Shirley Drill & Others on behalf of Purnululu & Another v Kimberley Mining Pty Ltd & Another
[2020] NNTTA 39
•8 April 2020
NATIONAL NATIVE TITLE TRIBUNAL
Shirley Drill & Others on behalf of Purnululu & Another v Kimberley Mining Pty Ltd & Another [2020] NNTTA 39 (8 April 2020)
Application No: | WO2019/1001, WO2019/1002 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Shirley Drill & Others on behalf of Purnululu (WC1994/011)
- and –
Maggie John & Others on behalf of Malarngowem (WC1999/044)
(native title parties)
- and -
Kimberley Mining 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: | 8 April 2020 |
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 cause major disturbance to land or waters – expedited procedure attracted |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32(4), 151(2), 237 Mining Act 1978 (WA) ss 57, 58, 61, 66 |
Cases: | John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v MDR (Thomsons) Pty Ltd [2014] NNTTA 91 (‘WDLAC v MDR’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG Pilbara’) |
| Representative of the native title parties: | Douglas D’Antoine, Kimberley Land Council |
| Representative of the grantee party: | Peter Lewis |
| Representatives of the Government party: | Reywin Rico, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E80/5353 (licence), to Kimberley Mining Pty Ltd (Kimberley).
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 3 July 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure. This would, subject to any objection, allow the licence to be granted without negotiation under s 31 of the NTA.
The licence is situated partly within the area of native title determination applications made by the Purnululu native title claim group (WAD536/2018) and the Malarngowem native title claim group (WAD43/2019).
The registered native title claimant for the Purnululu claim (Purnululu) and the registered native title claimant for the Malarngowem claim (Malarngowem) each lodged objections against the State’s inclusion of the expedited procedure statement. I note that the Federal Court has made a conditional determination of native title in relation to the Malarngowem claim (see John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia), which is not yet entered on the Native Title Register under the NTA.
I have been directed 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 such an act.
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.
The Tribunal takes a common sense approach to the evidence as discussed in Ward v Western Australia. In this case, s 237(c) is not in issue as neither native title party has made contentions regarding the likelihood of major disturbance. However, both native title parties assert interference within the meaning of ss 237(a) and (b).
Determination on the papers
Malarngowem and Purnululu have provided joint contentions and rely on the affidavit of Ms Desley Rogers, affirmed 10 December 2019. Ms Rogers says she is a member of the Purnululu claim group and a determined Malarngowem native title holder and that she knows the country of the licence area very well. Neither the State nor Kimberley has raised any objection to Ms Rogers’ evidence. I accept Ms Roger’s affidavit as evidence in relation to both objections. Malarngowem and Purnululu have also provided a joint reply.
The State has provided contentions and evidence including mapping, a Tengraph Quick Appraisal, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and details of proposed endorsements and conditions to be imposed on the grant of the licence.
Kimberley has provided contentions which include some mapping and diagrams.
All parties agreed to the matter being determined on the papers as permitted by
s 151(2) of the NTA. Having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
The licence and Kimberley’s proposed exploration activities
The licence is an exploration licence proposed to be granted under s 57 of the 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.
The Tengraph Quick Appraisal reveals that the licence area is 11117.17 hectares and the land tenure comprises the Texas Downs/Mabel Downs pastoral lease (58.72%), Reserve 28538 (23.24%), unallocated Crown land (17.78%) and a very small area of Aboriginal lease (0.26%).
Kimberley’s s 58 statement indicates it has identified a number of targets in the licence area, including gold, rare earths and uranium. Its work programme involves:
·Close interval stream sediment sampling of drainage associated with the
1.Major faults and geochemical/geophysical anomalies.
2.Periphery of the Lower Proterozoic Inlier
·Geological mapping, geochemical sampling
1.Inferred intrusives pipes and vents.
2.Graphitic schists.
3.Geochemically responsive structures/lithologies
·Drilling of prospective anomalies
The year 1 expenditure is budgeted to exceed $1,000 per graticular block. A breakdown for the year 1 activities totals $35,000. Year 2 expenditure is expected to exceed $2,000 per graticular block retained.
In its contentions, Kimberley explains that the licence area falls partly within the area of previous exploration undertaken by BHP as part of the Birrindudu project. It relies on statutory reporting undertaken by BHP as part of that project. The report mentioned is not provided, although an extract and a map are included with Kimberley’s contentions.
Kimberley provides the following outline of its exploration objectives:
9. The Grantee Party exploration objectives are primarily centred on the follow up of gold, copper and zinc stream/soil sample geochemical anomalism generated by the BHP Birrindudu project defined in the above mentioned report. Whilst acknowledging the ‘mineral resource’ potential of the area, BHP did not believe it could support a ‘BHP scale’ mining operation and withdrew from the Joint Venture.
10. Access to the area (via a three man survey/exploration team) will be confined to prior exploration tracks with helicopter support from the Warmun helicopter base servicing tourism facilities within the Purnululu National Park.
11.Ground disturbance will be confined to collection of ‘tablespoon size’ soil and stream sediment samples from specified stream junctions and traverse lines.
12.On securing tenement grant, the Grantee party will provide further detail on proposed exploration programmes and will extend every effort to comply with the requests of Traditional Owners when conducting exploration activities.
Predictive assessment
Section 237(a): is the grant of the licence likely to interfere directly with the native title parties’ community or social activities?
What community or social activities do the native title parties carry out on the licence area?
Ms Rogers gives the following evidence in relation to the activities conducted on the licence area:
19.I go out to the Tenement with my family about four times a year. I go mainly during the school holidays. The last time I went out there was during the school holidays in July/August.
20.Some other Malngin people go out to the Tenement too. There are two Aboriginal communities very close to the Tenement to the north-east along Duncan Road. They are called Darlu Darlu and RB River Junction.
21.I know the that many people from these communities, who are also members of the Purnululu native title claim or members of the Malarngowem native title determination, rely on the Tenement as a source of food and performance of other community and social activities. I do not know exactly how many people from the communities go to the Tenement each year, how long they stay and exactly what they do when they are there.
22.We fish at Red Butt Hill and along the Ord River just behind the RB River Junction community. These places are very important to the Malngin as a source of food. We catch brim, catfish and other smaller fish. Before the dam was built, you could catch Barramundi but not anymore.
23.We collect bush plumb within the Tenement near Spring Creek.
24.We catch porcupine and them big red kangaroo within the Tenement.
Kimberley accepts Ms Rogers’ affidavit, although it notes that Red Butte Creek and Spring Creek are located outside the licence area. Kimberley also says that, while accepting they may be local names, it is unable to locate a number of the other places mentioned by Ms Rogers on the mapping provided by the State or the native title parties.
The State contends that the evidence is insufficient for the purposes of interference under s 237(a). The State notes in particular Ms Rogers’ evidence that she doesn’t know the extent to which people from the communities undertake community or social activities in the licence area, as well as the limited reference to locations within the licence area.
In contrast, the native title parties’ reply points to Ms Rogers’ evidence of specific locations and the examples provided. It refers to the “high frequency” and “broad range” of activities being carried out by the native title parties on the licence area and says it is therefore “very likely” that Kimberley’s proposed exploration activities will interfere with the community and social activities.
I do not accept those contentions on the evidence in this case. Ms Rogers’ evidence does not indicate there is a high frequency of activities. Her own visits to the licence area are said to be about four times a year and she notes that the last visit was in July/August. While Ms Rogers says that she knows many Purnululu and Malarngowem people from the communities of Darlu Darlu and RB River Junction rely on the licence area as a source of food and to perform other activities, she says she is unable to provide any details of these activities.
Ms Rogers also makes reference to fishing at Red Butt Hill and along the Ord River “just behind” the RB River Junction community, however as shown on the map attached to her affidavit, that community (shown as Robe River Junction) is outside the licence area. There is a Red Hill shown on the mapping, although that is located across the border in the Northern Territory and not in the vicinity of the licence. Similarly, there are at least two references to Spring Creek shown on the State’s mapping, both of which are a significant distance from the licence area.
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.
I can accept from the evidence that Purnululu and Malarngowem people are likely to conduct community and social activities in the licence area, particularly given the proximity of the Darlu Darlu and RB River Junction communities. However, there is insufficient detail provided for me to conclude that the grant of the licence is likely to cause 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 the native title parties?
The accepted approach to s 237(b) is also summarised in Yindjibarndi v FMG, at [17] – [18]. In particular, 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. There must be a real risk of interference, but even slight interference may be unacceptable in the context of s 237(b).
What areas or sites are identified by the native parties on the licence area?
Ms Rogers’ evidence at 5-17 of her affidavit is that there is a snake dreaming in the licence area. She says that the dreaming is very significant to Malngin people and that if you are not from the relevant country, you cannot speak about this dreaming. For that reason, I have limited the details of the dreaming given in these reasons to those I consider necessary to explain my decision.
Ms Rogers describes the journey of two snakes from Red Butte on the western side of the licence, through the licence, to Poison Hill, said to be just to the north of the licence area. Ms Rogers also says there is living water or fresh water springs along this path. In particular, Ms Rogers mentions a living water site in the licence area “just before the Ord River near Gilfore Crossing”, which she says is called Pandanus Spring. Ms Rogers then goes on to describe the journey of one of the snakes and the tracks it made, south from Poison Hill through the licence when, approaching Jaru country, it turned around and headed north, then exiting (written as ‘existing’) the licence area. Ms Rogers’ repeats her description of where the snake turned around a number of times. She variously refers to it as “near the bottom of the Tenement”, “within the Tenement”, “where the country goes rocky near Ord River Junction” and “near Ord River Junction.
Ms Rogers briefly explains the relevance of the dreaming. She says the dreaming is powerful and the dreaming and its living water are very significant to the Malngin people. Ms Rogers states it would not be good for the dreaming to be interfered with and speaks of consequences to two men who took water samples from Bamboo Springs.
Ms Rogers also says there are other significant places within the licence area but that she cannot speak about them, saying it would be necessary to speak to John Friday.
The State argues at 42-43 of its contentions, that the native title parties have not provided sufficient evidence about the areas of the licence subject to the dreaming to enable them to be located with the requisite degree of specificity, nor explained the particular significance of those areas as required for s 237(b). These arguments are not addressed by the native title parties in their reply.
In WDLAC v MDR, the Tribunal made the following comments regarding location and particular significance in the context of dreaming tracks:
[73] In relation to the evidence regarding the jukurrpa or songlines said to traverse the proposed licence area, I note the distinction drawn by Member O’Dea in WF v Emergent Resources at [39] between areas of country understood as generally formed by the movement of mythic beings in the creative epoch and areas or locations associated with the specific activities of mythic beings. Although that matter concerned an exploration licence in another claim area, the distinction was drawn in relation to the ‘wider jural Martu public’ and other peoples of the Western Desert Bloc. In Yindjibarndi Aboriginal Corporation v FMG Pilbara at [130], President Webb placed this distinction on a wider footing, noting that s 237(b) requires the Tribunal to distinguish between areas and sites which are generally culturally significant and specific culturally significant areas and sites which are of particular significance.
[74] Depending on the evidence presented in a particular matter, songlines or dreaming tracks may be regarded as sites or areas of particular significance (see Freddie v Western Australia at [45]-[47]; Lungunan v Geotech International at [41]). In Freddie v Western Australia, Deputy President Sumner suggested that specific parts of a dreaming track might be considered sites of particular significance whereas other parts might not (at [47]). That, of course, is subject to the general requirement that the location of an area or site and the nature of it significance must be identified before it can be accepted as an area or site of particular significance (see Western Australia v McHenry; Silver v Northern Territory at [91]; WF v Emergent Resources at [68]).
In this case, the path of the dreaming described is not marked on the map attached to Ms Rogers’ affidavit and certain place names are difficult to read. The State has also provided a map of the licence area and its surrounds.
These maps show the following in relation to the places mentioned by Ms Rogers:
(a)the Ord River clearly runs through the licence area;
(b)Red Butte Creek is shown to join the Ord River a short distance outside the north-western corner of the licence area, although it is not clear if this is the Red Butte mentioned by Ms Rogers;
(c)Ord River Junction is not marked however there is a junction of the Ord River, which appears to be slightly more than five kilometres south of the eastern section of the licence and approaching five kilometres east of the western side of the licence (which is an irregular shape);
(d)Poison Hill is not shown on the maps near the north of the licence area; and
(e)neither Gilfore Crossing nor Pandandus Spring appear to be shown on either map, although there is a Pandanus Creek some distance north west of the licence area.
From the descriptions and mapping provided I am not able to identify any of the specific locations mentioned by Ms Rogers as associated with the dreaming in the licence area. Kimberley has made a similar observation as mentioned at [20] above. While I accept that the licence may cover at least part of the path described, the extent of the dreaming in the licence area and its location are not sufficiently clear for the purposes of my predictive assessment. It is therefore not necessary for me to consider the question of particular significance or the likely interference from the grant of the licence.
In relation to the other significant places mentioned by Ms Rogers, no details are provided and I am unable to draw any conclusions about them. As the State submits at 45, it would have been open to the native title parties to seek non-disclosure orders to provide further detail about these areas.
In light of the above, I am satisfied that the grant of the licence is not likely to cause interference within the scope of s 237(b).
Determination
I determine that the grant of E80/5353 to Kimberley Mining Pty Ltd is an act attracting the expedited procedure.
Ms Nerida Cooley
Member
8 April 2020
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