Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Investmet Limited and Others and Another
[2018] NNTTA 47
•24 August 2018
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Investmet Limited and Others and Another [2018] NNTTA 47 (24 August 2018)
Application No: | WO2017/0296 |
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 (WCD2011/002)
(native title party)
- and -
Investmet Limited and Dane Peder Evan Sorensen
(grantee parties)
- 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: | 24 August 2018 |
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: | Native Title Act 1993 (Cth) |
Cases: | Anaconda Nickel Ltd v Western Australia[2000] NNTTA 366 (Anaconda v Western Australia) Barunga v State of Western Australia [2011] FCA 518 (Barunga v Western Australia) Hale on behalf of Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale v Western Australia) Kevin Cosmos & Others on behalf of Yaburara & Mardudhunera People/Western Australia/Geotech International Pty Ltd[2013] NNTTA 14 (Kevin Cosmos v Western Australia) Leedham Papertalk and Others on behalf of Mullewa Wadjari v FMG Resources Pty Ltd and Others [2015] NNTTA 9 (Leedham Papertalk v FMG) Mineralogy Pty Ltd v National Native Title Tribunal [1997] FCA 1404 (Mineralogy v NNTT) VB (deceased) v State of Western Australia [2012] FCA 973 (VB (deceased) v Western Australia) Ward v State of Western Australia[1999] FCA 580 (Ward v Western Australia)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara 2)
|
| Representatives(s) of the native title party: | Ms Angela Booth and Mr Alexander Romano, Kimberley Land Council |
| Representative(s) of the grantee party: | Mr Craig Hall, Delta Resource Management |
| Representatives of the Government party: | Ms Angelyn Seen, State Solicitor’s Office Mr Matthew Smith and Ms Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This decision is about whether or not the applicants for an exploration licence, Investmet Limited and Dane Peder Evan Sorensen (Investmet and Mr Sorensen), and the State of Western Australia (the State), are required to negotiate about the proposed grant of exploration licence E04/2310 with Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC.
On 30 December 2017, the State gave notice under s 29 of the Act of its intention to grant exploration licence E04/2310 (the licence) to Investmet and Mr Sorensen. The notice includes a statement that the grant of the licence is an ‘act attracting the expedited procedure’. The inclusion of that statement means the licence can be granted without going through the normal negotiation procedure required under s 31 of the Native Title Act1993 (Cth) (the Act) unless, in accordance with s 32:
(a)persons who hold or claim native title to the area, and whose names are entered on the Register of Native Title Claims or the National Native Title Register, object; and
(b)if the objection is not withdrawn or dismissed, I determine the licence is not an act attracting the expedited procedure.
The licence covers an area of approximately 39 square kilometres, located approximately 106 kilometres north-east of Derby in the Derby-West Kimberley Shire. The Federal Court has determined that native title exists in areas of the licence, and the Wanjina-Wunggurr Aboriginal Corporation on behalf of the Members of the Wanjina-Wunggurr Community, is the registered native title holder (see VB (deceased) v Western Australia and Barunga v Western Australia).
The Wanjina-Wunggurr Aboriginal Corporation lodged an objection with the National Native Title Tribunal (the Tribunal) to the application of the expedited procedure to the grant of the licence. I was appointed by the then President of the Tribunal, Raelene Webb QC, to constitute the Tribunal for the purposes of conducting an inquiry into the objection and determining whether or not the grant of the licence is an act attracting the expedited procedure. I must look to the criteria in s 237 of the Act in making my determination.
The Wanjina-Wunggurr Aboriginal Corporation and the State each filed contentions and provided information and evidence. The Wanjina-Wunggurr Aboriginal Corporation contentions attached a joint affidavit of Ms Janet Oobagooma and Mr Donny Woolagoodja (the affidavit). The affidavit states that both Ms Oobagooma and Mr Woolagoodja are traditional owners and have authority to speak for the licence area. I accept this is the case. No contentions were provided by Investmet or Mr Sorensen.
The compliance directions issued required parties to provide the Tribunal with an agreed Statement of Facts and Issues. The State and the Wanjina-Wunggurr Aboriginal Corporation advised they were unable to provide such a statement due to disagreement about the jurisdiction of the Tribunal to determine this matter, given the inclusion in the licence area of an area where the Federal Court has determined that native title does not exist (the jurisdictional issue). I issued further directions for the State and the Wanjina-Wunggurr Aboriginal Corporation to file contentions on the jurisdictional issue, should they wish to do so, and vacated the listing hearing so that this matter could be determined on the papers.
I will address the jurisdictional issue below before turning to the substantive inquiry into whether or not the expedited procedure process should apply to the granting of the licence. No party took issue with the inquiry being determined on the papers.
Jurisdictional issue
According to the Tengraph Quick Appraisal filed by the State, the Yampi Defence Area makes up 78.7 per cent of the proposed licence area. In the consent determination of Barunga v Western Australia (at Schedule 3, cl 1(a)), the Federal Court determined that native title does not exist in the Yampi Defence Area. The State’s jurisdictional contentions refer to a number of cases[1] which it says supports the general rule that the Tribunal does not have jurisdiction if the act in question is not a ‘future act’. The State contends that in ‘these situations, the Tribunal may consider evidence pertaining to the areas where native title is extinguished only for the purposes of assessing the frequency and nature of community or social activities or sites of significance within the areas where it has jurisdiction’.
[1] Mineralogy Pty Ltd v NNTT (1997) 150 ALR 467 at 468; Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116 at 185-6; Kevin Cosmos v Western Australia [2013] NNTTA 14 at [21]; Yindjibarndi Aboriginal Corporation v FMG 3 [2013] NNTTA 162 at [41]; Yindjibarndi Aboriginal Corporation RNTBC v FMG 1 [2014] NNTTA 14 at [49]; Leedham Papertalk v FMG [2015] NNTTA 9 at [31].
The State contends (at 3) that the Federal Court’s decision in Hale v Western Australia ‘stands for the proposition that the scope of an inquiry into an expedited procedure objection is the area of the proposed act specified in the s 29 notice’, and does not concern the jurisdictional issue. The Wanjina-Wunggurr Aboriginal Corporation’s jurisdictional contentions in reply state Hale v Western Australia ‘makes it clear that the Tribunal’s s 237 inquiry is to be focused on ‘the ground the subject of the proposed tenement’ (at 1).
What Hale v Western Australia has confirmed is that the scope of the Tribunal’s inquiry is the area specified in the s 29 notice. If that notice does not overlap a registered native title claim (or determined area), then there would be no grounds for a native title party to object to the act and the Tribunal’s jurisdiction would not be enlivened. If a native title party is notified of the proposed licence by virtue of its status as a registered claimant or determined holder in relation to a portion of the land covered by the s 29 notice, it has standing to lodge an objection and the Tribunal has jurisdiction to inquire into whether or not the act attracts the expedited procedure process over the entire area specified in the s 29 notice. It is not the case that the native title party only has standing to lodge an objection, and the Tribunal only has jurisdiction to make a determination, merely in relation to the percentage of the area specified in the s 29 notice where native title has been determined to exist. Section 32(4) of the Act relevantly states the ‘Tribunal must determine whether the act is an act attracting the expedited procedure, by reference to the definition in s 237’.
The State go on to argue that the ‘Tribunal may not consider whether the act is likely to cause the s 237 interference or disturbance in the areas where it does not have jurisdiction’. I consider the comments of the Federal Court in Hale v Western Australia provide guidance in relation to the consideration of interference in expedited procedure matters, namely at [113]:
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.
I, therefore, consider that I am required to make a determination in relation to the whole area covered by the s 29 notice. I deal with the issue of interference as relevant in my consideration of s 237. I also note, as an aside, that in this current inquiry, 21.3 per cent of the licence is not covered by the Yampi Defence Area.
Expedited procedure inquiry
As I have determined that I have jurisdiction to proceed with the expedited procedure inquiry in relation to the area covered by the s 29 notice, I turn to the criteria set out in s 237. Specifically, I must determine whether the grant of the licence is likely to:
(a)directly interfere with community or social activities carried on by the Wanjina-Wunggurr Community;
(b)interfere with areas or sites of particular significance in accordance with the traditions of the Wanjina-Wunggurr Community; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The Wanjina-Wunggurr Aboriginal Corporation do not make any contentions in relation to s 237(a) or (c). As stated in Ward v Western Australia (at [26]), ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. Therefore, on the limited evidence provided, I find the grant of the licence is not likely to directly interfere with community or social activities, or involve major disturbance to the land or waters concerned.
Given the material before me, I focus my inquiry on s 237(b) and must determine whether or not there is a real risk of interference with areas or sites of particular significance to the Wanjina-Wunggurr Community. I will address the following issues to reach my conclusions:
(a)What areas or sites are identified by the Wanjina-Wunggurr Community?
(b)Are there areas or sites of particular significance to the Wanjina-Wunggurr Community?
(c)Is there a real risk of interference to areas or sites of particular significance?
A native title party must provide sufficient evidence about an area or site to:
(a)show it exists on a licence area;
(b)explain its significance and distinguish it from other areas within the licence area; and
(c)demonstrate it is of more than ordinary significance to them in accordance with their traditions.
These are threshold requirements for finding the grant of a licence is likely to cause interference with areas or sites of particular significance. If there is evidence that areas or sites of particular significance exist on a licence, I must proceed to consider whether interference is likely, in the sense of there being a real chance or risk of interference. If there is no such evidence, I do not need to undertake the last step of the inquiry (Yindjibarndi Aboriginal Corporation v FMG Pilbara 2 at [17] and [125]).
(a) What areas or sites are identified by the Wanjina-Wunggurr Community?
The Wanjina-Wunggurr Aboriginal Corporation contends that the licence contains sacred rock art sites (Wanjina), muma (sacred) sites, and Dreaming sites of great significance. The affidavit deposes that all of the licence area is part of the sacred Wunggurr area (at 7), and that there are ‘stone arrangements and other markers in the landscape’ left by the old people (at 11). According to the affidavit, there is a muma site from Horizontal Falls and along Poulton Creek to the licence area. It is stated that the Mcclarty Range, which runs through the south of the licence area is the location of both the Snake Dreaming and rock art sites. It is also stated there are many animals in the Wunggurr area which are spiritual to the community and can’t be killed in that area, nor is littering allowed in the area.
(b) Are there areas or sites of particular significance to the Wanjina-Wunggurr Community?
With regards to the muma site along Poulton Creek, the Wanjina-Wunggurr Aboriginal Corporation’s contentions state its significance is such that it cannot be spoken about without spiritual repercussions. The affidavit states that if ‘kartiya [a white person] accessed this area, even just in a helicopter, it could be very bad for them’ (at 13). There is also reference to stone engravings and other markings put by the old people ‘which Traditional Owners can see that Kartiya cannot see and cannot know’ (at 11).
Similar to the muma site, the deponents state in regards to the Snake Dreaming through the Mcclarty Range, we ‘cannot tell the stories of this country to anyone they are our stories and we cannot speak more about them’ (at 12). The State argue no physical sites are identified nor are linked to the dreaming. However, the Wanjina-Wunggurr Aboriginal Corporation contentions identify parts of the affidavit which point to the physical entity of the Mcclarty Range and the area from Horizontal Falls, along Poulton Creek to and through the licence area.
With regards to the rock art sites in the Mcclarty Range, the deponents state that ‘they are rarer to find here that in other parts of the country’ and that ‘those paintings of the Wanjinas are sacred’ (at 14-15).
The State contends there are no sites that are registered under the Aboriginal Heritage Act 1972 (WA) (AHA), nor are there any ‘other heritage places’ within the licence area on the Department of Aboriginal Affairs’ (DAA) register (at [7]). However the DAA register does not purport to record all Aboriginal sites in Western Australia. That is, a site of particular significance for the purposes of s 237(b) does not need to be recorded on the DAA register. Equally, the existence of sites recorded on the DAA register does not necessarily mean they are of ‘particular significance’ for the purposes of s 237(b). Regardless of whether or not a site is administratively identified on the DAA register, the Tribunal must consider whether there is evidence that establishes the existence of areas or sites of particular significance to a native title party, in accordance with their traditions.
The State accept the Wunggurr area is of significance to the Wanjina-Wunggurr Community (although they do not clarify whether or not they accept the area is of particular significance). Based on the evidence before me, I conclude that the Wanjina-Wunggurr Community has provided sufficient evidence about the existence of areas and sites in the licence area, and explained the significance of those sites. I conclude that the muma site along Poulton Creek and the Snake Dreaming and rock art sites in the Mcclarty Range are adequately distinguished from other parts of the licence area, over and above the claim that the entire licence area is of significance as part of the Wunggurr area. I conclude that the Wanjina-Wunggurr Community has demonstrated those areas, which are located in the south west of the licence, are areas of more than ordinary significance to them in accordance with their traditions. I must therefore proceed to the next step of the inquiry.
(c) Is there a real risk of interference to areas or sites of particular significance?
In drawing conclusions about whether interference with these areas is likely, I consider:
(a)the nature of the areas;
(b)the evidence about how interference, including inadvertent interference can be avoided;
(c)the nature of any interference; and
(d)the Wanjina-Wunggurr Community laws and traditions.
I must give weight to the State’s regulatory regime, and there must be a real chance or risk of interference with the relevant areas, not just a remote possibility (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara 2’) at [17].
With regards to the nature of the licence area, the Wanjina-Wunggurr Aboriginal Corporation contends as follows (at 7; emphasis added):
The area is a sensitive area under the traditional law and custom of the Native Title Party and any access to the area without the permission of Senior Traditional Owners is likely to disturb sites of significance. The area is the most sacred area of country for the Senior Traditional Owners of the Native Title Party and any access to the area that is not in accordance with their traditional law and custom will damage the sites of particular significance found in the evidence.
With regards to the nature of interference, Investmet and Mr Sorensen’s activities will necessarily involve access to the licence area. Investmet and Mr Sorensen state in the licence application, which appears in an Annexure to the State’s contentions, that the activities on the licence area will include acquisition of aeromagnetic data, rock chip sampling, soil sampling and analysis in the first year of the grant; and follow-up soil sampling, geophysical surveys, drilling and assaying in the second year of the grant. There is nothing further regarding activities beyond year 2 of the grant.
Evidence of a grantee party’s intentions is relevant to my consideration (Yindjibarndi Aboriginal Corporation v FMG Pilbara 2 at [15]). As the then President Webb noted in that inquiry:
...the adoption of a predictive assessment approach means that evidence of a grantee party’s intentions, including as to protection of sites of particular significance, may be relevant but the weight to be given to such evidence will depend on the circumstances of the case. In the absence of evidence of the grantee party’s intentions, the question of likelihood must be assessed by reference to the applicable regulatory regime on the basis that the rights given will be exercised to the full.
In the absence of any information to the contrary, I assume that the full suite of rights available will be exercised, in accordance with s 66 of the Mining Act 1978 (WA), including the removal of up to 1000 tonnes of material under s 66(c) and reg 20 of the Mining Regulations 1981 (WA).
There is no information provided by Investmet and Mr Sorensen about how interference can be avoided, particularly with that area in the south east of the licence, other than the caveat that the proposed program of activities will be done ‘subject to aboriginal heritage clearance processes’.
The State contends it intends to impose a number of conditions on the grant of the licence, including environmental rehabilitation and the removal of waste materials. There is no evidence to suggest that Investmet and Mr Sorensen will act in breach of the relevant law, regulations or conditions imposed upon them. However, I consider that the conditions imposed by the State will not avoid interference with the sites in the licence area as the conditions do not relate to access to, or avoidance, of areas and sites of particular significance, and are remedial in nature, rather than preventative.
The State contend that, in relation to the 21.3 per cent of the licence area which is reserve land managed by the Aboriginal Affairs Planning Authority, designated for the ‘Use and Benefit of Aboriginal Inhabitants’, written consent from the relevant Minister is required. The State argue it is not clear that the grant of the licence will interfere with the Wunggurr area, and go on to say the grantee’s mere access to that 21.3 per cent of the licence will not cause interference.
The State also contends that the consent of the Commonwealth government is required to access the remaining 78.7 per cent of the licence, being the Yampi Defence Area. The State argues these conditions are more onerous than the standard conditions, and that breach of conditions can lead to forfeiture of the licence. The State also argues the area along the Mcclarty Range (in the south west of the licence) is located in the Yampi Defence Area where native title has been determined not to exist. The State goes on to argue that only a small part of the Poulton Creek runs through the licence in the south-west corner, and it is not clear how activities could cause interference.
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. As noted at [12] above, what is relevant, in the present circumstances, is not whether the native title party holds native title rights and interests in the relevant area, but 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 have considered this, given the facts and information presented in this inquiry, and conclude there is a real risk of such interference.
The State also includes in its contentions an offer to enter into a Regional Standard Heritage Agreement (RSHA) with the Wanjina-Wunggurr Aboriginal Corporation on the grant of the proposed licence (at 13). However, no details have been provided about how the RSHA would operate to avoid interference with sites and areas of significance. It is generally understood that an RSHA requires the conduct of surveys only where ground disturbing activity is taking place. As is highlighted in the affidavit, even non-ground disturbing activity in the sacred Wunggurr area would be regarded as interference by the Wanjina-Wunggurr Community. For example, the affidavit explains that the licence ‘is part of the sacred Wunggurr area. Part of the Tenement Area falls within the Yampi Defence Area…Even though the army is there now we are still part of that army area too’.
I am satisfied that the licence area, by virtue of its sacred Wunggurr status, and its association with paintings, animals and old people markers, could be subject to interference by non-ground disturbing activities.
Determination
My determination is that the grant of E04/2310 to Investmet Limited and Dane Peder Evan Sorensen is not an act that attracts the expedited procedure.
Ms Helen Shurven
Member
24 August 2018
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