Kado Muir and Others on behalf of Manta Rirrtinya v Greatland Pty Ltd and Another
[2019] NNTTA 29
•29 May 2019
NATIONAL NATIVE TITLE TRIBUNAL
Kado Muir and Others on behalf of Manta Rirrtinya v Greatland Pty Ltd and Another [2019] NNTTA 29 (29 May 2019)
Application Nos: | WO2018/0166, WO2018/0253 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kado Muir & Ors on behalf of Manta Rirrtinya (WCD2018/007)
(native title party)
- and -
Greatland Pty Ltd
(grantee party)
- and -
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: | 29 May 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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, 237 |
Cases: | 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; 227 FCR 182; 324 ALR 580 (FMG v Yindjibarndi Aboriginal Corporation) Muir on behalf of the Manta Rirrtinya People v State of Western Australia [2018] FCA 1388 (Muir on behalf of the Manta Rirrtinya People v State of Western Australia) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 Smith v Western Australia [2001] FCA 19 Ward v State of Western Australia (1996) 69 FCR 208 (Ward v Western Australia) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v MDR (Thomsons) Pty Ltd [2014] NNTTA 91 (Western Desert Lands v MDR) 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: | David Reger & Gavin Dunn, Central Desert Native Title Services Ltd |
| Representative of the grantee party: | Matthew Clohessy, Emerald Tenement Services |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry, Regulation & Safety Francis Cardell-Oliver, State Solicitors Office |
REASONS FOR DETERMINATION
I have been appointed to decide whether the expedited procedure outlined in s 32 of the Native Title Act 1993 (Cth) (the Act) applies to the proposed grant of exploration licences E38/3235 and E38/3277 (the licences) to Greatland Pty Ltd (Greatland). As outlined in s 237 of the Act, the expedited procedure applies where the grant of a licence is not likely to:
·interfere directly with community or social activities carried on by members of native title claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
Each licence is located wholly within the boundaries of the Manta Rirrtinya People’s determined area of native title (WCD2018/007). The Manta Rirrtinya People exercised their right, as native title claimants at that time, to lodge an objection with the National Native Title Tribunal against the State’s assertion the expedited procedure applies to the grant of each licence. The claim was subsequently determined by the Federal Court in Muir on behalf of the Manta Rirrtinya People v State of Western Australia. The Wakamurru (Aboriginal Corporation) Registered Native Title Body Corporate (Wakamurru) holds native title rights and interests on behalf of the Manta Rirrtinya People.
Wakamurru have been determined to hold exclusive native title rights and interests over 100 per cent of E38/3235 and E38/3277. That is, subject to certain qualifications as set out in the determination, they hold the right to possess, occupy, use and enjoy the land and waters of the area to the exclusion of all others.
Details of the licences and the associated objections are as follows:
Licence Number Tribunal Number Approximate Size (km²) Location E38/3235 WO2018/0166 192.94 Wiluna/Laverton Shire E38/3277 WO2018/0253 199.2 Wiluna/Laverton Shire
I note the licences are adjacent to each other, they are entirely over vacant crown land, and they are approximately 210 to 215 kilometres north easterly of Cosmo Newberry Mission.
Wakamurru provided contentions and the affidavit of Mr Kado Muir. Mr Muir states he is a traditional owner and native title holder for the area. He is also a director and current chairperson of the Wakamurru Aboriginal Corporation and a Wati (initiated man). I accept Mr Muir has authority to speak for the area.
Greatland provided contentions in this matter as did the State, and Wakamurru provided contentions in reply. I was satisfied this matter could be determined on the papers without the need for a hearing.
Is the grant of the licences likely to interfere directly and substantially with the Manta Rirrtinya People’s community or social activities?
To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
In reaching its decision, the Tribunal must also have regard to any other factors that might constrain the native title party’s community or social activities (see Smith v Western Australia at [27]). The term ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence must be provided to identify the individuals as a community (see Silver v Northern Territory at [59]). The term ‘social activities’ can encompass activities carried out by an individual or small group in certain circumstances, such as where the activities have a wider social dimension (See Silver v Northern Territory at [60]).
What community and social activities do the Manta Rirrtinya People carry out on the licences?
Much of the material in the affidavit evidence focuses on cultural obligations regarding sites, which are said to be sites of particular significance (more on that in the consideration of s 237(b)). In relation to community and social activities, the following evidence was relevant:
·The area forms part of a cultural landscape with connections to some significant dreaming tracks/song lines (tjukurrpa) (at 5)
·As a Wati, Mr Muir is responsible for looking after sites and making sure sacred places are respected (at 7)
·Other native title holders are also responsible for ensuring cultural protocols are undertaken in the proper way (for example, at 28, 32, 34)
·There are three tjukurrpa stories which relate to the licenses - the social and community activities on the licences areas centre around looking after sites and the sacred cultural landscape created by the song lines (at 28)
·If these protocols are damaged ‘this can bring an enormous sense of shame - and this is not the feeling of mild embarrassment associated with the word by whitefellas, shame is a feeling of immense responsibility. This filters through to cause personal injuries to the elders – they would feel it personally, spiritually, physically and mentally if there is significant damage to country’ (at 30)
·Camping activity occurs (at 33)
·There is a proposal to create a reserve for the purpose of sandalwood harvesting in the area (at 37-38) – the reserve will cover both of the licences subject to this inquiry, and extend beyond those licences (as outlined in the native title party reply)
The State’s view is that the evidence in relation to community and social activities is broad. The State contends ‘the evidence does not show that a significant number of native title holders are engaging in social or community activities in any particular part of any of the proposed tenements on a regular basis such that there is likely to be a risk of interference’ (at 22). The State also outlines its view that sandalwood harvesting would not be subject to interference by activities of Greatland, because the sandalwood harvesting activity is at present a proposed activity.
The Wakamurru reply outlines further information about the sandalwood harvesting, and I accept that such an activity arises from the native title holder’s exclusive rights and interests to take and use resources from the licence areas. However, because it is at the stage of being a proposed activity, I am unable to assess the nature and extent of that activity, and whether or not any impact by the activities of Greatland would be substantial. As McKerracher outlined in FMG v Yindjibarndi Aboriginal Corporation (at 70) ‘It would be illogical for there to be a right to negotiate if the likely impact was only trivial. It also follows that interference for the purpose of s 237(b) NTA must be with the area or site itself, not with people or activities which are the subject of s 237(a) NTA [Native Title Act]’.
What activities does Greatland intend to undertake on the licences?
In the statements Greatland made in support of its application for these licences, it has outlined that its intended activities for each of the licences in the search for the target resource will be ‘the use of aerial photography, geological mapping, soil geochemistry, sediment and rock chip sampling, geophysical and remote sensing surveying’. There is information about the first phase of exploration and nothing beyond that.
In its contentions, Greatland indicates access to the exploration targets will be via existing tracks and that ‘early stage work programs will not require ground disturbing activities’. It says it is aware of the requirements of the Aboriginal Heritage Act 1972 (WA) and they are willing to enter into the Regional Standard Heritage Agreement (RSHA). They say they ‘would be agreeable to undertake a heritage survey under reasonable terms if required in order to ensure that Aboriginal Sites are not disturbed’.
Conclusion
The evidence with respect to community and social activities of the native title holders is broad, and focuses on the location and commitments of the Manta Rirrtinya People in relation to sites of particular significance, on or near the licences. Given the size of the licences, and the broad nature of the evidence provided regarding social and community activities, I conclude the activities of the explorer can co-exist with the social and community activities, as expressed in broad terms, in this inquiry. However, I focus on the sites of particular significance and their importance to the native title holders in respect of my s 237(b) consideration below.
As can sometimes be the case in these inquiries, cultural practice is intimately intertwined with sites of particular significance to the native title holders. In this inquiry, the cultural practice has been expressed in terms of supporting the particular significance of such sites, rather than details having been provided of the nature and extent of the activities (which goes more to s 237(a)).
Is the grant of the licences likely to interfere with areas or sites of particular significance to the native title holders?
The central issue for consideration in s 237(b) of the Act is whether there are any areas or sites of particular significance to the Manta Rirrtinya People which are likely to be interfered with (in the sense of a real chance or risk of interference) by the activities of Greatland (see Yindjibarndi Aboriginal Corporation v FMG Pilbara (at 17(a), (b) and (e)).
What areas or sites have been identified as being of particular significance to the Manta Rirrtinya People?
Wakamurru provide much detail on sites and areas, which they say are of particular significance, on and near the licences. I note the evidence is clear about which sites are believed to be on the licences, and which may not be on the licences. I accept the evidence as being accurate and compelling, as the information provided is qualified as needed where Mr Muir is not certain about a location. Where he is certain, he provides context and information about why that is.
I list the sites and areas below, and provide my conclusions for each:
(a)pathways for highly significant tjukurrpa characters
The State outline in their view the information and evidence provided is too general to identify the three tjukurrpa as being of particular significance. However, I consider Mr Muir has provided a great deal of information about the three tjukurrpa, including their geographical pathways in relation to the licences, and distinguishing the three tjukurrpa in terms of their sensitivities and importance to the native title holders.
I adopt [74] of Western Desert Lands v MDR, which held:
Depending on the evidence presented in a particular matter, songlines or dreaming tracks may be regarded as sites or areas of particular significance (see Freddie v Western Australia at [45]-[47]; Lungunan v Geotech International at [41]). In Freddie v Western Australia, Deputy President Sumner suggested that specific parts of a dreaming track might be considered sites of particular significance whereas other parts might not (at [47]). That, of course, is subject to the general requirement that the location of an area or site and the nature of it significance must be identified before it can be accepted as an area or site of particular significance (see Western Australia v McHenry; Silver v Northern Territory at [91]; WF v Emergent Resources at [68]).
I do not provide details of the areas outlined in the evidence, due to the sensitivities associated with them. However, I accept the three tjukurrpa run along the west side of the licences in this matter (to the east and north of Reti, for example). I also accept the tjukurrpa go across the licences, that the area of the licences is a culturally significant and restricted area, and the area of the licences is of particular significance to the Manta Rirrtinya People.
(b)a stone arrangement not far from the Pikalu rockhole / and a big sandhill known as Tali, in or around the area of the proposed tenements, which is a manifestation of the three birds tjukurrpa;
There is minimal detail provided about the stone arrangement (which is south of these licences) or the sandhill, and I could not conclude they are of particular significance. I do conclude they are part of the cultural landscape which is important to the native title holders, and that they are intertwined with the tjukurrpa stories.
(c)a dry blowhole known as Yapuwarra, somewhere north and east of Reti, which is associated with sensitive tjukurrpa stories and is a restricted site;
I accept the location of Yapuwarra places it on or near these licences. There is limited information about this area, however, there is sufficient information for me to accept the tjukurrpa pass through it and that it is a restricted place. There is just sufficient information for me to conclude it is a site of particular significance.
Is the grant of the licences likely to interfere with a site of particular significance?
Wakamurru outline in the evidence they have concerns ‘the company intends to access the tenements somehow by creating a road off the side of the Carnegie track’ (at 12). They also say (at 39) ‘the activities which we can assume will be done on the tenements, if they are allowed to be granted without the company negotiating with us – such as building tracks, using equipment and knocking down trees, are all things which may appear miniscule for a mining company. However, these are activities which will significantly undermine the economic value of our natural resources…, in addition to having an immense impact on a spiritual level, both in an individual and community sense’.
I have not focused on the economic value of the area but rather focus on the relationship of the area to the native title holder’s traditions. These are outlined in some detail in relation to the dreaming tracks, which I accept cross both of the licences, and in relation to areas such as Yapuwarra.
While Greatland have indicated they intend to access the licences using existing tracks, they provide no further detail on that. The Wakamurru reply raises cogent arguments regarding the limitations of any existing tracks in terms of Greatland being able to use them to access the licences, given their distance from the licences and the remoteness of the area.
As outlined in Silver v Northern Territory (at [89]), it is possible for an area or site of particular significance located outside a proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. I accept the area of particular significance in this inquiry is not isolated to the licences themselves, and that there are an interconnecting set of songlines/dreaming tracks and sites associated with those sites, such as Yapuwarra, which are likely to be interfered with by activities of Greatland (for example, exploration activities on the licences, and vehicle movements to and from the licences).
I have considered the information provided by the State about their regulatory regime, and note the intention of Greatland to abide by that regime. However, I accept the area of the licences is so sensitive, that even abiding by the regulatory regime is likely to lead to interference with the areas of particular significance to the native title holders.
Conclusion
I accept the area of the licences is in a restricted area which is of special or more than ordinary significance to the native title holders (applying Carr J’s explanation in Cheinmora v Striker Resources at 34-35). I accept the native title holders have located the three tjukurrpa as crossing into and through the two licences, and have explained the nature of their significance, including indicating that sites such as Yapuwarra exist on or near to the licences and are closely intertwined with the traditions of the native title holders.
I conclude there is a real chance or risk of interference with the tjukurrpa in the areas of the licences, and the general area and sites which are intertwined with the tjukurrpa.
Is the grant of the licences likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Wakamurru did not make any contentions or provide evidence in relation to 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 licences is likely to involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(c) is unlikely.
Determination
The determination of the Tribunal is that the grant of exploration licences E38/3235 and E38/3277 to Greatland Pty Ltd are not acts attracting the expedited procedure.
Helen Shurven
Member
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