Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Ltd
[2020] NNTTA 48
•2 June 2020
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Ltd and Another [2020] NNTTA 48 (2 June 2020)
Application Nos: | WO2020/0033; WO2020/0034; WO2020/0035 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection applications
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2004/001)
(native title party)
- and -
Buxton Resources Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 2 June 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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 acts are not acts attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) ss 58, 66 Mining Regulations 1981 (WA) r 20 Native Title Act 1993 (Cth) ss 31, 32, 142, 146, 151(2), 237 |
Cases: | 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 (FMG v Yindjibarndi) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Forrest v Aruma Exploration) Freddie v Western Australia [2007] NNTTA 37; (2007) 213 FLR 247 Neowarra v Western Australia [2004] FCA 1092 Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Paul Winston Askins and Others and Another[2019] NNTTA 5 (WNTAC v Askins) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Ltd and Another[2019] NNTTA 119 (WNTAC v Buxton) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Elderberry Resources Pty Ltd and Another [2018] NNTTA 73 (WNTAC v Elderberry) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Investmet Limited and Others and Another[2018] NNTTA 47 (WNTAC v Investmet) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (Western Desert Lands v Teck Australia) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 |
| Representative of the native title party: | Gemma Acland, Kimberley Land Council |
| Representative of the grantee party: | Saskia DeReuck, Independence Group NL |
| Representatives of the Government party: | Domnhall McCloskey, State Solicitor’s Office Michael McMahon, 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 licences E04/2648, E04/2649 and E04/2651 to Buxton Resources Ltd (Buxton). 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 licences and included a statement in each notice that they consider the grants are acts attracting the expedited procedure. This would, subject to any successful objections, allow the licences to be granted without the normal negotiation required by s 31.
The licences are adjacent to each other and located approximately 135 kilometres east of Derby, over land and waters where the Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WNTAC) hold non-exclusive native title for the Wanjina-Wunggurr Community (see Neowarra v Western Australia). The Aboriginal community at Windjingayr is approximately 20 kilometres southwest of the licences. WNTAC lodged an objection with the National Native Title Tribunal (the Tribunal) to the State’s inclusion of the expedited procedure statement for each licence. The Tribunal must make a determination about whether the expedited procedure applies (s 32(4)). The President of the Tribunal appointed me to constitute the Tribunal for this purpose.
For the reasons outlined below, my determination is that the grants of the licences are not acts attracting the expedited procedure.
Issues for Inquiry
Under s 237, a 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 their traditions, to 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(a) and 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 each licence is likely to involve direct interference with community or social activities or major disturbance to the land or waters concerned. As such, I conclude interference of the kind outlined in those sub-sections is not likely from the grant of each licence, and this inquiry focuses on s 237(b).
My assessment of s 237(b) turns on whether or not there are areas or sites of ‘particular significance’ – that is, 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).
Crown Reserve 46235 and Yampi Defence Area
Buxton note part of E04/2648 and 04/2649 falls within Crown Reserve 46235 which is an A Class reserve. They note (at 18) ‘further approvals will be required before any exploration activities can occur within the reserve as identified in the list of proposed conditions and endorsements provided by the Government Party’.
Buxton also note (at 3) ‘a large part of exploration licence application 04/2648 falls within the Yampi Defence Area which is managed by the Commonwealth. This area lies outside of the Native Title Party determination area and is not relevant to this proceeding’.
In relation to the implications of a reserve, and also the Yampi Defence Area, I considered such in WNTAC v Investmet (at [31]-[33]), as follows:
In relation to both the Reserve and the Yampi portions of the licence, I consider that obtaining consent from third parties in relation to access to and exploration on parts of the licence area does not greatly assist in my assessment of the nature of the interference. The grantees will be able to conduct exploration activities, anywhere on the relevant part of licence, if the third party consent is granted…what is relevant, in the present circumstances…[is] whether there is a risk of interference with areas or sites of particular significance to the native title party in accordance with their traditions.
I also considered the Tribunal’s jurisdiction over the Yampi Defence Area in WNTAC v Askins (at [11]-[12]):
As for the area of the licence covered by the Yampi Defence Area, the State contends the Tribunal does not have jurisdiction to consider whether s 237 interference or disturbance is likely in this area because the Court has determined that native title does not exist in the Yampi Defence Area (at 33). The State made the same contention recently in WNTAC v Investmet, which I did not accept (at [10]-[12] and [33]). Again, I note the guidance the Court provided in Hale v Western Australia at [111-113] about the statutory construction of s 237:
…Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of 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 objector 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 the factual question for inquiry and determination by the arbitral body.
The Court’s guidance indicates the words ‘the land or waters concerned’ in s 237 are broad. These words do not limit the Tribunal’s jurisdiction to only the area of the future act that is overlapped by an objector’s claim or only the area where it is determined that the objector holds native title. Nor do the words limit the objector’s standing to only the area of the future act where they claim native title or hold native title. Because the Tribunal is required to consider whether interference or disturbance is likely within any of ‘the land or waters concerned’ by the future act, the objector is entitled to argue that interference or disturbance is likely within the same. As the Court noted, it ‘is always going to be an evidentiary question as to whether or not an objector … will be affected in relevant ways by the act’ (Hale v Western Australia at [112]).
My conclusion in relation to the reserve and the Yampi Defence Area is that I take into account the whole of the licence areas in considering whether interference or disturbance is likely.
Determination on the papers
The State provided 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). The State also provided each licence application and the accompanying statement from Buxton under s 58 of the Mining Act 1978 (WA), as well as details of proposed endorsements and conditions to be imposed on the grant of each licence. This includes the proposed Regional Standard Heritage Agreement (RSHA) condition:
In respect of the area covered by the licence the licensee, if so requested in writing by Wanjina –Wunggurr (Native Title) Aboriginal Corporation RNTBC, the registered native title body corporate in respect of the Wanjina –Wunggurr Wilinggin Native Title Determination No.1 determination area (the "native title party"), such request being sent by prepaid post to reach the licensee's or agent's address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the native title party any Regional Standard Heritage Agreement ("RSHA") nominated by the native title party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading 'Regional Standard Heritage Agreement’.
Buxton provided contentions for each licence.
WNTAC provided, for each licence: contentions; an affidavit from Mr Matthew Martin with an annexed map; and a reply to the State and Buxton’s contentions. Mr Martin states he is a traditional owner and can speak for the area of each licence. I accept his authority.
As parties provided evidence in relation to tenements which had been the subject of previous decisions of the Tribunal, which are near to and adjacent to the licences in this matter, I requested the Tribunal’s geospatial unit prepare mapping showing all of these areas, to assist me in the inquiry. I provided that mapping to parties who had the opportunity to inspect it and make submissions or comments (as per s 142). No party objected to me using the map. All parties agreed to the matter being determined on the papers and I am satisfied the inquiry can be adequately determined without a hearing (s 151(2)).
The s 237(b) predictive assessment: is the grant of the licence likely to interfere with areas or sites of particular significance?
Are there areas or sites of particular significance on the licence?
The licences are approximately 81, 104 and 137 square kilometres respectively, and according to information provided by the State, and mapping provided by parties and the Tribunal, the Barker River runs through each licence.
Under s 146, the Tribunal has a broad discretion to adopt any reports, findings, decisions or judgments from any person or body that may be relevant to an inquiry. The WNTAC material refers to previous Tribunal decisions made regarding tenements which are just south of the licences in this inquiry. In WNTAC v Elderberry, the expedited procedure did not apply on the basis of my assessment of s 237(a) and (b). The tenement in that matter is approximately 2 kilometres west of the licences in this present inquiry. The tenement in that matter also shares a border with the tenement I considered in WNTAC v Buxton, which shares a border with E04/2651 in the present inquiry.
I noted in WNTAC v Elderberry that Kongorow Pool (also referred to in materials as Kongorrow Pool) was a site of particular significance on that tenement. I also decided, among other things, the evidence in relation to the Barramundi Dreaming associated with the pool supported a conclusion that a wider area (and not just the pool itself) was of particular significance to the native title holders (at [18]). I accepted the Barramundi Dreaming was associated with the pool and the ‘dreaming tracks connected to that story all through the Tenement Area’ (at [18] for example). Similar evidence has been provided in this present inquiry.
In WNTAC v Buxton, I found the expedited procedure did not apply, and that was based on my assessment of s 237(b). At [21] of that decision, I noted that:
The nature and extent of the Barramundi Dreaming is explained in context of the licence in this inquiry, as is its connection to the Kongorow Pool, and the consequences of interference with the dreaming and the pool are explained. The question then is whether or not such interference is likely from Buxton’s exploration activities.
The State and Buxton argue that WNTAC have not provided sufficient evidence that the dreaming is of particular significance to the native title holders, and the evidence is too broad and general. I note the evidence in this current inquiry is brief, but it is targeted to the significance of the Barramundi Dreaming in accordance with the native title party traditions, and is consistent with the evidence provided by the deponents in WNTAC v Elderberry and WNTAC v Buxton. I am satisfied the Barramundi Dreaming passes through each of the licences in this current inquiry along waterways including the Barker River, and there are consequences to the native title holders should the dreaming be interfered with, which I will discuss further below. As I noted in WNTAC v Buxton and WNTAC v Elderberry, being satisfied of this particular significance, the question is whether or not such interference is likely from Buxton’s exploration activities.
Is the grant of the licences likely to interfere with areas or sites of particular significance?
The exploration program for each licence, as outlined in Buxton’s s 58 statements (see [13] above) and in Buxton’s contentions (at 17), notes that Buxton will initially review historical information, and analyse aeromagnetic and radiometric survey data. Depending on those results, further field-work will be undertaken, ‘which may include geological mapping, geochemical sampling and ground electromagnetic surveys before drill targets are identified’.
Buxton (at 13) makes the following contentions in relation to Mr Martin's affidavits:
·the paragraphs about the Barramundi dreaming identify ‘one dreaming associated with running waters/rivers in the exploration licence areas’
·‘given the size and different locations of the exploration licences it seems unlikely that the whole or even a majority of the exploration licence areas would be said to be part of the dreaming’
·‘no specific information has been provided about the location of the dreaming other than that it follows the Mt Barker river’
·the ‘dreaming is not identified as being of areas of particular significance having regard to other heritage areas’.
Buxton outline their methods of exploration ‘will not involve any exploration activities that would affect the running waters/rivers in the exploration licence areas’. They do not provide much further detail in support of that contention, other than:
·the State’s endorsements and conditions will protect the waterways,
·further approvals are required from the State (under the Rights in Water and Irrigation Act 1914 (WA) for example) for Buxton to take water,
·there ‘is a specific prohibition on taking barramundi from the water ways’ and the ‘exploration licences will not entitle the Grantee Party to undertake any fishing activities and it will not undertake any fishing activities within the exploration licence areas’.
Having reviewed the proposed endorsements and conditions the State intend to impose on each of the licences, I could not see any conditions which dealt specifically with water. The endorsements (which do not subject a licence to forfeiture if they are breached, unlike conditions) focus on the fact that the grantee’s ‘attention is drawn to’ various legislation related to waterways. There are no specific conditions or endorsements specifically in relation to the Barker River itself.
Buxton (at 14) refers to the licences having ‘a long history of being affected by mining tenements and temporary reserves for the purpose of mineral exploration’ but provide no further information about that point.
Buxton outlines (at 20) a brief history of the agreement making process between them and WNTAC, and that Buxton ‘is willing to, and has proposed to the Native Title Party to, enter into an agreement with the Native Title Party that deals with heritage matters and provides a process for heritage surveys’. However, it appears parties were unable to reach agreement on the process to be used.
I find that it is likely, in the face of no further information about exploration activities on each licence, that Buxton will exercise the full extent of the rights available, as set out in s 66 of the Mining Act, which allows that, upon grant, the exploration licence will authorise a grantee party:
(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 each exploration licence as follows:
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.
Mr Martin outlines his responsibility to look after country where the licences are (at 3), that the Barramundi dreaming is a sacred site (at 3 and 6), and the dreaming ‘runs along the waters, primarily the Barker river, within the Tenement Area’ (at 4). He outlines there is a prohibition on catching Barramundi within that part of the river which runs through the licences ‘as it would be against Ngarinyin lore’ (at 4).
Mr Martin outlines the path of the dreaming, which is consistent with the evidence provided in both WNTAC v Buxton and WNTAC v Elderberry. Mr Martin asserts, referring to the dreaming path through each licence area (at 4), that ‘Disturbance to the waters in the Tenement Area would impact this dreaming and break the spiritual connection of the lore itself’.
Consistent with the evidence presented by WNTAC in WNTAC v Elderberry and WNTAC v Buxton, Mr Martin outlines the appropriate cultural protocols which need to be followed according to native title party traditions for areas around the river in the licences. It is clear that culturally unsanctioned exploration activities (including low impact visits) which disrupt the waters within the licence would impact on the dreaming. Mr Martin concludes that the ‘cultural repercussions are serious’ (at 6).
The State asserts that (at 28) if I do find the Barker River, or part of it, is an area or site of particular significance for the purposes of s 237(b), there is no information before the Tribunal upon which I can find that there will be interference, or, alternatively, that there is insufficient information to make such a finding. The State also (at 29) rely on an assertion that ‘only a very small section of the river passes through each of the Tenements’ and so ‘there is very little likelihood that any activities undertaken by the grantee party will cause interference of the kind described in the case s 237(b)’.
However, I do not agree there is no or insufficient information before me, and I consider it is not the size of any overlap between a licence and an area of particular significance which is central to the question of interference. It is whether the activities of the explorer will be likely to lead to substantial and not trivial interference with the area of particular significance in the context of the native title party traditions. As McKerracher J noted in FMG v Yindjibarndi (at [75]) ‘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’.
I agree with Buxton’s assertion that it is unlikely the explorer will be fishing in the Barker River or waterways on the licences. Buxton have also asserted (at 13) that its ‘methods of exploration will not involve any exploration activities that would affect the running waters/rivers in the exploration license areas … [and] the exploration licences are proposed to be granted subject to endorsement and conditions that are specifically designed to protect the waterways in the exploration license area’. However, ‘protection’ in the context of the State’s regulatory regime, does not necessarily equate to what the WNTAC community have asserted would be protection from likely interference of sites of particular significance according to their traditions and cultural protocols in relation to the river and the dreaming. The WNTAC reply reaffirms that Buxton has rights under s 66(d) of the Mining Act to ‘take and divert water’, and I have already noted the extent to which conditions and endorsements are limited in their relationship to the Barker River and waterways on the licence.
In addition, the WNTAC reply (at 12) with respect of the State’s proposed RSHA, outlines that WNTAC ‘has long contended that RSHAs used outside of the Kimberley (e.g. the Goldfields or Pilbara) are not endorsed by the NTP [native title party] and do not address specific cultural and heritage concerns of the NTP. The need for heritage surveys to be undertaken with reasonable regard to the requirements of the NTP is stated specifically in the evidence and indicates that the RSHA would not sufficiently protect the NTP’s sites from interference’.
Conclusion
Part of the predictive assessment of the likelihood of interference can include a consideration of previous mining or exploration in the area. The State and Buxton argue there has been previous exploration activity over the area but they do not provide evidence of the exploration or other activity, apart from their Tengraph Quick Appraisal which lists dead tenements with various overlaps over the licence area. In addition, the Tribunal has held that just because an area has previously been disturbed, it does not mean the area has lost its traditional significance or that further disturbance would not constitute interference (see for example Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]).
Another part of the predictive assessment is whether the regulatory regime of the Aboriginal Heritage Act 1972 (WA) (AHA) is sufficient to ensure that s 237(b) interference is unlikely (Freddie v Western Australia at [51]). Section 17 of the AHA makes it an offence to excavate, destroy, damage, conceal or alter an Aboriginal site. WNTAC contend the State’s regulatory regime, including the AHA and the RSHA, will be insufficient to protect the area related to the Barker River and the Barramundi Dreaming. I accept this contention. In spite of Buxton’s best intentions to avoid the Barker River, the nature of its connection to the Barramundi Dreaming and native title party protocols means Buxton’s exploration activities is likely to cause interference in the context of s 237(b).
Determination
The grant of exploration licence E04/2648, E04/2649 and E04/2651 to Buxton Resources Ltd are not acts attracting the expedited procedure.
Helen Shurven
Member
2 June 2020
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