Nyangumarta Karajarri Aboriginal Corporation RNTBC v Squadron Resources Pty Ltd
[2019] NNTTA 39
•14 June 2019
NATIONAL NATIVE TITLE TRIBUNAL
Nyangumarta Karajarri Aboriginal Corporation RNTBC v Squadron Resources Pty Ltd and Another [2019] NNTTA 39 (14 June 2019)
Application No: | WO2018/0066 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Nyangumarta Karajarri Aboriginal Corporation RNTBC (WCD2012/001)
(native title party)
- and -
Squadron 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: | 14 June 2019 | |
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 does not apply – the act is not an act attracting the expedited procedure | |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 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; 227 FCR 182; 324 ALR 580 (FMG v Yindjibarndi) Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Squadron Resources Pty Ltd and Another [2019] NNTTA 27 (Karajarri v Squadron) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (Silver v Northern Territory) Tjiwarl (Aboriginal Corporation) RNTBC v AXF Resources Pty Ltd and Another [2018] NNTTA 65 (Tjiwarl v AXF) Ward v State of Western Australia (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) | |
| Representatives of the native title party: | Samuel Legge, Kimberley Land Council Andrew Topfer, Kimberley Land Council | |
| Representative of the grantee party: | Yvette Collins, Hetherington Exploration & Mining Title Services Pty Ltd |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety Francis Cardell-Oliver, State Solicitor's Office |
REASONS FOR DETERMINATION
The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of their intention to grant exploration licence E45/4957 to Squadron Resources Pty Ltd (Squadron). The licence is approximately 355 square kilometres in size, located predominantly on Anna Plains pastoral lease, 148 kilometres northeast of Telfer and mainly on the western side of Great Northern Highway (a portion of the Highway runs through the south eastern part of the licence).
The Nyangumarta Karajarri Aboriginal Corporation RNTBC (NKAC) hold non-exclusive native title in trust for the Nyangumarta and Karajarri Peoples over approximately 83 percent of the licence. The State’s notice included a statement that the grant is an act attracting the expedited procedure (s 32 of the Act). NKAC lodged an objection with the National Native Title Tribunal to the inclusion of this statement.
I have been appointed to determine whether the expedited procedure applies. To decide that, I must examine the three criteria in s 237 of the Act, which states the expedited procedure applies if the grant is ‘not likely’ to:
(a) interfere directly with the native title holders’ community or social activities;
(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 phrase ‘not likely’ in sections 237(a), (b) and (c) of the Act require me to make a predictive assessment (Yindjibarndi v FMG at [15]). For the reasons outlined below, my decision is that the expedited procedure does not apply to the grant of the licence.
The parties’ submissions
NKAC submitted contentions, the unsigned statement of Mr Darcy Hunter and the affidavit of Mr Andrew Topfer. Mr Hunter states he is Nyangumarta, a determined native title holder and was born on the licence. I accept his authority to speak for the area.
Mr Topfer states he was previously a legal administrative officer at the Kimberley Land Council (NKAC’s legal representative). In his affidavit, Mr Topfer states he met twice with Mr Hunter to write, amend and confirm the statement with him, but that logistical difficulties and cultural obligations precluded a third meeting to properly swear it (Mr Hunter lives in the remote community of Bidyadanga and was participating in ‘law time’). I note s 109(3) of the Act states the Tribunal is not bound by technicalities, legal forms or rules of evidence; no party took issue with Mr Hunter’s unsigned statement; the State submitted supplementary contentions which responded to the statement, did not raise any concerns and referred to it as ‘Mr Hunter’s evidence’; and Mr Topfer attests to his belief that it is accurate. It is on that basis I accept Mr Hunter’s unsigned statement.
NKAC also provided contentions in reply. An extract of the Karajarri Healthy Country Plan 2013-2023, was also provided, however, I have not relied on extract for the purposes of this decision – it may have more relevance to other related inquiries which will be the subject of separate decisions (namely WO2018/0064, WO2018/0065).
Squadron made no submissions. The State lodged a statement of contentions, supporting documents, and supplementary contentions which responded to Mr Hunter’s evidence.
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) of the Act).
Section 237(a): is the grant of the licence likely to interfere directly with community or social activities?
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 and social activities do the native title holders carry out on the licence?
NKAC contend the area of the licence is ‘particularly suitable for Community Activities, containing an abundance of wildlife and traditional resources’ (at 5).
The evidence is that Nyangumarta people have been hunting ‘the big mob of kangaroo’ on the plains in the middle of the licence ‘for a long time’. They ‘still go out there hunting’, not ‘all the time’, but ‘whenever they can’. People listed include Mr Hunter’s son who ‘goes out there probably once every two months’, and his grandchildren who were taught to hunt on the plain and now ‘just head out there on their own’ (Mr Hunter at 6).
The evidence is that Nyangumarta people collect kombaja (an almond like nut) on the licence area. Although the nuts are also found ‘just south of the Tenement Area’, the south western part of the licence is ‘the main place’. Mr Hunter says ‘I’m not sure you can really get them anywhere else in the world’. The harvest season is between October-December, and during ‘those months Nyangumarta People are always out there … collecting those nuts’ (Mr Hunter at 8).
There is also evidence that Nyangumarta People go out to the licence to collect wood from certain trees that grow on the inland pindan country in the southwest of the licence. They go out ‘after the [Nyangumarta and Karajarri] rangers have been out doing work, [to] collect branches and things’ to make gaylie and other traditional items. There is no evidence of the duration or frequency, and the evidence is that the trees also grow in other areas (Mr Hunter at 7).
Mr Hunter also refers to an increase ritual associated with a dreaming songline to make ‘all the lizards come up, all those blue tongues and ruff tails’. Because of the sensitivity, I won’t expand on the evidence provided, save to say the ritual includes collecting certain natural materials from one part of the songline in the licence and depositing those materials in another part of the licence (Mr Hunter at 16). Given the size of the licence and how briefly the ritual is explained, it is difficult to say whether or not the increase ritual activity must follow a narrow or fixed path, which is relevant to my consideration as to whether or not such activity is likely to be interfered with by exploration activities of Squadron following the grant of the licence.
The NKAC reply counters the State’s argument that there are no Aboriginal communities nearby the licence which will affect the community’s use of the licence. However, I note the NKAC evidence does not draw out whether or not members of local communities travel to and from the licence – the evidence focuses more on the fact that members of NKAC do use the licence, and not necessarily drawing the distinction that they are from any nearby Aboriginal communities.
What will Squadron’s activities be?
Squadron provide no submissions. Their initial application for the licence is included in the State’s contentions. It contains limited information which focuses on the year 1 proposed activities, with no more detail other than an intention to conduct soil and groundwater sampling, access the land, and conduct a ‘reconnaissance field trip’ (it is not clear whether that is one or more).
In the absence of any evidence to the contrary, it is open for me to conclude Squadron intend to exercise the full suite of rights available to them upon the grant of the licence under sections 61 and 66 of the Mining Act 1978 (WA). These rights allow Squadron to access the licence 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?
As noted above, the Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (eg Rosas v Northern Territory [71]).
Given the generalised and occasional way that hunting and wood collecting is described, and taking into account the large size of the licence area (355 square kilometres), I conclude these activities can coexist with Squadron’s activities. I find direct or substantial interference with hunting and wood collecting is unlikely.
As for the likelihood of interference with kombaja harvesting, I note the State’s supplementary contentions outline that ‘the mere presence of exploration activity is unlikely to destroy the resources in question or interfere in a direct, physical way with the collection of those resources’ (at 6). Given the evidence indicates a relatively broad harvesting area in the south western part of the licence as well as further south, I accept the State’s contention. I find direct or substantial interference with kombaja harvesting is unlikely.
Finally, I turn to the likelihood of interference with the increase ritual along the dreaming songline. For the reasons below, I find the songline is an area of particular significance likely to be interfered with. To consider interference with associated activities, I need to consider the nature of the activities, any traditional laws or customs which inform or influence the activities, and whether they would be likely to be conducted in a substantially different manner, or not at all (see eg Tjiwarl v AXF at [14]).
In Tjiwarl v AXF, I considered detailed evidence about gathering materials from sites of particular significance and the associated rituals. I found the detailed evidence established ‘a clear link’ between Tjiwarl’s sites and traditions, their social and community activities, and the importance of gathering the material for those traditions and supporting activities (at [32]-[37]). In this matter, I accept the increase ritual activity occurs, and that it is a social and community activity of the native title holders. However, given the ritual is explained only briefly, there is insufficient evidence to make the same conclusion as I did in Tjiwarl v AXF. While a general direction and pathway is outlined for the increase ritual activity, it is not clear on the evidence whether the dreaming songline must be strictly followed in order to properly complete the ritual. If strictly following the songline is not an integral part of the ritual, then it may be possible for the native title holders to amend the pathway (if it intersected with exploration activities at some given time, for example).
I also note that it appears Mr Hunter’s principal focus in briefly explaining the ritual is to explain the importance of the songline under Nyangumarta traditions and ‘why we need a proper heritage survey’ to protect the songline and the ‘important places’ along it (Mr Hunter at 16). For that reason, I have focused on the evidence in relation to the increase ritual in the context of whether or not there is an area of particular significance on the licence. This is covered in the sections below.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
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]).
Does the licence contain areas or sites of particular significance in accordance with the native title holders’ traditions?
The evidence notes the following sites (Mr Hunter at 10-16):
·Rock near Rocky’s Tank
·An important part of a named dreaming songline that travels in a way outlined in the statement (which I won’t go into as the pathway is associated with an increase ritual activity as outlined at [23] above)
·Law/Ceremony ground (which is located in the south of the licence, and the more specific location outlined which I do not repeat here due to sensitivities)
All of the above are known and able to be located (per Silver v Northern Territory at [91]). The general location of each is described and I am satisfied they are on the licence.
The Rock
There is extensive evidence about the interrelated spiritual manifestations in the landscape surrounding the rock near Rocky’s tank, and at the rock itself. Such manifestations include baby and animal spirits, as well as special songs and dances that were communicated to named elders in their dreams (Mr Hunter at 10-14).
The dreaming and associated markers
There is sufficient evidence about the importance of the dreaming songline. Mr Hunter explains the associated ritual (as outlined at [14] above). The State say the dreaming songline is not sufficiently identified – however, I find the NKAC evidence does identify the songline and its associated markers as being on and through this licence, and being associated with certain features of the licence.
The Law/Ceremony Ground
To the extent he is permitted, Mr Hunter explains the importance of the Law/Ceremony ground. I note the location of the ground is provided, and it is one of the important ritual areas for the dreaming. Whilst the ground is longer used ‘to put Nyangumarta kids through law’, he notes there is a particular story that forms ‘part of the dreamtime’ and in order to pass it on, the site must remain undisturbed (Mr Hunter at 15). In relation to the law ground, the State suggests that it is not in continuing use (at 10), however, the NKAC evidence is that it does retain particular significance for the native title holders.
I am satisfied the particular significance of the rock, the dreaming and the Law/Ceremony ground is explained (as per Silver v Northern Territory at [91]). They are important to the traditions of the native title holders. They are sites and areas of particular significance for the purpose of s 237(b) of the Act.
Is the grant of the licence likely to interfere with these sites of particular significance?
The State intends to impose a condition requiring Squadron to enter into a Regional Standard Heritage Agreement (RSHA) if NKAC request it within 90 days of grant. However, an RSHA would only require consultation with NKAC when higher impact physical interference is contemplated. Low impact sampling, walking and surveying would not require consultation.
The NKAC reply outlines the difficulty with the RSHA, as they ‘do not necessarily require any consultation in relation to “low impact” exploration activities. The evidence in this case indicates a number of sites where “low impact” activities would cause interference in accordance with the traditional laws and customs of the native title holders’ (at 22).
The Rock
Mr Hunter has clearly outlined the importance of the rock to the native title traditions, particularly as the evidence is that disturbing such sites means the stories cannot be passed on because they’re ‘gone forever’ (at 14-15). The State’s supplementary contentions outline (at 9) that because of the ‘size and nature’ of the rock site it is ‘unlikely to be interfered with by exploration activity’. However, I am unclear as to the thrust of this argument as Mr Hunter has outlined the rock cannot be touched or disturbed at all, according to the native title party traditions.
The dreaming and associated markers
Mr Hunter (at 14-15) has outlined how this part of the dreaming songline cannot be disturbed: under Nyangumarta traditions, disturbance by others would interfere with the ‘passing on’ of the dreaming to the next generation. My conclusion in relation to s 237(a) was that I could not be clear whether the community and social activities associated with the dreaming had to strictly follow within a narrow range of the songline, or whether a slightly different pathway could be taken within a broader range of the songline, which could accommodate exploration activities if they intersected.
I am satisfied that the dreaming songline as described by Mr Hunter does pass through this licence, and if Squadron conducted exploration activities on or near it, then it would mean the dreaming songline and the markers associated with it are likely to be disturbed for the purposes of s 237(b).
The Law/Ceremony ground
Similarly, Mr Hunter has clearly outlined the importance of the law ground to the native title traditions – for example, the evidence supports that disturbing such sites means the stories cannot be passed on, they are ‘gone forever’ (at 14-15).
The State contend the law ground area is close to a wetland, however, they do not provide detail about why that is relevant to an inquiry about interference with sites of particular significance. Issues relating to the wetland in an associated tenement were dealt with in my decision Karajarri v Squadron (at [17]-[20]). In that decision, I concluded the regime of protection afforded to wetlands by the State’s regulatory regime was insufficient to mitigate interference with a site. Similarly, in this present inquiry, I do not believe that being close to the wetland diminishes the law grounds particular significance or the likelihood of it being interfered with by the exploration activities of Squadron.
Conclusion
It is not clear where Squadron are likely to undertake their exploration activities. However, if they were to extract the 1000 tonnes allowed from around the rock, or the law ground, or along the dreaming pathway (upsetting the markers along the way), then that would be substantial interference with these sites for the purposes of s 237(b). Even non-ground disturbing activities would likely cause interference, given the sensitivities of the sites.
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 am satisfied, based on the evidence, that exploration activities conducted by Squadron are likely to cause substantial interference with these sites and areas of particular significance, according to the native title holders’ traditions. The State’s regulatory regime, including the endorsements and other conditions which the State will place on the grant of the licence, would not mitigate such interference in the context of s 237(b) of the Act.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
NKAC do not provide any contentions or evidence in relation to 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 grant of exploration licence E45/4957 to Squadron Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
14 June 2019
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