Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Argyle Corridor Resources Pty Ltd
[2020] NNTTA 26
•3 March 2020
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Argyle Corridor Resources Pty Ltd and Another [2020] NNTTA 26 (3 March 2020)
Application No: | WO2019/0829 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2011/001)
(native title party)
- and -
Argyle Corridor Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 3 March 2020 |
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 does not apply – the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) ss 4, 5 Mining Act 1978 (WA) ss 58, 66 Mining Regulations 1981 (WA) r 20 Native Title Act 1993 (Cth) ss 29, 31, 32, 142, 151, 237 |
Cases: | Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (BDAC v Oladipo Minerals) Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182 (FMG v Yindjibarndi) Goonack v State of Western Australia [2011] FCA 516 Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560; (2015) 233 FCR 96 (Hale v WA) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 |
| Representative of the native title party: | Samuel Legge, Kimberley Land Council |
| Representative of the grantee party: | Peter Lewis, Director, Argyle Corridor Resources Pty Ltd |
| Representatives of the Government party: | Domnhall McCloskey and Keahn Sardinha, State Solicitor’s Office Bethany Conway and Angela Murphy, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision under s 32 of the Native Title Act1993 (Cth) (the Act/NTA) about whether the expedited procedure applies to the grant of exploration licence E04/2620 to Argyle Corridor Resources Pty Ltd (Argyle Corridor). All references to legislation are to the Act unless stated otherwise.
The State of Western Australia (the State) gave notice of their intention to grant the licence and included a statement that they consider the grant is an act attracting the expedited procedure. This would, subject to any successful objection, allow the licence to be granted without the normal negotiation required by s 31.
Location, tenure and portion of the licence to be excised upon grant
The licence area is off the coast of Western Australia, approximately 347 kilometres north easterly of Derby. The licence area (as applied for and notified under s 29) comprises 20 graticular blocks. The licence is located over land (the area landward of the high water mark), intertidal waters (the area between the high water mark and the low water mark) and sea (the area seaward of the low water mark). The land component applied for comprises North Maret Island, South Maret Island, Turbin Island, Berthier Island and a number of unnamed islands (all unallocated crown land). The sea component is entirely within Marine Reserve 20, vested in the Department of Biodiversity, Conservation and Attractions.
The Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WNTAC) hold native title in trust for the Wanjina-Wunggurr Uunguu People following the Uunguu Part A determination (Goonack v State of Western Australia). WNTAC hold exclusive native title over the land, and non-exclusive native title over the intertidal waters. They do not hold native title over the sea. In this decision I refer to North and South Maret Island as ‘the Maret Islands’ or ‘the islands’, and I also refer to each island individually as needed.
The State included a list of areas to be excised from the licence on grant, which includes the entire area that is within Marine Reserve 20 and ‘any portion seaward of the Baseline of the Territorial Sea of Australia’ (at their Annexure 7). The area to be excised was further clarified through an exchange of information between the State and Argyle Corridor, and with the assistance of the National Native Title Tribunal’s geospatial unit. At a hearing held on 17 February 2020, the State confirmed the area to be excised on grant was any portion seaward of the high water mark (in other words, any part of the licence that comprises intertidal waters, and the seaward portion).
The objection to the expedited procedure statement
WNTAC lodged an objection with the Tribunal to the State’s inclusion of the expedited procedure statement. The President of the Tribunal appointed me to make a determination about whether the expedited procedure applies (s 32(4)).
For the reasons outlined below, my determination is that the grant of the licence is not an act attracting the expedited procedure.
Issues for Inquiry
Under s 237, the licence grant is only 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 the traditions of those 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)).
WNTAC do not submit contentions or evidence regarding s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. As such, this inquiry is focused on s 237(a) and s 237(b).
The State’s materials
The State provided a statement of contentions and evidence including mapping, tengraph quick appraisal tenure documents and search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS).
Sites recorded on the AHIS can be characterised in two main ways. Firstly, as a ‘Registered Site’, which means the site or place has been administratively assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (WA) (AHA). Secondly, as an ‘Other Heritage Place’, which includes sites or places which have been assessed as not meeting s 5, and also those sites or places where information has been received about the site or place, but an administrative assessment has not yet been completed to determine if it meets s 5.
The AHA protects ‘Aboriginal sites’, as outlined in ss 4-5 of the AHA, whether those sites are registered on the AHIS or not. Regardless of whether or not a place is administratively assessed as meeting s 5 of the AHA, it is still possible for a native title party to establish that one or more of those places constitute ‘areas or sites of particular significance’ to them ‘in accordance with their traditions’ as per s 237(b) of the Act.
The AHIS records one site and two other heritage places on the Maret Islands:
·Site 14930 – South Maret Island (described as a structure on the south island)
·Other Heritage Place 24153 - Jaradanyingga–Jaajaal (a place over North Maret Island subject to a restricted boundary described as ‘Ceremonial, Historical, Quarry, Rockshelter, Arch Deposit, Camp, Hunting Place, Meeting Place, Named Place, Natural Feature, Ochre, Plant Resource, Shell, Water Source’)
·Other Heritage Place 24152 - Saltwater Country – reef sites and fish traps (Maret Island) (a place encroaching over both of the Maret Islands, with a restricted boundary, described as ‘Ceremonial, Fish Trap, Historical, Mythological, Rockshelter, Arch Deposit, Camp, Hunting Place, Meeting Place, Named Place, Natural Feature, Ochre, Plant Resource, Shell, Water Source’)
The State also provided Argyle Corridor’s licence application with the accompanying statement under s 58 of the Mining Act 1978 (WA), and details of proposed endorsements and conditions to be imposed on the grant of the licence. This includes the proposed Regional Standard Heritage Agreement (RSHA) condition, which requires Argyle Corridor to execute an RSHA should WNTAC request that within a specified period.
Argyle Corridor’s materials
Argyle Corridor provided a statement of contentions. With my leave, they provided a brief response to WNTAC’s reply.
In their contentions (at 4), Argyle Corridor outlined various research and reports, conducted between approximately 2005 and 2008, in relation to the Inpex Pty Ltd onshore LNG (liquefied natural gas) plant proposed for the Maret Islands. They provided links in the form of URLs (uniform resource locators, which are unique web addresses) to the research and reports.
No guidance was provided as to which parts of the research and reports should be applied to this inquiry, or why. While this limits my ability to link these materials to arguments made by Argyle Corridor, or to the inquiry generally, I have read and considered the contents of those documents and refer to them where relevant below. The Inpex project did not proceed on the Maret Islands, and was ultimately built in the Northern Territory. It is not clear the link between the proposed Inpex project and Argyle Corridor’s proposed works, apart from Argyle Corridor’s submissions relating to using previous drill holes and tracks made during the Inpex project’s initial investigations (as outlined further below at [25]), and other comments associated with that project.
WNTAC’s materials
WNTAC provided contentions, the signed joint statement of Sebastian Djanghara and Richard Karadada, and a reply to the State’s and Argyle Corridor’s submissions. Mr Djanghara and Mr Karadada state they are Wunambal Gaambera and Wanjina-Wunggur (Uunguu) native title holders who can speak for the area of the licence because it is in Wunambal Gaambera Country. I accept their authority. A map was also annexed to the joint statement.
Tribunal Mapping
Because some of the evidence and information turned on which parts of the licence application would be excised on grant, and which parts would not, I requested the Tribunal’s geospatial unit to prepare mapping to assist me in the inquiry, showing the area of the licence as applied for and the area that will be available to Argyle Corridor on grant. As required by s 142, the mapping was provided to parties, who had the opportunity to inspect it and make submissions or comments. Those submissions and comments were made both in writing, and at the hearing, where all parties presented their final comments orally. I have included that information where relevant in this decision. While my role is to consider the whole of the licence application as outlined in the State’s s 29 notice, whether or not an area will be available to a grantee to do exploration work can be relevant to my consideration of the likelihood of interference (Hale v WA at [115]-[116]).
The s 237 predictive assessment
Given the complexities of the tenure of the licence area, and the proposed area to be excised on grant, I held a short hearing on 17 February 2020, where all parties were given the opportunity to provide final submissions in relation to mapping and any other matter they felt relevant to my considerations. Following that hearing, I was satisfied the inquiry could be adequately determined without further evidence (s 151(2)).
As outlined in Silver v Northern Territory (at [21]), which I adopt for the purposes of this inquiry (emphasis in original):
…section 237 requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences outlined in paragraphs (a) – (c) set out above. The proper approach to the application of section 237 was explained by French J in Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442. His Honour pointed out (at 450): "The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement." … [T]his approach was also endorsed by R D Nicholson J in Little v Western Australia [2001] FCA 1706 at [69].
Section 237(a): is the grant of the licence likely to directly interfere with community or social activities?
The Tribunal is required to make a predictive assessment of whether the grant of the licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). The assessment involves an evaluative judgment about whether the grant of the licence is likely to be the proximate cause of the interference which must be substantial and not trivial (Smith v Western Australia at [26]).
What activities will Argyle Corridor likely undertake on the licence?
Argyle Corridor’s initial contentions noted they had requested the area beneath the high water mark be excised from the application area (at 2). They also noted that ‘work will be confined to areas above the High Water Mark’ (at 2). They argue that interference with community and social activities will not occur as they are ‘external to and unimpeded by the proposed tenement’ (at 2). At the hearing, the State confirmed they would follow Argyle Corridor’s request and would only grant the area landward of the high water mark.
In their reply, WNTAC argue (at 6) that:
…the NTP’s [Native Title Party’s] evidence clearly establishes that the locations of the NTP’s community and social activities are not exclusively carried out in seaward areas. For example, the area marked ID 24153 (Jaradanyingga – Jaajaal) shows the registered heritage place covers a significant proportion of the Tenement Area, including both landward and seaward areas. This is consistent with the evidence of Mr Sebastian Djanghara and Mr Richard Karadada that the carrying on of wunan (exchange) of jaajaal is carried out extensively across the Maret Islands and the Tenement Area.
Argyle Corridor assert they will confine work ‘to sampling existing drill holes generated by the Inpex Geotechnical Survey’ (at 11). Argyle Corridor also state their exploration work ‘on the islands will be confined to prior tracks and access will be gained via helicopter from the nearby Mitchell River Falls helicopter base’ (at 12). As the State’s documents showed no prospecting or exploration licences had been granted over the area to date, at the hearing on 17 February 2020, I clarified with Argyle Corridor and the State as to how these holes and tracks came into existence. It appeared they were created under a permit issued to Inpex that allowed some work for geotechnical purposes, rather than under an exploration permit. As noted above, no exploration permits have been granted over the Maret Islands to date.
In reply, WNTAC note (at 7-8) that any statements suggesting work will be confined ‘is not binding on the Grantee Party’. They note the exploration program provided by the State from Argyle Corridor’s initial licence application includes use of drilling, with the second year of exploration having expenditure exclusively allocated to drilling. It was confirmed at the hearing that existing holes will be drilled using helicopter drill rigs, rather than land based rigs, and existing tracks would only be used as needed, as bringing vehicles onto the islands to collect samples would not be cost effective.
The rights Argyle Corridor will have under an exploration licence are set out in s 66 of the Mining Act, which allows an explorer:
(a)to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d)to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 (WA) outline the amount of material able to be removed from an exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
On the basis of the evidence provided, I cannot necessarily conclude that Argyle Corridor will use the full extent of their exploration rights upon grant. However, I can conclude that, in the absence of any agreement with WNTAC about the scope of such activities, Argyle Corridor’s assertions that they will undertake drilling in existing holes, by way of helicopter, are non-binding in nature.
What activities do the Wanjina-Wunggurr Uunguu People undertake on the licence?
WNTAC’s evidence relating to the social and community activities is placed within the traditions of the Wanjina-Wunggurr Uunguu People. For example, Messrs Djanghara and Karadada jointly state (at 6-7) that:
· The Maret Islands and Berthier Island are part of Wuyurru country
· The creator being for Wuyurru country lives on a named island, which I note is approximately 10 kilometres from the Maret Islands
· The creator being created the islands in Wuyurru country
· The creator being ‘oversees, manages and controls all of Wuyurru saltwater country’.
The joint statement provides information, which centres around why the Maret Islands are so important to those traditions, including in relation to the ochre on the islands. The red ochre deposits on the Maret Islands are ‘the main source for red ochre in Wunambul Gaambera country’ and is ‘highly prized’ because it ‘is greasy and of high quality’. The ‘shoreline at low tide and at higher reaches at high tide on North Maret’ is where the ochre is best (at 10-12). However, South Maret Island also has ochre (its name Ngalunii means ‘place of red ochre’). The evidence is that ochre is integral and culturally significant to the Wunan (trade) passages through the islands and onto the mainland (the route is described in detail in the joint statement at 11). It is used ‘in different aspects of both men’s and women’s law’ including ‘in preparation of body paints for ceremonies’ and ‘refreshing Wanjina in art galleries’ (at 12). The joint statement (at 9) outlines that:
The Tenement Area is an important wunan site. Wunan is the traditional system of sharing, exchange and governance within the broader Wanjina-Wunggurr country. Objects, songs and important knowledge can be exchanged through this system. The Maret Islands, and the Tenement Area, are a very important part of the wunan for us. Through the wunan we can trade the jaajaal (red ochre) that comes from Maret Islands. Jaajaal is culturally valuable and when mixed with water, and/or fat, is used to make body paint for ceremony and to refresh important Wanjina and other images in the region. The jaajaal from Maret Islands can travel all the way to the Northern Territory through the wunan.
Further detailed evidence is provided (at 10-12) about the ochre, which I do not repeat here due to sensitivities. I am satisfied as to the type of ochre, where it is found on the Maret Islands, why it has cultural value, and why it is highly prized and an important resource to both men and women in relation to their social and community activities. Such evidence is supported by materials provided by Argyle Corridor such as the 2013 report Biodiversity values on selected Kimberley islands, Australia, which states (at 173) that ‘Islands are also known as an important source of ochres (iron oxides) and clays used for ceremonial purposes and often traded by Aboriginal people. People have visited the island to collect these ochres and most particularly the highly prized greasy red ochre’. Argyle Corridor suggests (on their list of URLs) that this report ‘mentions ochre on islands without Maret connection’. However, the report was broad in scope, focusing on the biodiversity of 24 islands, and did not focus specifically on the Maret Islands, nor on the traditions or activities of Aboriginal people, so the references within are brief. The report can be contrasted with the WNTAC evidence in this inquiry, which focuses on the Maret Islands, which explains they are the best for ochre, and why this is central to the traditions and activities of the Wanjina-Wunggurr Uunguu People.
The WNTAC evidence also contains references to the collection of turtle eggs. For example, the joint statement (at 13) outlines that turtle eggs are collected ‘at the end of the wet season’ and the traditional owners camp on the Maret Islands to collect those eggs at that time. The fact that turtles are on these islands is supported by reports provided by Argyle Corridor (for example, Ichthys Field Development, Commonwealth Environment Protection & Biodiversity Conservation Act 1999 Referral Document (2006)). That report (at 22), confirms of ‘particular note was the abundant presence of hawksbill turtle nests (Eretmochelys imbricata) on all the beaches of both [Maret] islands’. I accept, therefore, that turtles and their eggs exist on these islands and are collected as part of the Wanjina-Wunggurr Uunguu People’s community and social activities.
The importance of the Maret Islands is described in the joint statement (at 20) in terms of them being ‘deeply connected to Lalai (dreaming) and spiritually significant to Wunambal Gaambera people.’ I go into detail about sites and areas of particular significance in the analysis of s 237(b) below. However, I refer to the significance of sites here in context of their relevance and importance to the Wanjina-Wunggurr Uunguu Peoples’ social and community activities, as outlined in the statement evidence. For example, stone arrangements are ‘integral to teach younger generations about the red ochre trade passage’ (at 22) as is the importance of caring for and managing the ‘cultural places and resources’. This is part of the Wunambal Gaambera Healthy Country Plan to keep the country ‘intact’ and ‘unchanged with no culture or plants lost since European settlement’ and their obligation to ‘keep it that way to pass to our future generations’ (statement at 16-18).
Conclusion: are Argyle Corridor’s activities likely to interfere or coexist with the Wanjina-Wunggurr Uunguu People’ activities?
The State argue (at 12-18) there will not be interference with the wunan (traditional sharing, exchange and governance, including the exchange of the specific ochre found on the Maret Islands), or with the traditional owners cultural and natural management activities on and related to the Maret Islands because:
·part of the licence will be excised on grant
·‘the Grantee Party’s proposed works in the first year are confined to sampling existing drill holes generated by prior survey, with any subsequent drilling informed by those results’
·existing tracks and helicopters will be used for access
·the Environment Protection Act 1986 (WA) (EPA) and regulations will reduce possible interference with access to fauna and flora
·the explorer will consult and present to the native title holders
In their contentions (at 4 and 5 for example) Argyle Corridor outlined broad statements about the implications of the research and reports for this inquiry – for example, they say that information shows: there is no unique flora and fauna on the Maret Islands; there is no ‘long term human settlement’; no permanent fresh water; the islands are rarely visited; and ‘in excess of 1200 person days were allocated to Heritage surveys by Traditional Owners – heritage advisors and survey assistants’.
It is not clear whether those allocated days were used and, if they were, when they were used and who used them. In addition, WNTAC do not assert there is any unique flora or fauna (apart from the assertions regards turtles), nor any long term human settlement or permanent fresh water. Their evidence is that the area is visited for ochre collection, teaching, maintaining sites, for related ceremony and for turtle egg collection. While there is brief reference to the stability of ‘plants and animals’ in the area (at 18 of the statement evidence), I took this to be a more general reference to Wunambal Gaambera Country, rather than to the Maret Islands specifically. I accept that, because of the proposed excision, intertidal areas involved in social or community activities (including those relating to plants, fishing and shells in that area) are not likely to suffer from interference by way of exploration activities, particularly if Argyle Corridor only use helicopter drill rigs, and so do not need to access the island through a seaward pathway.
However, WNTAC evidence is that there are important social and community activities conducted on the land. The Wunambal Gaambera Healthy Country Plan 2010-20 contains a photo of a turtle track on South Maret Island beach, which shows the track going across the beach into the bush area of the island. This suggests to me that turtles are not confined to the area which will be excised from the licence application, and they will be on the landward area of the islands. While it is unlikely turtles would lay their eggs on the portion of the beach that was subject to intertidal fluctuations, I do consider it likely that helicopter activity could disturb the egg laying process, and thus disturb social and community activities associated with the turtles and their eggs, whether or not the eggs are laid landward or in the intertidal area.
The WNTAC reply contends that even ‘if exploration activities are confined to existing tracks and via helicopter, the practice of wunan, the collection of turtle eggs and secret women’s rituals are, by their nature, susceptible to disturbance by helicopter and may be carried out along existing tracks’ (at 8). I accept that evidence in relation to the collection of the turtle eggs, as that collection is likely to be taking place either landward, or very close to the intertidal area. In relation to the secret women’s rituals (which is also referred to in the statement evidence, at 14)), there is insufficient evidence in relation to these rituals for me to draw any conclusions about the duration or location of that specific activity. However, I accept such activity contributes to the overall importance of the Maret Islands (as discussed in my assessment of their particular significance).
I also note that rockshelters and structures exist on the Maret Islands, as per the AHIS records (see [13] above). I accept from the joint statement that they are connected to the Lalai dreaming and the associated activities on the islands.
Argyle Corridor argue the Maret Islands are 250 kilometres ‘from the Traditional Owners (and deponents) Community base at Kalumburu’ and state they ‘will provide detailed presentation on proposed exploration programmes at Kalaumburu [sic] and extend every effort to comply with the requests of Traditional Owners when conducting exploration activities’ (at 13)). In reply WNTAC (at 18) state the ‘NTP has on more than one occasion communicated to the Grantee Party that undertaking exploration activities on Maret Islands is not appropriate due to the area being site rich and that direct interference with the NTP’s community and social activities and sites of particular significance is a likely result of the Grantee Party’s exploration activities’.
The distance of the Maret Islands from the community base does not appear to be a relevant consideration in that no particular reason has been drawn by Argyle Corridor as to why I should consider that fact, particularly where the licence is subject to the native title holder’s community and social activities, no matter where their community may be.
Conclusion
I am not convinced by the State’s arguments that there is unlikely to be interference to community and social activities on the Maret Islands. The excision of the intertidal and seaward parts of the licence on grant is unlikely to reduce the possibility of such interference to social and community activities on the land area of the Maret Islands, as the landward part of the islands is still open to be explored on grant, including by helicopter drill rigs.
Argyle Corridor, in their contentions and at the hearing, outlined they intend to have as little impact on the islands as possible (drilling by way of helicopter rig and using existing drill holes). However, the drilling program is not specific beyond the first year, their intentions are non-binding and, as previous Tribunal decisions have found, should there be re-drilling of previously drilled areas, this does not necessarily mean interference is unlikely for the purposes of s 237(a). WNTAC outline how helicopter use can cause interference with the practice of wunan on and connected to the Maret Islands, and it is not clear where existing tracks are or how they will be used by Argyle Corridor.
In addition, WNTAC’s reply (at 9) notes that the State ‘goes into no specificity as to what provisions of the EPA will reduce interference with community and social activities carried on by native title holders’. And in relation to consultation with and presentations to the native title holders, no mechanism has been provided as to how this can occur.
I note Argyle Corridor’s statements of intention directed at minimising the risk of interference under s 237, including proposing consultation with the native title holders, drilling pre-existing holes, and using helicopter drill rigs. Such statements and evidence of intention were canvassed in Tjiwarl v Gianni, where it was concluded that, in summary, ‘…statements of intention may, in changed commercial circumstances, become burdensome’ (at [67]).
Mapping has shown the islands are relatively small, the widest points are only approximately 2.5 kilometres wide, and the existing drill holes cover both the north and south Maret Islands in approximately 14 locations. The size of the islands also contributes to my conclusion that even helicopter drilling is likely to interfere with activities on the landward parts of the islands.
I conclude there is no doubt a particular type of ochre exists on Maret Island. Its gathering and use is intimately intertwined with the practice of wunan, the Lalai dreaming, and associated social and community activities of the Wanjina-Wunggurr Uunguu People. I appreciate that Argyle Corridor have requested excision of the area seaward of the high water mark, and this will give some protection to the ‘best’ ochre in the inter tidal area. However, the ‘best’ ochre does not appear to be confined to the intertidal area as it is also said to be ‘at higher reaches during high tide’, and the gathering of ochre is an important cultural consideration for the traditional owners.
I accept the nature of the community or social activities such as gathering ochre and caring for country and sites on the land are such that they are interconnected, and part of the complex wunan (trade and exchange) activities and those activities connected with the Lalai dreaming. On the basis of the evidence before me, I conclude the area is of such a sensitive nature that even a low level of interference would amount to substantial interference for the purposes of the inquiry under s 237(a). Even helicopter drilling, perceived by Argyle Corridor as being a low level of interference in terms of exploration activity, is likely to cause substantial interference in terms of the social and community activities of the Wanjina-Wunggurr Uunguu People, based on the available evidence.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance?
My assessment of s 237(b) turns on whether or not there are areas or sites of ‘particular significance’ (meaning of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35)). If an area or site is of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]). There must be a real risk of interference to the site or area of particular significance, but even slight interference may be unacceptable in the context of s 237(b).
The approach of French J in relation to s 237(a) (as outlined at [22] above) was the subject of consideration by McKerracher J in FMG v Yindjibarndi (at [64]-[76]), in the analysis of s 237(b). At [68] McKerracher J notes ‘Although those [French J’s] observations related to s 237(a) NTA, they would equally apply to s 237(b) NTA.’ McKerracher J goes on to conclude that, based on this authority, s 237(b) interference must also be substantial and not trivial (just as with s 237(a) interference). He then goes on to note (at [75]) that ‘the nature of interference referred to under s 237(a) NTA is not the same as the nature of interference referred to under s 237(b) NTA’. That is why ‘the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions’ (emphasis added).
WNTAC’s arguments regarding sites of particular significance can be summarised by referring to their reply (at 10), which states that the area on which Argyle Corridor can conduct exploration activities ‘is extremely vulnerable to disturbance and is site rich, as it contains a number of sites of particular significance to the NTP including, archaeological sites, occupation sites, fish traps, burial sites, Wanjina sites and lalai (dreaming) sites’. The State accepts WNTAC’s ‘evidence as to the sites and areas’ number and location and significance due to connection with Lalai and wunan’ (at 23).
The joint statement (at 20) notes that the ‘high density of both intangible and tangible Wunambal Gaambera significant cultural sites make the Maret Islands extremely culturally sensitive and vulnerable to disturbance’. At the hearing, WNTAC noted that some tracks on the island had been lined with stones and they considered those tracks themselves were areas of particular significance. At the hearing, WNTAC also reiterated the Maret Islands were critically important culturally to the native title holders. I have canvassed some of this material in my consideration of s 237(a) above, given the interconnectedness of the social and community activities with physical sites and areas on the island. I outline more information below in my consideration of s 237(b).
Are there areas or sites of particular significance on the licence?
Having considered the available evidence (see for example paragraphs [13], [30]-[32], [35], [40] and [46] above), I am satisfied the Maret Islands themselves (including the intertidal areas) are of special or more than ordinary significance to the Wanjina-Wunggurr Uunguu People. WNTAC’s evidence is supported by the AHIS descriptions of the registered site and other heritage places in the area (as summarised at [13] above). In conjunction with the other evidence, the AHIS descriptions support the sites and places have multiple reasons for their inclusion on the AHIS (and for their particular significance to the Wanjina-Wunggurr Uunguu People under s 237(b)). I conclude the traditions tied to these islands have been explained, as have the nature of the islands’ significance.
Is the grant of the licence likely to interfere with areas or sites of particular significance?
The State (at 25) say ‘the protective effect of the AHA and EPA, and the … intention to impose the RSHA condition, is relevant’ but do not explain why. WNTAC contend ‘the AHA is not designed to provide protection to areas or sites of particular significance, in accordance with their traditions … which is the intention of s 237(b)’ (at 14). They contend the State’s submission regarding the EPA ‘should be disregarded as the Government Party goes into no specificity as to what provisions of the EPA will reduce interference’ (at 15).
In their reply, WNTAC cite ‘the well-established jurisprudence of the Tribunal’ and argue the RSHA provides little protection in this matter because the nature of the sites means the precise boundaries are not ‘readily identifiable’ and ‘the threshold for interference is higher’ under an RSHA (at 16-17). I accept that argument, also on the basis that the State’s regulatory regime allows for non-ground disturbing activities to occur and for sites under the AHA to be disturbed with Ministerial consent. I canvassed this type of argument in BDAC v Oladipo Minerals (at [49]-[53]) and adopt that reasoning in this inquiry: even if native title holders are afforded procedural fairness and are consulted prior to the Minister’s decision to disturb a site, ‘the State does not explain how that mitigates the likelihood of interference under s 237(b) of the NTA on the facts of the present case. Interference that is sanctioned under s 18 of the AHA may nonetheless be interference within the meaning of s 237(b) of the NTA’.
The joint statement (at 29-31) outlines in some detail the importance of access protocols for the Maret Islands and for the sites and areas on these islands to the traditions of the Wanjina-Wunggurr Uunguu People. The statement evidence (at 15-18) also outlines the importance of the Maret Islands in terms of the Wunambal Gaambera Healthy Country Plan 2010-20, and provides details of that plan.
As noted above (at [22]) in FMG v Yindjibarndi, McKerracher J made it clear that I must consider the likelihood of interference in the context of the traditional laws and customs of the native title holders. He also determined the interference need not be physical in nature (at [76]). Rather, the focus of s 237(b) is whether the proposed future act is likely to interfere with the area or site, under the traditional laws and customs of the native title party. What may appear to be trivial or slight to an explorer (for example, helicopter drilling of existing drill holes) may nevertheless be interference for the purposes of s 237(b).
Conclusion
Taking into account the proposed excision, I conclude it is unlikely that interference will occur with parts of the Maret Islands located seaward of the high water mark. That would include any fish traps, ochre, shells, shelters and structures within that area (as noted in the AHIS site 14930 and heritage places 24152 and 24153).
In relation to sites and areas on the land component of the Maret Islands, I conclude interference is likely. That would include camping and ceremonial areas, ochre and the stone structures (as noted in the AHIS site 14930 and heritage places 24152 and 24153). Given the evidence that the landward area of the islands are intimately connected with ochre, wunan activities and there are structures on the islands which are part of the Lalai dreaming, I accept the interconnectedness of the community and social activities with the islands. If the Maret Islands are disturbed, it would be interference of a substantial nature, as that would have repercussions for an area of particular significance to the traditions of the Wanjina-Wunggurr Uunguu People.
In summary, I consider the Wanjina-Wunggurr Uunguu People have identified the Maret Islands as being an area of particular significance. I do not consider the endorsements or conditions the State intends to impose on the grant of the licence, including the RSHA, or the State’s regulatory regime, would mean there is unlikely to be interference of the type outlined in s 237(b). I consider that even acting lawfully within the State’s regulatory regime, and with the best of intentions, Argyle Corridor is likely to cause interference with the Maret Islands of the type envisaged by s 237(b).
Determination
The grant of exploration licence E04/2620 to Argyle Corridor Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
3 March 2020
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