Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC v Lodestar Minerals Limited
[2019] NNTTA 25
•17 May 2019
NATIONAL NATIVE TITLE TRIBUNAL
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC v Lodestar Minerals Limited and Another [2019] NNTTA 25 (17 May 2019)
Application Nos: | WO2018/0349 & WO2018/0350 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC (WCD2008/002; WCD2016/001)
(native title party)
- and -
Lodestar Minerals Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 17 May 2019 |
Catchwords: | Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites or areas of particular significance – whether acts likely to involve major disturbance to land or waters – expedited procedure – the acts are not acts attracting the expedited procedure – expedited procedure does not apply |
Legislation: | Native Title Act 1993(Cth) ss 29, 31, 109, 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 (FMG v Yindjibarndi) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560; 233 FCR 96 (Hale v Western Australia) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (MNR and Others v FMG) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Felicity Noonan, Central Desert Native Title Services |
| Representative of the grantee party: | Eamon Cornelius, Western Tenement Services |
| Representatives of the Government party: | Jeff O’Halloran, State Solicitor’s Office Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
I have been appointed to decide whether the State Government of Western Australia can, using the expedited procedure, grant proposed exploration licences E69/3532 and E69/3533 (the licences) to Lodestar Minerals Limited (Lodestar). Under s 237 of the Native Title Act 1993 (Cth) (the Act), the State can assert the expedited procedure applies to a licence if they consider the grant is not likely to:
(a) interfere directly with the native title holders’ community or social activities; and
(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 Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC (MNR) hold exclusive native title in trust on behalf of the Birriliburu community over 95.83 percent of E69/3532 and 93.21 percent of E69/3533. These areas are also unallocated crown land, according to the State’s materials. MNR lodged an objection with the National Native Title Tribunal against the State’s assertion that the expedited procedure applies to each of the licences.
The licences directly abut each other in the middle of the Western Desert. Together they comprise an area of 218 graticular blocks (approximately 675 square kilometres). Part of the Canning Stock Route runs through both licences in a northeast/southwest direction. The stock route contains a number of wells located at regular intervals along it. ‘No.6 Government well’ (Well 6), which features in the MNR evidence, is located near the middle of the section that runs through the licences. The well is located on E69/3533, about one kilometre from its northern border and about four kilometres from its border with E69/3532.
If the expedited procedure applies, the State can grant the licences to Lodestar without negotiations with MNR. My decision on whether this can occur must rest on the above three criteria set out in s 237 of the Act. I have determined that the expedited procedure does not apply to the grant of either licence.
The parties’ submissions
MNR submitted contentions, the sworn affidavits of Ms Lena Long and Mr Thomas Griffiths, and the unsworn affidavit of Mr Timmy Patterson.
Mr Patterson and Ms Long state they are native title holders for the Birriliburu native title determination area. They describe their authority under their law to speak for the area of the licences and I accept their authority. Mr Griffiths states he is the Birriliburu Indigenous Protected Area (IPA) coordinator for the Birriliburu ranger program. He is employed by a subsidiary of MNR’s legal representative that works directly with RNTBCs like MNR ‘to create independent and self-sustainable RNTBCs’ (at 3). In his role, Mr Griffiths states he works closely with the Birriliburu rangers on country. I accept his first hand evidence.
The State lodged: a statement of contentions; Lodestar’s licence application with the accompanying work program statement; mapping; a Tengraph Quick Appraisal form for each licence; search results and mapping from the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS search results); and a list of proposed endorsements and conditions intended to be imposed on the grant of each licence. Lodestar provided a statement and mapping. MNR then provided contentions in reply to the State’s and Lodestar’s materials.
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)).
Tribunal is not bound by the rules of evidence
MNR took instructions from Mr Patterson via telephone, wrote the information in the unsworn affidavit, read it to him and he verbally approved the contents (Mr Patterson at 5; MNR Contentions at footnote 4). However, due to logistical difficulties, MNR were unable to obtain his signature in time for these proceedings (he lives in the remote community of Jigalong). Tribunal staff drew parties’ attention to s 109(3), which states the Tribunal is not bound by the rules of evidence, and sought their views on whether they had an issue with me accepting the unsworn affidavit. Neither the State nor Lodestar took issue with the form of the document.
Section 237(a): are the grants of the licences likely to interfere directly with the community or social activities of the Birriliburu community?
The phrase ‘not likely’ in sections 237(a), (b) and (c) of the Act require the Tribunal to make a predictive assessment (Yindjibarndi v FMG at [15]). 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]).
What community or social activities do the Birriliburu community undertake?
Mr Griffiths states that every year ‘myself and members of the Birriliburu IPA Management Team – all of whom are recognised native title holders for Birriliburu and members of MNR – plan the [Birriliburu ranger] trips for the upcoming calendar year’ (at 23). Ms Long states ‘[w]hen we plan our trips each year, through the Birriliburu IPA program, we always make sure we go to Well 6. We make that one our priority’ (at 18). Mr Griffiths states ‘my role is to coordinate the trips’ but ‘the trips themselves are entirely the Birriliburu IPA Management Team’s initiative’. He also notes that when ‘…Birriliburu rangers go out on country [in the area of the licences] they are required to be supervised by older Birriliburu people due to the significance of the area – this is … a requirement under traditional law and custom’ (at 23-25).
It is clear the rangers (who are members of the community of native title holders) undertake their activities at the direction of senior elders and the wider community of native title holders. On this basis I consider the activities conducted by the Birriliburu rangers are community or social activities for the purpose of s 237(a). My finding is consistent with other Tribunal matters involving the activities of self-managed ranger programs that are controlled by native title holders themselves. In these circumstances, ‘the activities are absolutely consistent with the obligations owed by native title holders under traditional law and custom and have a broader social and cultural function’ (MNR and Others v FMG at [110]). Thus all of the following activities are a manifestation of the Birriliburu Community’s exclusive native title rights and interests:
·8 -12 rangers ‘a mix of young and old’ visit the area of the licences, Well 6 and the stock route ‘supervised by older Birriliburu people due to the significance of the area.’ They undertake ‘approximately 16 trips per year, which ends up being around 2 trips each month, noting that the months of November to February are set aside for law business’ (Mr Griffiths at 25);
·They control access to the licences via a paid permit system and signs. The signs advise people to stay on or within 30 metres of the stock route and to camp at designated sites (Mr Griffiths at 22);
·They shoot feral animals to protect native species in the area, reduce the spread of buffel grass and ensure the permanent water is not contaminated (Ms Long at 9; Mr Griffiths at 17);
·They treat and contain buffel grass infestations that are spread by tourists and feral animals. This protects native plants and animals and ensures members of the Birriliburu community can hunt (Ms Long at 7-8, Mr Griffiths at 13-15);
·They monitor, preserve and test the water at Well 6 for travellers and the Birriliburu community (Mr Griffiths at 17);
·They burn the area of the licences 2-3 times per year to stop major wildfires and ensure new growth, which brings animals to the area for the community to hunt (Ms Long at 17; Mr Griffiths at 18);
I accept the evidence that the Well 6 area is an important centre for community and social activities both historically and currently (Ms Long at 4-6, 12, 14, 15-16, 19; Mr Patterson at 11, 15-16; Mr Griffiths at 9-11, 20). It has permanent water and is accessible by vehicle (Mr Griffiths at 9). There are plans to establish a permanent camp at Well 6 for rangers, tourists and the community. The community held an on-country meeting about it in October last year. ‘It means we can stay out there longer and can keep an eye on everything … make sure tourists are doing the right thing’ (Ms Long at 15). The community held an on-country meeting about it in October last year.
It is clear that Well 6 encompasses a larger area than the Well itself:
·‘When we go to Well 6, we don’t just go to the well, we go all around that area. Just like the old people used to’ (Ms Long at 6).
·Ms Long says they collect seeds for regeneration from ‘trees around that Well 6 area’ which Mr Griffiths says ‘are found south of the CSR [Canning Stock Route], in the lower part of the Tenements’ (Ms Long at 14; Mr Griffiths at 11).
·Ms Long says the Well 6 area is a ‘good place for hunting’, particularly after burning, and Mr Griffiths says he has ‘observed people hunt for sand goannas, kangaroos, witchetty grubs and bustards, in all directions around Well 6, including in the area of the Tenement’ (Ms Long at 12 and 17; Mr Griffiths at 11).
·Hunting occurs during ranger trips ‘around that Well 6 area’: Ms Long says ‘if we out there looking at that buffel grass, if we see a marlu [kangaroo] or an emu, we might grab it’ (Ms Long at 12)
The evidence is that male members of the Birriliburu Community engage in rituals relating to two intersecting Jukurrpa at a law ground near Well 6 and also ‘up and down the Canning Stock Route, including inside the Tenements.’ The rituals involve a performance aspect at places where the Jukurrpa ‘zigzag backwards and forwards… crossing the Canning Stock Route’. The rituals also involve the uncovering, the use and the subsequent return of sacred objects at a concealed place or places within the area of the licences (Ms Long at 19; Mr Patterson at 14-16).
What will Lodestar’s activities be?
Lodestar state they are ‘aware and mindful of the sensitivities’ surrounding particular areas and are ‘willing to excise on grant the graticular blocks applied for that affect the registered sites and heritage place [on the AHIS] with a significant buffer zone’. The State consents to this excision. They attach a map showing the offer to excise – there are 12 blocks around Well 6 (in the north of both licences), and two around another site (in the approximate centre of the northern boundary of E69/3533). The total area of the licences is 218 graticular blocks, so if the excision proceeds on grant, the total grant would be 204 blocks. The MNR reply notes they were not consulted about the proposed excision, and that the proposed excision ‘provides no certainty that the community and social activities will not be interfered with’ (at 6.2).
Lodestar state they ‘are willing and prepared to consult with the Birriliburu People and … prepared to time and tailor the proposed exploration, to best avoid and not interfere with any community or social activities’. They state their proposed activities ‘are at the infancy/very early stage’. The State include Lodestar’s licence applications and accompanying work programme statements, which include ‘[s]ystematic exploration and field investigations’ over both licences ‘to locate and identify’ a number of metal targets ‘as well as any other significant mineral occurrences’. They have provided work programmes for the first year. The statements also note a ‘significant, and as yet incompletely defined’ discovery on the licences.
Based on the above information, it is open to me to conclude Lodestar intend to exercise the full suite of rights available to them upon the grant of the licences under sections 61 and 66 of the Mining Act 1978 (WA). These rights allow Lodestar access to the licences 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?
The proposed excision areas
As noted above, Lodestar intends to excise 14 of the 218 graticular blocks that comprise the area of the licences. 12 of these blocks include and immediately surround Well 6. In Hale v Western Australia, the Tribunal referred a question of law to the Court and asked if the scope of an inquiry into an expedited procedure objection was concerned with a) the area specified in the s 29 notice; b) the area subject to an excision; or c) only the area overlapped by the objector’s claim. The Court’s answer was a). However, the Court did note (at [115]) that a proposal ‘to grant the tenement … less the proposed “excised area”, may arguably be relevant to the inquiry to be conducted by the Tribunal’.
To the extent that the Birriliburu’s community and social activities occur within the proposed excision areas, the State contends interference is unlikely given the excisions (at 59, 70 and 74). By following the guidance in Halev Western Australia, it is appropriate for me to find this is correct.
The remainder of the licences
In Halev Western Australia the Court then went on to say (at [115]):
But that would not make redundant the grounds of objection made in any case if the objector … objects that the future act will affect the objector’s interests elsewhere in the proposed tenement area.
In this case, there is evidence that the rituals, buffel grass containment, burning, hunting and gathering occur throughout an area larger than the proposed excision areas. It is therefore appropriate for me to consider whether Lodestar’s activities are likely to affect these activities.
I am prepared to accept that the Birriliburu community’s hunting and gathering activities are likely to be able to coexist with Lodestar’s activities, based on the general nature of the evidence given about those activities.
To the extent that rituals, buffel grass containment and burning occur outside the proposed excision areas, the State contends interference is unlikely because of Lodestar’s willingness to consult with MNR and time their activities (at 75, 83-84 and 89-90). In the alternative, MNR contend that this acknowledgment indicates that the right to negotiate should apply (MNR reply at 4.4-4.5).
Rituals
Mr Patterson states the rituals which are performed ‘up and down the Canning Stock Route including inside the tenements … cannot be performed if miners are out looking for minerals’ (at 14). Ms Long corroborates (at 19):
It’s not for us ladies to talk about it. It would be very dangerous if that mining company came in when that law business was happening. No good that company being there. I can’t say any more about that one.
Mr Patterson refers to the cultural necessity and obligation to continue the rituals in order to keep the Jukurrpa, the country and the community ‘strong’ as well as the resulting ‘big trouble’ if the rituals are not performed or are interfered with. That ‘big trouble’ includes spiritual damage to the Jukurrpa and the community, as well as physical punishment and social isolation for him other senior men (at 16-19). He explains that the seriousness of this interference is ‘why we got to make an agreement, so we can tell that mining company when they can’t go to those places’ (at 14).
Buffel grass control
As noted above, the evidence is that the Birriliburu community control the areas that tourists go to via signs and a permit system. As such, access to the licences is restricted to along the stock route. Because of the access restrictions and the Rangers’ containment and management activities, the buffel grass infestation appears to be currently contained along the stock route (Mr Griffiths at 12-16). The rangers ‘keep checking on that grass’ because buffalo grass seeds ‘get stuck on your clothes … on the motor vehicle’ and ‘[o]nce that buffel grass starts growing, it’s really hard to control’ (Ms Long at 9). Mr Griffiths states ‘with no working relationship or management strategies in place the infestation of buffel grass would increase exponentially and buffel would spread to regions that it naturally wouldn’t’ (at 16).
Burning
Mr Griffiths provides detailed evidence about the burning activities conducted as part of the Birriliburu community’s IPA program (at 18 – 19). He estimates burning within these licences occurs 2-3 times per year and explains the importance of the burning regime to the native title holders. Ms Long provides evidence which is consistent with that, indicating the importance of burning to the community and social activities of the community (at 17). I find the evidence compelling, given the corroborating nature of the evidence, its links to the social and community activities, and the fact that the community hold exclusive native title over much of the area. In MNR and Others v FMG (at [115]) the Tribunal found that:
…there is a real risk that, in the absence of consultation, the grantee party’s presence in the proposed licence areas will interfere with the scheduled burning of country … I accept there is a real likelihood that the grant of the proposed licences could interfere with these activities unless the grantee party engages in direct consultation with the native title holders prior entering to the areas.
I make the same finding in this current matter.
Conclusion
Despite Lodestar being ‘willing and prepared to consult, … time and tailor the proposed exploration, to best avoid and not interfere with any community or social activities’, this willingness is dependent upon their subjective view of what is avoidance and interference. It is too precarious an intention for me to conclude that interference with Birriliburu’s rituals, buffel grass control and burning activities is unlikely. It is no substitute for the kind of negotiations that will occur under the normal negotiation procedure of s 31. I find there is likely to be such interference as envisaged by s 237(a) and as such, the expedited procedure should not apply.
Section 237(b): are the grants of the licences likely to interfere with areas or sites of particular significance to the Birriliburu community?
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]). Explaining its significance includes distinguishing it from other areas (Yindjibarndi v FMG at [17] and [129]).
What areas or sites are identified by the Birriliburu community on the licence?
The evidence establishes the following areas:
·Winpa Jukurrpa – which travels along the Canning Stock Route manifesting in the ‘soaks and water places’ along the route including Well 6 (Mr Patterson at 12-14).
·Wati Jukurrpa –‘they zigzag backwards and forwards from the north, crossing the Canning Stock Route’ and are ‘secret only to men’ (Mr Patterson at 15).
·Law Ground – at the intersection of these two Jukurrpa and near Well 6 (Mr Patterson at 16; Ms Long at 19).
·Objects store or stores – at a secret men’s place or places near the law ground (Mr Patterson at 16).
·Grindstones – ‘about that Well 6 area … left by the old people’.
The AHIS search results show one registered site on E69/3532 (a painting along the stock route), one registered site on E69/3533 (a camp, water source and artefacts/scatter at Well 6) and one heritage place on E69/3533 (a camp named Paara).
Is there evidence these sites are of particular significance in accordance with the Birriliburu community’s traditions?
I am satisfied the two Jukurrpa, the law ground and the objects store or stores are areas of particular significance as required by s 237(b). I have no doubt these areas are known and capable of being located by the Birriliburu community. For example, the cultural restrictions about who can access these areas requires knowledge of where they are. In addition, Mr Patterson explains their significance via the interrelated creation stories, the spiritual manifestations in the landscape and the weather (at 14-16), and the importance of maintaining, protecting and controlling access to these areas under the Birriliburu community’s traditions (at 17-20). I will not repeat these here given their cultural sensitivities.
I appreciate the grindstones are of significance to the Birriliburu community. However, there is insufficient evidence to conclude they are of particular significance for the purposes of s 237(b), because the nature of their significance is not explained (Silver v Northern Territory at [91]).
Is interference with these sites of particular significance likely?
The interference with these areas, in accordance with the Birriliburu community’s traditions, is explained. Mr Patterson explains the cultural protocols and responsibilities over these areas, and explains the spiritual and physical repercussions for any failure to follow these (at 9, 14, 16, 18-19). Ms Long’s evidence corroborates this (at 19). 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.
I have considered the State’s regulatory regime, including that the State intends to impose a condition requiring Lodestar to enter into a Regional Standard Heritage Agreement (RSHA) if MNR request it within 90 days of grant. However, an RSHA would only require consultation when higher impact physical interference is contemplated. Low impact sampling, walking and surveying would not require consultation. The State do not consider there is sufficient evidence to support or locate the sites of particular significance identified by MNR, however, with the exception of the grindstones, I accept the MNR evidence as being compelling and supportive of the sites of particular significance they have identified. The State and Lodestar also refer to previous exploration licences being granted on the licences which are subject to this inquiry, however, there is insufficient information provided to enable me to draw an adverse conclusion about such activities in terms of the nature and extent of any interference with sites of particular significance.
Conclusion
Despite Lodestar being ‘willing and prepared to consult’ and being ‘aware and mindful of the sensitivities’, I make the same conclusion as I made at s 237(a) above. Lodestar’s willingness, awareness and mindfulness is dependent upon Loadstar’s own subjective view. It is too precarious an intention for me to conclude that interference is unlikely. Again, that and the State’s regulatory regime in relation to heritage issues is no substitute for the kind of negotiations that will occur under the normal negotiation procedure of s 31. Therefore, I find there is likely to be such interference as envisaged by s 237(b) and as such, the expedited procedure should not apply.
Section 237(c): are the grants of the licences likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
MNR did not make contentions or provide evidence for 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 grants of exploration licences E69/3532 and E69/3533 to Lodestar Minerals Limited are not acts attracting the expedited procedure.
Helen Shurven
Member
17 May 2019
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