Kevin Allen and Others (Njamal) v Sorrento Resources Pty Ltd and Another
[2017] NNTTA 33
•6 June 2017
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others (Njamal) v Sorrento Resources Pty Ltd and Another [2017] NNTTA 33 (6 June 2017)
Application No: | WO2015/0886; WO2016/0481 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Kevin Allen and Others (Njamal) (WC1999/008)
(native title party)
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Sorrento Resources Pty Ltd
(grantee party)
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The State of Western Australia
(Government party)
DETERMINATION THAT ONE OF THE ACTS IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE AND ONE OF THE ACTS IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 6 June 2017 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether act is likely to directly interfere 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 ss 4, 5 Native Title Act 1993 (Cth) ss 29, 31, 32, 237 Mining Act 1978 (WA) s 66 |
Cases: | Daisy Lungunan and Others on behalf of Nyikina and Mangala/ Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Geotech International’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’) Kevin Allen and Others on behalf of Njamal v Warren John Ayres and Another [2016] NNTTA 54 (‘Njamal v Ayres’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) 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: | Ms Kate Major, Castledine Gregory Mr Andre Maynard, Castledine Gregory |
| Representatives of the grantee party: | Mr Brett Anderson, Anderson’s Tenement Management |
| Representatives of the Government party: | Ms Angela Milne, State Solicitor's Office Ms Bethany Conway, Department of Mines and Petroleum |
REASONS FOR DETERMINATION
This decision considers whether or not the expedited procedure applies to the grants of exploration licences E45/4560 and E45/4681 (the licences) to Sorrento Resources Pty Ltd (Sorrento Resources). In their public notice of the licences, the State of Western Australia included a statement that they consider the grants to be acts 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 the licences. The claimants (Njamal) therefore had the right to lodge an objection under s 32 against the State’s assertion that the expedited procedure applies. Njamal exercised that right, and the President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry to determine whether or not the expedited procedure applies to the grant of the licences.
My decision must be based on the criteria set out in s 237. Specifically, I must determine whether the grant of the licences 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.
For the reasons detailed below, I determine the expedited procedure applies to the grant E45/4681. The effect of this is that the State can grant this licence without the usual requirement for negotiations between Njamal, Sorrento Resources and the State in accordance with s 31. I determine the expedited procedure does not apply to the grant E45/4560 and so the State and Sorrento Resources must negotiate with Njamal with a view to reaching agreement on the doing of the act.
All parties lodged contentions. Njamal submissions attached the affidavits of Mr Kevin Allen and Mr Willie Jumbo. Both Mr Allen and Mr Jumbo state they are Njamal Elders and members of the Njamal native title claimant group. I accept they have authority to speak for the area of the licences 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 or evidence in relation to s 237(c). Therefore, based on the limited evidence before me, I find the grants of the licences are 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 each licence:
(a)Is there likely to be direct interference with Njamal’s community or social activities?
i)What activities do Njamal undertake on the licences?
ii)What are Sorrento Resources’ proposed activities?
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 there areas or sites of particular significance to Njamal?
iii)Is there a real risk of interference to areas or sites of particular significance?
iv)Conclusion.
(a) Is there likely to be direct interference with Njamal’s community or social activities?
What activities do Njamal undertake on the licences?
Njamal contend they currently carry out community and social activities on the licence areas. They submit the licences are ‘rich in a number of different types of bush tucker and bush medicines’, which means the area is used ‘intensively and frequently for community and social activities.’ However, the evidence provided in this respect is very general. Mr Allen and Mr Jumbo both state Njamal people, including their families, hunt, travel through, gather bush tucker and collect bush medicine in the areas of the licences and the surrounding areas. In relation to traditional activities, Mr Allen identifies that the De Grey River is ‘really important to my family as Njamal people’ and the Coppin Creek is ‘very significant’. Mr Allen states Bamboo Creek Road is used by Njamal People ‘to travel through this part of our country to get access to important fishing and hunting places and areas for collecting bush tucker and bush medicine’, as well as during ‘important times such as law business’.
The Department of Aboriginal Affairs (DAA) register records two ‘other heritage places’ on E45/4560, being: ‘Coppin Gap – Kulkangunyha’, described as a ‘mythological, camp, water source’ site; and ‘Coppin Creek – Kulkangunyha’, described as a ‘camp, water source’ site. I note these locations accord with the areas Mr Allen identifies as important in relation to Njamal’s social and community activities. Further information about the DAA register and ‘other heritage places’ is outlined in consideration of s 237(b) at [25]–[26] of this determination.
Apart from identifying these locations, Njamal provide little specific evidence in regards to the nature of their social and community activities, the frequency or intensity with which they are undertaken, or anything which suggests activities are undertaken there in such a way that exploration activities are likely to interfere with them.
What are Sorrento Resources’ proposed activities?
Sorrento Resources have indicated, in attachments to the State’s contentions, they will explore for gold, using both historical and new targets for drill testing on the Dalton Creek licence, and will explore for uranium and minerals on the Bamboo Creek licence. I could not find anything in their materials that identified which particular licences related to each of these proposed exploration programs, however, the State indicates that E45/4560 is the Bamboo Creek licence and E45/4681 is the Dalton Creek licence. Sorrento Resources contends the grant of the proposed licences will have little impact on Njamal’s social or community activities. They contend there has been extensive historical exploration activity over the licences, and their exploration activities will be similar to those previously undertaken. I accept there have been a significant number of historical exploration and mining licences over the areas of the licences, as well as a pastoral lease over E45/4560. This is supported by evidence in the State’s Tengraph Quick Appraisals. However, I note such evidence is not necessarily determinative that a grantee party’s activities will have no further impact on a native title party’s activities. For example, it is not clear if the previous activity took place under terms of an agreement, which prevented or limited interference, or whether the full suite of rights under the licence were utilised.
Sorrento Resources provides general information about its familiarity with the State’s regulatory regime. It notes it would enter into a Regional Standard Heritage Agreement (RSHA), and would be willing to undertake a heritage survey over areas of the licences that would be impacted if ground disturbing exploration were to be undertaken. Sorrento Resources have obligations under the State’s regulatory regime in respect of sites recorded on the DAA register, and Sorrento Resources state it is aware of these sites and obligations, which it will take into account prior to planning or undertaking any activities. I note it would be open for Sorrento Resources to use the full suite of rights available to them under the grant of the licence (see s 66 of the Mining Act 1978 (WA)).
Conclusion
Njamal’s contentions state the grants of the licences, which would allow Sorrento Resources to access and use its vehicles and other machinery on the area, would impact Njamal’s ability to access the licences and conduct community and social activities there. In relation to the DAA recorded sites at Coppin Gap and Coppin Creek, Njamal further contend the State’s regulatory regime does not make adequate provision for the protection of community and social activities under s 237(a) from the effect of exploration activities. They outline a number of Tribunal and Federal Court decisions, which they say support an argument that areas where Njamal people conduct community or social activities will not be adequately protected. I will consider the sites recorded on the DAA register and the sufficiency of protection under the State heritage regime in greater detail in relation to s 237(b) below. In relation to s 237(a), however, the issue to be considered is whether the factual circumstances disclosed indicate there is a likelihood of interference with social or community activities.
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]). In this inquiry, I have balanced the general and limited evidence provided in relation to Njamal’s community and social activities against the activities Sorrento Resources could undertake if they exercised their full suite of rights under s 66 of the Mining Act 1978 (WA). In Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16]), President Webb summarises previous Tribunal decisions, and the approach of the Tribunal and Federal Court and notes ‘the level of interference with community and social activities must be substantial rather than trivial’.
I find there is insufficient evidence before me to establish Njamal undertake social or community activities on the licences to an extent that they may be substantially interfered with by Sorrento Resources’ activities. I conclude both parties’ activities are likely to be able to coexist, and that interference with social or community activities on the licences is not likely.
(b) Is there a real risk of interference with areas or sites of particular significance to Njamal?
The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions.
A native title party must provide sufficient evidence about an area or site to: show it exists on a licence; explain its significance and distinguish it from other areas within the licence; and demonstrate it is of more than ordinary significance to them in accordance with their traditions. These are threshold requirements for finding the grant of a licence is likely to cause interference with areas or sites of particular significance. If there is evidence that areas or sites of particular significance exist on a licence, I must proceed to consider whether is likely interference. If is no such evidence, I do not need to undertake this next step of the inquiry (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).
What areas or sites are identified by Njamal?
Njamal contend there are sites and areas of particular significance to Njamal on E45/4560, many of which are ‘likely not to be readily identifiable by non-Njamal people, are sacred and associated with men’s stories’. They further submit the area of this licence is ‘site rich.’ Mr Allen states, ‘Coppin Creek, which comes off the De Grey River is very important to Njamal culture and particularly my family’. He states the area is known as ‘Kulkangunyha’, and locates both Coppin Gap and Coppin Creek with the area of E45/4560. Mr Allen also identifies that there are ‘really important engravings in the Exploration Licence located between Eight Mile Creek and Bamboo Creek Road’, and states Eight Mile Creek is an important place for Njamal people. Mr Allen and Mr Jumbo state if Njamal people travelled through this licence area they would find artefacts and ‘a lot of signs of traditional Njamal use of the country’ and, ‘We might find grinding patches, and camping places’.
I note Njamal do not submit any contentions or evidence relating to the existence of sites or areas of particular significance on E45/4681. Based on the evidence before me, I conclude that, for the purposes of this inquiry, sites or areas of particular significance do not exist on E45/4681. I do not then need to consider whether interference is likely in accordance with s 237(b) in regards to that licence.
Are these areas or sites on E45/4560 of particular significance to Njamal?
Relevance of DAA register records
As outlined above, the DAA register records two ‘other heritage places’ on E45/4560, which accord with Mr Allen’s descriptions of Coppin Gap and Coppin Creek. There are also two registered sites on the licence, named ‘Bamboo’ and ‘Talga Talga Homestead’ (discussed further at [31]–[32]). A site recorded as a ‘registered site’ with the DAA register means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (AHA). A site recorded as an ‘other heritage place’ means, in this case, a place about which information has been received but have not yet been assessed.
The DAA register does not purport to record all Aboriginal sites in Western Australia. That is, a site of particular significance for the purposes of s 237(b) does not need to be recorded on the DAA register. Equally, the existence of sites recorded on the DAA register does not necessarily mean they are of ‘particular significance’ for the purposes of s 237(b). Regardless of whether or not a site is administratively identified on the DAA register, the Tribunal must consider whether there is evidence that establishes the existence of areas or sites of particular significance to a native title party, in accordance with their traditions.
The State argue that a similar approach should be adopted to the evidence as I adopted in Njamal v Ayres, where general evidence had been provided about location and why sites were of particular significance. I agree this current inquiry certainly does not provide a great deal of evidence regarding these factors. However, it does go beyond that provided in Njamal v Ayres, by giving information about how these sites are important, connected to water, and to ceremony. As I have said in other decisions where there is only the minimal amount of evidence, it is sometimes a difficult judgement as to whether a site is of particular significance or not. With this in mind, I consider each of the sites and areas identified by Njamal in turn.
Coppin Creek and Coppin Gap
Mr Allen states, ‘There is an important men’s story follows the Coppin Creek and it reaches Coppin Gap … There is a snake that lives in Coppin Creek and this is a site of significance to Njamal People that must be protected. This snake looks after the waters and Njamal People.’ He explains that Coppin Gap ‘is a very important camp site for my ancestors’ and ‘[t]he waterholes there are an important water source in the area’. He states, ‘Coppin Creek and Coppin Gap have supported my ancestors and I, as a law man, have a responsibility to look after these heritage sites’. From mapping provided by the State, it appears Coppin Gap is in the far north west of E45/4560 and part of the Coppin Creek (the geographical feature and the DAA site) also runs through that area.
The State notes the DAA register makes no record of any gender restriction on such sites. However, the DAA register is not determinative and I accept the evidence that Coppin Creek and Coppin Gap are associated with an important men’s story. Having considered Mr Allen’s evidence, I accept that these areas on E45/4560 are of particular significance to Njamal and are to linked important features of Njamal’s traditions through water on the licence.
Engraving sites and Eight Mile Creek
Mr Allen identifies important engraving sites on E45/4560 between Eight Mile Creek and Bamboo Creek Road. He states, ‘These engravings are our culture and are sacred places for the Njamal People’. As noted previously, there are two registered sites on the DAA register for E45/4560, named ‘Bamboo’ and ‘Talga Talga Homestead’, which are both described as engraving sites (not restricted). These sites appear to be located in the area of the licence between Eight Mile Creek and Bamboo Creek Road. This supports Mr Allen’s assertion there are important engraving sites in the area.
Mr Allen also says Eight Mile Creek is ‘an important place for Njamal people due to there being so many places where our old people camped and conducted ceremonies in this area’. The State say there is insufficient evidence that the ceremonies referred to by Mr Allen occur on or near E45/4560. To the extent this evidence relates to the area between Eight Mile Creek and Bamboo Creek Road, I am satisfied that Mr Allen’s evidence is cogent and consistent with places where ceremonies would be held. I find the area between Eight Mile Creek and Bamboo Creek Road is an area of particular significance to Njamal.
In relation Eight Mile Creek itself, Mr Allen’s assertion that it is important to Njamal is very broad. I note the creek appears to be quite long, although it crosses the licence area in a portion to the south of the DAA registered engraving sites. If an area or site is significant, it must be known and able to be located and the nature of its significance explained (see Silver v Northern Territory at [91]). I find that, while the creek is likely important to Njamal, there is insufficient evidence to establish why the creek itself is of particular significance in accordance with Njamal’s traditions.
Grinding patches, camping places and signs of traditional use
Mr Allen and Mr Jumbo state Njamal people would find artefacts, grinding patches and camping sites if they went travelling through the country, and that there are ‘lots of signs that Njamal have used the country’. References to signs of traditional Njamal use of the country, or general statements that sites or areas are important, do not explain their particular or more than ordinary significance in accordance with Njamal traditions.
E45/4560 as ‘site rich’
Njamal contend that as E45/4560 contains multiple sites, the area can be described as ‘site rich’. In Geotech International it was concluded s 237(b) is concerned with identifying sites of particular significance and it is not necessary to combine various sites into a general assertion that an area is site rich. I adopt the following reasoning from [43]:
In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation. In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstances, in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely.
I find the term ‘site rich’ is not particularly helpful in this matter. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of Sorrento Resources. I have found there are two such areas, one in the north west of the licence and one centrally located.
Is there a real risk of interference to areas or sites of particular significance?
Having concluded that area around Coppin Creek and Coppin Gap in the north west of E45/4560, and the centrally located area between Eight Mile Creek and Bamboo Creek Road, including the engraving sites, are areas or sites of particular significance, I turn to the issue of interference. In drawing conclusions about whether interference with these areas is likely, I consider: the nature of the areas; Sorrento Resources’ evidence about how interference, including inadvertent interference can be avoided; the nature of potential interference; and the Njamal’s laws and traditions. I must give weight to the State’s regulatory regime, and there must be a real chance or risk of interference with areas, not just a possible one.
Njamal contend that ‘the fabric of the country’ of the area of E45/4560 is ‘imbued with such particular significance that any entry on the relevant land which has not been agreed with the Native Title Party would be likely to result in interference within the meaning of s 237(b)’ (emphasis in original). Their contentions particularise that ‘exploration activities generally, including those of a higher intensity or with the use of equipment’ would also constitute interference. Mr Allen states:
When explorers like Sorrento travel over Njamal country without our permission, we get concerned for them. Without our permission and knowledge of where they can and can’t go they are likely to disturb our sacred site. They could get really sick if they such things.
I give some weight to the evidence relating to sacred areas in considering the likelihood of interference with regards to the identified areas of particular significance.
Sorrento Resources intend to explore for uranium and other minerals, and develop a drilling program, on this licence. I note it will be open to them to undertake the full suite of activities under s 66 of the Mining Act 1978 (WA). Those activities may include removing up to 1000 tonnes of material from the licence. Sorrento Resources submit previous tenure over the licence implies the licence has already been interfered with (see discussion above at [11]). They have also provided general information about their attitude to site protection, including that they are aware of DAA sites, but there is little about site avoidance of the areas of particular significance outlined by Njamal. I note the State proposes to impose a condition allowing Njamal to request Sorrento Resources enter into a RSHA within the first 90 days of the grant of each licence. If Njamal choose to request the condition, then consultation could occur between Sorrento Resources and Njamal, but this is only prior to any ground disturbing activities. I also note the State intends to impose various conditions and endorsements on the licence, including ones that regulate Sorrento Resources’ interactions with water on the licence.
Njamal contend the State’s regulatory regime would be insufficient to protect sites or areas of particular significance in this matter. In FMG Pilbara v Yindjibarndi Aboriginal Corporation, the Federal Court highlighted the complex matrix of evidence in relation to interference, and that what may appear to be minimal in some circumstances could be extreme in other circumstances having regard, for example, to the particular traditions of the native title party.
On the evidence before me, I am satisfied there is likely to be interference with the areas of particular significance in two parts of the licence – that related to a men’s story and water sources in the north west of the licence and that related to engraving sites and ceremony between Eight Mile Creek and Bamboo Creek Road in the centre of the licence. While there are places recorded on the DAA register that are identifiable and accord somewhat with the areas identified by Njamal, I find the areas of particular significance around those sites may not be so identifiable. From the evidence provided by Njamal, I am not satisfied the level of protection afforded by DAA records and the State’s regulatory regime would be sufficient in this instance (taking into account FMG Pilbara v Yindjibarndi Aboriginal Corporation). I find Sorrento Resources risks interference with those sites, unless it engages in the normal negotiations with Njamal as required by s 31.
The State’s application of the expedited procedure statement to the grant of a licence signals they believe that act is to be of low impact, such that s 237 criteria are satisfied. In this case, while it has required a very close reading of all parties’ evidence and submissions, I conclude that interference is likely from exploration activities over E45/4560, given the nature of the sites.
Determination
The grant of exploration licence E45/4681 to Sorrento Resources is an act attracting the expedited procedure. The grant of exploration licence E45/4560 to Sorrento Resources is not an act attracting the expedited procedure.
Helen Shurven
Member
6 June 2017
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