Jaru v Mining Equities Pty Ltd
[2021] NNTTA 1
•14 January 2021
NATIONAL NATIVE TITLE TRIBUNAL
Jaru v Mining Equities Pty Ltd and Another [2021] NNTTA 1 (14 January 2021)
Application No: | WO2020/0452 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Jaru (WC2012/003)
(native title party)
- and -
Mining Equities Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 14 January 2021 |
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 – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 32, 151, 237 |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Frank Sampi & Others on behalf of Koongie-Elvire and Barbara Sturt & Others on behalf of Jaru v Sarang Pty Ltd and Another [2018] NNTTA 54 (Sampi v Sarang) Freddie v Western Australia [2007] NNTTA 37; (2007) 213 FLR 247 (Freddie v Western Australia) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Gamboola Resources Pty Ltd and Another [2018] NNTTA 10 (Ross v Gamboola) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (Yindjibarndi v FMG) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) |
| Representatives of the native title party: | Ania Maszkowski & Chloe Thomas, Kimberley Land Council |
| Representative of the grantee party: | Peter Gianni, Mining Equities Pty Ltd |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Wanjie Song, State Solicitor’s Office |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure outlined in s 32 of the Native Title Act 1993 (Cth) (the Act) applies to the proposed grant of exploration licence E80/5442 (the proposed licence) to Mining Equities Pty Ltd (Mining Equities). The State of Western Australia (the State) considers the grant of the licence is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the grant are not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
I have been appointed to conduct an inquiry and determine whether the expedited procedure applies, given an objection has been lodged with the National Native Title Tribunal by Jaru against its imposition. The Jaru native title claimants (WC2012/003) hold native title rights and interests in the proposed licence area. The licence covers approximately 13 square kilometres in the Shire of Halls Creek, and is 43.5 kilometres easterly of Halls Creek. In their objection application, Jaru argue the expedited procedure should not apply as interference or disturbance with each of the criteria in s 237 of the Act is likely. Mining Equities and the State argue the expedited procedure should apply.
Over areas where a claim to exclusive possession can be recognised, Jaru claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world. Where a claim to exclusive possession cannot be recognised, Jaru make a number of claims, the most relevant for the purposes of this inquiry are to:
·access the application area
·fish on the application area
·use and maintain the natural water resources of the application area including the beds and banks of watercourses
·maintain places of importance under traditional laws, customs and practices in the application area
·protect places of importance under traditional laws, customs and practices in the application area
If I find the expedited procedure applies, the proposed licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Mining Equities and the State must negotiate in good faith with a view to reaching an agreement with Jaru about the grant of the licence. I have concluded the expedited procedure does not apply by way of s 237(b).
The inquiry process
I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151 of the Act, without the need for an oral hearing. All parties indicated they were content to proceed on the papers. I must base my decision on the s 237 criteria and make a predictive assessment in the context of s 237 of the Act. I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the proposed exploration and the applicable regulatory regime (see Walley v Western Australia at [8]–[9]).
Jaru’s material
Jaru submitted contentions with an affidavit from Stuart Morton, and a joint affidavit from Lily and Valma Banks. I am satisfied Mr Morton, and Ms Lily and Ms Valma Banks speak for the country of the licence on behalf of Jaru. Mr Morton’s affidavit attached maps, and referenced and annexed evidence he had provided in a previous expedited procedure inquiry, Sampi v Sarang. The licence in that matter (E80/5085) is adjacent to the proposed licence in the current matter, abutting at the southern boundary of E80/5442. Castle Creek runs through the north of E80/5085, and the creek runs through the south-west portion of the proposed licence. In Sampi v Sarang, I concluded the expedited procedure did not apply on the basis of s 237(a) and s 237(b). While I accept Mr Morton’s evidence in the previous matter has relevance to this current inquiry, this does not mean the decision will be the same, as I must consider all information and evidence provided in this current inquiry in the context of E80/5442 rather than E80/5085.
Jaru also submitted a reply to the materials provided by Mining Equities and the State.
Mining Equities material
Mining Equities submitted a statement of contentions, including a map showing the intersection of Castle Creek with the south-west corner of the proposed licence. Mining Equities states ‘if no early favourable indications are present the tenement will be relinquished very quickly’ however, no timeframe is provided for that. Mining Equities outlines that the initial work plan will consist of:
·Review and interpretation of historical exploration/literature/geophysical surveys;
·if needed, additional geophysical data through an electro-magnetic survey (after consultation with Jaru, although no mechanism is outlined about how such consultation will take place, apart from referencing a willingness to offer and execute a Regional Standard Heritage Agreement (RSHA), which Jaru materials state is not adequate for that purpose);
·field based reconnaissance mapping, geochemistry, geophysics and exploration;
·propose drill sites for first pass drill holes and undertake clearance and heritage surveys prior to commencement of any exploration drilling or major groundwork;
·drilling.
The State’s material
The State submitted initial materials including: mapping of the proposed licence area and surrounds; confirmation there were no registered sites or other heritage places recorded under the Aboriginal Heritage Act 1972 (WA); a tengraph providing detail of the area; the draft endorsements and conditions the State proposes to impose on grant of the proposed licence; and the Statement by Mining Equities which accompanied its application for the exploration licence. The State also provided contentions and associated attachments.
Is the grant of the licence likely to interfere directly with Jaru’s community or social activities?
I must assess whether there is likely to be direct or substantial interference with Jaru’s social and community activities (see for example, Yindjibarndi v FMG at [16]; Rosas v Northern Territory (at [67] and Smith v WesternAustralia (at 451)). If the evidence about the alleged activities is general and unspecific, then this is insufficient to find that the grant will create such direct or substantial interference (Freddie v Western Australia at [30]).
What community or social activities do Jaru undertake on the licence?
Jaru contentions (at 9) outline that members of the native title party regularly access Castle Creek, which crosses through the licence area, to go fishing. This is supported by evidence provided by Mr Morton (at 8). Mr Morton outlines ‘There is good fishing [at Castle Creek] in the flood season. You get perch up there, big breams, all sorts of fish, it is a really good spot that we often go to’. I accept that fishing occurs along Castle Creek, which extends outside of the proposed licence area (including into the area I considered in Sampi v Sarang).
Jaru contentions (at 9) assert that community and social life is strongly connected to the watercourses, which run through the proposed licence area. This is supported by the affidavit of Ms Lily and Ms Valma Banks, which outlined the connection of generations and ancestors to Castle Creek and the ‘river line’ (at 6). The affidavit describes how the waterways are important to areas from Wungu (to the south of the licence), up to Kununurra (at 6-7). Mapping shows the Wungu community is approximately 20 kilometres from the licence.
The State and Mining Equities argue the information provided does not establish that any community or social activities are conducted such that exploration activities will cause substantial or direct interference. The Jaru reply argued that Sampi v Sarang found community and social activities were undertaken around Castle Creek as a whole (rather than at a discrete point). The Jaru reply (at 12) argues that the:
…Tribunal was satisfied that the social and community activities conducted around Castle Creek were done so within the licence area, notwithstanding that Castle Creek “[did] not appear to fall entirely within the licence”. The NTP [native title party] contends that the Tribunal should adopt the same reasoning in this case...
However, the decision that the expedited procedure did not apply to the grant of the licence, in the context of s 237(a) in Sampi v Sarang, did not rest on this point alone.
There were two Aboriginal communities within 3 kilometres of the licence in Sampi v Sarang. The complex matrix of evidence presented in that inquiry supported that community and social activities were conducted on the licence in such a manner that exploration activities would be likely to directly and substantially interfere with them. For example, in Sampi v Sarang (at [17]) I emphasised:
…the nature of the sites on the licence, and their connectedness to social and community activities, which appear to be conducted intensively on certain areas of the licence (for example, in the north of the licence around Castle Creek and Brim Gorge; to the centre of the licence around Mount Flora; and to the south of the licence around the Linga Valley community and Saw Tooth Gorge.
I do not believe the present inquiry provides such evidence.
Conclusion
The evidence about social and community activities in this inquiry is cast in quite broad and general terms, relating activities of Jaru to Castle Creek and the waterways on and around the proposed licence. While I have no doubt these waterways, including Castle Creek, are important to Jaru in relation to their social and community activities, there is no specific evidence about how exploration activities will cause interference relevant to my consideration of s 237(a). The evidence provided largely focuses on Castle Creek and the licence area in the context of s 237(b), how Castle Creek is an area of particular significance according to Jaru traditions, and how exploration activities will cause interference to the area of Castle Creek. I address that in my consideration of s 237(b) below, and conclude that for the purposes of s 237(a), I cannot be satisfied, based on the available evidence, that substantial and proximate interference will be caused to Jaru social and community activities by exploration activities of Mining Equities.
Is the grant of the licence likely to interfere with areas or sites of particular significance to Jaru?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title claimants in accordance with their traditions (see Cheinmora v Striker Resources at 34–3]). 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 (see Silver v Northern Territory at [91]). The evidence must identify an area or site exists on the licence; explain its significance and distinguish it from other areas within the licence; and show it is of more than ordinary significance to the native title claimants in accordance with their traditions (see, for example, Yindjibarndi Aboriginal Corporation v FMG at [17]).
What areas or sites have the native title parties identified in relation to the licence area?
Mr Morton, Ms Valma Banks and Ms Lily Banks provide detailed evidence about Castle Creek, which runs through the south-west portion of the proposed licence. Mr Morton has intimate knowledge of the area, stating (at 7) ‘I have been walking and mustering through Castle Creek all my life’. The evidence Mr Morton provides about Castle Creek is consistent with what he provided in Sampi v Sarang. Mr Morton also refers to a cave associated with Castle Creek – while there is no evidence which suggests the cave itself is on the proposed licence, Mr Morton is clear about the connection of devil spirits with Castle Creek and the cave – for example, he states (at 12):
In the Tenement Area, the miners need to avoid the devil spirit. If they want to prove it to themselves, we can go there and camp for a few days. We’ll see him there walking around Castle Creek. He lives there with his family, little Kartiya cave men. I’ve seen him before. But for me, I talk in language and they understand me. In blackfella way, they know who I am. That’s why miners need to go there with me, so that the spirits don’t come out and give them a hiding, so I can make sure nothing bad happens.
The evidence from Jaru consistently and clearly outlines the particular significance of Castle Creek, the reasons why it is so, and in the context of the traditions of Jaru. In Sampi v Sarang I was satisfied that an important dreaming ran through Castle Creek and accepted it is an area of particular significance. The evidence in this inquiry supports me drawing the same conclusion for the purposes of E80/5442.
Is it likely the activities of Mining Equities will interfere with Castle Creek?
Mr Morton provides clear evidence about the importance of appropriate access to and around Castle Creek, in accordance with Jaru traditions and especially regarding the protection of the dreaming which runs through the creek (at 11, 13-14). This is supported by evidence provided by Ms Velma and Ms Lily Banks (at 10-11). The importance of undertaking a heritage survey is outlined as a method for reducing the likelihood of interference with Castle Creek.
Mining Equities argue (at 5) that Jaru has not specifically identified the exact locations of significant areas of importance on Castle Creek. This is very important as Castle Creek only encroaches/abuts a small portion in the SW [south-west] corner of E08/5442’. Sampi v Sarang appears irrelevant as that tenement is not within this tenement and is outside this area’. The State also argues the size of the overlap with Castle Creek is ‘small’ (at 30). I do not accept these arguments.
My consideration does not rest on exact locations. A site of particular significance must be known and be able to be located, and the nature of its significance explained – in this inquiry, I accept Castle Creek is itself a site of particular significance, and it runs through the proposed licence. What a small or large encroachment of an area of particular significance is on a licence will be a relative judgement. For example, what an explorer feels is a small encroachment, may nevertheless be a large encroachment in the context of native title party traditions. In addition, I do not accept Sampi v Sarang is irrelevant for the reasons outlined above (at [6]).
Mining Equities contentions (at 6) argue the proposed licence has been subject to previously granted exploration licences, mineral claims and temporary reserves, including sampling and drilling. As has been noted in previous Tribunal decisions, the fact of previously granted exploration or other licences does not in itself mean there will not be interference in relation to the activities of a particular explorer, on a particular licence. Each inquiry must turn on its own facts.
Mining Equities outline (at 3) that ‘where required’ they propose ‘to undertake Aboriginal Heritage Surveys for ground disturbing activities and is willing to enter into a suitable Alternative Heritage Agreement on terms and condition that area considered acceptable, fair and reasonable’. However, no mechanism has been agreed, and Jaru have made a case for interference being caused by non-ground disturbing activities, such as proximity to Castle Creek. Mining Equities also argue (at 10) that:
…the small identified on encroachment of Castle Creek can be identified and protected under the State RSHA. As per the State Regional Standard Heritage Agreement, the grantee party is willing to conduct a Clearance and Heritage Survey on E80/5442 to identify and protect any identified aboriginal concerns relating to Castle Creek.
However, again, the RSHA only offers certain protections based on ground disturbing activities. Jaru contentions argue the RSHA is an inadequate mechanism to mitigate interference of Castle Creek. I agree with that contention.
Mining Equities (at 10) refer to a buffer zone of 300 metres ‘from the Castle Creek encroachment in the SW corner’ which can be created ‘if necessary’. The State endorses this approach (at 30-31, for example). However, it is not clear whether that buffer zone would be 300 metres either side of the creek, or 300 metres with the Creek running through the centre of the buffer zone. In addition, it is not clear what would created the ‘necessary’ conditions to create such a buffer zone. No application was made by Mining Equities to excise that portion of the licence – I draw no adverse conclusions from that, however, it is not clear how or when the proposed buffer zone would be applied in the absence of any agreement between parties.
Jaru’s reply (at 17) argues that such a willingness to create a buffer zone:
…is non-binding in the absence of any agreement with the NTP about the scope of the Grantee Party’s activities…if the tenement were granted without an agreement with the NTP, there is nothing that would prevent the Grantee Party undertaking the exploration activities in the entirety of the Tenement Area’.
In addition, Jaru argue (in their reply at 22) the boundaries of any buffer zone ‘…cannot be readily identified by the Grantee Party without consultation with the NTP [native title party]’. I accept Jaru’s arguments given the description of the particular significance of the area on and around Castle Creek and the Jaru traditions.
Finally, Mining Equities suggest (at 10) that ‘conditions 3-12’ proposed by the State to be applied on the grant of the licence ‘strictly limit any exploration in close proximity to waterways’. It appears Mining Equities is referring to endorsements the State intends to apply, rather than to conditions. Endorsements operate differently to conditions. Only a breach of a condition can leave a licence liable to be forfeited. In reading those endorsements, I could not conclude they ‘strictly limit’ such exploration. Rather, they draw the explorers attention to various legislation, they outline the explorer needs certain permissions from relevant State departments, and they allow exploration on or near water as long as disturbance is kept to a minimum – for example, endorsement 8 states:
All activities to be undertaken so as to avoid or minimise damage, disturbance or contamination of waterways, including their beds and banks, and riparian and other water dependent vegetation.
The only condition which appears to relate to waterways is condition 6, where the prior written consent of the Minister responsible for the Mining Act 1978 (WA) is to be obtained before commencing any exploration activities on ‘Regeneration of Eroded Areas in Ord River Dam Catchment Area Reserve 28538’, which overlaps the proposed licence by approximately 19 per cent.
I am not satisfied that the State’s regulatory regime, including the endorsements and conditions the State intends to apply to the proposed licence on grant, will mitigate interference for the purposes of s 237(b) of the Act.
Conclusion
I accept there is a real risk or chance of interference with Castle Creek and its surrounds, should Mining Equities conduct exploration activities on or near that area. As the Federal Court noted in FMG v Yindjibarndi (at [76]):
It may follow that mere entry onto the site other than on supervised terms and conditions…may from the native title party’s perspective none the less be non-trivial interference.
Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Overall, Jaru make assertions about exploration activities causing ‘major disturbance’ to waterways on or connected to the proposed licence. However, there is little to no actual evidence in support of those assertions. For example, Jaru contentions (at 22) refer generally to the interconnectedness of waterways which run hundreds of kilometres through and from the proposed licence (such as to Halls Creek and Kununurra) (see also Mr Morton’s affidavit at 13; Lily and Velma Banks affidavit at 6-7). Jaru contentions (at 21, 23) argue that any earthworks, drilling or pollution would involve ‘major physical disturbance to the land and waters’, affecting the underground water table and springs, as well as poisoning fish and wildlife (see also Mr Morton’s affidavit at 13; Ms Lily and Velma Banks affidavit at 8). These broad statements may be contrasted with the reports, environmental information, and land management information provided in matters such as Ross v Gamboola, where s 237(c) was held to be one of the criteria by which the expedited procedure did not apply.
I do not consider there to be any evidence in this inquiry that supports a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
My determination is that the grant of E80/5442 to Mining Equities Pty Ltd is not an act that attracts the expedited procedure.
Helen Shurven
Member
14 January 2021
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