Walalakoo Aboriginal Corporation RNTBC and Kimberley Outback Fuel Supplies Pty Ltd & Another
[2018] NNTTA 69
•13 November 2018
NATIONAL NATIVE TITLE TRIBUNAL
Walalakoo Aboriginal Corporation RNTBC and Kimberley Outback Fuel Supplies Pty Ltd & Another [2018] NNTTA 69 (13 November 2018)
| Application No: | WO2017/0351 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Walalakoo Aboriginal Corporation RNTBC (WCD2014/003)
(native title party)
- and -
Kimberley Outback Fuel Supplies Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Member H Shurven |
Place: | Perth |
Date: | 13 November 2018 |
| Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to directly interfere with the carrying on of community or social activities – whether act is likely to interfere with sites or areas of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure does not apply |
| Legislation: | Aboriginal Heritage Act 1972 (WA) | ||
Cases: | Cheinmora v Striker Resources NL [1996] FCA 1147 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Silver v Northern Territory [2002] NNNTA 18; 169 FLR 1 (Silver v Northern Territory) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG) | ||
| Representatives of the native title party: | Ms Loise Wells, Kimberley Land Council | ||
| Representative of the grantee party: | Mr Jack Burton | ||
| Representatives of the Government party: | Ms Bethany Conway and Mr Matthew Smith, Department of Mines, Industry Regulation and Safety Ms Jane Langworthy, State Solicitor’s Office | ||
REASONS FOR DETERMINATION
I have been appointed to decide whether or not the State Government of Western Australia can grant exploration licence E04/2422 (the licence) under the expedited procedure. As outlined in s 237 of the Native Title Act 1993 (Cth) (the Act), the expedited procedure can apply to a licence whose grant is not likely to:
·interfere directly with the carrying on of the community or social activities of the native title party;
·interfere with areas or sites of particular significance to the native title party in accordance with their traditions; and
·involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance.
In this inquiry, the native title party are the Nyikina Mangala People, whose native title determination (WCD2014/003) overlaps 98.82 per cent of the licence, predominantly on a non-exclusive basis. The size of the licence is 163.05 square kilometres and it is located 49 kilometres South of Derby, in the Shire of Derby-West Kimberley. The Walalakoo Aboriginal Corporation RNTBC (Walalakoo) holds the native title rights and interests on behalf of the Nyikina Mangala People.
Walalakoo lodged an objection with the National Native Title Tribunal against the State’s assertion that the expedited procedure applies to this licence.
Under the expedited procedure, the State can grant the licence to Kimberley Outback Fuel Supplies Pty Ltd (Kimberley Outback) without negotiations with Walalakoo. My decision on whether or not the expedited procedure applies must rest on the criteria set out in s 237 of the Act. All references to legislation in this decision are to the Act, unless otherwise noted.
Information and evidence provided by the parties
Walalakoo and the State provided contentions and relevant information. Accompanying the Walalakoo statement of contentions are the affidavits of Ms Annie Milgin, Mr Harry Watson and Ms Rona Charles. I accept Ms Milgin, Mr Watson and Ms Charles are senior traditional owners and determined native title holders, and have authority to speak for the country covered by the licence. Mr Watson notes in his affidavit that his wife Linda was sitting with him to help tell his story to the lawyer taking the affidavit. The Tribunal is not bound by rules of evidence (see s 109(3) of the Act) and takes a pragmatic approach to materials submitted. I can accept joint or group statements or affidavits, and material from an individual which is supported by a group of identified persons, or evidence given collectively, whether by affidavit, statement, DVD or audio media.
Prior to lodgement of Ms Charles’ affidavit, Walalakoo sought that I make non-disclosure directions in relation to the affidavit, pursuant to s 155 of the Act, on the basis that it contains culturally sensitive information. I made those directions and so will only refer to details within Ms Charles’ affidavit to the extent necessary to support my reasons for decision. Kimberley Outback was given the opportunity to provide contentions and relevant information in support of its position, and did not provide any materials.
The Walalakoo contentions argue the grant of the licence, and the exercise by Kimberley Outback of the rights afforded to it by that grant, are contrary to s 237(a) and 237(b) of the Act. They argue the grant is likely to be the cause of interference with the Nyikina Mangala People’s community or social activities, and it is likely to directly interfere with areas or sites of particular significance to the Nyikina Mangala People. As noted at [1], 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, Walalakoo does not argue this point. Based on the limited evidence before me on that issue, I find the grant of the licence is not likely to offend against s 237(c) of the Act.
On the basis of the submissions and evidence provided by the parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant:
a)Is the grant likely to interfere directly with the carrying on of Nyikina Mangala community or social activities?
i.What are the community or social activities of Nyikina Mangala People?
ii.Are there any other interests which have already interfered with these activities?
iii.What are Kimberly Outbacks’ proposed activities?
b)Will the grant interfere with areas or sites of particular significance to Nyikina Mangala?
i.What areas or sites are identified?
ii.Are any of the identified sites areas or sites of particular significance?
iii.Are the activities of Kimberly Outback likely to interfere with these sites of particular significance?
Section 237 Criteria
a)Is the grant likely to interfere directly with the carrying on of Nyikina Mangala community or social activities?
Before examining the evidence in this inquiry, 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 various purposes; access resources and to take 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 community or social activities of the Nyikina Mangala People?
From the evidence, I conclude the main community and social activities members of the Nyikina Mangala People carry out on the licence are:
· camping, hunting, fishing and gathering food and medicines;
· intergenerational teaching; and
· collecting a certain product and conducting ceremonies – I do not refer to the product explicitly as it is contained in the confidential affidavit.
Camping, Hunting, Fishing and Gathering
Due to the restrictions on the dissemination of the evidence contained within the affidavit of Ms Charles, I am not able to disclose the detailed information it contains. However, I can say in relation to the evidence provided by all deponents, I am satisfied in relation to the following:
· Many traditional owners, particularly those who live at Pandanus Park and Bindan, access the licence weekly (and sometimes more often) to camp, hunt, fish and gather food. Ms Milgin deposes the licence area is the main hunting ground for traditional owners in that area.
· The aboriginal communities of Pandanus Park and Bindan are 10 kilometres and 35 kilometres respectively from the licence.
· Traditional owners who live in the local aboriginal communities rely on the food obtained from the licence area to feed their families. Maps provided by Walalakoo show that Fitzroy River, Cockatoo Creek and Minnie River all pass through the licence, making it an attractive place for abundant hunting.
· The place called Lanjilanji is on the Fitzroy River within the licence. This is an important area that traditional owners use to fish, hunt and gather food. I am satisfied this occurs all year round and there is evidence of the ways traditional owners access this area. Lanjilanji is also the place where the Nyikina Mangala native title determination was handed down.
· A billabong exists along one of the rivers within the licence that is an important place to traditional owners for fishing, hunting and camping. I am satisfied that due to its unique geography and resources, the billabong is ideally suited to camping and the cooking of food caught and gathered in the area. I do not provide further detail due to sensitivities.
· There are various areas of the licence which differ in their geography and attributes, and traditional owners make different uses of these areas all year round. Evidence confirms that as the seasons change, traditional owners hunt and camp in different parts of the licence for changing purposes that align with the seasonal change.
· Special trees grow throughout the licence which the traditional owners use for medicine, food and traditional smoking ceremonies. Ms Milgin confirms there are special trees within the licence that produce a sap which is used for making paintings and to make a substance which is rubbed on newborn babies.
· There are special trees in the licence which contain the right wood for making boomerangs that are not found in other places anymore. Ms Milgin confirms she accesses the licence to obtain that wood for making boomerangs as it is no longer found where she previously would have accessed it.
Intergenerational Teaching
All three deponents provide evidence that Nyikina Mangala People take their children onto the licence area in order to teach them things, including hunting and gathering, stories and ceremonies.
Mr Watson deposes that Nyikina Mangala People take their children to Lanjilanji to pass on cultural knowledge. Ms Milgin confirms this and states they take children onto the licence area to follow one of the major song lines that run through the licence area and through Lanjilanji. She goes on to explain that members of the community take children to various sites during the dry season to teach them the stories and songs, and then in the wet season the children engage in ceremonies at Lanjilanji.
Looking at evidence given by all deponents, I am satisfied that:
· Children are taken onto the licence area to be taught hunting, gathering, fishing and cooking skills.
· Various areas of the licence area are used to teach children different skills and practices.
· Teaching occurs during various times in the year.
· Children are taken to the licence area to be taught songs and dances.
Collecting a Product and Conducting Ceremonies
[15] Ms Charles deposes to the presence of various types of a particular product in the licence area, which has great cultural significance and uses to Nyikina Mangala People. She goes on to depose that different types of that product are found at different places in the licence area and children are taken onto the licence area in order to be taught about it and how it is prepared. She also deposes to the role that women play in its preparation, as well as how she gathers the various types of product found on the licence area. Ms Charles provides information about how the different types of product are used for various purposes, including in ceremonies. I do no refer to that in detail here given the cultural sensitivities and non-disclosure directions.
Ms Milgin deposes that Nyikina Mangala People conduct ceremonies all throughout the year at Lanjilanji, which is part of a major song line that runs through the licence area. She states that in the wet season the children are brought to Lanjilanji to participate in those ceremonies.
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 People. Evidence provided by the Department of Mines, Industry Regulation and Safety shows the exploration licence is overlapped by two pastoral leases (Yakka Munga by less than 0.1 per cent and Yeeda by 86.2 per cent). The Kimberley De Grey Stock Route and Stock Route Fitzroy Crossing to Nobby’s Well overlap the licence by 3.4 and 2.6 percent respectively, with a Crown Reserve Watering Place overlapping by 1.7 per cent and a Resting Place for Travellers and Stock overlapping by 3.2 per cent. There are three areas of Vacant Crown Land, a Crown Reserve, various Road Reserves, four general purposes leases, miscellaneous licences and three mining leases, all overlapping the licence by 1 per cent or less There are also two petroleum exploration permits overlapping the licence between 11.5 per cent and 88.5 per cent.
The licence has been subject to previous exploration licences, prospecting licences, mining leases, mineral claims and temporary reserves, active between 1919 and 2013, and overlapping the licence between less than 0.1 to 100 per cent. The State contend that prior mineral exploration and activities over the licence is likely to have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area. The State points out there are many dead and concurrent tenements over the licence area and the level of expenditure on those tenements suggests that more extensive work has been done over the area, increasing the likelihood of disturbance. The State has pointed to current mining and petroleum leases over or in the vicinity of the licence area with large annual expenditure, which the State argues is suggestive of disturbance to the licence area. The State also points to the overlapping Yeeda pastoral lease, which the State argues is likely to have already caused some level of interference with the community and social activities of the Nyikina Mangala People.
Walalakoo counters this by saying the State’s arguments regarding expenditure fails to recognise the diverse costs of exploration activities, and has failed to establish the actual activities and associated costs undertaken prior to exploration. Walalakoo argues that total expenditure does not equate to disturbance or prior interference with the licence area. I accept there is no evidence of such interference, or the extent to which exploration activities were conducted under agreements negotiated between the relevant parties.
Conclusion
[20]In considering the impact of past and present underlying tenure, I accept there is likely to have been some interference with the Nyikina Mangala People’s community and social activities. However, there is little evidence to suggest this interference has been substantial and there appears to have been few constraints on the Nyikina Mangala People’s activities to date. I accept the level of expenditure on dead and concurrent tenements does not necessarily equate to showing a level of disturbance, and without other supporting evidence cannot necessarily be linked to showing any level of disturbance. The evidence provided by the affidavits regarding the community and social activities which are conducted on this licence is clear and thorough.
[21] In the absence of any information from Kimberly Outback, and given the nature, frequency and intensity of social and community activities conducted by the Nyikina Mangala People, particularly in the eastern part of the licence near Fitzroy River and Lanjilanji, I accept it is likely activities of the explorer will interfere with the activities of Nyikina Mangala People to a substantial extent. I am satisfied, based on the extensive, clear and corroborating evidence provided by the deponents, that community or social activities would suffer a real chance or risk of interference in accordance with the Nyikina Mangala traditions by the activities the explorer is likely to do on grant of this licence.
Will the grant interfere with areas or sites of particular significance to the Nyikina Mangala people?
The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. For an area or site to be of ‘particular significance’ it needs to be of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at 34–35). It needs to be known, able to be located and the nature of its significance explained (see Silver v Northern Territory at [91]). If there is evidence that areas or sites of particular significance exist on a licence, I must proceed to consider whether interference is likely.
i.What areas or sites are identified?
The deponents are all very clear in their descriptions of the areas and sites of importance to the Nyikina Mangala People, and the affidavit materials are consistent and corroborate the information provided. Ms Charles, for example, outlines the different land types in the north, south and east of the licence, and explains how the sites and areas of importance relate to those land types, and relate to the traditions and ceremonies of Nyikina Mangala People. I do not provide detail on the sites and areas as they are covered by non-disclosure directions, however, I accept the licence area is an ‘extremely important’ place because of the matrix of ceremony, hunting and teaching places on the licence. Specific sites are identified in the affidavit materials which are on and near the licence and which relate to those activities.
ii.Are any of the identified sites areas or sites of particular significance?
Due to cultural sensitivities, I do not go into detail about the sites or areas of particular significance to the Nyikina Mangala People. The State argued that certain areas were related more to community or social activities of the native title party, rather than sites of particular significance. However, from the affidavit material and mapping provided by Ms Charles, Mr Watson and Ms Milgin, I accept the following are of more than ordinary significance to the Nyikina Mangala People and fall into the category of sites of particular significance for the purposes of s 237(b):
· areas containing a certain product (as outlined at [12] and [17]-[18] above)
· a songline whose path is traced on mapping, including sites of traditional importance associated with that songline (both within and outside the licence area)
· a ‘very special place’ in the east of the licence associated with ceremony (and associated with the above songline)
· an area to the south east which is important for intergenerational teaching and which is near to another ceremony ground and which is a ‘very sacred place for Nyikina people’
Some of the places outlined in the above dot points have gender specific significance.
iii.Are any of the identified sites areas or sites of particular significance likely to be interfered with by activities of Kimberley Outback?
While the State accepts there are sites of particular significance in the licence, it outlines factors which it suggests will mitigate against any interference with sites in that category. For example, the State assert they will place a Regional Standard Heritage Condition (RSHA) on grant of the licence, as well as other conditions and endorsements available to the State under its regulatory regime.
As outlined by McKerracher J in FMG v Yindjibarndi (at [75]), the focus of this limb of s 237 is on interference with sites of particular significance in accordance with the native title party traditions. The deponents have outlined the nature and extent of their traditions, and how those traditions link to the sites of particular significance which are on the licence (and also to some sites which are off the licence, which are not the focus of this decision).
The State have provided the statement Kimberley Outback submitted as part of their application for the exploration licence (see s 58(1)(b) of the Mining Act 1978 (WA)). This statement is brief but indicates Kimberley Outback ‘intend to systematically explore the entire area applied for’. Exploration appears to include: sampling; RAB [rotary air blasting] drilling of approximately 100 metres (it is not clear how many drill holes and to what depth each hole); camp consumables; equipment hire and vehicle hire (with no detail as to what will be hired).
While one of the rivers referred to in the Nyikina Mangala materials is recorded on the State’s Aboriginal Heritage Inquiry System (that is, the Fitzroy River), there is nothing to guide the explorer in relation to the sites of particular significance around that river. It is clear the explorer wishes to use the full extent of any rights granted to it under s 66 of the Mining Act 1978 (WA), and this includes extracting up to 1000 tons of material from the licence area. Given the size of the licence, that is not a substantial amount of material. However, if that extraction, drilling or sampling were to take place on or near any of the sites of particular significance, the Nyikina Mangala People have made it clear there would be adverse consequences to their people and their traditions through interference and disturbance of sites of particular significance.
Conclusion
I am satisfied, based on the extensive, clear and corroborating evidence provided by the deponents in this matter, that sites of particular significance exist on the licence and they would suffer a real chance or risk of interference, in accordance with the Nyikina Mangala traditions, by activities the explorer is likely to conduct on the licence.
As McKerracher J in FMG v Yindjibarndi (at [75]), went on to say, ‘…interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions’.
Determination
The grant of exploration licence E04/2422 to Kimberley Outback Fuel Supplies Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
13 November 2018
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