Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Diamond Bright Star Pty Ltd
[2019] NNTTA 16
•27 March 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Diamond Bright Star Pty Ltd [2019] NNTTA 16 (27 March 2019)
Application No: | WO2018/0239 |
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 -
Diamond Bright Star Pty Ltd
(Grantee Party)
- and -
State of Western Australia
(Government Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven, Member |
Place: | Perth |
Date: | 27 March 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 155 237 |
Cases: | Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd, [2012] NNTTA 24 (Lungunan v Geotech International) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale v Western Australia) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/ Western Australia/Giralia Resources NL [2002] NNTTA 24 (Walley v Western Australia) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd[2002] NNTTA 18 (Silver v Northern Territory) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v FMG Pilbara) |
| Representatives(s) of the native title party: | Mr Samuel Legge, Kimberley Land Council |
| Representative(s) of the grantee party: | Mr Hong-Jim Saw, Diamond Bright Star Pty Ltd |
| Representatives(s) of the Government party: | Mr Michael McMahon, Department of Mines, Industry Regulation and Safety Mr Francis Cardell-Oliver, State Solicitor’s Office |
REASONS FOR DETERMINATION
I have been appointed to decide whether or not the expedited procedure applies to the proposed grant of exploration licence E80/5123 (the licence) to Diamond Bright Star Pty Ltd (Diamond Bright Star). The State of Western Australia (the State) considers the grant of the licence is an act attracting the expedited procedure. By including the expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
(a)interfere directly with community or social activities carried on by members of the native title claimant groups or native title holders (s 237(a));
(b)interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The licence covers approximately 161.45 square kilometres (E80/5123) in the Shire of Wyndham-East Kimberley. The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WNTAC) holds non-exclusive rights and interests over the whole area of the licence.
WNTAC lodged an objection against the State’s assertion the expedited procedure applies to the licence. WNTAC has not made submissions in relation to s 237(a) or (c) of the Act. I find there is no evidence to support a conclusion that the grant of the licence is likely to interfere with community or social activities of the native title holders or involve or create rights whose exercise will likely involve major disturbance.
WNTAC argues the expedited procedure should not apply to the licence, as interference contemplated in s 237(b) of the Act is likely. Diamond Bright Star and the State argue the expedited procedure should apply. In determining whether the expedited applies or not, I must make a predictive assessment. I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference. I must have regard to the rights conferred by the grant of the licence, the nature of the proposal and applicable regulatory regime (see Walley v Western Australia at [8]-[9]). All parties indicated they had no issue with this matter being determined on the papers.
If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. For the reasons outlined below, I have determined that the expedited procedure does apply to the licence.
WNTAC’s submissions
WNTAC provided and relies on the Affidavit of Mr Gordon Smith in support of its objection. The State (at 18 of their contentions) asserts that WNTAC has not outlined ‘any qualification of the witness as a spokesman for the area’. In his affidavit, Mr Smith identifies himself, with others named, as a senior person with knowledge of and responsibility for the area of the licence. As such, based upon the evidence before me, I accept Mr Smith has authority to speak for the native title holders in relation to the licence area.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
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 (Cheinmora v Striker Resources at 34-35). If an area or site is one 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]). These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara).
What area or sites has WNTAC identified?
WNTAC’s contentions (at 5) identify the area to the east of the Dampier Creek and north of Ellenbrae Creek (Dampier Creek Area). I note Dampier Creek is approximately one kilometre north-west of the licence, and Ellenbrae Creek is approximately 10 kilometres to the south of the licence. The Dampier Creek Area therefore takes in a relatively large area. Mr Smith notes the licence is in the middle of the Dampier Creek Area. He also notes that a songline runs through the Dampier Creek Area and through the licence. It is not clear from the evidence which part of the licence includes the songline, although I have taken it is likely to be the more western area of the licence, given that part of the licence lies directly between those two creeks.
The affidavit evidence briefly outlines that the following sites within the Dampier Creek Area:
·‘many sacred sites… which are either sacred places or cultural area like ceremony grounds and teaching grounds’ (at 6); and
·as mentioned, parts of a Dreaming song-line run through the licence area (at 7).
I note that Ellenbrae Pastoral Station overlaps the licence by 100 per cent, and extends throughout the nearby area for many kilometres in each direction. The evidence states that ‘a lot’ of the Station is a ‘no go zone for Traditional Owners and outsiders’ (at 6). There is little information about how the area of the licence which is said to be of particular significance, relates to the larger no go areas of the Station.
Is the area or site of particular significance to WNTAC?
This has been a difficult matter to decide. I accept the Dampier Creek Area is important to the native title holders, however, there is insufficient evidence to conclude this area (or any sites contained within it) is of particular significance as required by s 237(b).
The evidence does suggest that protocols or cultural concerns about dissemination of information have impacted on the detail contained in the affidavit. For example, the affidavit notes:
·certain information cannot be disclosed without other senior people present (at 8); and
·the story for the area is a ‘rep tape topic’ and that further detail cannot be provided (at 10).
Should a party have concerns about confidential information in an expedited procedure objection inquiry, the relevant party can raise such concerns early in the inquiry. Doing so may enable that party to consider whether an application for non-disclosure directions pursuant to s 155 of the Act would mitigate these concerns. It also allows the decision maker for the inquiry to consider any such application, and take the views from all parties before making such directions, should that be appropriate. Having said that, I appreciate the evidence in this matter indicates that even non-disclosure directions may not overcome cultural restraints on outlining evidence, as it is said some information cannot be disclosed without a certain, named person from the community, being present (at 8). As Barker J noted in Hale v Western Australia (at [96]-[97]):
Ordinarily, one would have thought, given that in determining an expedited procedure objection application the Tribunal must make a determination by reference to the criteria specified in s 237, that no party carries any “onus” to prove anything (as to which see FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal CorporationRNTBC (2014) 227 FCR 182 at [79]; [2014] FCA 1335; Ward v Western Australia[1996] FCA 1452; (1996) 69 FCR 208 at 217 and, in another context concerning performance of the functions of the Administrative Appeals Tribunal, McDonald v Director General of Social Security (1984) 1 FCR 354; [1984] FCA 59). However, any party wishing to influence the outcome of the determination may be expected to put appropriate material and make submissions to the Tribunal, and to have the opportunity to question material and submissions put by any other party in that regard, as part of the inquiry conducted by the Tribunal.
Because the arbitral body plainly is administrative in nature and not judicial there is no question of it being bound by the laws of evidence, for example, see s 109(3) of the NTA [Native Title Act].I take some guidance from Lungunan v Geotech International (at [40]-[41]), where it was noted the evidence in that matter was that ‘the presence of strangers on the country will impact the spiritual beings who live in it, but that evidence is not tied to any specific site of particular significance. The question of the status of a Dreaming track may be somewhat more problematic…The Tribunal has found that Dreaming tracks can be regarded as sites of particular significance for the purpose of s 237(b) although that will depend on the evidence presented in any particular case…Further, I note the distinction between areas of general spiritual significance and areas of specific significance as referred to in my recent decision WF (deceased)& Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 at [39]’.
The evidence in this inquiry is so broad that it is not possible to conclude the Dampier Creek Area is a site of particular significance. It is not possible to conclude where on the licence the relevant songline runs through, where any sites are on the licence as compared to on the Pastoral Station, and why any sites related to the licence are of particular significance to the traditions of the native title holders.
As the Tribunal outlined in Yindjibarndi v FMG Pilbara (at 17) (emphasis added):
…s 237(b) focuses the inquiry towards areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title. The applicable principles discussed in Silver v Northern Territory (at [88]-[92], [101]-[102]) are as follows:
(a) the area or site must be of special or more than ordinary significance to the native title holders (applying Carr J’s explanation in Cheinmora v Striker Resources at 34)…
(b) if an area or site is of particular significance, it must be known and must able to be located and the nature of its significance explained to the Tribunal (referring to Western Australia v McHenry)…The traditions of the native title holders which relate to the Dampier Creek Area are touched on only very briefly and broadly, and the location of the site which is said to relate to the licence itself is also touched on only in very broad terms. There is nothing on the mapping attached to the affidavit which provides assistance in this regard. Without reference to the relevant traditions, the nature of the sites significance, and an explanation of that in relation to the licence, I cannot conclude there is an area or site of particular significance which relates to the licence in this matter. The affidavit evidence goes into detail about interference, however, because there is insufficient evidence to conclude there are areas or sites of particular significance on the licence, I do not need to consider the question of interference.
Conclusion
I have concluded that while there is no doubt the Dampier Creek Area is important to WNTAC, I am not satisfied that the evidence before me has established the area is of particular significance for the purposes of s 237(b).
Determination
My determination is that the grant of E80/5123 to Diamond Bright Star is an act that attracts the expedited procedure.
Helen Shurven
Member
27 March 2019
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