Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Baracus Pty Ltd
[2019] NNTTA 64
•23 August 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Baracus Pty Ltd & Another [2019] NNTTA 64 (23 August 2019)
Application No: | WO2018/0590 |
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 (WCD2004/001)
(native title party)
- and -
Baracus Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 23 August 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 237 |
Cases: | Barbara Sturt on behalf of Jaru v Baibao Resources Pty Ltd and Another [2015] NNTTA 38 (Sturt v Baibao Resources) Ben Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) 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 Aboriginal Corporation) 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 Western Australia) Neowarra v Western Australia [2004] FCA 1092 Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (Western Australia v McHenry) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives(s) of the native title party: | Samuel Legge, Kimberley Land Council |
| Representative(s) of the grantee party: | Matthew Clohessy, Emerald Tenement Services |
| Representatives(s) of the Government party: | Thea Chee, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E04/2451 (the licence) to Baracus Pty Ltd (Baracus). The notice included a statement that the grant of the licence is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts the grant is not likely to, in summary:
(a)interfere directly with the native title holders’ community or social activities (s 237(a));
(b)interfere with area or sites of particular significance, in accordance with the native title holders’ traditions (s 237(b));
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned (s 237(c)).
The licence is approximately 467.11 square kilometres in size and is located in the Shire of Derby/West Kimberley. The licence is partially overlapped by the Wanjina-Wunggurr Wilinggin native title determination (see Neowarra v Western Australia). The Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WNTAC) holds non-exclusive native title rights and interests in the area of the licence.
WNTAC lodged an objection application with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence. WNTAC argue the expedited procedure should not apply as the grant will likely cause interference, contrary to the conditions of s 237(a) and s 237(b). It does not pursue an objection under 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. Therefore, I find disturbance under s 237(c) is unlikely.
Preliminary matters
WNTAC submitted a statement of contentions and the affidavit of Mr Kevin Dann. Mr Dann describes himself as a senior caretaker and a senior person able to speak for the area of the licence. I accept Mr Dann’s authority to speak for the area.
The State provided contentions with supporting documents, and WNTAC provided a reply to the materials from the State. No materials were provided by Baracus. I concluded this inquiry could be determined on the papers, without the need for a hearing, and the parties had no issue with that approach.
The State’s contentions identify the licence is overlapped by the WNTAC area by ‘only 5.5%’ (at 15). The State then asserts (at 16):
Accordingly, the Tribunal must consider the substantive contentions and evidence in this inquiry with respect to only that small portion of the Proposed Tenement in which the NTP’s [Native Title Party’s] native title rights and interests may be affected.
The present licence is also overlapped by two other native title determinations and a registered native title claim. In my view, Justice Barker’s reasoning in Hale v Western Australia is relevant to the above assertion by the State:
On the face of it, by s 32(4) [of the Act], if a native title party objected against the inclusion of the s29(7) statement in the notice, “the arbitral body must determine whether the act is an act attracting the expedited procedure”. The fact that there is only one native title objector to the future act in question here, when there potentially could have been two… does not necessarily mean that the inquiry is to be limited to that portion of the land or waters the subject of the s 29 notice to which the objector’s native title claim relates (at [102]).
…
Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of the land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the object on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is a factual question for inquiry and determination by the arbitral body (at [113]).
Applying Justice Barker’s reasoning, my role in this inquiry is to determine whether the act of granting the licence to Baracus is an act attracting the expedited procedure. Having been appointed to determine this matter, I must look at what is likely to result from the grant of the licence and decide whether there is a real chance or risk of the interference outlined in s 237 (see Yindjibarndi v FMG at [15]). I must have regard to the rights conferred by the grant of the licence, the nature of the proposed grant and the applicable regulatory regime (Walley v Western Australia at [8]-[9]).
I have examined the relevant information and evidence provided by WNTAC and the State, and by drawing factual conclusions from that material as outlined below, I find the expedited procedure does apply to the grant of the licence.
Section 237(a): Is the grant of the licence likely to interfere directly with the community or social activities of the native title holders on or related to the area of the licence?
In my consideration under s 237(a), I must balance a grantee party’s proposed exploration activities with any evidence of the native title holders’ community and social activities, to determine where the activities can coexist without direct or substantial interference (see for example Rosas v Northern Territory at [71]). WNTAC asserts that hunting, camping and burning activities occur on the licence.
Hunting
Mr Dann outlines the licence area is good for ‘maynda (food)’, specifically garayali (goanna), barnarr (bush turkey) and yali (kangaroo) (at 5). Mr Dann explains he has been ‘hunting out there all’ of his life – starting when he was a child and continuing today (at 7). He explains he was last there a ‘couple of months ago’ with ‘lots’ of other members of the community (at 8). Specifically, Mr Dann outlines encountering up to 12 cars being parked there when he took his last trip (at 8).
He describes certain times of year as being the best time for hunting (when the goannas are most active) and this being when members of the community are also out there most often. Mr Dann explains when an animal is caught and killed, members of the community set up a fire on the licence area and ‘cook them up out there where they find them’ (at 9). It is feared that if the mining company was heading out there, they might ‘run into people’ and, without the company obtaining permission, people wouldn’t want to keep going out there (at 11).
Mr Dann outlines that the licence area, up near Wombaralla Creek, is the ‘main hunting area’ (at 6). The WNTAC reply also emphasises Wombaralla Creek as being a focal point of community and social activities (relevant to s 237(a)), and an area of particular significance (relevant to s 237(b) considered later in this decision). According to mapping provided by WNTAC and the State, the creek encroaches on the northernmost tip of the licence, and continues for many kilometres off the licence. The evidence does not clarify whether the hunting activities ‘on Wombaralla Creek’ are isolated to the portion which overlaps the licence, or to a broader section of the creek. Even if it was isolated to the portion which overlaps the licence, it has not been established that such activity occurs there such that exploration activities would interfere with it.
Whilst sufficient evidence has been provided to establish some hunting occurs on the licence area, detailed information enabling me to assess whether direct or substantial interference with these activities has not been provided. In making this finding, I have taken into account the numerous occasions the Tribunal has found hunting and mineral exploration activity are capable of coexistence (see, for example, Rosas v Northern Territory). I also note the size of the licence is over 467 square kilometres, and there is nothing which indicates hunting on and around this area would suffer from interference such as to offend s 237(a).
Camping
A very brief account of camping is contained in the evidence. Mr Dann explains that ‘a lot of people’ will be camping on the licence area ‘this time of year’ (at 9). Mr Dann outlines he usually does ‘day runs’ to hunt on the licence area but ‘sometimes’ he camps out with his family (at 9). There is no further evidence about camping activities, for example, whether the licence area, in particular, is required for these activities and if so, why. As such, I am unable to be satisfied the evidence demonstrates the camping activities will be interfered with such as to offend s 237(a).
Burning
Mr Dann outlines that burning, ‘at the right time of year, the right way’ is an important way of looking after country (at 10). I accept burning protects culturally important species and that, after burning season, is a good time for hunting bush turkey (at 10). In response to this evidence, the State contends the evidence lacks detail about the precise location, the frequency, the duration and number of people involved in this activity (at 32-34, citing Sturt v Baibao Resources). I agree with this contention and am not satisfied the evidence in relation to burning is sufficiently detailed in order for me find such an activity will be directly and substantially interfered with such as to offend s 237(a).
Conclusion
Based on the evidence provided, I conclude the community and social activities of the native title holders of hunting, camping and burning, are not likely to be directly or substantially interfered with by the grant of the licence.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders on or related to the area of the licence?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34-35). If an area or site is one of particular significance, it must be known and be able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
WNTAC asserts that a meeting place is located within the licence area ‘up near Wombaralla Creek’ (Mr Dann’s affidavit at 6). Mr Dann outlines it is a ‘very special place’ and that people ‘treat that area with respect’ (at 6). The WNTAC reply outlines this place is at Wombaralla Creek, however, no further direct evidence in provided in relation to the site, or whether that area is on or near the licence (at 16). Given the creek runs for many kilometres, it is difficult for me to then conclude this place is on or near the licence.
The State argue insufficient evidence has been provided in relation to the nature of the site, its location and an explanation as to why it is of ‘particular’ significance (at 54). I accept the evidence provided by WNTAC is very broad and lacks detail in terms of the location of any sites on the licence and the nature of particular significance of sites to the native title holders. As noted earlier in this decision, the licence is over 467 square kilometres in size.
The evidence and information provided about this site does not, in my view, demonstrate this meeting place has special or more than ordinary significance to the native title holders in accordance with their traditions. There is not sufficient detailed description of the nature of the site and an explanation of how it is of ‘particular’ significance (see Western Australia v McHenry at [14]-[15]). As such, my conclusion is the site does not meet the threshold of ‘particular significance’ as required under s 237(b). It therefore follows, because there is insufficient evidence to conclude any areas or sites of particular significance exist on the licence, I do not need to consider the question of interference.
I have no reason to doubt the meeting place is important to WNTAC, however, I am not satisfied the evidence before me establishes the area is of particular significance so as to offend s 237(b).
Determination
My determination is that the grant of exploration licence E04/2451 to Baracus Pty Ltd is an act that attracts the expedited procedure.
Helen Shurven
Member
23 August 2019
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