Shirley Drill & Ors on behalf of the Purnululu Native Title Claim Group and Maggie John & Ors on behalf of the Malarngowem Native Title Claim Group v Buxton Resources Pty Ltd & Another
[2019] NNTTA 76
•27 September 2019
NATIONAL NATIVE TITLE TRIBUNAL
Shirley Drill & Ors on behalf of the Purnululu Native Title Claim Group and Maggie John & Ors on behalf of the Malarngowem Native Title Claim Group v Buxton Resources Pty Ltd & Another [2019] NNTTA 76 (27 September 2019)
Application No: | WO2018/0675; WO2018/0676 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Shirley Drill & Ors on behalf of the Purnululu Native Title Claim Group (WC1994/011)
(native title party)
- and -
Maggie John & Ors on behalf of the Malarngowem Native Title Claim Group (WC1994/044)
(native title party)
- and -
Buxton Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 27 September 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – 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: | Aboriginal Heritage Act 1972(WA) Mining Act 1978 (WA) ss 58, 61, 63, 66 Native Title Act 1993 (Cth) ss 29, 32, 155, 237 |
Cases: | Andy Andrews, Jeffrey Waller & Anita Camfoo (on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu, Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal groups); Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto (on behalf of the Ngalakan group); Peter Woods, Tex Camfoo and Sammy Bulabul (on behalf of the Ngalakan and Rembarrnga Groups)/Exploration & Resources Development Pty Ltd/Northern Territory [2002] NNTTA 170 (Andrews v Northern Territory) Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Delores Cheinmora v Strike Resources NL & Ors; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Douglas D’Antoine, Kimberley Land Council |
| Representative of the grantee party: | Jacob Wotherspoon, All Mining Legal Pty Ltd |
| Representative of the Government party: | Emily Archer, State Solicitor’s Office |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether or not the expedited procedure applies to the proposed grant of tenement E80/5184 (the proposed tenement) to Buxton Resources Ltd (Buxton Resources).
The overlap analysis document generated by the National Native Title Tribunal (the Tribunal) informs me that the area of the proposed tenement is 2612.47 ha. It is located approximately 94 km north easterly of Halls Creek. Of the proposed tenement area, 70.08% sits over land the subject of the registered native title claim of the Purnululu people and 29.92% the subject of the registered native title claim of the Malarngowem people.
The State of Western Australia (the State) considers the grant of the proposed tenement is an act attracting the expedited procedure. By including the expedited procedure statement in their notice of the proposed grant in accordance with section 32(1) of the Native Title Act 1993 (Cth) (the Act), the State asserts the activities permitted under the proposed tenement are not likely to have the effects outlined in section 237 of 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 claimant groups or native title holders (section 237(a));
(b)interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (section 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (section 237(c)).
In response to the notice separate objection applications were lodged by the Purnululu and Marlarngowem Native Title Claimants to the inclusion in the notice of the expedited procedure statement. The Kimberley Land Council represents the objectors and all material lodged in accordance with directions, by the objectors, is presented jointly. For convenience I will refer to the objectors collectively as ‘the native title parties’.
The President of the Tribunal, the Honourable John Dowsett AM, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
According to the Tengraph Quick Appraisal Form provided by the State, the area of the proposed tenement is the subject of Pastoral Lease Texas Downs/Mabel Downs (99.68%) and a small area of unallocated crown land (.86%). The proposed tenement area has previously been the subject of a number of mining, exploration, and prospecting tenements, and one temporary reserve. However, no further information is provided regarding what, if any, impact those grants might have had on the proposed tenement area.
If granted, the initial term of the proposed tenement will be five years, and is capable of being renewed (sections 61(1) and (2) of the Mining Act 1978 (WA) (MA)).
In this matter the State has indicated that the proposed tenement will be granted subject to the conditions set out in Annexure 5 to the State’s outline of submissions. That annexure is also attached to these reasons.
The State has also indicated at Contentions [13] that any grant will be subject to the following condition (the “proposed RSHA condition”):
In respect of the area covered by the licence the licensee, if so requested in writing by the Marlarngowem, the native title applicants in Federal Court application No. WAD43/2019 and/or Purnululu, the native title applicants in Federal Court application No. 6007/1998 (the “native title party”), such request being sent by prepaid post to reach 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 native title party any Regional Standard Heritage Agreement ("RSHA'') nominated by the native title party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading “Regional Standard Heritage Agreement”.
The Proposed Grantee
In the initial bundle of documents provided by the State regarding this matter is a heavily redacted document headed ‘Statement to Accompany Exploration Licence Application’ which was apparently submitted by Mr Mark Glassock (BSc), Geological Director, Buxton Resources Ltd.
That document says that the application area covers 8 blocks and is located at Fletcher Creek in the Kimberley Mineral Field, approximately 200km south west of Kununurra.
Possible outcomes
If I find the expedited procedure applies, the proposed tenement can be granted without negotiations between the parties. If I find it does not apply, Buxton Resources and the State must negotiate in good faith with a view to reaching an agreement with the native title parties about the proposed grant of the tenement.
I must base my decision on the section 237 criteria. In addressing section 237 of the Act, I must make a predictive assessment. I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the proposed tenement, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
Conduct of the inquiry
Material before the Tribunal
The parties’ submissions
The native title parties submitted a single statement of contentions, attaching the joint affidavit of Ms Shirley Drill and Ms Eileen Bray (the Joint Affidavit). They also lodged contentions in reply.
Ms Drill’s skin name is Nakarra and she ‘grew up walking around country on Springvale, Alice Downs, Turner, and Bungle Bungle’. The extract from the Register of Native Title Claims informs me that Ms Drill is a Purnululu named applicant. I accept Ms Drill’s authority to speak for part of the proposed tenement area.
Ms Bray was born at Alice Downs, on her father’s country, and ‘grew up around Alice Downs before moving to Mable Downs as a child’. I have confirmed with the Kimberley Land Council that Ms Bray is a member of the Marlarngowem native title claim (email to Tribunal of 25 September 2019). I accept Ms Bray’s authority to speak for part of the proposed tenement area.
Both Buxton Resources and the State lodged contentions. The State’s material included a Tengraph Quick Appraisal form, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches) and a list of proposed endorsements and conditions to be imposed on the grant of the proposed tenement.
I was informed that the parties agreed that the inquiry could be determined on the papers. Having considered the matter I am satisfied that the issues for determination can be determined on the papers.
Section 237(a): Is the grant of the proposed tenement likely to interfere directly with the native title parties’ community or social activities?
To find s 237(a) interference is likely, there must be a direct and substantial interference with social or community activities (Yindjibarndi v FMG at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities to determine whether the activities can coexist without direct or substantial interference (Rosas v Northern Territory at [71]).
What are Buxton Resources’ intended activities?
The Statement to Accompany Exploration Licence Application (the Statement) submitted by Buxton Resources provides program information concerning year 1 only, with the comment that during year 2 Buxton Resources will continue the program commenced in year 1.
It says that during year 1 Buxton Resources plans to acquire all relevant available geophysical data, historical literature and data, Geological Survey of WA products, and, satellite images and maps for the area of application. They say that geological reconnaissance of the area would follow, including field mapping, rock chip and soil sampling, and that this may involve several field trips. The aim of this work is to identify and rank target areas for follow up exploration which may eventually lead to drilling. The budget for year 1 activities is $20000.
The Statement would appear to be a statement for the purposes of s 58(1)(b) of the MA. That requirement calls for a statement specifying ‘the details of the programme of work proposed to be carried out in such area’.
Section 63(aa) of the MA provides that every exploration licence shall be deemed to be granted subject to the condition that the holder will explore for minerals and will not use ground disturbing equipment when exploring unless the holder has lodged in the prescribed manner a programme of work in respect of that use, paid the prescribed fee, and the programme of work has been approved in writing by the Minister or a prescribed official.
Buxton Resources says that the ultimate aim of the program is to identify drilling targets and to implement a drilling, assaying and review program capable of providing a thorough evaluation of the targets identified. They say that further detailed program of works are contingent on the results obtained during the exploration program.
I infer from this that should results from the program described in the Statement encourage Buxton Resources to pursue other ground disturbing exploration, a further ‘detailed program of works’ would be submitted for approval. I am unaware of the basis upon which the Minister or a prescribed official might approve ground disturbing activities.
Buxton Resources’ contentions does not say anything further regarding its proposed activities on the proposed tenement area. I will proceed therefore on the basis that Buxton intends to exercise the full suite of rights under s 66 of the MA (see Silver v Northern Territory).
What are the native title parties’ activities?
In contentions the native title parties’ contend their members regularly access the tenement to camp, fish, hunt, collect bush tucker and bush medicine, and for intergenerational teaching.
The evidence in the Joint Affidavit is quite brief. The deponents at [5] refer to the proposed tenement area as ‘Country’. All reference to ‘Country’ therefore are read as being specific to the proposed tenement area.
Camping
In the Joint Affidavit [9], [11] and [13]: ‘We go Country all the time and we take our children and grandchildren there too especially during the school holidays’; ‘We go out Country at least once every two or three weeks and more often during the school holidays’; ‘If we camp on Country, we camp overnight… It gives us more time to teach our children and grandchildren language, how to hunt and cook, teach them dreamtime stories about Country and songs for Country’; ‘Other members of the Claim Group camp, fish and hunt on Country too. They go there often’.
Fishing
In the Joint Affidavit [13] and [16]: ‘Other members of the Claim Group camp, fish and hunt on Country too. They go there often.’ ‘On Country, the Fletcher, Spring and Ord Rivers are good for fishing … the main fishing area for Country ...We catch black bream, perch, catfish, turtles, crocodile and sometimes water goanna there’.
And at [17]: ‘If exploration is allowed on Country, it will affect the … rivers and ‘all the fish swimming upstream from and downstream to the Fletcher, Spring and Ord (Jarlalu) Rivers … These fishing spots are very important to our community and we are concerned that exploration activity could damage the water and the fish … If we can’t fish, then we can’t eat’.
Hunting
In the Joint Affidavit [19]: ‘Within Country, we catch kangaroo, emu (garanunja), bush turkey (kalamuda) and land goanna (jardinbay)’.
Collecting bush tucker and bush medicine
In the Joint Affidavit [18], [19] and [20]: ‘Within country, we collect bush banana, bush potato, bush onion, sugarbag … and minjarra (like blackberry)’. ‘We get big mob of bush medicine … It comes from the biliny tree and you make it into a paste. It is good for colds and aches and pains. We get piliny from Country. Also, the branch from the konkerberry tree called malburra is used to smoke babies. It is good for them when they are sick’ … ‘There is a bottle tree that we eat the nut from. It is good for cold sick and stomach ache’.
Intergenerational teaching
In the Joint Affidavit [11] and [12]: ‘… we camp overnight … It gives us more time to teach our children and grandchildren language, how to hunt and cook, teach them dreamtime stories about Country and songs for Country’. ‘We teach our children and grandchildren their culture as it has been taught to us by the old people’.
Are Buxton Resources’ activities likely to interfere with the native title parties’ or can they coexist?
As noted, I proceed on the basis that Buxton Resources intends to exercise the full suite of rights under s 66 MA.
Having described the community and social activities conducted on the proposed tenement area, the native title parties’ contention is that the broad extent of this use by members of the native title parties’ makes it highly likely that Buxton Resources’ exploration activities will cause direct interference.
The evidence in the Joint Affidavit concerning community and social activities is in my view expressed in terms too general to allow me to conclude that interference is likely. The evidence of camping, hunting and collecting bush foods and medicines does not identify any particular location or area within the proposed tenement area which explains why this proposed tenement area is frequented to an extent and with such regularity that interference is likely.
Ms Drill and Ms Bray express concern at [17] that exploration in the area will affect ‘all the fish swimming upstream from and downstream to the Fletcher, Spring and Ord rivers’ and the exploration activity could damage the water and the fish, and that ‘all the soil and things will make the water dirty and no good for fishing’.
The State contends (at [40.4]) such interference is unlikely given they propose draft endorsement 8 which requires activities be undertaken to minimise damage to waterways, and endorsement 9 which prohibits the taking of surface water from the Ord River and tributaries without a licence.
I accept the State’s contention and note that 100 percent of the proposed tenement is proclaimed surface water area SWA/29 (Ord River and Tributaries) (Tengraph Quick Appraisal). The endorsements over this area prohibit taking or diverting water from, or obstructing or interfering with, the waters, bed or banks of a watercourse or wetland unless in accordance with a permit issued by the State.
The deponents to the Joint Affidavit also express concern that exploration will block ‘the only road to Kawarre’ (at [14]) and that if exploration activities are undertaken on the proposed tenement then Ms Drill, her family and other claim group members ‘will not be able to travel to Kawarre’ (at [15]). No specific contention is made by the native title parties in relation to this evidence, however if it is contended that the native title parties would be unable to carry out community and social activities on the proposed tenement area should Buxton Resources undertake exploration activities, then I do not agree. It would appear that the road to Kawarre is the same access road to Purnululu National Park (Joint Affidavit [14]). As a public road, no person or company would be allowed to restrict access.
The native title parties’ reply asserts community or social activities are conducted in such a way on the proposed tenement area makes it highly likely that exploration activities will cause direct interference with them. I am not satisfied that this is the case.
Conclusion
Overall, the evidence is that the proposed tenement area is visited by members of the native title parties for a range of community and social activities – and that these are undertaken on an intermittent basis. I conclude it is not likely that Buxton Resources’ exploration activities will interfere with the native title parties’ community or social activities in a direct or substantial way (Yindjibarndi v FMG at [16]). I agree with the State’s contention that, in the absence of evidence to the contrary, the nature of the native title parties’ activities are capable of coexistence with Buxton’s (Rosas v Northern Territory at [71]).
Section 237(b): Is the grant of the proposed tenement likely to interfere with areas or sites of particular significance to the native title party?
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]).
What areas or sites are on the proposed tenement area?
The Joint Affidavit evidence at [22] says: ‘Within Country there is a rock cod dreaming’. They say that when the old people were fishing on Country using a spinifex net, a rock cod jumped over the spinifex net and went to Blue Hole in the Bungle Bungle. They say that you can see the hill in the Bungle Bungle where the rock cod went and that this dreaming has been passed down by the old people and it needs to be protected and cannot be disturbed by any exploration activities.
The native title parties say (Joint Affidavit [23]) that there are other places on Country that are sacred to them but that they cannot point them out on a map – they ‘need to show the exploration company in person to make sure nothing happens to them and the sacred sites’. They say they have a responsibility to look after their dreamings and sacred places ‘to make sure people don’t go there without the permission of the Traditional Owners’ – to make sure no harm is done to them or Country.
AHIS Searches indicate that there are no registered Aboriginal sites nor other heritage areas under the Aboriginal Heritage Act 1972 (WA) (AHA) within the proposed tenement area.
Is there evidence these areas or sites are of particular significance in accordance with the native title parties’ traditions?
The evidence regarding sites (other places, sacred places) in the Joint Affidavit [23] simply states that the sites exist, but does not go on to distinguish or explain why the sites are of special or more than ordinary significance to the native title parties in accordance with their traditions (Cheinmora v Striker Resources at 34–35; Silver v Northern Territory at [91]). In my view there is insufficient evidence to conclude these are sites of particular significance as required by s 237(b).
In relation to the rock cod dreaming, in contentions the native title parties say at [9] that the precise location and extent of that site is ‘known only to members of the NTP’. They say that it is not appropriate under traditional law and custom for Buxton Resources to access the proposed tenement area, and that ‘prior to the Grantee Party being granted access to the Tenement, they are required to consult with the NTP’s to ensure appropriate access protocols are in place’ referring to the Joint Affidavit [24], [25] and [26].
In the course of an inquiry such as this it is open to any party to request directions that any evidence given, or the content of any document produced in the inquiry, not be disclosed, or must not be disclosed except in such a manner, and to such persons, as the Tribunal specifies (s 155). No such request was made.
The evidence provides a brief description of the rock cod dreaming, and indicates its origin somewhere within the proposed tenement area (where the old people were fishing). It informs me that the dreaming concludes in the Bungle Bungle (not within the proposed tenement area).
The State says that there is no evidence of the location of the rock cod dreaming, and insufficient evidence to satisfy the Tribunal that the site is of special or more than ordinary significance to the native title parties.
Similar contentions are made by Buxton Resources. Buxton Resources in contentions at [22] refer to Andrews v Northern Territory at [124] where Member Sosso said that the identification of a place as a dreaming site does not automatically result in a finding of significance. He said the particular sacredness of the site needs to be explained. Having considered a passage from Olney J in Roper Valley (Kewulyi) Land Claim Report, Member Sosso said:
In short while Dreaming Tracks are significant, not all Dreamings are of equal importance, and not all places along a Track are of equal significance, at least to particular native title holders. In each and every case a person speaking on behalf of native title holders should explain why a particular Dreaming site is of particular importance.
In this matter, while the evidence provides a brief description of the dreaming story, its particular importance is not explained. I am therefore unable to conclude on the basis of the evidence before me that the rock cod dreaming is a site of particular significance for the purposes of s 237(b).
Section 237(c): is the grant of the proposed tenement likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
The native title parties do not make any contentions 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 proposed tenement 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 E80/5184 to Buxton Resources Ltd is an act attracting the expedited procedure.
Mr JR McNamara
Member
27 September 2019
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