Tjurabalan Native Title Land Aboriginal Corporation RNTBC v Buxton Resources Ltd
[2022] NNTTA 32
•26 April 2022
NATIONAL NATIVE TITLE TRIBUNAL
Tjurabalan Native Title Land Aboriginal Corporation RNTBC v Buxton Resources Ltd and Another [2022] NNTTA 32 (26 April 2022)
Application No: | WO2021/1036 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Tjurabalan Native Title Land Aboriginal Corporation RNTBC (WCD2001/001)
(native title party)
- and -
Buxton Resources Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 26 April 2022 |
Catchwords: | Native title – future act – proposed grant of an exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – whether act likely to interfere with the carrying on of community and social activities – expedited procedure applies |
Legislation: | Mining Act 1978 (WA) ss 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 109, 151, 237 |
Cases: | Banjo Wurrunmurra & Ors on behalf of Bunuba/Western Australia/Michael Ashley Giles [2011] NNTTA 73 (‘Bunuba/Western Australia/Michael Ashley Giles’) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘MNR v FMG’) Ngalpil v State of Western Australia [2001] FCA 1140 (‘Tjurabalan Determination’) Shirley Purdie & Ors on behalf of Yurriyangem Taam v True North Resources Pty Ltd and Another [2021] NNTTA 12 (‘Yurriyangem Taam v True North’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Tullock and Others v Western Australia and Another [2011] NNTTA 22; (2011) 257 FLR 320 (‘Tullock v Western Australia’) Walley and Others v Western Australia and Another [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 v FMG’) |
| Representative of the native title party: | Andrew Topfer, Kimberley Land Council |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Lauren Italiano, 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 E80/5545 (licence) to Buxton Resources Ltd (Buxton).
Tjurabalan Native Title Land Aboriginal Corporation RNTBC (Tjurabalan) holds native title in trust for the common law holders (Tjurabalan People) in relation to the whole of the licence area (see Tjurabalan Determination).
The State of Western Australia (acting through the Department of Mines, Industry Regulation and Safety) (State) considers the grant of the licence is an act attracting the expedited procedure under the NTA, and included a statement to that effect in a notice given under s 29 of the NTA. If the expedited procedure applies, the licence may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA.
Tjurabalan objects to the application of the expedited procedure and I have been directed to constitute the Tribunal to determine whether or not it applies.
For the reasons given below, I have concluded that the grant of the licence is an act attracting the expedited procedure.
My determination is made without the need for a hearing
All parties provided material for the inquiry in accordance with the Tribunal’s directions.
The State provided contentions together with mapping, a Quick Appraisal containing key information about the licence, an Aboriginal Heritage Inquiry System (AHIS) search, a copy of the licence application together with the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) and the proposed endorsements and conditions to be imposed upon the grant of the licence.
Tjurabalan provided contentions (including by way of reply) together with the following documents:
(a)affidavit of Andrew Topfer affirmed 14 September 2021 attaching an unsigned affidavit of Raymond Chungalla, a Tjurabalan common law holder;
(b)Paruku Indigenous Protected Area Management Plan 2010–2020 (Management Plan); and
(c)Paruku Indigenous Protected Area Visitors Information Guide (Visitors Guide).
Buxton provided contentions and accompanying maps.
The State has not raised any issue with Mr Chungalla’s unsigned affidavit, however, Buxton contends that I should give it minimal or no weight.
In its reply, Tjurabalan points to s 109 of the NTA which provides that the Tribunal is not bound by legal forms, technicalities or rules of evidence and notes the Tribunal has accepted unsworn evidence in similar circumstances.
The Tribunal certainly has had occasion to consider unsworn evidence in previous determinations (see for example the discussion in Bunuba/Western Australia/Michael Ashley Giles at [8]), although the circumstances leading to Mr Chungalla’s affidavit being unsigned depart from those usually seen by the Tribunal.
As was the case in Yurriyangem Taam v True North cited by Tjurabalan, the circumstances in which an affidavit or statement is unsigned often arise from logistical difficulties, such as the remote location of the witness. Here Mr Topfer was simply unable to contact Mr Chungalla within the time required, either to discuss or arrange for the signing of his affidavit.
However, despite those circumstances, there is nothing to suggest Mr Chungalla resiles from his evidence as told to Mr Topfer. Mr Topfer also clearly explains the process he undertook, from identifying Mr Chungalla as the most suitable person to provide evidence in this matter and his various meetings and discussions with Mr Chungalla in order to prepare the affidavit.
Taking into account all of the circumstances and the Tribunal’s way of operating outlined in s 109, I have accepted and had regard to Mr Chungalla’s statement. To not do so would be detrimental to the inquiry, given the limited evidence provided. There is no evident prejudice to Buxton and it has addressed the evidence in its contentions.
Each of the parties is agreeable to the matter being determined without the need for a hearing as is permitted under s 151(2) of the NTA. Having reviewed the material, I am satisfied that I can adequately determine this matter without a hearing.
What do I need to consider to determine whether the expedited procedure applies?
Under s 237 of the NTA, a 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)).
I am required 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 (see overview of approach in Yindjibarndi v FMG at [15]).
Despite the terms of its objection application, Tjurabalan does not make any contentions in relation to major disturbance under s 237(c) (Contentions at paragraph 4). On the material before me, there is no basis to conclude major disturbance is likely and my detailed consideration of the issues is confined to ss 237(a) and (b).
Information about the licence, the licence area and Buxton’s proposed activities
It is useful at the outset to outline key information about the licence which may be relevant to my consideration of both ss 237(a) and (b).
The licence and the licence area
Exploration licences under the Mining Act are granted for an initial term of five years, and may be renewed (s 61 Mining Act). Section 66 outlines the rights conferred on the holder of an exploration licence, which include the right to “excavate, extract or remove … earth, soil, rock, stone, fluid or mineral bearing substances” up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
According to the State’s Quick Appraisal, the licence is 8063.70 hectares in size. The underlying land tenure comprises the Billiluna pastoral lease (20.43%) and unallocated Crown land (79.57%). Tjurabalan holds “exclusive” native title over the whole of the licence area which means it has the right to possess, occupy, use and enjoy the land and waters of the Determination Area to the exclusion of all others. Tjurabalan’s native title is subject to the existing rights and interests listed in the Tjurabalan Determination, including the rights held under the pastoral lease.
The portion of the licence that is pastoral lease, located along the western side of the licence, also forms part of the Paruku Indigenous Protected Area (Paruku IPA).
The Management Plan provided by Tjurabalan states (at page 8) that Paruku is the Walmajarri name for Lake Gregory. It goes on to describe the area of the Paruku IPA as follows:
The IPA area covers the region shown in the map on the opposite page, an area of approximately 10,000 km2. It incorporates many waterholes, lakes and creeks including Paruku (Lake Gregory), Nyarna (Lake Stretch), Sturt Creek, Jalyuwan Creek, Parnkupirti Creek, Lirra, Kiji, Kilwa, Yunpu, Pulpayi, Kurtu Soak, Rilyi Rilyi and Kilang Kilang. The IPA region shares the same boundaries as the Lake Gregory and Billiluna pastoral leases. The communities of Mulan and Billiluna also fall within the IPA boundary.
Relevant to that description, the Third Schedule to the Tjurabalan Determination describes the common law holders of the native title as follows:
The common law holders known as the “Tjurabalan People” are those people who hold in common the body of traditional law and culture governing the Determination Area and who:
(a) are members of the Walmajarri, Jaru or Nyininy language groups; and
(b) have a common and inclusive cultural and geographic association with the Determination Area which includes: Gregory Salt Lake (Paruku) and Sturt Creek (Tjurabalan) and the adjacent portions of the Tanami Desert (Ngaluwan) and Gardiner Range (Lirrankarni).
From the mapping in the Management Plan it appears that the licence is located towards the far north-easterly corner of the Paruku IPA, near the community of Billiluna. The licence area does not appear to include any of the waterways within the Paruku IPA.
I note that none of the endorsements or conditions proposed for the licence specifically deal with the conduct of exploration activities in the area of the Paruku IPA.
Buxton’s plans for the licence
Buxton’s plans or intentions for the licence may also be relevant for my predictive assessment (see Walley v Western Australia at [9]).
Buxton’s s 58 statement identifies its target minerals as nickel, gold and base metals, and includes information about its intentions for the licence, including its proposed activities for years one and two.
In its contentions, Buxton says that it would not unnecessarily undertake the full suite of rights available to it immediately upon grant. It contends the more reasonable view is that it would “take a staged approach, starting with low impact, inexpensive surveying and sampling and, if areas of interest are identified, gradually defining and refining those areas of interest through more advanced exploration techniques” (Contentions at paragraph 25).
Buxton says that its exploration plans are limited to a 21.4 square kilometre polygon as shown on the map at Annexure 2 to its contentions, referred to as its “Planned Exploration Activities” area. It does not expressly explain why it has selected this area or the extent to which its area of interest may change as its plans progress. Given the staged approach, that may be a distinct possibility.
Annexure 1 to Buxton’s contentions is a map which it says shows evidence of previous holes drilled in the licence area by AFMECO Pty Ltd, three of which are said to be in Buxton’s Planned Exploration Activities area. Again, the relevance of this is not explained.
Also identified on the map at Annexure 2 are Buxton’s proposed access routes to the licence from Tanami Road in the west (via what it says is an existing track), and an exclusion zone to the south of the area of interest which Buxton says arises from an identified “drainage line” leading into Sturt Creek in the southern portion of the licence. Buxton submits it would not seek to include the exclusion zone in any programme of work lodged in respect of the licence. Other than the general statement of Buxton’s intentions in its contentions and the unattributed map, there is no evidence from Buxton to explain the basis of the exclusion zone, its exact location or whether its intentions may be subject to change.
Buxton submits that its activities during the first year would involve:
(a) engaging two local monitors to accompany the Grantee Party’s personnel along the proposed access track prior to any exploration occurring;
(b) undertaking ground geophysical surveys for a period of two to three weeks within the “Planned Exploration Activities” area. This would involve a team of up to five personnel using quad bikes and light vehicles; and
(c) in the event prospective anomalies are identified, undertaking a heritage survey prior to a follow up drilling program within the “Planned Activities Area”. Water would be sourced from temporary water bores drilled by the Grantee Party. This would involve a team of up to six personnel.
Tjurabalan points out in reply that there is no evidence as to how Buxton proposes to engage monitors or how they would be selected. It says that it is the most appropriate body to deal with the engagement of monitors and Buxton’s actions in “seeking that directions be set to expedite this matter, and to impose cultural management practices without engagement” suggests an unwillingness to engage in appropriate consultation with Tjurabalan.
Buxton did not ask for directions to be set to expedite this matter. In accordance with the Tribunal’s usual procedures, directions were made as a matter of course following the acceptance of Tjurabalan’s objection application. However, Tjurabalan may be referring to the fact that, at the preliminary conference in this matter on 17 June 2021, Buxton indicated that it wished to resolve this matter through the inquiry process, rather than by seeking an agreement with Tjurabalan.
As for Buxton’s plan to engage monitors, there is no evidence to suggest it will not consult with Tjurabalan as the native title holder. Equally, other than the s 58 statement, there is little in the way of evidence to support Buxton’s contentions about its plans.
I accept that there is nothing unusual about a staged approach to exploration. The difficulty which arises however, is that there is no evidence of what activities might be undertaken beyond the initial stages.
Accordingly, my predictive assessment is conducted on the basis that Buxton may, from time to time, avail itself of the range of rights available under the licence and that its activities throughout the term may extend to the whole of the licence area.
Section 237(a) – is the grant of the licence likely to directly interfere with the native title holders’ community or social activities?
Section 237(a) is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that this involves “an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts are outside the scope of interference contemplated by the section.
Tjurabalan contends that the grant of the licence is likely to interfere directly with Tjurabalan People carrying on community or social activities, namely, hunting, camping, gathering of bush tucker, intergenerational teaching and Indigenous land management (as reflected in the Management Plan and Visitors Guide).
Mr Chungalla says that he was born “out in the bush in the [licence] [a]rea by a creek” and is connected to this country (being the licence area) through his grandfather, Kimmirti Wallaby Billabong.
Mr Chungalla’s evidence for s 237(a) is as follows:
29. There is a place in the Tenement Area called Salty Bore, its there on the western side of the Tenement Area. There is a bore there that always brings up bad water, its salty, you can’t drink it. We still go camping and hunting out there at Salty Bore though. I go out there to the Tenement Area with my family, with the kids and grandkids.
30. To get to Salty Bore we come down the Tanami and across the dry country there next to Bililuna.
31. We go out on the Tenement Area, whenever we can. This kind of time of year is alright to go out there, but when its wet you can’t get anywhere out there.
32. When I go out on the Tenement Area with my family we get all kinds of bush foods. We hunt kangaroo, snake and goanna. The area is also good for turkey and bush honey.
33. When I was born out there in the bush, the old people would dig up bush yams and witchety grubs. My father he would hunt for kangaroo and goanna. No guns, just spears. We still get those bush yams and witchety grubs now.
34. I like to go back and see my country. I would like to get a block out there on the Tenement Area so me and family can go a live back out there. We would need to sink a new bore out there though, and make sure we get good water.
(As per original)
The location of Salty Bore is not shown on any of the maps provided, however, Mr Chungalla’s description of the location is consistent with the proximity of the western side of the licence to Tanami Road and Billiluna.
The interference of concern to Tjurabalan includes disruption to wildlife, which may affect hunting activities, and physical impact on other natural resources through land clearing or other activities (Contentions at paragraph 10). Tjurabalan also raises issues with respect to its land management practices which I have addressed below.
Buxton contends that Mr Chungalla’s evidence is insufficient with respect to the frequency, duration and location of the community or social activities or how the grant of the licence will interfere with those activities (Contentions at paragraph 19). The State makes a similar observation (Contentions at paragraph 21). Both also rely on Buxton’s evidence with respect to its Proposed Exploration Activities area, although my assessment is not limited to that area.
Tjurabalan rejects those assertions in its reply, stating that the effect of Mr Chungalla’s evidence is that the activities occur regularly in the dry season. It also points to Mr Chungalla’s focus on the Salty Bore area, relying on Tullock v Western Australia at [112] to contend that there is a real likelihood of interference with that location. It contends that, even if Buxton does confine its activities to its Proposed Exploration Activities area, it would still need to pass through the Salty Bore Area and the Paruku IPA to access that area. Further, Tjurabalan says there is no evidence that Buxton will not seek to camp at the Salty Bore area or on the Paruku IPA while undertaking activities or that it will not seek to expand its exploration activities into the Paruku IPA as its exploration program develops. Certainly there is no evidence of either of those matters and I have already addressed the lack of evidence about Buxton’s plans. It is not clear that Buxton will need to pass through the Salty Bore area because it is not apparent where Salty Bore is, other than that it is in the western part of the licence.
The difficulty arising from Tjurabalan’s contentions is the distinct lack of detail in Mr Chungalla’s evidence, which is limited to activities undertaken by him and his family. While Mr Chungalla and his family may access the area around Salty Bore “whenever [they] can” it is not possible for me to conclude from his evidence how regularly the activities are undertaken. I could not say whether Mr Chungalla means once a year, once a week (in the dry season) or some other frequency.
Section 237(a) requires direct, non-trivial interference. Much as I have conducted my predictive assessment on the basis that Buxton may, from time to time, avail itself of the full suite of rights under the licence during its term, I am unable to conclude, based on Mr Chungalla’s evidence, that such interference is likely.
Tjurabalan also argues in reply that neither the State nor Buxton have addressed the land management practices evidenced in the Management Plan and Visitors Guide. The Management Plan does outline a range of land management activities undertaken in the Paruku IPA. However, even accepting that those activities are community or social activities for the purposes of s 237(a), there is nothing in the Management Plan to indicate the extent to which those activities occur in the licence area.
A key point raised by Tjurabalan (Contentions at paragraph 11; Reply at paragraph 17) is the role of Tjurabalan People in controlling access to the Paruku IPA, particularly in welcoming visitors to country. This reflects Tjurabalan’s exclusive native title rights, which expressly include “the right to make decisions about the use and enjoyment of the Determination Area” (Tjurabalan Determination Order 4). Other measures mentioned in the Visitors Guide and Management Plan include the need for Visitor Permits, the use of designated camping sites and areas where visitors are not permitted, although the role of Tjurabalan People in implementing those measures is not explained in any detail.
There are two issues arising from this contention. Firstly, based on the map in the Management Plan, there do not appear to be any camping sites or areas where visitors are not permitted located in that part of the Paruku IPA that would be subject to the licence. Further, the grant of the licence would not interfere with the ability of Tjurabalan People to welcome visitors to country or with the grant of visitor permits.
Secondly, to the extent Tjurabalan seeks to argue that its control extends to Buxton’s entry to the area under the licence, that contention is misguided.
Tjurabalan’s rights are subject to the laws of the State and the Commonwealth (Tjurabalan Determination Order 7) and the Tjurabalan Determination does not preclude the grant of a mining tenement, subject to compliance with the NTA. As the Tribunal observed in MNR v FMG Pilbara at [108], the “grant of the proposed licences cannot be said to involve interference for the purposes of s 237(a) simply because the grantee party’s presence in the area is unwanted” (see also Tullock v Western Australia at [120]).
Whether or not a licence should be granted in the Paruku IPA area or whether there should be any specific conditions on exploration activities in that area are not matters for determination here. My sole task is to determine whether the expedited procedure applies to the grant of the licence, having regard to the requirements of s 237 of the NTA.
On the basis of the evidence provided, I am not satisfied that the grant of the licence will interfere directly with the carrying on of Tjurabalan People’s community and social activities 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 holders?
Section 237(b) is concerned with areas or sites of special, or more than ordinary, significance to the native title holders. Such areas or sites must also be known and be able to be located (see discussion in Yindjibarndi v FMG at [17]).
What sites or areas of particular significance are identified by Tjurabalan?
Mr Chungalla’s evidence for the purposes of s 237(b) is very brief. He states:
35. There are a lot of sacred sites in this country. There is a men’s site just south of the Tenement Area. There is a Dreamtime story for that place. Women can’t go there. There is living water at this place, it is a rock hole that even in the dry time there is water still in it. The site is just south of the Tenement Area, near where it says gravel pits on this map attached at RC-1.
36. That water there at the bottom of the Tenement Area is connected to the rock hole at the men’s site. The water through this country is all connected. It comes down from the Northern Territory, through the Tenement Area and down to Paruku, you know, Lake Gregory. They are all connected through that Dreamtime story I been telling you about.
37. If the mining mob interfere with that water on the Tenement Area, they will interfere with the rock hole at the men’s site and with Paruku.
(As per original)
Tjurabalan contends that Mr Chungalla’s evidence identifies three sites or areas of particular significance to Tjurabalan People within the licence area, namely a men’s site, a men’s songline and Paruku.
There are a number of significant difficulties with that contention.
Firstly, none of those areas are identified by Mr Chungalla as located within the licence area.
Mr Chungalla clearly locates the men’s site outside the licence area “near where it says gravel pits” on the map attached at RC-1 to his draft affidavit. There are two gravel pits marked on RC-1 a short distance to the south of the licence. Based on the scale of the map, they appear to be about five kilometres away.
Similarly, Paruku (which I understand to be a reference to Lake Gregory itself rather than the entire area of the Paruku IPA, which is coextensive with the pastoral leases) is some distance from the licence area.
As for the men’s songline, Tjurabalan relies on Mr Chungalla’s evidence to contend that the men’s songline, which it says tells the story of a sacred men’s site, traverses the licence area. It argues that Mr Chungalla clearly identifies the songline as “coming from the Northern Territory” to connect with the body of water visible at the bottom of the licence area and to the men’s site outside the licence area and down to Lake Gregory (Paruku). However, that is not what Mr Chungalla says. He says that the water comes down from the Northern Territory through the licence area and on to Paruku.
Mr Chungalla’s evidence seems to focus on the significance of the men’s site, although he does say that “[t]he water through this country is all connected” and that the men’s site, the “water there at the bottom of the Tenement Area” and Paruku are all connected by the same Dreamtime story. The water on the licence area is not identified as a site or area of particular significance by Tjurabalan, however, Mr Chungalla expresses concern about interference with the water on the licence area and how that will impact the men’s site and Paruku.
The other difficulty with Tjurabalan’s contentions is that Mr Chungalla does not give any explanation of the particular significance of the men’s site or Paruku and how they are connected to the particular Dreaming story he mentions. Similarly, there is no explanation of the Dreaming story or its significance in accordance with Tjurabalan’s traditions. This is a point also made by Buxton (Contentions at paragraph 20).
Both the Visitors Guide and the Management Plan contain information about the significance of Paruku. The Visitors Guide (at page 5) indicates that the lake has links to several language groups and is the terminus of a number of major Dreaming tracks. One of those Dreaming stories, being the story of the Two Dingoes and the Emu, is explained in both documents. However, Mr Chungalla does not say whether that is the Dreaming story to which he refers.
I can readily accept the significance of Paruku (being Lake Gregory) to Tjurabalan. However, the information provided about the Dreaming story associated with the men’s site, and its links to the water on the licence area and Paruku, is not sufficient for me to make a finding on the particular significance of any of the sites or areas mentioned by Tjurabalan. Accordingly, it is not necessary for me to further consider the question of interference arising from the grant of the licence.
Determination
I determine that the grant of E80/5545 is an act attracting the expedited procedure.
Nerida Cooley
Member
26 April 2022
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