Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Squadron Resources Pty Ltd
[2019] NNTTA 27
•24 May 2019
NATIONAL NATIVE TITLE TRIBUNAL
Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Squadron Resources Pty Ltd and Another [2019] NNTTA 27 (24 May 2019)
Application No: | WO2018/0063 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC (WCD2002/001)
(native title party)
- 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: | 24 May 2019 | |
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 does not apply – the act is not an act attracting the expedited procedure | |
Legislation: | Native Title Act 1993 (Cth) ss 29, 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) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182; 324 ALR 580 (FMG v Yindjibarndi) Gooniyandi Aboriginal Corporation v Inventum Resources Pty Ltd and Another[2018] NNTTA 41 (Gooniyandi v Inventum Resources) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (Silver v Northern Territory) Ward v State of Western Australia (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 E45/4943 to Squadron Resources Pty Ltd (Squadron). The licence is approximately 637 square kilometres in size and is located 206 kilometres north of Telfer, on the edge of the Great Sandy Desert. The Karajarri Traditional Lands Aboriginal Corporation RNTBC hold exclusive native title in trust for the Karajarri People over 45 percent of the licence. The State’s notice included a statement that the grant is an act attracting the expedited procedure (s 32 of the Act). Karajarri lodged an objection with the National Native Title Tribunal to the application of this 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 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
Karajarri submitted contentions and the sworn affidavits of Mr Joseph Munro and Mr Colin Bullen. Mr Munro and Mr Bullen state they are Karajarri determined native title holders and I accept their authority to speak for the area on behalf of the Karajarri people. Karajarri also provided an extract of the Karajarri Healthy Country Plan 2013-2023, however, I have not relied on extract for the purposes of this inquiry decision – it may have more relevance to other related inquiries which will be the subject of separate decisions (namely WO2018/0064, WO2018/0065 and WO2018/0066).
Squadron made no submissions. The State lodged a statement of contentions and supporting documents. Karajarri provided contentions in reply to the State.
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)).
Section 237(a): are the grants of the licences likely to interfere directly with the Karajarri 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 people carry out on the licence?
The evidence contains brief and general statements that the Karajarri Rangers ‘go out on the Tenement Area a lot, looking after country’ and that this is ‘an important part of getting back our country through native title.’ The activities are broadly listed as mapping and fencing sites, doing traditional burning, protecting springs and monitoring bilbies (Mr Munro at 5-6; Mr Bullen at 5-6). There is also reference to many animals in the area, but no further information about any hunting activities.
What will Squadron’s activities be?
Squadron provided no submissions. There is some limited information in Squadron’s application for the exploration licence (provided with the State’s contentions). That focuses on the year 1 proposed activities, related to their target of potash. There is no more detailed information other than the intention to conduct soil and groundwater sampling, access the land, and conduct ‘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).
Is interference with community or social activities likely?
As I noted in Gooniyandi v Inventum Resources (at [29]), for me to conclude interference of the kind outlined in s 237(a) is likely to occur, there does need to be information and evidence supporting assertions that social and community activities are conducted on the relevant licence, and that they will suffer interference from activities of the explorer. Although Karajarri’s affidavit evidence lists the Karajarri Ranger activities that take place on the licence, the evidence does not specify the duration, frequency, intensity, or locations of these activities. As such, I cannot conclude that Squadron’s exploration activities would directly or substantially interfere with them.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the Karajarri people?
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 people’s traditions?
The evidence of Mr Munro and Mr Bullen are consistent and clear, and they corroborate each other. Both outline that the licence contains two springs, Wilkrngganganji and Jarwani Jarwani, and they locate these springs on mapping attached to their affidavits, which show them to be on the licence. 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. I do not repeat that information here, due to the sensitive nature of the water, and its stated sacred status. Both Mr Munro and Mr Bullen further contextualise the importance of these water sites to the traditions of the native title holders by outlining that most of the surrounding area is desert. I am satisfied they have located and explained the particular significance of Wilkrngganganji and Jarwani Jarwani as required by s 237(b) of the Act.
Is the grant of the licence likely to interfere with these sites of particular significance?
I note there have been no previously granted tenements over this licence, and the whole of the licence is unallocated crown land. That is relevant to my consideration of interference, together with the fact that the nature of the native title holders rights and interests are of an exclusive type.
The likely interference with Wilkrngganganji and Jarwani Jarwani, in accordance with the Karajarri people’s traditions, is explained in some detail in the affidavit evidence. Mr Munro and Mr Bullen explain the cultural protocols which restrict and regulate access to these springs, and they explain the spiritual repercussions/manifestations for failure to adhere to these protocols (Mr Munro at 7-9; Mr Bullen at 7-9). 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. They intend to impose a condition requiring Squadron to enter into a Regional Standard Heritage Agreement (RSHA) if Karajarri request it within 90 days of grant. However, an RSHA would only require consultation with Karajarri when higher impact physical interference is contemplated. Low impact sampling, walking and surveying would not require consultation.
The State suggest that ‘surface water in the proposed tenements is also protected by…the Rights in Water and Irrigation Act 1914 (WA). Section 25 of the RIWI Act makes it an offence for a person to "obstruct, destroy, or interfere with the waters, bed or banks of any watercourse flowing through or over, or wetland situated wholly or partly on, land that has not been granted or demised by the Crown"’. The State contends that ‘wetland’ would include a rock pool or soak (at 47-48 and 53).
I note that ‘wetland’ is defined in s 2(1) of the Rights in Water and Irrigation Act as meaning ‘a natural collection of water, whether permanent or temporary, on the surface of any land and includes — (a) any lake, lagoon, swamp or marsh; and (b) a natural collection of water that has been artificially altered, but does not include a watercourse’. I also note that the affidavit evidence refers to the water bodies which are of particular significance as ‘springs’ and springs have a different definition to wetlands in the Rights in Water and Irrigation Act.
The State’s regulatory regime includes endorsements and conditions on the grant of the licence. Breach of conditions can lead to forfeiture of the licence, but breach of endorsements do not. I note endorsement three draws the licensee’s attention to the Rights in Water and Irrigation Act, and endorsement six states the ‘taking of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless the current licences for these activities have been issued by DWER [the Department of Water and Environmental Regulation]’. There is no indication of the process which would need to be gone through for DWER to issue the relevant water related licences. There are no conditions which directly relate to water on the proposed exploration licence.
Without further information or clarification, I cannot conclude the State’s regulatory regime would offer sufficient protection to Wilkrngganganji and Jarwani Jarwani. Based on the available evidence, I am satisfied Squadron’s activities would be likely to lead to substantial interference with Wilkrngganganji and Jarwani Jarwani, according to Karajarri 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?
Karajarri 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 E45/4943 to Squadron Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
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