Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another
[2016] NNTTA 29
•3 August 2016
NATIONAL NATIVE TITLE TRIBUNAL
Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (3 August 2016)
Application No: WO2015/0441; WO2015/0445
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Walalakoo Aboriginal Corporation (WCD2014/003) (native title party)
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Karajarri Traditional Lands Association Aboriginal Corporation (WCD2002/001) (native title party)
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The State of Western Australia (Government party)
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Boadicea Resources Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms H Shurven, Member
Place: Perth
Date: 3 August 2016
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere substantially with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure attracted
Legislation:Aboriginal Heritage Act 1972 (WA), ss 5, 16, 17, 18
Native Title Act 1993 (Cth), ss 29, 31, 32, 237
Mining Act 1978 (WA)
Petroleum and Geothermal Energy Resources Act 1967 (WA)
Cases:Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 69 FLR 1 (‘Silver v Northern Territory’)
Barbara Sturt and Others on behalf of Jaru v Baibao Resources Pty Ltd and Another [2015] NNTT 38 (‘Sturt v Baibao Resources’)
State of Western Australia/Winnie McHenry on behalf of the Noongar People, NNTT WO98/125, [1999] NNTTA 210 (‘Western Australia v McHenry’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representative of the Ms Angela Booth, Kimberley Land Council
native title party: Mr Tim Ognenis, Kimberley Land Council
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Michael McMahon, Department of Mines and Petroleum
Representative of the
grantee party: Mr Clarke Dudley, Boadicea Resources Ltd
REASONS FOR DETERMINATION
I must determine whether or not the expedited procedure applies to the grant of exploration licence E04/2395 (the licence) to Boadicea Resources Ltd. The licence comprises approximately 648 square kilometres, located 148 kilometres south east of Broome in the Shires of Broome and Derby-West Kimberley. The State Government of Western Australia included an expedited procedure statement in their notice about the grant, and both the Walalakoo Aboriginal Corporation and Karajarri Traditional Lands Association Aboriginal Corporation (collectively, the native title parties) lodged objections to the statement with the National Native Title Tribunal. I have been appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies.
By including the expedited procedure statement in its notice, the State asserts the activities permitted under the licence are not likely to interfere with the native title parties’ community or social activities, their sites or areas of particular significance, or involve major disturbance to the land and waters of the licence (see ss 237(a), (b) and (c) of the Native Title Act 1993 (Cth)). All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.
The Walalakoo Aboriginal Corporation holds native title on trust for the Nyikina Mangala People, whose determination area overlaps 37.9 per cent of the licence (of which 23.10 per cent is exclusive native title, and 14.78 per cent is non-exclusive native title). The Karajarri Traditional Lands Association Aboriginal Corporation holds native title on trust for the Karajarri People (Area A), whose determination area overlaps 62.1 per cent of the licence (all of which is exclusive native title). In objecting to the expedited procedure statement, both of these native title parties argue that interference or disturbance as per s 237 is likely.
A decision that the expedited procedure applies means the State can grant the licence and Boadicea can proceed to explore without negotiating with either of the native title parties (see s 32(4)). A decision that the expedited procedure does not apply means the normal negotiation procedure is required: the State and Boadicea must negotiate in good faith with the native title parties, with a view to reaching an agreement about the grant of the licence. Those negotiations may be done with or without mediation assistance from the Tribunal (see s 31).
My decision must be based on the criteria set out in s 237 of the Act. Specifically, I must determine whether the grant of the licence is likely to:
(a)directly interfere with community or social activities carried on by the Nyikina Mangala and Karajarri Peoples;
(b)interfere with areas or sites of particular significance in accordance with the traditions of these native title holders; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The State, Walalakoo Aboriginal Corporation, Karajarri Traditional Lands Association Aboriginal Corporation, and Boadicea provided submissions to the Tribunal for the inquiry. At the listing hearing, all parties stated they had no further submissions and requested the matter be determined without further hearing. I consider it is appropriate to determine the matters on the papers.
The native title parties provided a joint statement of contentions, a joint reply to the other parties’ contentions, and a joint affidavit signed by both Mr John Watson and Mr Lenny Hopiga. They state that four other named traditional owners for Karajarri were present while they made the affidavit. Mr Watson states he is a senior lawman for Nyikina Mangala and Karajarri. Mr Hopiga states he is a senior lawman for Karajarri. I accept Mr Watson and Mr Hopiga have authority to speak on behalf of the native title parties in this matter, and I accept the affidavit in the joint format.
The native title parties’ contentions argue the licence, and the exercise of the rights afforded to it by that grant of the licence by Boadicea, are contrary to s 237(a) and (b) of the Act. That is, they argue the grant is likely to cause interference with both the Nyikina Mangala and Karajarri Peoples’ community or social activities; and it is likely to directly interfere with areas or sites of particular significance to the Nyikina Mangala and Karajarri Peoples.
As noted at [2] and [5], I must also inquire into whether the grant will be likely to involve major disturbance, or create rights whose exercise is likely to involve major disturbance, to any land or waters concerned. However, the native title parties do not argue this point. Based on the limited evidence before me on that issue, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
On the basis of the contentions and evidence provided by parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant of the licence:
(a)Is the grant likely to substantially and directly interfere with the carrying on of the native title parties’ community or social activities?
i)What are the native title parties’ community or social activities?
ii)Are there any other interests which have already interfered with these activities?
iii)What are Boadicea’s proposed activities?
iv)Conclusion
(b)Is there a real risk of interference to areas or sites of particular significance to the native title parties?
i)What areas or sites are identified by the native title parties as being of particular significance?
ii)Conclusion
(a)Is the grant likely to substantially and directly interfere with the carrying on of the native title parties’ community or social activities?
I note I may only have regard to community or social activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). In this inquiry, the relevant determined native title rights and interests may be summarised as the right to: access, remain in and to use the land for any purpose; access resources and to take for non-commercial purposes resources in that area; engage in spiritual and cultural activities on that land; maintain and protect areas, places and objects of significance in or on that land; protect resources and the habitat of living resources in that area.
What are the native title parties’ community or social activities?
In regard to s 237(a), I address the issue of whether the grant is likely to interfere with the carrying on of their community or social activities. The Nyikina Mangala and Karajarri Peoples state the evidence establishes that ‘intergenerational and peer to peer knowledge transfer occurs regularly on and near the Tenement area’. Specifically, they state ‘this includes sharing stories and teaching culture’, and that this activity ‘will be directly interfered with if strangers, including the Grantee Party, are permitted to enter country unannounced and without prior consultation’ with the Nyikina Mangala and Karajarri Peoples.
In their affidavit, Mr Watson and Mr Hopiga state they take ‘kids to this country around this area’, saying: years ago ‘on Yirman Project we went around Barbrongan Hill’, and recently ‘people have been going out on camels, telling them the stories and teaching the culture.’ It is not clear where the Hill is, however, there is an area called Barbrongan Tower, but it is some 15 kilometres to the east of the licence.
The country is referred to as being ‘very significant’ due to a Dreamtime story in the south of the licence. There is also a men’s initiation area in the south of the licence. It is not clear whether this site is still used and it appears no further information has been provided due to the area’s sensitivity.
It is important that I obtain clear evidence of the social or community activities which are being asserted. If material is of a sensitive nature, parties can apply for confidentiality orders, or some other mechanism can be directed to preserve that confidentiality. It is very difficult for me to draw conclusions from general assertions. This also applies to the general assertions made about: the making of medicine from trees in the area; a meeting place ‘on one of the tenements;’ hunting along the high ground; and strangers not being able to go to places on the licence. There simply is not enough information for me to conclude such social or community activities take place on all or part of the licence. Given the licence is about 650 square kilometres in size, some guidance is needed about the location, intensity and frequency of these community or social activities.
Are there any other interests which have already interfered with these activities?
I must take into account other lawful activities which are likely to have already impacted on the community or social activities of the Nyikina Mangala and Karajarri Peoples. Evidence provided by the Department of Mines and Petroleum (DMP) for the State shows that the licence has a 14.8 per cent overlap with pastoral lease N050193 (Dampier Downs) and the remainder (85.2 per cent) is Vacant Crown Land.
The licence has been subject to nine previous exploration licences, active between 1987 and 2015 and overlapping the licence between 0.5 and 42.5 per cent. It is also subject to several exploration permits issued under the Petroleum and Geothermal Energy Resources Act 1967 (WA).
What are Boadicea’s proposed activities?
DMP provided the Tribunal with a letter Boadicea sent to DMP in January 2015, which states the exploration goal is to seek and define primarily heavy metal sands, and secondarily other minerals including phosphate.
Boadicea’s contentions state the planned work in the first year after grant will be equally divided between office and field work, and the field work will comprise non ground-disturbing geochemical sampling. They state the second year program would be formulated based on the results of target generation in the first year, and if justified, could include geophysical surveys, which are not ground-disturbing, and exploratory drilling. Boadicea notes this drilling would require a heritage survey and site clearance.
Boadicea notes there are a number of existing roads/tracks in the area, so it is unlikely new access ways need to be constructed which minimises environmental impact and post-drilling rehabilitation. They state all rehabilitation will be carried out as per the standards required under the Mining Act 1978 (WA) and associated Regulations.
Conclusion
I must consider the activities being undertaken on the licence by the Nyikina Mangala and Karajarri Peoples, and weigh these against the activities Boadicea is likely to undertake if the licence is granted.
I accept intergenerational knowledge transfer takes place in the licence area. However, the native title parties’ evidence is lacking in detail as to: the frequency of the events referred to; information about the number of people who participate; how much of the overall licence area is required for the activity; why particular areas would be required to the exclusion of other areas at any given time; and how Boadicea’s exploration is likely to interfere with the carrying on of those activities. As to the other community or social activities outlined in the evidence, there is not sufficient information to conclude they occur on the licence. Even if those other activities did occur on the licence, the size of the licence, and the nature of the proposed activities of Boadicea, suggests it is not likely Boadicea will interfere with them.
As has been indicated in previous Tribunal decisions, this type of information is in the peculiar knowledge of the native title holders (see, for example, Sturt v Baibao Resources at [27]-[28]). Given the information and evidence provided in this inquiry, the activities of Boadicea are unlikely to directly interfere with the carrying on of community or social activities in the licence area. I conclude the grant of the licence is not likely to interfere with the carrying on of the Nyikina Mangala and Karajarri Peoples’ community or social activities.
b)Is there a real risk of interference to areas or sites of particular significance to the native title parties?
What areas or sites are identified by the native title parties as being of particular significance?
The native title parties must provide sufficient evidence to: show that an area or site exists on the licence; explain its significance and distinguish it from other areas within the licence; and show it is of more than ordinary significance to them in accordance with their traditions (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17]). The word 'particular' in s 237(b) not only means ‘special or more than ordinary’ but that the particularity of the significance must be capable of identification (Western Australia v McHenry).
These requirements are preconditions for the inquiry as to whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]).
Results from the Department of Aboriginal Affairs (DAA) Aboriginal Heritage Register establish that there are no registered sites or ‘other heritage places’ within the licence. This is not, however, determinative of whether there are sites of particular significance for the purposes of s 237(b). I must weigh up the evidence provided to answer that question.
The native title parties’ contentions and evidence identify the following sites or areas of particular significance: Yilbe; an initiation site; Jilarjaddi; Gilirdinam Balbal; the whole licence/stones. I address each area below.
Yilbe
In their affidavit, Mr Watson and Mr Hopiga state ‘the whole area around the south of the Tenement Area’ is called Yilbe and is associated with the Pukarri Karrajanka (dreamtime story). The Yilbe story concerns a blue tongue who started a fire on ‘the eastern edge of the Tenement Area and walked backwards, west across the Tenement Area...[t]he fire spread out and created the country, including the Tenement Area’. They depose that Yilbe is ‘like the grand canyon of Australia’.
The State say the way the native title parties’ evidence regarding the Yilbe site is phrased suggests the site is south of the licence. They also argue the evidence produced is comprised of a limited, but otherwise undefined, area. In reply, the Nyikina Mangala and Karajarri Peoples state it is clear from the context in the affidavit that Yilbe is within the licence area, noting that Yilbe is around ‘the south of the tenement, not south of the tenement’.
I accept Yilbe is in the licence, however, there is very little information provided about how the site is significant in relation to the traditions of the native title parties, and how it is of more than ordinary significance.
Initiation Site
Mr Watson and Mr Hopiga state that ‘[n]ear that area there is a men’s initiation site’. It appears from the context of the affidavit that this refers to a site located near Yilbe. The deponents state they cannot say exactly where it is located. It is not clear why, and whether that is due to cultural sensitivities.
The State maintains the Nyikina Mangala and Karajarri Peoples’ description of the site being ‘near’ that area suggests it is near Yilbe, but that the manner of identifying the location of the site involves a significant degree of imprecision and therefore raises doubts as to whether it is in the licence. The Nyikina Mangala and Karajarri Peoples respond that the fact that Yilbe is located in the licence is confirmed by the story itself, which occurs in the licence area. There is little other information provided by the native title parties.
I understand some sites are sensitive and there is a reluctance to locate such sites more precisely. However, the Tribunal can make non disclosure orders to assist in the protection of that information. I accept the initiation site may be on or near the licence, however, there is little information about both the location and how the initiation site is of particular significance in terms of the traditions of the native title parties.
Jilarjaddi
Mr Watson and Mr Hopiga state that in ‘the southern portion of the tenement south of Geegully Creek there is Jilarjaddi’. They state this is where Mr Watson’s father was initiated, and that his grandparents (and other old people) also used to live in the area.
The State asserts the Nyikina Mangala and Karajarri Peoples’ evidence regarding the location of Jilarjaddi is also too imprecise to be able to be relied upon. The Nyikina Mangala and Karajarri Peoples respond that their evidence clearly establishes that Jilarjaddi is in ‘the southern portion of the tenement’.
Again, I accept that this site is in the southern portion of the licence, but there is only very broad reference to why this site is one of particular significance. It is not clear whether this site is the same as or different to the initiation site (as outlined at [31]-[33] above). Previous Tribunal decisions have reiterated the importance of the explanations of such significance, in the context of the relevant native title parties’ traditions.
Gilirdinam Balbal
Mr Watson and Mr Hopiga state there ‘is a river that goes from Geegully Creek north west to the Tenement Area, on the Nyikina Mangala side’, and on one end of the licence is Gilirdinam Balbal which is ‘an important place for our people’. They go on to state this is a place ‘where old people would meet when they were walking up through this country’, and that if strangers go there they will interfere with the hill at that place, which ‘is special’.
The State originally argued the evidence that ‘a river that goes from Geegully Creek north west to the tenement area’ is not consistent with Tribunal mapping. I note Geegully Creek was shown to be some 10 kilometres east of the licence. More detailed Tribunal mapping, which was circulated to all parties, established there are minor watercourses in the area between Geegully Creek and the licence. That these encroach onto the licence is supported by the DMP Quick Appraisal which shows 56 minor watercourses on the licence.
While there are watercourses on the licence, and I accept that Gilirdinam Balbal is on the licence, it is not clear why this area is important to the native title parties, apart from the general statement that it was a meeting place and an important place. Further information would need to be provided for me to conclude that this place, including the hill which is said to be a special place, stood out from other places, or from other meeting places, to the extent that it was a site of particular significance to the native title parties.
Whole licence; stones
The Nyikina Mangala and Karajarri Peoples’ contentions state, the ‘Tenement area itself is an area of particular significance to members of the [Nyikina Mangala and Karajarri Peoples] because it is a place where ‘the old people walked through this country’ and significantly, ‘a place where 3 different tribes met and came together’. In their affidavit, Mr Watson and Mr Hopiga corroborate this, and also state ‘there are important stones all over the Tenement area’, and they need to make sure people do not interfere with those stones.
In relation to the Nyikina Mangala and Karajarri Peoples’ reference to old people living or meeting in the licence area, the State say this refers to events in the past, and there is no information provided as to why such events rise above the ordinary or everyday events to convert the proposed licence, or parts of it, from an ordinary or everyday site or area to one of particular significance. In relation to the stones, the State argue these are described in general terms only and there is no information regarding any particular significance in the sense required by s 237(b).
The State further assert the Nyikina Mangala and Karajarri Peoples’ reference to ‘walking through the country, including the Tenement Area’ is a reference to more than the licence alone, and is not accompanied by an explanation of why the licence area is of particular significance.
Once again, there is only very broad information about the significance of the stones, or the licence as a whole. It is not clear if the whole licence was an important meeting place, or that only Gilirdinam Balbal was the important meeting place. Without further detail, it is not possible to conclude the whole of the licence, or the stones, are of particular significance.
Conclusion
I accept Yilbe, Jilarjaddi and Gilirdinam Balbal are in the licence and are important areas for the Nyikina Mangala and Karajarri Peoples. However, there is not sufficient evidence to enable me to conclude they are sites of particular significance for the purposes of s 237(b). That is, I cannot say the significance of the sites have been explained in sufficient detail to show they are of more than ordinary significance to the native title parties. While I accept they are on or near the licence, there is also insufficient evidence for the initiation site and the stones, or the licence as a whole, as referred to in the Nyikina Mangala and Karajarri Peoples’ contentions and evidence, to be categorised as sites of ‘particular significance’ according to s 237(b), for the reasons outlined above.
As I have concluded there are no sites of particular significance, I do not need to refer further to evidence regarding interference with such sites (see [24]-[25] above).
Conclusion
I find the evidence does not support a conclusion that the grant of the licence is likely to interfere with the carrying on of the native title parties’ community or social activities, or that there exists areas or sites of particular significance to the native title parties in accordance with their traditions. I also find the licence is not likely to involve major disturbance to the land and waters concerned.
Determination
The determination is that the act, namely the grant of exploration licence E04/2395 to Boadicea Resources Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
3 August 2016
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