Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Ltd
[2019] NNTTA 119
•13 December 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Ltd and Another [2019] NNTTA 119 (13 December 2019)
Application No: | WO2019/0823 |
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 -
Buxton Resources 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: | 13 December 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 not an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) ss 58, 66 Mining Regulations 1981 (WA) r 20 Native Title Act 1993 (Cth) ss 29, 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) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianna and Another [2019] NNTTA 70 (Nyamal v Gianni) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Central East Goldfields v Aruma) 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 Elderberry Resources Pty Ltd and Another [2018] NNTTA 73 (WNTAC v Elderberry) 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: | Saskia DeReuck, Independence Group NL |
| Representatives of the Government party: | Reywin Rico, State Solicitor’s Office Bethany Conway, 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) about whether the expedited procedure applies to the grant of exploration licence E04/2611 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 licence and included a statement that they consider the grants are acts attracting the expedited procedure. This would, subject to any successful objections, allow the licence to be granted without the normal negotiation required by s 31.
The licence is located over land and waters where the Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WNTAC) hold non-exclusive native title in trust for the Ngarinyin People (see Neowarra v Western Australia). WNTAC lodged an objection with the National Native Title Tribunal (the Tribunal) to the State’s inclusion of the expedited procedure statement. 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 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 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 the 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 the 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’ – 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).
Determination on the papers
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). The State also provided the licence application with the accompanying statement provided by 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 the licence.
Buxton did not provide any contentions or materials for the inquiry.
WNTAC provided contentions, an affidavit from Mr Kevin Dann and one from Mr Philip Duckhole, as well as a reply to the State’s contentions. Both Mr Dann and Mr Duckhole state they are Ngarinyin traditional owners and can speak for the area of the licence. I accept their authority. A map was also annexed to each affidavit.
I requested the Tribunal’s geospatial unit prepare mapping to assist me in the inquiry. As required by s 142, it was provided to parties who had the opportunity to inspect it and make submissions or comments - no party sought to do so.
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 licence and Buxton’s proposed activities
The licence is approximately 10,400 hectares, and the Barker River runs through the centre of the licence. Mapping shows Kongorow Pool to be approximately 2 kilometres from the licence and to be connected to Barker River. There is one site recorded on the licence under the States AHIS: Harry Martin Trip 07 (Site ID 14172) which is an artefacts/scatter site. The aboriginal community at Windjingayr is approximately 20 kilometres southwest of the licence.
Under s 146, the Tribunal has a broad discretion to adopt any reports, findings, decision determinations or judgments from any person or body that may be relevant to an inquiry. The State’s material refers to previous Tribunal decisions made regarding tenements in the vicinity of this licence. One is WNTAC v Elderberry where the expedited procedure did not apply – the tenement in that matter abuts the western boundary of the licence in this present inquiry. In that matter I noted (at [10]):
As well as its close proximity to the Windjingayr community, evidence shows the licence area is particularly useful for Wanjina-Wunggurr community activities primarily because of the large body of permanent water located at Kongorow Pool, which is on the licence.
I also noted that Kongorow Pool was a site of particular significance and that, amongst 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]). Similar evidence has been provided in this present inquiry, which I outline below. (In the present inquiry, the dreaming is referred to as both the ‘Barramundi and Catfish Dreaming’ and the ‘Barramundi Dreaming’ – for ease of reference, I will use the term ‘Barramundi Dreaming’).
In Buxton’s application for the licence, their statement made under s 58 of the Mining Act contemplates surface sampling followed by wide spaced auger drilling, as well as an ‘infill auger/AC [air core] drilling campaign’. There is no further information from Buxton, and the State asserts (at 15) that, in the absence of evidence provided by Buxton, the Tribunal can find Buxton will exercise the full extent of the rights conferred by the grant of the licence. I accept that assertion.
The full extent of rights are 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:
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.
The s 237 predictive assessment
Section 237(b): 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?
Mr Dann asserts that the community at Windjingayr has a strong history of protecting cultural sites (at 4). As noted at [15]-[16] above, Mr Dann has provided similar evidence to that provided in WNTAC v Elderberry. The evidence explains that the Barramundi Dreaming extends from a named mountain in the Leopold Ranges, through the licence, and has strong connection to Kongorow Pool, which is just outside the licence. I do not repeat the information in full.
The State argue (at 29-31) that WNTAC have not provided sufficient evidence that areas on the licence are of particular significance to the native title holders, and the evidence is too broad and general. I do not agree with that assertion. The affidavits provided by Mr Dann and Mr Duckhole are consistent with each other, and consistent with evidence provided in WNTAC v Elderberry (as outlined above). 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.
Is the grant of the licence likely to interfere with areas or sites of particular significance?
Mr Dann and Mr Duckhole both consistently outline the appropriate cultural protocols which need to be followed according to Ngarinyin traditions for areas around the river in the licence. Both affidavits present strong evidence that culturally unsanctioned exploration activities (including low impact visits) which disrupt the land or waters within the licence and ‘disturb the spirits’ are also likely to disrupt Kongorow Pool because of the Pool’s physical and spiritual connection to the licence area. Such activities ‘would damage the health and spirituality of Kongorow Pool and the Ngarinyin people connected to it’ (Mr Dann at 5-10; Mr Duckhole at 4, 6-8).
The State asserts (at 49) that their draft endorsements and conditions, particularly endorsement 8, will address concerns regarding damage or pollution to Kongorow Pool. Endorsement 8 reads:
All activities to be undertaken so as to avoid or minimise damage, disturbance or contamination of waterways, including their bed and banks, and riparian and other water dependant vegetation.
However, given that even low impact visits are said to cause interference, and there is no information about how such an endorsement will be actioned by Buxton, I could not conclude such an endorsement will mitigate interference for the purposes of s 237(b).
The State argue that Kongorow Pool is located outside the licence and that it is difficult to ascertain how the grant of the licence, and exploration activities on the licence, will interfere with the pool. The WNTAC reply addresses this argument by referring to my decision in WNTAC v Elderberry at [18], which found the ‘broader area around the pool, known as Kongorow / Congarra, is an area of particular significance’ (as I have reiterated at [16] above). The WNTAC reply also asserts the evidence in the current inquiry affirms the broad nature of the law and ceremonial site of Kongorow Pool (at 6).
I accept the argument in the WNTAC reply that the WNTAC evidence establishes that exploration activities conducted within the licence are likely to cause interference with the Kongorow area. Sites do not have to be in the licence area for them to be interfered with by activities on the area (see for example Silver v Northern Territory at [35]; (2002) 169 FLR 1 at [89]). I accept that due to the interconnected nature of the Barramundi Dreaming it is appropriate for me to have regard to interference with areas or sites outside the boundaries of the licence, particularly given the broader area of the pool is adjacent to the licence in this present inquiry.
The State further argue (at 46) there is a sufficient basis for the Tribunal to infer there has been previous interference because of prior exploration activity. In reply (at 9), WNTAC point to Central East Goldfields v Aruma at [64] and correctly state the Tribunal’s jurisprudence is ‘clear’ that former tenement grants and previous disturbance to sites does not preclude a finding of interference per s 237(b). The reply outlines that the ‘critical evidentiary factor’ is whether the particular act under inquiry will cause interference according to the native title party’s traditions. WNTAC argue (at 12) that the native title holders have previously entered into Heritage Protection Agreements with grantee parties over the licence area, and that such agreements reduce the likelihood of interference and helps ensure exploration activities are conducted in a culturally appropriate manner.
Finally, the State argue (at 55 and 57) that a) in the absence of any ‘exceptional circumstances’ applying, the Tribunal should conclude the AHA is sufficient to ensure interference is unlikely, and b) the Regional Standard Heritage Agreement (RSHA) condition will be applied to the grant of the licence and require Buxton to ‘notify, consult and, if necessary, carry out surveys with the [native title party]’ before certain activities are carried out. The State argue (at 60) that through the RSHA, if executed, WNTAC will have the opportunity to identify sites or areas of particular significance in need of protection, and this will enable Buxton to avoid conducting exploration activities in these areas. The difficulty with these arguments is that I have found sites and areas of particular significance exist and only ground disturbing activities are likely to be the subject of consultation under an RSHA. WNTAC have established that given the sensitivity of the Barramundi Dreaming, and its connection to the Kongorow Pool area, even low level or non-ground disturbing activities can cause interference to the dreaming and the pool, according to the Ngarinyin traditions, which are explained in the evidence.
The WNTAC reply addresses these arguments (at 13, 15-16). For example, they say the precise boundaries of the area of particular significance cannot be readily identified by Buxton without consultation and so the AHA is not sufficient to prevent interference. They also argue RSHAs do not address specific cultural and heritage concerns and, as outlined above, they do not necessarily require consultation in relation to low impact activities.
Similar arguments were recently addressed by Member Cooley in Nyamal v Gianni (at [63] – [64] and [66]) and I adopt that reasoning for the purposes of this inquiry.
Conclusion
I conclude that given the nature of the sites and areas of particular significance identified, the State’s regulatory regime will not sufficiently mitigate the real risk of interference with the Barramundi Dreaming, which is likely to in turn interfere with the broader area of Kongorow Pool.
Determination
The grant of exploration licence E04/2611 to Buxton Resources Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
13 December 2019
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