Shirley Drill and Ors on behalf of Purnululu v Fraka Investments Pty Ltd and Another
[2019] NNTTA 126
•23 December 2019
NATIONAL NATIVE TITLE TRIBUNAL
Shirley Drill & Ors on behalf of Purnululu v Fraka Investments Pty Ltd and Another [2019] NNTTA 126 (23 December 2019)
Application No: | WO2018/0977 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Shirley Drill & Ors on behalf of Purnululu (WC1994/011)
(native title party)
- and -
Fraka Investments Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 23 December 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 – the act is an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) ss 16(3), 57, 58, 61, 66, Native Title Act 1993 (Cth) ss 29, 31, 32(4), 151(2), 155, 237 |
Cases: | Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Ms Angela Booth and Mr Douglas D’Antoine, Kimberley Land Council |
| Representative of the grantee party: | Mr Brett Wallace, Raptor Resources |
| Representatives of the Government party: | Ms Rachel Eaton, State Solicitor’s Office, Ms Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act1993 (Cth) (NTA) applies to the grant of exploration licence E80/5232 (licence) to Fraka Investments Pty Ltd (Fraka).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licence, with a notification day of 8 August 2018.
The s 29 notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure. If the expedited procedure applies, the licence may be granted without requiring negotiation under s 31 of the NTA.
The area of the proposed licence is located in the Halls Creek Shire, wholly within the area of a native title determination application made by the Purnululu native title claim group. On 3 December 2018, the registered native title claimant for the Purnululu native title claim (Purnululu) lodged an objection against the State’s inclusion of the expedited procedure statement.
The President of the Tribunal, the Honourable John Dowsett AM QC, has directed me to constitute the Tribunal for the purposes of determining, under s 32(4) of the NTA, whether the grant of the licence is an act attracting the expedited procedure.
For the reasons outlined below, my determination is that the grant of the licence is an act attracting the expedited procedure.
Issues in the inquiry
Under s 237 of the NTA, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. My task, in considering whether the expedited procedure applies, is to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.
There is no determination of native title in relation to the area of the licence. However, Purnululu is the registered native title claimant for the area and a native title party for this proceeding. Accordingly, it is appropriate for Purnululu to provide evidence and contentions for the purpose of the Tribunal’s predictive assessment for
ss 237(a) and (b).
Determination on the papers
During the course of the inquiry in this matter, I made directions requiring each party to provide contentions and evidence.
The State provided contentions together with mapping, a Tengraph Quick Appraisal document, search results from the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), the licence application and accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) as well as details of proposed endorsements and conditions to be imposed on the grant of the licence.
Purnululu provided contentions, an affidavit of Shirley Drill affirmed 12 August 2019 and a reply addressing matters raised in the State’s material. Ms Drill states that she is a senior member of the Purnululu native title claim group and that she knows the licence area very well, having been travelling through it all her life. No other party has questioned Ms Drill’s authority to speak for the licence area and I accept her evidence.
Fraka did not provide any contentions or evidence for the conduct of the inquiry.
All parties agreed to the matter being determined on the papers as permitted by
s 151(2) of the NTA and, having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
The licence and Fraka’s proposed exploration activities
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act 1978 (WA) (Mining Act). Under s 61 of the Mining Act exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
According to the Tengraph Quick Appraisal document provided by the State:
(a)the area of the proposed licence is 5222.29 hectares;
(b)the current land tenure in the licence area is pastoral lease (74.21%), unallocated Crown land (25.78%) and a C Class Reserve for a repeater station site which is less than 0.01% of the area;
(c)0.08% of the licence area is also special category land described as “File Notation Area Access Easement to Purnululu National Park Section 16(3) Clearance”. I understand this to be a reference to s 16(3) of the Mining Act which requires Ministerial approval for the disposal of Crown land in a mineral field, however the status of any Ministerial approval for the relevant part of the licence area is not clear.
Fraka’s s 58 statement provided with the State’s evidence includes a first year work programme targeted at gold and nickel, with a budget of $22,485. As noted, Fraka has not provided any additional evidence or contentions regarding its proposed activities. Accordingly, for the purposes of my predictive assessment under s 237 NTA, I assume that Fraka may exercise the full suite of rights available to it under the licence.
Predictive assessment
Section 237(a): is the grant of the licence likely to interfere directly with Purnululu’s community or social activities?
What community or social activities do Purnululu carry out on the licence area?
Having regard to Ms Drill’s evidence, Purnululu contends that members of the claim group regularly access the licence area to undertake the following activities:
(a)Intergenerational teaching – Ms Drill says that she teaches her children and grandchildren Kija language and stories about the licence area, just as “it has been taught to me by the old people” and that “now that they know what to do, they can pass this knowledge to their children”. (Drill affidavit paragraphs 11-12);
(b)Fishing – Ms Drill addresses fishing in paragraphs 13-16 of her affidavit. She refers to members of the claim group fishing in the licence area and says the Frank River is “good for fishing”, “the main fishing area on that country” and that “we go fishing there all the time”. Ms Drill says that she and her family catch black bream, perch, catfish, turtles, crocodile and sometimes water goanna there. The last time they went fishing there was in the wet. The mapping provided by the State shows that a small section of the Frank River traverses the eastern side of the licence near Mt Ranford. Ms Drill also expresses concern that exploration may harm the Frank River and in turn the Ord River (which the mapping shows to be to the south of the licence). Ms Drill says that there is a living spring called Blue Hole where the Frank River meets the Ord River and states that the fishing areas in the licence area and downstream, including Blue Hole, are very important to the claim group;
(c)Swimming – a brief reference is made to swimming in the context of Ms Drill’s concern that exploration may damage the water and that soil will make the water dirty (Drill affidavit paragraph 16);
(d)Collecting bush tucker – Reference is made to Ms Drill and her family collecting food, including bush banana, bush potato, bush onion, sugarbag and pinjara (like a blackberry). Ms Drill says “[w]e get lots of food from the Tenement Area. It is the main area we get bush tucker from because of the road going into the Tenement Area and the location of Calico Springs and the Frank River.” (Drill affidavit paragraph 17)
(e)Hunting – Ms Drill refers to men catching kangaroo, emu (garanunja), bush turkey (kalamuda) and land goanna (jardinbay) in the licence area. She says that the food is taken from the licence area into the Bungle. (Drill affidavit paragraphs 18-19)
(f)Collecting bush medicine – Ms Drill deposes that bush medicine obtained from the licence area is very important to the claim group because of issues with access to hospitals and the Warmun clinic. The medicine obtained includes piliny which can be made into a paste and is good for colds, aches and pains and the branch from the konkerberry tree (called malburra) which is used to smoke babies and is good when they are sick. (Drill affidavit paragraphs 20-23)
I note that Ms Drill also mentions that she and other members of the claim group camp in the licence area, including on the way to her block which is in the Bungle Bungle (Drill affidavit paragraphs 8 and 13).
Will the grant of the licence interfere directly with the carrying out of Purnululu’s activities?
The accepted approach to the application of s 237(a) is summarised in Yindjibarndi v FMG at [16]. The interference contemplated by s 237(a) must be direct. This requires an evaluative judgment that the grant of the licence is likely to be the proximate cause of the interference. The interference must also be substantial, rather than trivial.
The State argues that much of Ms Drill’s evidence lacks specificity in relation to the location, frequency and intensity of the community and social activities undertaken and the numbers of people involved. Ms Drill does specifically mention the Frank River, which traverses a small part of the licence area. However, Blue Hole is, according to Ms Drill’s evidence, outside the licence area. Calico Springs is mentioned also, but its location in relation to the licence area is not specified. Other than these locations, and reference to the road to the Bungle Bungle which traverses the licence, Ms Drill does not indicate where or the extent to which activities occur on the licence area. Similarly, there are some non-specific references to frequency such as fishing occurring “all the time”, however, Ms Drill also says that “the last time we went fishing there was in the wet”. (Drill affidavit paragraph 14).
In its reply, Purnululu refers to the “high frequency” and “broad range” of activities being carried out and contends that it is therefore “highly likely” that Fraka’s activities will interfere with those activities (Purnululu reply paragraph 20). In my view the evidence does not support those contentions.
While I accept that activities of the kind mentioned may occur in the licence area from time to time, there is, overall, insufficient evidence to enable me to conclude that the activities are such that they would be subject to direct and substantial interference from the grant of the licence as required for interference under s 237(a).
Accordingly, I find that the grant of the licence is unlikely to result in interference within the meaning of s 237(a).
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Purnululu?
The State’s evidence reveals there is one registered Aboriginal site being Mt Ranford ID 12519, of a mythological, quarry type with no gender restrictions. This site is situated at the easternmost boundary of the licence area, near the Frank River. However, it is not necessary for an area or site to be registered under the AHA to be of particular significance to the native title party.
Ms Drill says that there are many sacred places in the licence area, which are more important than other areas in the licence area. She says the sacred nature of these places arises from Purnululu’s traditional law and culture. (Drill affidavit paragraph 24)
In her affidavit, Ms Drill identifies the following areas and sites of particular significance within the licence area:
(a)a dreaming story that “comes through” the licence area about the Frank River and an Aboriginal footprint north of the licence area. Ms Drill says that the footprint “come from the old people. It is a painting in the hills from a long time before anyone been born. It tells the story of the Frank River.” (Drill affidavit paragraph 25)
(b)Rock cod dreaming – Ms Drill says “[w]hen the old people were fishing on country using spinifex net, a rock cod jumped over the spinifex net and went to Blue Hole in the Bungle Bungle. You can see the hill in the Bungle Bungle where the rock cod went. That’s how the water holes were made.” (Drill affidavit paragraph 26)
As noted above, Ms Drill’s evidence establishes that Blue Hole is outside the licence area and there is no evidence provided regarding the location of the rock cod dreaming on the licence area.
(c)Song line – Ms Drill deposes that there is a song line for the licence area, which her sister knows. Ms Drill says the song line must be protected and she cannot say any more about it. (Drill affidavit paragraph 27);
(d)Spirit – Ms Drill refers to a spirit in the licence area, of an old bush woman who lives in the hills. I understand this to be a reference to Mt Ranford. Ms Drill says this woman is a bad spirit which can “make you go mad” and further that if she and her family go near Mt Ranford they stick together and call out to the woman to make sure she doesn’t do them any harm. (Drill affidavit paragraph 28-31)
(e)Paintings – Ms Drill refers to paintings “done by the old people” in the licence area but says she doesn’t know where they all are because of the old bush woman mentioned above. Ms Drill says the paintings are very important to Purnululu and that she has a responsibility to protect them (Drill affidavit paragraph 32-33);
(f)Artefacts – Ms Drill refers to a lot of artefacts in the licence area where “the old people used to walk up and down the Frank River”, including spearheads and axe handles. Ms Drill expresses concern that “kartiya” will not be able to recognise these artefacts and need to be shown by members of the Purnululu claim group (Drill affidavit paragraph 34-35);
(g)Other places – Ms Drill says there are also other sacred places in the licence area but it is too hard to point them all out on a map. (Drill affidavit paragraph 36-37).
Purnululu contends that the areas or sites outlined at [27](a) - [27](f) above are sites of particular significance, the precise location and extent of which is only known to members of the claim group.
Purnululu says further that:
(a)the evidence establishes that it is not appropriate under Purnululu’s traditional law and custom for Fraka to access the licence area without prior consultation with Purnululu and ensuring appropriate access protocols are in place; and
(b)The likelihood of interference in the licence area is high without prior consultation with and permission from Purnululu.
The State argues that, apart from the Frank River dreaming which I discuss further below, the location of all of the areas or sites identified by Purnululu is unclear. I agree with this submission, save that I can reasonably infer from the evidence that the spirit of the old woman is located in Mt Ranford and that the artefacts mentioned are along the Frank River.
As the State correctly notes, where the location of sites is sensitive, the Tribunal may, and often does, make non-disclosure directions under s 155 NTA to address such concerns.
However, I consider the evidence is also unclear as to the location of the Frank River dreaming. While Ms Drill says this is a dreaming story that comes through the licence area and is about the Frank River, it is not clear whether it follows the path of the Frank River or not. Further, the dreaming is also said to be about an Aboriginal footprint north of the licence area, and the relationship or any path of the dreaming as between that area and the licence area is not explained.
An area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders in accordance with their traditions (see Yindjibarndi v FMG at [17] – [18]).
In this case, much of Purnululu’s evidence lacks the required specificity about the identification of the sites said to be on the licence area. To the extent I can infer the location, for example, in relation to the artefacts along the Frank River or Mt Ranford, Purnululu has not adequately explained why those sites are of more than ordinary significance. In particular, the significance of the spirit of the old woman is not explained. Accordingly, I am unable to conclude the grant of the licence will cause interference within the scope of s 237(b).
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?
In its Form 4 objection, Purnululu stated that it believes the grant of the licence will create rights, the exercise of which will involve major disturbance to the land, including the right to drill holes and excavate material under the Mining Act.
However, Purnululu has not provided any contentions or evidence in relation to
s 237(c). As there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to any of the land or waters concerned, I find disturbance within the meaning of s 237(c) is unlikely.
Determination
I determine that the grant of exploration licence E80/5232 to Fraka Investments Pty Ltd is an act attracting the expedited procedure.
Nerida Cooley
Member
23 December 2019
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