Kevin Allen and Others (Njamal) v Brockman Exploration Pty Ltd and Another
[2017] NNTTA 4
•14 February 2017
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others (Njamal) v Brockman Exploration Pty Ltd and Another [2017] NNTTA 4 (14 February 2017)
Application No: WO2015/0710
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kevin Allen and Others (Njamal) (WC1999/008)
(native title party)
- and -
Brockman Exploration Pty Ltd
(grantee party)
- and -
The 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: 14 February 2017
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere substantially 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:Aboriginal Heritage Act 1972 (WA) ss 5, 16, 17, 18
Native Title Act 1993 (Cth) ss 29, 31, 32, 237
Mining Act 1978 (WA)
Cases:Keith Narrier and Others on behalf of Tjiwarl v Sammy Resources Pty Ltd and Another [2015] NNTTA 14 (‘Tjiwarl v Sammy Resources’)
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 (‘Lockyer v Mineralogy’)
Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representatives of the Ms Kate Major, Castledine Gregory
native title party: Mr Andre Maynard, Castledine Gregory
Representatives of the Ms Jane Langworthy, State Solicitor’s Office
Government party: Mr Michael McMahon, Department of Mines and Petroleum
Representative of the
grantee party: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd
REASONS FOR DETERMINATION
This decision considers whether or not the expedited procedure should apply to the grant of exploration licence E45/4496 (the licence) to Brockman Exploration Pty Ltd (Brockman). On 3 June 2015, the State Government of Western Australia issued a public notice for the grant, which included a statement that they consider the grant is an act attracting the expedited procedure under the Native Title Act 1993 (Cth). All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.
The Njamal registered native title claim overlaps 9.3 per cent of the licence. The Njamal registered native title claimants (Njamal) lodged an objection with the National Native Title Tribunal against the State’s assertion that the expedited procedure applies to the grant of this licence. The Wanparta Aboriginal Corporation RNTBC holds native title in trust for the Ngarla People over the remaining 90.7 per cent of the licence. The Wanparta Aboriginal Corporation lodged a separate objection, which it withdrew on 15 June 2016.
I was appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies. If I determine the grant of the licence is an act attracting the expedited procedure, as the State and Brockman contend, then the State can grant the licence to Brockman without any requirements for negotiations with Njamal. Alternatively, if I determine the grant is not an act attracting the expedited procedure, as Njamal contend, then Brockman, Njamal and the State must negotiate in good faith with a view to reaching agreement about the grant of the licence (see s 31(1)(b)). For the reasons outlined below, I determine the expedited procedure applies.
My decision must be based on the criteria set out in s 237. Specifically, I must determine whether the grant of the licence is likely to:
(a)directly interfere with community or social activities carried on by Njamal;
(b)interfere with areas or sites of particular significance in accordance with the traditions of Njamal; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
Njamal’s submissions include the affidavit of Mr Trevor Wellington, who states ‘I am a Njamal Elder and member of the Claimant Group of the Njamal Native Title Claim’. I accept Mr Wellington has authority to speak for the area of the licence on behalf of Njamal.
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’. Njamal do not provide contentions in relation to s 237(c). Therefore, based on the limited evidence before me, I find the licence is not likely to involve major disturbance to the land or waters concerned.
On the basis of the evidence provided, I focus on ss 237(a) and (b) and address the following issues to determine whether or not the expedited procedure applies to the grant of the licence:
(a)Is there likely to be direct interference with Njamal’s community or social activities?
i)What activities do Njamal undertake on the licence?
ii)What are Brockman’s proposed activities upon the grant of the licence?
iii)Conclusion.
(b)Is there a real risk of interference with areas or sites of particular significance to Njamal?
i)What areas or sites are identified by Njamal?
ii)Are these areas or sites of particular significance to Njamal for the purposes of s 237(b)?
iii)Conclusion.
(a)Is there likely to be direct interference with Njamal’s community or social activities?
What activities do Njamal undertake on the licence?
In his affidavit (at 10–14), Mr Wellington states families of Njamal People live at Warralong, a community located approximately 28 kilometres south east of the licence. He states these families ‘travel along the track that runs through just to the east of the Exploration Licence area’, as a shortcut when travelling between Warralong and Port Hedland. He says they ‘regularly use this track as do all the people travelling for law business’. He also states when Njamal people travel near or through the licence, ‘they go hunting along the way and gather bush tucker and medicine’, including kangaroo (wijuna), bush turkey (parturra), porcupine, emu (karlaya), goanna, wild onions (ngarlku), blackberry, gum (minta) and jarntal (a bush medicine).
The Njamal contentions refer to Mr Wellington’s affidavit as outlined above, and point to Njamal’s use of the track and the De Grey River, which runs through the licence. The contentions argue Brockman’s proposed activities would interfere with the social and community activities of Njamal, including by affecting flora and fauna in the area. The contentions also refer to Njamal’s native title rights and interests, as listed on the Register of Native Title Claims, and argue that Brockman’s proposed activities are likely to interfere with those rights and interests.
What are Brockman’s proposed activities upon the grant of the licence?
In their contentions, Brockman state they have applied for ground which they consider geologically prospective for iron. They describe their proposed activities in relatively broad and general terms, stating that initial site visits may include low impact activities (including airborne magnetic surveys, regional reconnaissance mapping and sampling). They state they would notify Njamal and undertake a heritage survey prior to commencing high impact exploration (which includes drilling programs).
Conclusion
The contentions made by Njamal’s representative rely on the relatively broad information provided in the affidavit evidence. The information provided suggests the Njamal people use the area along and around the De Grey River, as well as the track, and areas around Warralong, for hunting, fishing and camping. There is no evidence Njamal undertake their activities exclusively or intensively on the area of the licence.
On numerous occasions, the Tribunal has balanced a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities and has concluded exploration and social or community activities can coexist without direct or substantial interference (see, for example, Rosas v Northern Territory at [71]). I have balanced the evidence provided in this matter, having regard to the limited evidence on the nature of Njamal’s community and social activities and the activities Brockman could undertake if exercising their full suite of rights under s 66 of the Mining Act 1978 (WA). I conclude both parties’ activities are likely to be able to coexist, and that interference with Njamal’s social or community activities on the licence is unlikely.
(b)Is there a real risk of interference with areas or sites of particular significance to Njamal?
A native title party must provide sufficient evidence to: show that an area or site exists on the proposed tenement; explain its significance and distinguish it from other areas within the tenement; and demonstrate it is of more than ordinary significance to them in accordance with their traditions (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17]). As President Webb QC noted (at [130], emphasis in original), s 237(b) requires the Tribunal to distinguish ‘between areas and sites which are generally culturally significant and specific culturally significant areas and sites which are of particular significance’, and that ‘the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance’.
The word ‘particular’ in s 237(b) means not only ‘special or more than ordinary’, but that the particularity of the site or area must be capable of identification (Western Australia v McHenry). These are threshold requirements for finding the grant of a licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). If there is no evidence that areas or sites of particular significance exist on the licence, I do not need to proceed with the next step of the inquiry to look at the question of interference.
What areas or sites are identified by Njamal?
The State provided reports from the Department of Aboriginal Affairs’ Register of Aboriginal Sites (DAA Register) that show one site (Mt Grant Quarry) and one heritage place (Mt Grant) exist within the licence. Neither are noted as being subject to gender restrictions.
In Tjiwarl v Sammy Resources (at [49]) the Tribunal noted the numerous occasions in which it has held the DAA Register:
does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
Regardless of whether or not a site is administratively identified on the DAA Register, a native title party may establish there are ‘areas or sites of particular significance’ to them ‘in accordance with their traditions’ (per s 237(b)) if they provide sufficient evidence.
Mr Wellington states, in a general manner, the ‘ranges and hills through the Exploration Licence are important to my people’. He also states, ‘There are ‘pools that are located in and nearby the [licence] that come from the De Grey (river)’, which are ‘really important to Njamal People and must be looked after’. He states, ‘As a Njamal if I wanted to go to one of those pools I would need to talk in my language to the snake that lives in that pool’, otherwise ‘you’ll get no fish, you’ll get nothing and it could be dangerous’. Mr Wellington also states, ‘If we went out to that [licence] area now we would be sure to find a lot of signs of traditional Njamal use of the country, because the De Grey [River] runs through the Exploration Licence area’ (at 15–20).
More specifically, Mr Wellington states there are ‘men’s sites in and around that [licence] area and located at the bottom of the ranges and hills’ and that ‘Mount Grant is also an important place’. He states, ‘I don’t want to talk about these sites because they are sacred. Women can’t go near those sites.’ He explains, ‘If women went through that [licence] without avoiding those sacred sites they might get sick.’ Mr Wellington also states there ‘are songlines that include the De Grey River and there is a songline that goes through the area including the Exploration Licence.’ He states, ‘There are important stories for this whole area but I don’t want to talk about it. These stories were told to me by my uncles’ (at 15–20).
Njamal contentions argue the licence area is site rich, and so the State’s regulatory regime would be insufficient to protect sites of particular significance. The Njamal contentions also outline that mere entry onto certain parts of the licence would be sufficient for interference to occur. My view is that the evidence does not support these arguments. I adopt the reasoning of the Tribunal in Lockyer v Mineralogy (at [18]):
It is not sufficient for a native title party in written contentions to simply assert that an
area is “site rich” or that an area or site is of “particular significance”. Those are issues that can only be ascertained from the production of evidence. The best evidence in any native title proceeding, including expedited procedure objection inquiries, is affidavit material from members of the claim group, but it may also be in the form of extracts from registers, previous findings of fact from commissions of inquiry, court proceedings or Tribunal determinations. Accordingly, detailed contentions prepared by legal practitioners or affidavits from “experts” can never replace the strength of direct evidence from the persons who assert native title over the relevant land and waters.
Are these areas or sites of particular significance to Njamal for the purposes of s 237(b)?
At [13]–[14] above, I outlined the Tribunal’s well established principles regarding the type of evidence that must be provided by a native title party to satisfy the threshold requirements of s 237(b).
I appreciate Mr Wellington might not want to disclose details about important sites (or may not be permitted to under customary law). However, it is open to Njamal to request non-disclosure directions if that was appropriate, or explain further any difficulties in disclosing information. Mr Wellington does touch on the importance of the men’s sites, pools and songlines by referring to cultural restrictions and practices. He also refers to aspects such as the general location of the men’s sites and the consequence of women getting sick. I accept these sites are said to be on the licence, although only very general information has been provided about where on the licence they are situated. In addition, the evidence provided is not specific enough to establish why the sites are of particular significance, as is required under s 237(b).
The reference to ‘signs of traditional Njamal use of the country’, or reference to the sites being important or associated with important stories, does not explain the particular or more than ordinary significance of these areas in accordance with Njamal traditions. I find there is insufficient evidence before me to support a conclusion that these areas are of particular significance for the purposes of s 237(b).
Conclusion
Because I find there is insufficient evidence to establish sites of particular significance on the licence, I do not need to consider whether interference is likely. Nonetheless, I note the State proposes to impose a condition allowing Njamal to request Brockman enter into a Regional Standard Heritage Agreement (RSHA) within the first 90 days of grant. If Njamal choose to request the condition, then consultation could occur between Brockman and Njamal prior to any ground disturbing activities. Njamal contend the RSHA is deficient in many respects for protecting the rights and interests of Njamal. However, in the absence of evidence of any sites of particular significance, and in the absence of evidence of the actual effects of non-ground disturbing activities on such sites, I cannot conclude the RSHA will be deficient in this inquiry. The State also intends to place other conditions, and endorsements, on the grant of the licence (as outlined at Appendix A).
Determination
The determination is that the act, namely the grant of exploration licence E45/4496 to Brockman Exploration Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
14 February 2017
Appendix A: Draft Endorsements and Conditions State intends to impose on grant of licence
ENDORSEMENTS
The Licensee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The Licensee's attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
The Licensee attention is drawn to the provisions of the:
• Waterways Conservation Act, 1976
• Rights in Water and Irrigation Act, 1914
• Metropolitan Water Supply, Sewerage and Drainage Act, 1909
• Country Areas Water Supply Act, 1947
• Water Agencies (Powers) Act 1984
• Water Resources Legislation Amendment Act 2007
The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
Advice shall be sought from the DoW if proposing any [exploration] within a defined waterway and within a lateral distance of:
• 50 metres from the outer-most water dependent vegetation of any perennial waterway, and
• 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:
The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
All activities to be undertaken with minimal disturbance to riparian vegetation.
No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
In respect to Public Drinking Water Source Areas (PDWSA) the following endorsement applies:
All activity within proclaimed public drinking water source areas shall comply with the current published version of the DoWs Quality Protection Note 25 Land Use Compatibility in Public Drinking Water Source Areas. Key issues that need to be considered within the Water Quality Protection Note are:
• All exploration involving the storage, transport and use of toxic and hazardous substances (including human wastes) within public drinking water source areas being prohibited unless approved in writing by the DoW.
• All exploration prohibited in any reservoir protection zone (an area of up to two kilometres from the maximum storage level of a reservoir including the reservoir itself) or within a wellhead protection zone, unless approved in writing by the DoW (location of zones available from the DoWs Water Source Protection Branch or regional office).
• Written approval from the DoW if handling, storing and/or using hydrocarbons and potentially hazardous substances.The grant of this Licence does not include the land the subject of AML70/249.
CONDITIONS
All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
• the grant of the Licence; or
• registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
All Mining Act tenement activities prohibited within 200 metres of RAMSAR or ANCA listed wetlands unless written permission of the Department of Parks and Wildlife is first obtained.
The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities of Repeater Station Site.
No interference with Geodetic Survey Station G-45-17 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
No interference with the transmission line or the installations in connection therewith, and the rights or ingress to and egress from the facility being at all times preserved to the owners thereof.
0