Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Squadron Resources Pty Ltd
[2019] NNTTA 46
•1 July 2019
NATIONAL NATIVE TITLE TRIBUNAL
Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC and Another v Squadron Resources Pty Ltd and Another [2019] NNTTA 46 (1 July 2019)
Application No: | WO2018/0064 and WO2018/0065 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC (WCD2002/001, WCD2004/002)
- and -
Nyangumarta Karajarri Aboriginal Corporation RNTBC (WCD2012/001)
(native title parties)
- and -
Squadron Resources 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: | 1 July 2019 | |
Catchwords: | Native title – future act – proposed grant of exploration licence – 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 does not apply – the act is not an act attracting the expedited procedure | |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 109, 151, 237 | |
Cases: | Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (Cherel v Faustus Nominees) Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1 Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (2005) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182; 324 ALR 580 (FMG v Yindjibarndi) Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Squadron Resources Pty Ltd and Another [2019] NNTTA 27 (Karajarri v Squadron) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 Ward and Others v State of Western Australia and Another (1996) 69 FCR 208 (Ward v Western Australia) Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Wilma v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) | |
| Representatives of the native title party: | Samuel Legge, Kimberley Land Council Andrew Topfer, Kimberley Land Council | |
| Representative of the grantee party: | Yvette Collins, Hetherington Exploration & Mining Title Services Pty Ltd |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety Francis Cardell-Oliver, State Solicitor's Office |
REASONS FOR DETERMINATION
The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of their intention to grant exploration licence E45/4956 to Squadron Resources Pty Ltd (Squadron). The licence is approximately 644 square kilometres in size and is located 186 kilometres northeast of Shay Gap, inland from the coast, just east of Great Northern Highway and just north of Salt Creek on the edge of the Great Sandy Desert.
The Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC (WCD2002/001, WCD2004/002) (Karajarri) hold exclusive and non-exclusive native title in trust for the Karajarri People over approximately 19 and 31 percent of the licence respectively.
The Nyangumarta Karajarri Aboriginal Corporation RNTBC (WCD2012/001) (Nyangumarta) hold non-exclusive native title in trust for the Nyangumarta People over approximately 16 percent.
The State’s notice included a statement that the grant of the licence is an act attracting the expedited procedure (s 32 of the Act). Each Corporation lodged an objection with the National Native Title Tribunal to the application of the expedited procedure statement. I have been appointed to determine whether the expedited procedure applies. To decide that, I must examine the three criteria in s 237 of the Act which, in summary, states that the expedited procedure applies if the grant is ‘not likely’ to:
(a) interfere directly with the native title holders’ community or social activities;
(b) interfere with areas or sites of particular significance, in accordance with their traditions; and
(c) involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The phrase ‘not likely’ in sections 237(a), (b) and (c) of the Act require me to make a predictive assessment (Yindjibarndi v FMG at [15]). For the reasons outlined below, my decision is that the expedited procedure does not apply to the grant of the licence.
The parties’ submissions
The Corporations submitted contentions, the joint affidavit of Mr Colin Bullen and Mr Joseph Munro, the affidavit of Mr Mervyn Mulardy and the unsworn statement of Mr Darcy Hunter (accompanied by the affidavit of Mr Andrew Topfer). Mr Bullen, Mr Munro and Mr Mulardy state they are Karajarri determined native title holders and I accept their authority to speak for the Karajarri area of the licence. Mr Hunter states he is a Nyangumarta determined native title holder and I accept his authority to speak for the Nyangumarta area of the licence. The Corporations also provided an extract of the Karajarri Healthy Country Plan 2013-2023. Part of that extract refers to Salt Creek (Walyarta) which is said to be ‘of high biological and cultural importance’ (at 12). The contents of the Plan are stated to represent the views of Karajarri People.
Mapping indicates the geographical feature of Salt Creek is just to the south of the licence, and evidence supports that it ‘runs along the bottom of the Tenement Area [and] is a very important place to the Karajarri people. It is connected to stories and songlines that travel through the Tenement Area’ (at 9 of Mr Bullen and Mr Munro’s affidavit).
In his affidavit, Mr Topfer states at the relevant time he was a legal administrative officer at the Kimberley Land Council (Nyangumarta’s legal representative). He states he met twice with Mr Hunter to write, amend and confirm the statement with him, but that logistical difficulties and cultural obligations precluded a third meeting to swear the document: Mr Hunter lives in the remote community of Bidyadanga and was participating in ‘law time’. I note s 109(3) of the Act states the Tribunal is not bound by technicalities, legal forms or rules of evidence. No party took issue with Mr Hunter’s unsigned statement and the State submitted supplementary contentions which responded to the statement, and did not raise any concerns. They referred to it as ‘Mr Hunter’s evidence’, and Mr Topfer attests to his belief that the statement is accurate. It is on that basis I accept Mr Hunter’s unsigned statement.
Squadron made no submissions.
The State lodged a statement of contentions and supporting documents, as well as supplementary contentions which responded to Mr Hunter’s evidence. The Corporations provided joint contentions in reply to the State’s materials.
The inquiry directions required parties to submit a statement of agreed facts and contemplated a listing hearing and hearing. The parties conferred and requested these directions be vacated. I agreed, being satisfied the issues could be determined on the papers without a hearing (s 151(2)(b) of the Act).
Section 237(a): is the grant of the licence likely to interfere directly with the Karajarri and Nyangumarta peoples’ community or social activities?
The Tribunal balances a native title party’s evidence of community or social activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference (see for example, Yindjibarndi v FMG at [16] and Rosas v Northern Territory at [71]). If evidence about community or social activities is general and unspecified, then this is insufficient to find that the grant will create such direct or substantial interference (see Wilma v Western Australia at [14]).
What community and social activities do the Karajarri and Nyangumarta people carry out on the licence?
The activities listed are mapping and fencing sites, doing traditional burning and monitoring bilbies. The evidence contains brief and general statements about how the Karajarri Rangers ‘go out on the Tenement Area a lot, looking after country’ because this is ‘an important part of getting back our country through native title’ (Mr Bullen and Mr Munro at 7-8; Mr Mulardy at 9-10).
There is also reference that Karajarri people ‘still like to head out onto that country’ and that it is a ‘good place to go hunting and camping’ because there is a ‘big mob of animals’ including yalgi (sand goanna), kangaroo, Pitjarra (emu), and ‘good places to get those little fish’ (Mr Bullen and Mr Munro at 4; Mr Mulardy at 7). There is also recent evidence of both Karajarri and Nyangumarta people making gaylie (boomerangs) and tulji (hitting sticks) from particular trees which grow on the licence as well as on other areas (Mr Mulardy at 6; Mr Hunter at 7).
For Karajarri people, whilst ‘[t]here are good places to camp all along that track’ that runs through the licence, it appears that the main camping is near Walyarta (Salt Creek) located just south of the licence (Mr Mulardy at 5; Mr Bullen and Mr Munro at 6). It seems the licence is mostly used as a travelling stop for Karajarri people on the way to three named ‘important jilas’ (springs) to the east (two of which are described in Karajarri v Squadron at [13]) (Mr Mulardy at 4-5, 8).
There is also evidence of intergenerational teaching as part of the Kimberley Aboriginal Law and Culture Centre’s Yiriman project: ‘we take young [Karajarri] people when they are on school holidays out on country, camping and hunting’, fishing, gathering and teaching ‘about culture’ and ‘the story for all these places’ to ‘show them who they are’ (Mr Bullen and Mr Munro at 5-6; Mr Mulardy at 8).
What will Squadron’s activities be?
There is limited information about exploration activities in Squadron’s application for the exploration licence (provided with the State’s contentions). The information focuses on the year 1 proposed exploration activities for potash. There is no more detailed information other than the intention to conduct soil and groundwater sampling, access the land, and conduct a ‘reconnaissance field trip’ (it is not clear whether that is one or more).
In the absence of any evidence to the contrary, it is open to me to conclude Squadron intend to exercise the full suite of rights available to them upon the grant of the licence under sections 61 and 66 of the Mining Act 1978 (WA). These rights allow them access to the licence with their agents, employees, motor vehicles and other machinery for up to twelve years if renewal options are exercised. The rights include setting up camps, leaving machinery or equipment, digging pits, trenches and holes, sinking bores and tunnels, and removing up to 1000 tonnes of material per licence (or more if the Minister approves).
Conclusion
I accept the evidence provided by the Corporation’s lists activities that take place on the licence. However, the evidence does not specify the duration, frequency, intensity, or locations of these activities apart from broad references to some features the activities occur near to. Given the activities on the licence are explained in such a general way, and taking into account its large size (644 square kilometres), I conclude these activities can coexist with Squadron’s activities. I find direct or substantial interference is unlikely.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the Karajarri and Nyangumarta people?
Each matter must be considered on its own facts (see Cherel v Faustus Nominees at [81]-[91]). This includes considering the nature and extent of any sites of particular significance, the grantee’s proposed activities, and whether the State’s regulatory regime is sufficient to make it unlikely there will be interference. In making the predictive assessment under s 237(b) of the Act, the Tribunal can have regard to material provided by the grantee party (see for example Champion v Western Australia at [30]-[34]). In this inquiry, no such information was provided.
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). 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 (Silver v Northern Territory at [91]).
Does the licence contain areas or sites of particular significance in accordance with the Karajarri and Nyangumarta people’s traditions?
Mr Munro and Mr Bullen state the licence contains three jilas (springs), Jinawaku, Titarrangu and Lingkirr (at 11) and they locate these springs on mapping attached to their joint affidavit, which show them to be on the licence. As they did in their evidence for Karajarri v Squadron, they explain the significance of the springs under their laws and customs by describing the particular spirits that reside in them and the ways to communicate and give respect to them. Again, I do not repeat that information here, due to the sensitive nature of the water, and its stated sacred status. They also further explain the importance of these water sites to Karajarri traditions by outlining that most of the surrounding area is desert and there is ‘a lot of salt water around the Tenement Area’. I am satisfied they have located and explained the particular significance of Jinawaku, Titarrangu and Lingkirr as required by s 237(b) of the Act. Mr Mulardy’s evidence corroborates these sites as being of particular significance according to the native title holders traditions and also that the licence ‘is on country that is really important to Karajarri people’ (at 14-15 and 19).
There is also evidence of a ‘really important men’s songline’ that runs from the Nyangumarta /Karajarri boundary at Walyarta just south of the licence, through the licence and north to an important site ‘where the young fellas go through law’. The songline appears to loosely follow particular jilas, including one of the jilas named on the licence (Mr Bullen and Mr Munro at 11, 13; Mr Mulardy at 11-12, 14). As ‘law boss’, Mr Mulardy explains some of the interconnected stories to the extent permissible under Karajarri custom: he details one story along the songline and briefly explains another ‘big law story that goes all through the Tenement Area’ (at 11-13). I will not repeat the information here given the sensitivities. I note one story relates to two sites registered under the Aboriginal Heritage Act 1972 (WA) that overlap the licence and the named jila. The locations of the sites are restricted, according to the State’s Aboriginal Heritage Information System Register I am satisfied Mr Mulardy has located and explained the particular significance of the songline as required by s 237(b) of the Act.
Is the grant of the licence likely to interfere with these sites of particular significance?
The interference with the songline is not explained – perhaps because of the sensitivities. However, the likely interference with Jinawaku, Titarrangu and Lingkirr, in accordance with the Karajarri people’s traditions, is explained in some detail. The deponents explain the cultural protocols which restrict and regulate access to these springs, and they explain the spiritual repercussions and manifestations for failure to adhere to these protocols (Mr Bullen and Mr Munro at 12-13; Mr Mulardy 15, 18). As McKerracher J outlined (at [75]-[76]) in FMG v Yindjibarndi:
….mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference…That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions.
The State outline their regulatory regime, which I have considered. For example, they intend to impose a condition requiring Squadron to enter into a Regional Standard Heritage Agreement (RSHA) if the Corporations request it within 90 days of grant. However, an RSHA would only require consultation with Karajarri and Nyangumarta people when higher impact physical interference is contemplated. Activities such as low impact sampling, walking and surveying would not require consultation.
The State contend their regulatory regime will prevent interference with sites of particular significance, but do not specifically outline how such interference will be prevented. They also make the same contentions about their regulatory regime over water as in Karajarri v Squadron (which are outlined at [16]-[19] in that decision along with my conclusions). I adopt those paragraphs in this matter.
Conclusion
Without further information or clarification, I cannot conclude the State’s regulatory regime would offer sufficient protection to Jinawaku, Titarrangu and Lingkirr. Based on the available evidence, I am satisfied Squadron’s activities would be likely to lead to substantial interference with the sites of particular significance Jinawaku, Titarrangu and Lingkirr according to the native title holders’ traditions.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
The Corporations do not provide any contentions or 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 licence is likely to involve major disturbance to the land or waters concerned. Therefore I find disturbance under s 237(c) is unlikely.
Determination
The grant of exploration licence E45/4956 to Squadron Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
1 July 2019
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