Tjiwarl (Aboriginal Corporation) RNTBC v Coventry Enterprises Pty Ltd
[2018] NNTTA 14
•20 March 2018
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC v Coventry Enterprises Pty Ltd and Another [2018] NNTTA 14 (20 March 2018)
Application No: | WO2017/0532 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Tjiwarl (Aboriginal Corporation) RNTBC (WCD2017/001)
(native title party)
- and -
Coventry Enterprises Pty Ltd
(grantee party)
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State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 20 March 2018 |
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: | Native Title Act 1993 (Cth) ss 109, 151, 237 Mining Act 1978 (WA) s 66 Aboriginal Heritage Act 1972 (WA) ss 5, 18 |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) Keith Narrier & Ors v State of Western Australia [2016] FCA 1519 (‘Narrier v Western Australia’) Nyangumarta Warrarn Aboriginal Corporation v Diatreme Resources Limited and Another [2013] NNTTA 152 (‘Nyangumarta v Diatreme Resources’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representatives of the native title party: | Mr Gavin Dunn, Central Desert Native Title Services Limited Mr Michael Allbrook, Central Desert Native Title Services Limited |
| Representative of the grantee party: | Ms Betty Heitman |
| Representatives of the Government party: | Ms Sarah Power, State Solicitor’s Office Mr Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E36/856 (the licence) to Coventry Enterprises Pty Ltd (Coventry Enterprises). The State of Western Australia (the State) considers the grant of the licence is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The licence covers approximately 6.06 square kilometres in the Shire of Leonora. The Tjiwarl (Aboriginal Corporation) RNTBC (Tjiwarl) hold native title rights and interests in the whole of the licence area, on behalf of members of the Tjiwarl and Tjiwarl #2 native title claims determined in Narrier v Western Australia (the native title holders). Tjiwarl exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies, and argue the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely. Coventry Enterprises and the State argue the expedited procedure should apply.
If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Coventry
Enterprises and the State must negotiate in good faith with a view to reaching an agreement with Tjiwarl about the proposed grant of the licence.
I must base my decision on the s 237 criteria. The issues I need to determine in relation to these criteria are:
(a)Is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
(b)Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
(c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
In answering these questions, 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 licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]–[9]). For the reasons outlined below, my determination is that the expedited procedure does apply.
Preliminary evidentiary matters
The native title party material
Tjiwarl submitted a statement of contentions, attaching the affidavit of Mr Nathan Redmond. Mr Redmond states he is a traditional owner for the area of tenement E36/856 and has authority to speak for that country. I accept that Mr Redmond has authority to speak on behalf of the native title holders for the licence area.
Tjiwarl submitted contentions in reply to submissions made by Coventry Enterprises and the State, together with a map. Tjiwarl also submitted an agreed statement of facts and issues on behalf of all parties which included: agreed procedural facts; agreed facts that arise from the evidence; material facts that are not agreed; overall issues; and particular agreed issues.
The grantee party material
Coventry Enterprises states it consists of two part time explorers. Coventry Enterprises provided a statement of contentions together with: a map of the licence area; and a list of exploration reports extracted from the State Government’s mineral exploration database (WAMEX) that cover the licence area. I agree with the Tjiwarl contention that the WAMEX extract does not provide the Tribunal with a great deal of assistance in relation to the nature and extent of previous activity, or the context of previous explorations as relevant to this licence.
The State’s material
The State’s evidence, contentions and documents indicate that: the licence area is approximately 6.06 square kilometres and the Aboriginal sites database shows no registered sites or other heritage places in the licence application area. The licence area is wholly covered by Pastoral Lease N049438 (Leinster Downs), and been the subject of a number of previously granted tenements. The initial term of grant for E36/856 is five years, and is renewable. The State outline in their contentions that a condition will be placed on the grant of the licence that Tjiwarl may request, and the grantee party shall execute, a Regional Standard Heritage Agreement (RSHA) within certain timeframes. The State’s material also included some information provided by Coventry Enterprises about the ‘physical equipment’ the explorer has to conduct exploration, and I note more about this later in the decision.
Having considered the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151 of the Act, without the need for an oral hearing. All parties indicated they were happy to proceed on the papers.
(a) Is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
What community or social activities do Tjiwarl undertake on the licence?
Tjiwarl’s contentions state the licence area is proximate to the townships of Leonora, Wiluna and Leinster where members of the native title party reside and frequently travel between. They say that although they do not camp in the licence area itself, one of the main camping sites utilised by Tjiwarl is located nearby, and also near the town of Leinster. Mr Redmond states members of Tjiwarl camp there ‘every couple of months when we travelling through for native title meetings or funerals in Wiluna or Leonora’. I note Leonora and Wiluna are each over one hundred kilometres from the licence area, and Leinster is approximately four kilometres away to the west.
Tjiwarl state they access and take resources in the licence area by hunting wild animals to share among the community. They say the hunting ground encompasses the whole of the licence area, and they use this hunting ground to take wild game. Mr Redmond states it is good hunting for turkey, kangaroo and goanna: ‘All that tenement is the hunting ground’ (at [9]).
Tjiwarl say the hunting ground in the licence area is one of only a few that the native title holders are able to access in order to exercise their native title rights to take and use resources when they camp at Leinster. They contend the proximity of the hunting ground to the camp near Leinster has led to scarcity of resources in the area, and increasing reliance on the hunting ground in the licence area. Mr Redmond outlines the importance to Tjiwarl’s culture and survival that they keep using the hunting ground. He says ‘If a company came in here and dug up the land…we would lose that hunting ground. There’s not many places in that area, because Leinster town is nearby and that’s scared off lots of the bigger game’.
Tjiwarl contend there are Aboriginal objects left in the area by predecessors of the native title holders which they currently use to undertake community and social activities. Mr Redmond states those ‘artifacts were left by the old people and they left them there in the hunting ground for us to use now’. He expresses his concern that these artefacts may get damaged by ‘whitefellas coming in and not knowing that they are there’. Tjiwarl say meaningful consultation between the native title party and Coventry Enterprises is required to ensure community and social activities are not likely to be interfered with.
What activities do Coventry Enterprises propose to undertake on the licence?
I note that, upon the grant of a licence, an explorer can exercise their full suite of rights, which are set out in s 66 of the Mining Act 1978 (WA). This includes removing up to 1000 tonnes of material from the licence area.
Coventry Enterprises state their intended work program will be low impact and will involve drill holes positioned not to disturb the vegetation. They explain the field work exploration program will run for three weeks and include approximately ten drill holes drilled to a depth of 100 metres. I note it appears there will be more than one field work program but it is not clear how many, and that elsewhere in the materials reference is made to four drill holes. They state the diameter of the holes will be 10 centimetres and will be capped once the work has been completed. Coventry Enterprises say they will be accessing the licence area by existing bitumen and gravel roads, and have no issues with traditional owners accessing the area for any cultural or traditional use.
I note in their list of physical equipment for exploration (as provided with the State’s materials) the explorer refers to a four wheel drive buggy for bush exploration, but it is not clear the extent to which that would be used for exploration on this licence. The Tjiwarl reply raises some concerns regarding the various information which has been provided by the explorer and the ambiguities in the exploration program. Given that there is not a clear outline of what the explorer intends to do on the licence, I have assumed they may exercise the full suite of rights available to them on grant.
Tjiwarl refer to Nyangumarta v Diatreme Resources and argue I should follow that decision. I do follow that previous decision to the extent that I assume, based on the available evidence, the explorer is likely to undertake the full suite of rights available to it. However, in that previous decision, I found the expedited procedure did not apply, and there was a great deal of evidence as to the nature and extent of social and community activities in that licence area, including affidavit and DVD evidence, as well as five specific culturally important sites within the licence area that related to social and community activities. There is not a similar level of detail or information in the present matter.
The State proposes to grant the licence subject to nine endorsements and six conditions. The State also proposes to include the condition described at [12] of their contentions requiring the grantee party to execute a RSHA should one be requested by Tjiwarl, and relevant timeframes be met for that request. I note Coventry Enterprises have indicated a willingness to enter into a RSHA, however, the terms of that go more to disturbance of sites and areas of significance, rather than disturbance of community or social activities of a native title party.
The State note the area of the proposed licence has been subject to prior mineral exploration and prospecting licences, and portions of the licence are subject to current mining activity. This is confirmed by the State’s tengraph materials. I agree with Tjiwarl that the fact previous and current activity has occurred does not necessarily mean activity by Coventry Enterprises will not automatically be disturbing activity. The more pertinent argument in this matter is that the State contends the exploration
activities planned by Coventry Enterprises are not likely to have any real disruptive effect upon any community or social activities, and Tjiwarl argues that they will.
Is the grant of the licence likely to interfere directly with the community or social activities of Tjiwarl?
I accept Tjiwarl undertake hunting activities over the licence area. I also accept there are likely to be artefacts in the licence area which were left by ancestors of the native title party, given the hunting and nearby camping activities. The State accept Tjiwarl engage in the community and social activity of hunting within the licence area, but say the evidence provided is insufficient and does not support the contention that the grant of the licence will interfere with these activities. They contend the evidence ‘does not explicitly identify the frequency and which member of the NTP [native title party] hunt in the proposed tenement area’.
The State note the townships of Wiluna and Leonora are located approximately 175 and 135 kilometres from the licence area, and contend this is a relatively far distance. They acknowledge Leinster is near the licence area, and note the evidence says some members of the native title party camp at grounds near Leinster every couple of months when travelling through for native title meetings or funerals in Wiluna or Leonora. The State contend the evidence does not support the contention that activities are conducted with such frequency or intensity that the grant of the proposed licence would interfere with those activities.
The State note Coventry Enterprises have indicated their field programs will be restricted to three weeks. They contend the temporary nature of the programs does not appear likely to have any real disruptive effect upon hunting in the licence area. The State say that in the absence of particular evidence suggesting otherwise, hunting activities of Tjiwarl can co-exist with the exploration activities of Coventry Enterprise.
The State accept there are artefacts left by Tjiwarl’s ancestors in the licence area for members of the native title party to use. However, they contend there is no evidence to support these artefacts are being used for a community or social activity for the purposes of s 237(a) of the Act.
Tjiwarl assert there are no such deficiencies in the evidence provided in this matter as indicated in the State’s contentions. They contend Mr Redmond deposes the frequency of his visits to the licence area in his affidavit along with the number of people who participate (naming two families). Tjiwarl say Mr Redmond’s affidavit includes a statement that the whole of the licence area is required for the activities and that the character of the country is such that the activities in the licence area are not able to be undertaken elsewhere. However, there is not a great deal of detail about the character of the country and why activities cannot be undertaken elsewhere, apart from assertions about the interference caused by the proximity of the hunting ground to the camp near Leinster which is said to have led to scarcity of resources in the area. Some further detail about that would assist parties and the Tribunal to understand the link between the licence area and social and community activities conducted on it.
Conclusion
To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with community or social activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native title party’s evidence of community or social activities against a grantee party’s proposed exploration activities and may conclude the activities can coexist without direct or substantial interference, (see for example, Rosas v Northern Territory at [71]). I have balanced the evidence of community and social activities against the activities Coventry Enterprises could undertake if they exercised their full suite of rights under s 66 of the Mining Act 1978 (WA). President Webb summarises previous Tribunal decisions, and the approach of the Tribunal and Federal Court in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16]), and notes ‘the level of interference with community and social activities must be substantial rather than trivial’.
Even assuming the full suite of rights are exercised by the explorer, I conclude the level of social or community activities outlined by Tjiwarl is not such that it is likely
Coventry Enterprises’ exploration activities will substantially interfere with them. Both parties’ activities are likely to be able to coexist, and substantial interference with social or community activities on the licence is unlikely.
(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 (see 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 (see Silver v Northern Territory at [91]).
Section 237(b) was one of the grounds raised in Tjiwarl’s initial objection, but was not pursued in submissions and the evidence does not specifically address the issue of areas or sites of particular significance. If there is no evidence that areas or sites of particular significance exist on a licence, I do not need to undertake this next step of the inquiry (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).
I do not consider there to be any evidence in support of the existence of sites of particular significance and so cannot draw a conclusion that the grant of the licence is likely to interfere with areas or sites of particular significance to Tjiwarl.
(c) Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Section 237(c) was also one of the grounds raised in Tjiwarl’s initial objection, but was not pursued in submissions and the evidence does not specifically address the issue of major disturbance. I have given weight to the conditions which the State intends to impose requiring Coventry Enterprises to seek the relevant State departmental approval before undertaking ground disturbing activity using mechanised equipment, and to rehabilitate any disturbances to the land following the completion of exploration.
I do not consider there to be any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
My determination is that the grant of E36/856 to Coventry Enterprises is an act that attracts the expedited procedure.
Helen Shurven
Member
20 March 2018
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