per s 66 of the Mining Act 1978 (WA)). Sandrib states it ‘undertakes to keep the Gooniyandi People informed of its planned operations and will notify the Gooniyandi People in writing prior to entering the Licence area and commencing any non-ground disturbing activities’.

3. Sandrib also states the area has been the subject of previous mining tenements and historic exploration activity by other explorers over many years, which is confirmed by the States tengraph material. However there is limited information provided about the nature of the prior exploration activities – for example, it is not indicated whether an agreement between the grantee parties and native title party was in place prior to or during activities. I note evidence relating to the existence of previous exploration is, therefore, of limited relevance in deciding whether interference is likely.

1. Conclusion

1. To establish that interference is likely within the meaning of s 237(a), there must be direct, likely and substantial interference with social or community activities. In reaching a conclusion, I must consider the community and social activities the Gooniyandi people undertake on the licence, and weigh these against the activities Sandrib is likely to undertake if the licence is granted, to determine whether or not interference is likely. Where a native title party provides only general evidence about community and social activities, the Tribunal is more likely to conclude these activities can coexist with a grantee party’s exploration activities without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).

2. The State argues the Gooniyandi RNTBC’s submissions are of a general and unspecified nature. For example, they assert the submissions do not specify:

   ·the frequency of the activities referred to;

   ·how many people participate in these activities;

   ·where these activities are carried out;

   ·how much of the licence area is required to carry out these activities;

   ·whether activities are or can be carried out in other parts of the Gooniyandi people’s determined area;

   ·whether particular areas would be required to the exclusion of other areas at any given time; or

   ·how the grant of the licence is likely to interfere with the carrying on of those activities.

3. I agree that the information provided by the Gooniyandi RNTBC about community and social activities is very broad, although there is some information about where on the licence they are conducted. Given the size of the licence is over 220 square kilometres, the information about the intensity of the Gooniyandi activities lacks the detail needed for me to conclude the activities occur on the licence to such an extent that Sandrib’s activities will interfere with them.

4. I also note Sandrib states it will undertake to establish dialogue with the Gooniyandi people and negotiate a Heritage Protection Agreement prior to the commencement of any ground disturbing activities. The State proposes to impose a condition allowing the Gooniyandi RNTBC to request Sandrib enter into a Regional Standard Heritage Agreement (RSHA) within the first 90 days of grant. If the Gooniyandi RNTBC chooses to enter into a RSHA with Sandrib, the company would be required to notify and consult with the Gooniyandi RNTBC. The Gooniyandi RNTBC asserts it does not endorse RSHAs used in other areas (for example, the Goldfields or Pilbara) as they do not address the Gooniyandi people’s specific cultural and heritage concerns. However, the Gooniyandi RNTBC has not provided specific evidence about these concerns in relation to the particular licence and Sandrib’s proposed activities at issue in this inquiry.

5. I accept that at the time Mr Cox and Mr Street made their affidavit in 2015, the Gooniyandi people most likely undertook hunting, gathering and intergenerational teaching on the licence area. However, the Gooniyandi RNTBC’s contentions and evidence are general in nature. This and the age of the affidavit provided means I am not satisfied the evidence adequately establishes contemporary social and community activities occur on the licence to an extent or in a manner that they are likely to be interfered with (pursuant to s 237(a)) by activities of the explorer following the grant of the licence. To the extent that Gooniyandi people do access and use the area, I am satisfied their activities can coexist with the activities proposed by Sandrib, particularly given the size of the licence is over 200 square kilometres.

6. I conclude the activities of Sandrib following the grant of the licence is unlikely to interfere directly with the Gooniyandi people’s community or social activities.

(b)      Is the grant likely to interfere with sites or areas of particular significance to the Gooniyandi people?

1. An area or site of particular significance is one of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at 34–35). If an area or site is significant, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).

2. A native title party must provide sufficient evidence about an area or site to: show it exists on a licence; explain its significance and distinguish it from other areas within the licence; and demonstrate it is of more than ordinary significance to them in accordance with their traditions. These are threshold matters which must be established for a finding that the grant of a licence is likely to cause interference with areas or sites of particular significance. If there is no evidence that areas or sites of particular significance exist on a licence, I do not need to undertake this next step of the inquiry (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).

1. What areas or sites have the Gooniyandi RNTBC identified?

1. Mr Cox and Mr Street’s affidavit identifies the following sites and areas on the licence, which the Gooniyandi RNTBC contend are of particular significance to the Gooniyandi people:

   ·an ‘old axe and spear making workshop’ site, located in the south-eastern portion of the licence near Eastman bore, where ‘the old people used to make axes and spears’ and ‘all around the Tenement Area you can find the rocks which the spear axes were made from’;

   ·a burial site near Eastman bore – ‘Here an old bloke, an Afghan is buried here’;

   ·a ‘special old people [dreaming] story’ that comes from the north and travels down along the Larididi (Kuniandi) Range in the north eastern portion of the licence;

   ·a ‘kangaroo dreaming story’ that travels down the western portion of the licence around Poonta Creek – ‘This story is about a kangaroo that travelled in the dreamtime. He came down the country and he drink the water from Poonta Creek. He camped nearby and ate bush plum. Further down the Tenement Area he dig up creek. These place are special sites to Gooniyandi people’; and

   ·a site connected to a special water hole, where bush plums are found –‘In the south west portion straight up from Moongardie is an area with many Gindi [bush plum]. There is a special water hole nearby connected to the Gindi. This area a special site and the Gindi is a totem for Sam’s grandson’.

2. There is very little further information provided in support of the above statements regarding the particular significance of these areas. It is not clear what the significance of each of these areas is in respect of the traditions of the Gooniyandi people. That is, it is stated these areas are important, but there are few details provided about why they are important, or more important than surrounding areas.

1. Are these areas or sites of particular significance?

1. As noted at [27] and [28], the evidence provided in relation to s 237(b) must detail the significance of any site or area, distinguishing it from other areas within the licence. For the purposes of 237(b), a general reference to an important site or area is not sufficient to explain its particular or more than ordinary significance in accordance with Gooniyandi traditions. The State concedes that the location of dreaming stories can be areas or sites of particular significance but submit that in this matter the Gooniyandi RNTBC has not provided sufficient evidence to establish that the dreaming stories outlined in the affidavit evidence give rise to areas or sites of particular significance to the Gooniyandi.

2. I do not doubt that the sites described in Mr Cox and Mr Street’s affidavit are of importance to the Gooniyandi people. However, the nature of the sites referred to in the evidence have not been sufficiently described for me to conclude they are of particular significance to the Gooniyandi people in accordance with their traditions, for the purposes of s 237(b). Their affidavit goes on to outline that third parties need to follow correct procedures under traditional law and custom in accessing significant sites. However, because the evidence relating to the sites is so broad, it is difficult for me to draw conclusions in relation to such access.

3. As I find there is insufficient evidence to establish sites or areas of particular significance to the Gooniyandi people on the licence, I do not need to consider whether interference is likely. I do note, however, that Sandrib has acknowledged the Gooniyandi RNTBC’s concerns regarding the Eastman bore location and states it is prepared to have a 500 metre exclusion zone at this location. The State submits such an exclusion zone will avoid interference to the axe and spear making workshop and the burial site. I accept Sandrib’s intention to have a 500 metre exclusion zone at the Eastman bore location, and see nothing in the materials which suggests it will act contrary to this intention.

(iii)   Conclusion

1. There is insufficient information or evidence provided for me to conclude there are sites or areas of particular significance within the licence E80/4990.

Determination

1. The determination of the Tribunal is that the grant of licence E80/4990 to Sandrib Pty Ltd is an act attracting the expedited procedure.

Helen Shurven
Member
30 August 2017