Kulyamba Aboriginal Corporation RNTBC v Cuvier Resources Pty Ltd
[2018] NNTTA 2
•22 January 2018
NATIONAL NATIVE TITLE TRIBUNAL
Kulyamba Aboriginal Corporation RNTBC v Cuvier Resources Pty Ltd and Another [2018] NNTTA 2 (22 January 2018)
Application No: | WO2016/0604 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kulyamba Aboriginal Corporation RNTBC (WCD2009/002)
(native title party)
- and -
Cuvier 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: | 22 January 2018 |
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 – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) Mining Act 1978 (WA) Aboriginal Heritage Act 1972 (WA) |
Cases: | FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182 (‘FMG Pilbara v Yindjibarndi’) Thudgari People v State of Western Australia [2009] FCA 1334 (‘Thudgari People v State of Western Australia’) 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 v FMG Pilbara’) |
| Representative of the native title party: | Wayne Lapthorne, Kulyamba Aboriginal Corporation RNTBC |
| Representative of the grantee party: | Jim Hawtin, Strategic Tenement Services |
| Representatives of the Government party: | Sarah Power, State Solicitor’s Office Bethany Conway, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E08/2843 (the licence) to Cuvier Resources Pty Ltd (Cuvier Resources). The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure. By including a statement that the expedited procedure applies in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
(a)interfere directly with community or social activities carried on by members of the native title claims or determined areas;
(b)interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The licence covers approximately 128.86 square kilometres and is located in the Shire of Ashburton/Upper Gascoyne. The Kulyamba Aboriginal Corporation RNTBC (Kulyamba Aboriginal Corporation) holds native title rights and interests, on behalf of the Thudgari People over 86.31 per cent of the licence area (Thudgari People v State of Western Australia). In relation to the remaining 13.69 per cent of the licence, located in the north-western corner of the licence, the Federal Court of Australia determined native title does not exist. According to mapping, this north-western corner appears to be covered by a nature reserve which extends outside the licence area to the north. A map created by the Tribunal Geospatial Services was provided to all parties for the purpose of this inquiry.
The Kulyamba Aboriginal Corporation exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies. In so objecting, the Kulyamba Aboriginal Corporation argue the expedited procedure should not apply as interference or disturbance with one or more of the s 237 criteria is likely to occur.
The President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies. My task is to determine whether the grant of the licence is, or is not, an act attracting the expedited procedure. If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Cuvier Resources and the State must negotiate in good faith with a view to reaching an agreement with the Kulyamba Aboriginal Corporation about the proposed licence.
I must base my decision on the criteria set out in s 237 of the Act. The questions I must answer to draw conclusions on these criteria are, is the grant of the licence likely to:
(a)interfere directly with the community or social activities of the Thudgari People?
(b)interfere with areas or sites of particular significance to the Thudgari People?
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Preliminary matters
Contentions and evidence
The State and Kulyamba Aboriginal Corporation submitted contentions and evidence to the Tribunal in relation to this matter. Cuvier Resources did not provide any written contentions or documentary evidence, apart from what was provided through the State.
At the listing hearing for this matter, the Kulyamba Aboriginal Corporation’s representative requested an oral hearing to allow them to submit further evidence. I note the Tribunal must ensure every party is given the opportunity to present their case (s 142 of the Act). While the Act allows the Tribunal to make a determination on the papers, without holding a hearing, the Tribunal ‘must hold a hearing if it appears to the Tribunal that the issues for determination cannot adequately be determined in the absence of the parties’ (s 151(2) of the Act).
After considering the views of parties presented at the listing hearing, I confirmed an oral hearing would be held in this inquiry to give all parties a final opportunity to present their case. This hearing was held by telephone, rather than on country, allowing the Tribunal to proceed in a fair, economical and prompt way, pursuant to s 109 of the Act.
At the hearing, Mr Charlie Lapthorne was sworn in and gave evidence on oath for the Kulyamba Aboriginal Corporation. (All references to Mr Lapthorne in the paragraphs below are to Mr Charlie Lapthorne who gave sworn evidence, rather than to Mr Wayne Lapthorne, who represented the Kulyamba Aboriginal Corporation in this inquiry.) I accept Mr Lapthorne has the authority to speak on behalf of Thudgari People for the licence area.
I note the Kulyamba Aboriginal Corporation attached to their contentions a number of colour photographs, with labels such as ‘Carvings that date back before our time’, ‘Sense of adventure’ and ‘Bush food’. However, the written material provides no indication of where these photographs were taken. No submissions were made at the hearing to confirm if and how the photographs relate to the licence area, although there was the opportunity to do so. I therefore do not consider it appropriate to attach any weight to the photographs in drawing my conclusions.
Cuvier Resources did not provide further information or evidence at the hearing, apart from some brief comments that will be outlined below in this decision.
The tenure of the proposed licence
The State’s evidence notes there are two sites recorded on the Department of Indigenous Affairs (DIA) database: Mardanggu Thalu (Site ID 7325) and Mt Palgrave (site ID 6751). There is an Indigenous held pastoral lease (Ullawarra) covering 64.9 per cent of the licence. Indigenous Land Use Agreements have been registered between the Aboriginal Corporation and two other pastoral leases overlapping the licence (covering just over 20 per cent of the west and southern portions of the licence). Various mineral claims have been granted over the area, which all pre-date the Act. Some exploration licences have also been granted over the area, both before and since the Act. There are 24 tracks recorded in the area, as well as an aircraft landing ground and runway (in approximately the centre of the licence), two major watercourses, two well/bores with windmills and three fences.
(a) Is the grant of the licence likely to interfere directly with the community or social activities of the Thudgari People?
What activities do the Thudgari People undertake on the licence?
Section 237(a) deals with whether an act is likely to interfere directly with the community or social activities carried on by native title holders.
The Kulyamba Aboriginal Corporation provide very limited information about any community or social activities undertaken on the licence. The written contentions state the Thudgari People collect bush food in the area, but do not provide any further detail. One of the photographs attached to the contentions appears to show the collection of some food, but there is no indication whether the picture was taken in the relevant area or is of the bush foods collected there.
At the oral hearing, Mr Lapthorne provided limited further information about community or social activities undertaken by the Thudgari People on the licence. Mr Lapthorne stated he goes to an area just south of Mount Palgrave to camp with his grandchildren. However, he provided no further details about the frequency or intensity of this activity.
Conclusion
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’. The Kulyamba Aboriginal Corporation has provided limited evidence in relation to the nature or extent of the activities the Thudgari People undertake on the licence. On the material before me, I am unable to find interference with the Thudgari People’s social or community activities is likely.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to the Thudgari People?
To establish that interference of the kind set out in s 237(b) is likely, 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 v FMG Pilbara at [17]).
What areas or sites are identified on the licence?
The Kulyamba Aboriginal Corporation contentions state, ‘The whole tenement is covered in artefacts and to the north of the tenement ancient rock carvings of Dreamtime Stories can be found’. They also state the following sites are located within the licence:
·Dreamtime Story and Gathering Place – Sacred Site;
·Sacred Spring;
·Camp Site;
·Law Camp;
·Burial Site – Sacred Site;
·Birthing Place – Sacred Site.
The Kulyamba Aboriginal Corporation attached a map of the licence area to its contentions, which had handwritten annotations identifying the following locations:
·‘Sacred Spring’, in the north of the licence;
·‘Ancient rock carvings’ along a line marked just south of the spring;
·‘Camp Site & Burial Place/Birthing Place’, located in the centre of the licence close to a billabong;
·‘Law Camp’, which appears to be located outside the licence to the west;
·‘Camp Site/Burial Place/Birthing Place’, located in the south of the licence;
·‘Dreamtime Story & Gathering Place’, located in the south of the licence.
This evidence was further discussed during the oral hearing, at which Mr Charlie Lapthorne gave sworn evidence. At the oral hearing, the State and Cuvier Resources were provided the opportunity to ask questions of Mr Lapthorne about the evidence. Mr Lapthorne confirmed his understanding of the location of the licence in relation to significant landmarks, such as Mt Palgrave in the north of the licence, and located sites of particular significance to the Thudgari People using those landmarks. The geographical feature of Mt Palgrave is in the approximate centre of the north of the licence, approximately one kilometre west of the DIA recorded feature of Mt Palgrave (site ID 6751). It appears the area on and around the geographical site of Mt Palgrave is of importance to the Thudgari People, as outlined below, and it is likely this includes the DIA Mt Palgrave Site.
Spring and rock carvings
I note the spring is located in the north of the licence area, just north of Mt Palgrave. Mr Lapthorne’s description of its location seemed to accord with the map provided by the Kulyamba Aboriginal Corporation.
Maps provided by the parties and generated by the Tribunal show the ancient rock carvings are located in the north of the licence and part covered by a reserve. At the hearing, Mr Lapthorne confirmed there are carvings and drawings along a creek that extends for approximately 2–4 kilometres west of Mt Palgrave towards the spring.
Law camp
Mapping locates the law camp a few hundred metres to the west of the licence and not within the licence. Mr Lapthorne confirmed he was not aware of any law camp within the licence. As such I do not address this site further.
Various camp sites / burial places / birthing places / gathering place
All other sites identified on the map are located within the licence or very close to the boundary of the licence.
In regards to the various references to camp sites, I note the map provided by the Kulyamba Aboriginal Corporation identifies two camp sites, one near a billabong approximately 10 kilometres south of Mt Palgrave (near the centre of the licence) and another approximately 16 kilometres south of Mt Palgrave. At the hearing, Mr Lapthorne confirmed there is an old camping area near a billabong, which appears to be the site mapped 10 kilometre from Mt Palgrave, but did not make particular reference to the one further south.
Based on Mr Lapthorne’s oral description, there seems to be a camp site associated with a Dreaming story located more immediately south of Mt Palgrave, although this is not identified on the map attached to the Kulyamba Aboriginal Corporation’s contentions.
Summary
Mr Lapthorne indicated there may be various sites of importance to the Thudgari People on and around the licence, but clearly identified the most significant sites were the sacred spring just to the north of Mt Palgrave, the rock carvings along a creek leading to the spring that is also near Mt Palgrave, and a camp site just south of Mt Palgrave. On the basis of this evidence, I focus on these sites and areas.
Are these areas or sites of particular significance to Thudgari for the purposes s 237(b)?
Spring and rock carvings in the area to the north of Mt Palgrave
Mr Lapthorne stated the spring is particularly important to the Thudgari People as it is a main water hole for the area, and the related waterways form part of a dreaming track. He stated there are numerous drawings and carvings along the path of the creek, including in areas north of the creek. Mr Lapthorne identified a particular example of an old drawing of a kangaroo to the west of Mt Palgrave along the creek that is important because it relates to a Dreamtime story. Mr Lapthorne expressed concern that if this area was interfered with, the Thudgari People could not show them, or tell their stories to future generations. He also stated that if people visited the area and caused any damage, they would damage the spirit of the land, which may have harmful consequences on both the visitor and the Thudgari People, who have a responsibility as primary protectors of that area.
Mr Lapthorne was clear that even though there were artefacts throughout the licence area, and former camping grounds, they were not as important as that area to the north of Mt Palgrave. I accept that area, with the waterway and rock art associated with the dreaming story, is of particular significance to the Thudgari people.
Camp site / area to the south of Mt Palgrave
Mr Lapthorne broadly described a dreaming story related to an area south of Mt Palgrave, around Needle Hill, about two tribes fighting and causing light to come from the sky and turning people to stone. He stated this area was easily identifiable as there is a rock with a feature that he described, but which I do not repeat here. Needle Hill does not appear on mapping, but from discussion, it was located near to Mt Palgrave. Mr Lapthorne stated this area is significant, and there is a camp site nearby that is still visited today. It was not clear from the evidence whether it is still used as a dancing and camping ground. He noted this site is important because of its proximity to the spring, as the Thudgari People can access water there, and that he goes there with his grandchildren. I take it this is a different campsite from the one outlined in [32] below, and that it may be on the licence, but it is difficult to draw that conclusion based on the available evidence. Given the evidence, I could not say this camping area south of Mt Palgrave was of particular significance.
Camp site near billabong
Mr Lapthorne stated the camp site identified near the billabong in the central area of the licence is not currently used, although it was in the past. He noted there may be some artefacts, such as grinding stones, around that area and further south. Based on this limited evidence, I do not find this site is of particular, that is, more than ordinary significance to the Thudgari People for the purposes of s 237(b).
Is interference with the spring / rock carvings / area to the north of Mt Palgrave likely?
I am satisfied the area around Mt Palgrave, which includes the spring and some rock carvings, is of particular significance to the Thudgari People. I must therefore look at the likelihood of interference for that area. The Federal Court of Australia held in FMG Pilbara v Yindjibarndi (at [39]–[40]) that the task of the Tribunal includes taking into account any evidence provided by the explorer as to precautions it would take against interference, and balance those against ‘the nature and importance of the particular site in terms of the evidence given. … There is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interference under s 237 NTA is likely to arise’.
The State advised they intend to impose various conditions and endorsements on the grant of the licence. They also intend to impose a Regional Standard Heritage Agreement (RSHA) condition on the grant as follows:
In respect of the area covered by the licence the licensee, if so requested in writing by the Kulyamba Aboriginal Corporation RNTBC, the native title prescribed body corporate holding the determined native title of the Thudgari People recognised in the Federal Court application No. WAD 6212/1998, send a request by pre-paid post to the licensee’s address, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Thudgari People, the Regional Standard Heritage Agreement (RSHA) endorsed by peak industry groups (eg South West/Ngaayatjarra/Pilbara/Yamatji/Goldfields Land and Sea Council RSHA) and offered by the Native Title Party or their representatives.
I note the State also intends to issue a number of endorsements relating to the use of water with the grant of the licence, however, these require permission from the Department of Water, and there is no requirement for consultation with the Kulyamba Aboriginal Corporation.
Cuvier Resources provided limited evidence, through the State’s documentary evidence, in the form of its year one works program. This evidence indicates Cuvier Resources has advised the State it intends to explore for ‘gold, precious base metals and industrial minerals’. At the oral hearing, Cuvier Resource’s representative stated he was not sure whether they would access the creek. He stated Cuvier Resources still needs to look at whole of tenement exploration, although they are willing to enter into an RSHA.
The grant of the licence entitles Cuvier Resources to extract up to 1000 tonnes of material, and there is no guidance as to where this material may come from in the licence. It appears that the area around Mt Palgrave is within the Indigenous Held Pastoral Lease, and so I can infer it is unlikely that any restrictions or interference is likely to have occurred in that area from any pastoral activities. I am satisfied that interference is likely to occur to the spring, creek/area around Mt Palgrave, should the explorer do works in that area.
(c) Is there likely to be major disturbance to the land or waters concerned?
In relation to s 237(c), the Kulyamba Aboriginal Corporation did not make any contentions or adduce any evidence on the issue of whether the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to the relevant land or waters. On the available evidence, I conclude that such interference is unlikely.
Determination
I find the grant of exploration licence E08/2843 to Cuvier Resources Pty Ltd is not an act attracting the expedited procedure.
H Shurven
Member
22 January 2018
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