LW (name withheld for cultural reasons) & Others on behalf of Njamal v Cadre Resources Pty Ltd and Another
[2017] NNTTA 6
•17 February 2017
NATIONAL NATIVE TITLE TRIBUNAL
LW (name withheld for cultural reasons) & Others on behalf of Njamal v Cadre Resources Pty Ltd and Another [2017] NNTTA 6 (17 February 2017)
| Application No: | WO2015/0805 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
LW (name withheld for cultural reasons) & Others on behalf of Njamal (WC1999/008)
(native title party)
- and -
Cadre Resources Pty Ltd
(grantee party)
- and -
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: | 17 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: | Native Title Act 1993 (Cth) ss 237(a), 237(b), 237(c), 31(1)(b) Mining Act 1978 (WA) s 66 |
| Cases: | Barbara Sturt and Others on behalf of Jaru v Baibao Resources Ltd and Another [2015] NNTTA 38 (‘Sturt v Baibao’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2011] NNTTA 170 (‘Wiluna v Kingx’) 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 | Mr Andre Maynard, Castledine Gregory |
| Representative of the grantee party: | Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd Ms Stephanie Lee, McMahon Mining Title Services Pty Ltd |
| Representatives of the Government party: | Ms Amanda Kickett, Department of Mines and Petroleum Ms Sarah Power, State Solicitors Office |
REASONS FOR DETERMINATION
This decision is about whether or not the grant of exploration licence E45/4553 (the licence) to Cadre Resources Pty Ltd (Cadre) attracts the expedited procedure. The State of Western Australia issued a public notice for the grant of the licence and included a statement that it considers the grant to be an act attracting the expedited procedure. Cadre has executed a tenement sale agreement for the licence with Raptor Resources Ltd (Raptor) and upon grant, the licence will be held by Raptor.
The whole licence area (approximately 108.4 square kilometres) is overlapped by the Njamal native title claim (WC1999/008, registered since 3 June 1999). Njamal lodged an objection with the Tribunal against the assertion the expedited procedure applies to the grant of the licence.
I have been appointed by the President of the National Native Title Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies. My decision must be based on the criteria set out in s 237(a)–(c) of 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.
My decision in this inquiry is that the expedited procedure applies. This means the normal negotiation procedure is not required: that is, the State and Cadre and Raptor need not negotiate in good faith with the Njamal native title claimants with a view to reaching agreement about the grant of the licence, as outlined in s 31(1)(b). I explain my reasons below.
The State, Njamal and Cadre and Raptor provided submissions to the Tribunal. The listing hearing was vacated after all parties requested the matter be determined on the papers without further hearing. I consider it is appropriate to do so. Njamal’s submissions include the affidavit of Mr Tony Taylor, who states he is a Njamal elder and a member of the Njamal claim group. I accept Mr Taylor has authority to speak on behalf of Njamal in this matter.
While Njamal’s objection application argues that interference with all three limbs of s 237 is likely to result from Raptor’s proposed activities, their contentions predominantly address sub-section (a). As noted at [3], I must also inquire into whether the grant will be likely to interfere with areas or sites of particular significance, to the persons who are the holders of the native title, in relation to the land and waters concerned (s 237(b)), or be likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned (s 237(c)). Based on the limited evidence before me, I find the grant of the licence is not likely to interfere with areas or sites of particular significance, or involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
On the basis of the submissions provided by parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant of the licence:
(a)Is the grant likely to substantially and directly interfere with the carrying on of Njamal’s community or social activities?
i)What are Njamal’s community or social activities?
ii)Are there any other interests effecting these activities?
iii)What are Raptor’s proposed activities?
iv)Conclusion.
(a)Is the grant likely to substantially and directly interfere with the carrying on of Njamal’s community or social activities?
In regard to s 237(a), I address the issue of whether the grant is likely to interfere with the carrying on of Njamal community or social activities. I note I may only have regard to community or social activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). In this inquiry, the relevant claimed native title rights and interests, as recorded on the Register of Native Title Claims, may be summarised as the right to: use and enjoy the land and waters claimed; occupy the land and waters claimed; make decisions about the use and enjoyment of the land and waters claimed; and control the access of others to the land and waters claimed. While these activities can be of a small group or a collective experience, the interference must be substantial and not trivial (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]).
What are Njamal’s community or social activities?
Njamal’s contentions state community and social activities are currently carried out on the licence area including hunting, and gathering bush tucker and bush medicines (at 4.1(b)). In particular, Mr Taylor’s affidavit states (at 9) that when Njamal people go hunting in the licence area ‘we get kangaroo (wijunu), goanna (marandoo), bush turkey, emu, and echidna (manganya)’. Mr Taylor also states (at 10) that bush tucker in the licence ‘includes the wild onion and blackcurrant and a good bush medicine you could find is the fruit from the red gum tree’, noting ‘Njamal People still use this medicine today’. Mr Taylor indicates (at 11) artefacts ‘indicating traditional use in and around that country’ are still found in the area today.
Mr Taylor states (at 7) many Njamal people travel regularly along the Marble Bar Road that runs through the licence. Mr Taylor also states the rivers in Njamal country that run through the licence, including House Creek, make the licence area important and unique (at pages 2 – 3). I note that neither Mr Taylor’s affidavit, nor the Njamal statement of contentions, provide any detail regarding the frequency of the activities undertaken, who undertakes the activities, and whether the activities are specific to the licence area, as opposed to the claim area as a whole.
Are there any other interests effecting these activities?
I may take into account other lawful activities which are likely to have already impacted on the community or social activities of the Njamal people. Evidence provided by the State through the Department of Mines and Petroleum shows the licence has a 58.5 per cent overlap with pastoral lease N50429 (Corunna Downs), a 9.8 percent overlap with various reserves, less than 0.3 per cent overlap with road reserves and the remainder (37.5 per cent) is vacant crown land.
The licence has been subject to 20 previous exploration licences, overlapping the area between 0.1 per cent and 100 per cent and active between 1983 and 2009. It has also been subject to 14 prospecting licences in operation between 1982 and 2008, overlapping the licence area between less than 0.1 per cent and 1.1 per cent. I also note 2 minor roads and 12 tracks as being recorded to exist on the licence.
What are Raptor’s proposed activities?
Cadre and Raptor contentions state that Raptor’s exploration plan in relation to the licence is not yet finalised but indicate a staged approach will be taken (at 47). An affidavit provided by Mr Brett Wallace, Executive Chairman of Raptor, states the initial stage will comprise literature review, field reconnaissance, structural mapping, surface sampling and assays (at 6). Mr Wallace attests that based on his previous experience, he anticipates the field reconnaissance and structural geological mapping will involve mapping of an area approximately 8 by 0.5 kilometres, located along the Duffer geological formation (at 7). It is anticipated the work will be undertaken by two people and take up to 3 consecutive days with on-site camping, and access will be through a light vehicle on existing tracks or roads and walking on other areas (at 7(a)). Mr Wallace details the anticipated activities involved in sampling as the removal of soil and rock chip samples from areas identified through literature review, using hand held tools including rock hammers and plastic trowels (at 7(b)).
Mr Wallace states Raptor will conduct less than three visits to the licence during the first year of the exploration plan and indicates no work will be conducted on the licence during January and February each year due to weather conditions (at 11 and 10). Mr Wallace also states no water will be obtained from any existing creeks on the licence and a heritage survey will be undertaken during this same period (at 9 and 6). Cadre and Raptor’s statement of contentions asserts the ‘temporary and localised nature’ of the proposed exploration activities will not preclude Njamal from carrying out community or social activities (at 54). I note that following the first year of the exploration plan, it would be open for Raptor 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)).
Cadre and Raptor’s contentions state a Regional Standard Heritage Agreement (RSHA) was signed and provided to Njamal on 25 May 2015 and notes that although the RSHA not accepted, the offer remains open (at 2). I note the State proposes to impose a number of endorsements and conditions on the grant, including a condition allowing Njamal to request Cadre/Raptor to enter into a RSHA within the first 90 days of grant (State contentions at 11). If Njamal choose to request the condition, then consultation could occur. Although Njamal contend (at 3.29) the ‘RSHA is ineffective to prevent the interference contemplated by section 237(a) of the NT Act’, they do not provide specific evidence about their concerns in context of this licence.
Conclusion
In reaching a conclusion, I must consider the community and social activities being undertaken on the licence by Njamal, and weigh these against the activities Raptor is likely to undertake if the licence is granted.
I accept that hunting activities and gathering of bush tucker and bush medicine occur on the licence. However, as mentioned above, there is little evidence before me to indicate the extent of these activities, including whether they can take place in other areas of the Njamal claim area. As has been indicated in previous Tribunal decisions, this type of information is in the peculiar knowledge of the native title holders (see, for example, Sturt v Baibao Resources at [27]–[28]). Njamal argue that due to the: proximity of the licence area to Marble Bar Road and House Creek; the different types of bush tucker and bush medicine; and the possibility of artefacts linked to historical use of the licence area, it is ‘important and unique’ (at 4.2). The Tribunal has previously held there is a greater likelihood of interference where an area has many unique qualities, as compared with the rest of the claim area (Wiluna v Kingx), however, in this matter there is not sufficient evidence to support a finding of this nature.
Njamal’s contentions state (at 4.3) that allowing Raptor to ‘access and conduct exploration activity’ will impact on, and interfere with, their social and community activities. Njamal contentions point to Mr Taylor’s affidavit to support this statement and Mr Taylor contends ‘we need to show them [Raptor] our country to make sure they look after it properly and don’t interfere with our activities or with important artefacts’ (at 13). However, no other evidence is provided regarding how Njamal’s social or community activities might be interfered with if the licence is granted without the normal negotiation procedure.
The Tribunal has consistently held that exploration activity is less likely to interfere with community or social activities where the size of the proposed licence area is relatively small in the context of the much larger native title claim (see Wiluna v Kingx). The licence in this matter is approximately 108.41 square kilometres, which is a relatively small area when compared to the Njamal claim which is approximately 33,520 square kilometres. There is nothing to suggest the social or community activities of camping, hunting or gathering, as described in this inquiry, could not also be undertaken elsewhere within the licence, when the explorer was undertaking their activities in a certain portion of the licence.
On numerous occasions, the Tribunal has balanced a native title party’s evidence of social or community activities such as hunting, gathering and camping against a grantee party’s proposed exploration activities, and has concluded both 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 nature of the native title parties’ community and social activities, the activities Raptor may undertake on the licence if they exercised their full suite of rights, and the size of the licence. I conclude both parties’ activities are likely to be able to coexist, and that substantial and direct interference of Raptor’s activities with the Njamal’s social or community activities on the licence is unlikely.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E45/4553 to Cadre Resources Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
17 February 2017
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