Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Kimberley Bauxite Pty Ltd
[2023] NNTTA 12
•17 April 2023
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Kimberley Bauxite Pty Ltd & Another [2023] NNTTA 12 (17 April 2023)
Application No: | WO2021/1394 |
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 (WCD2011/001)
(native title party)
- and -
Kimberley Bauxite Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 17 April 2023 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – use of evidence submitted in other proceedings – relevance and weight of evidence submitted in other proceedings - whether act likely to interfere with the carrying on of community or social activities – aerial burning and land management programs – ongoing pattern of activity – grantee party activities create risk of interference with aerial burning program - whether act likely to interfere with sites of particular significance – presence of a number of registered sites within tenement area - “site rich” – previous activity does not necessarily diminish sacredness of area – predictive assessment – lack of detail in grantee party materials – impact of national heritage listing – limitations of protective regime under the Aboriginal Heritage Act 1972 (WA) - operation of Aboriginal Affairs Planning Authority Act 1972 (WA) in relation to aboriginal reserves – interaction of Aboriginal Affairs Planning Authority Act 1972 (WA) and Mining Act 1978 (WA) in relation to aboriginal reserves - lack of transparency in processes surrounding exercise of ministerial discretion under Aboriginal Heritage Act 1972 (WA) and Mining Act 1978 (WA) – impact of lack of transparency on predictive assessment – comparison of transparency of state aboriginal cultural heritage and mining regulatory regimes - whether act likely to involve major disturbance to land or waters |
Legislation: | Aboriginal Affairs Planning Authority Act 1972 (WA) ss 20, 21, 22, 23, 24, 31 Aboriginal Affairs Planning Authority Act Regulations 1972 (WA) reg 8 Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18 Crimes Act 1914 (Cth) s 4AA Criminal Code Act 1995 (Cth) s. 6.1 Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ss 15C, 324C Mining Act 1978 (WA) ss 24, 58, 66 Mineral Resources Act 1989 (Qld) Native Title Act 1993 (Cth) ss 29, 31, 32, 109, 146, 151, 237 Native Title Amendment Act 1998 (Cth) |
Cases: | Goonack v State of Western Australia [2011] FCA 516 (Goonack v Western Australia) Jack Dann v Western Australia & Another [1997] FCA 332 (Dann v Western Australia) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People & Another v Giralia Resources NL & Another [2002] NNTTA 24 (Walley v Western Australia) Margarula v Northern Territory of Australia [2016] FCA 1018 (Margarula v Northern Territory) Michael Ross & Others on behalf of the Cape York United #1 Claim v Oosen Lewis Mining Pty Ltd & Another [2022] NNTTA 11 (Ross v Oosen) Moses Silver, Ishmael Andrews & Sammy Bulabul v Ashton Exploration Australia Pty Ltd & Another [2002] NNTTA 18 (Silver v Northern Territory) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd & Another [2015] NNTTA 4 (MNRAC v FMG) Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Robert John Anderson & Others [2021] NNTTA 59 (Nyalpa v Anderson) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Violet Drury and Others on behalf of Nanda People v Western Australia & Another [2002] NNTTA 171 (Drury v Western Australia) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (WDLAC v Teck) Wilfred Goonack & Ors (Uunguu) v Western Australia & Another [2010] NNTTA 142 (Uunguu v Kimberley Bauxite) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd & Another [2014] NNTTA 8 (Yindjibarndi v FMG) Yinhawangka Aboriginal Corporation RNTBC & Another v Korab Resources Limited & Another [2022] NNTTA 69 (Yinhawangka v Korab) |
| Representatives(s) of the native title party: | Carolyn Ryland, Kimberley Land Council |
| Representative(s) of the grantee party: | Peter Lewis, Kimberley Bauxite Pty Ltd |
| Representatives(s) of the Government party: | Domhnall McCloskey, State Solicitor’s Office Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
This is a decision on whether the expedited procedure as set out in the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E80/5631 (proposed licence) to Kimberley Bauxite Pty Ltd (Kimberley Bauxite).
On 3 September 2021, the State of Western Australia (the State) gave notice under s 29 of the NTA of its intention to grant the proposed licence to Kimberley Bauxite. The notice included that the State considers the grant is an act attracting the expedited procedure (see s 32 of the NTA).
As outlined in s 237 of the NTA, the expedited procedure applies if the grant of the licence is not likely to:
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 native title 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)).
The proposed licence is approximately 143 square kilometres in size and is situated over the Bougainville Peninsula approximately 65.9 kilometres north west of Kalumburu. It also falls within the external boundary of Goonack v Western Australia in what is referred to as the Wanjina-Wunggurr Uunguu determination area.
Approximately 73.5% of the proposed licence sits on an area determined to be exclusive native title, consisting of the landward side of the proposed licence. The remaining 26.5%, the seaward side of the proposed licence, has been determined as non-exclusive native title. Native title is held in trust by the Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (Wanjina-Wunggurr).
On 8 September 2021, Wanjina-Wunggurr lodged an objection 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 proposed licence.
Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter. My decision is based on addressing the criteria set out in s 237 of the NTA and making a predictive assessment (see Yindjibarndi v FMG at [15]-[21] and cases cited therein). 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 or major disturbance, having regard to the rights conferred by the grant of the licences, evidence of the grantee’s intentions, and the applicable regulatory regime (see Walley v Western Australia at [8]-[9] and cases cited therein).
For the reasons outlined below, I have determined that the grant of the licence does not attract the expedited procedure.
The Conduct of the Inquiry and Submissions of the Parties
On 14 September 2021, directions were set for submissions from the parties and the conduct of the inquiry. The directions were amended on a number of occasions to allow for the parties to explore whether the objection may be resolved via agreement and subsequently to allow parties opportunity to submit materials.
In accordance with directions, the parties provided contentions and other materials. The State provided contentions (State contentions) and initial materials (State initial materials) which include mapping, a Tengraph Quick Appraisal and searches of the Aboriginal Heritage and Inquiry System (AHIS search). These initial materials also included a copy of Kimberley Bauxite’s application for the proposed licence including a portion of its statement required by s 58 of the Mining Act 1978 (WA) (Mining Act, s 58 statement). Details of the proposed endorsements and conditions the State intend be imposed on the grant of the licence were also provided in this material.
Wanjina-Wunggurr provided:
·Contentions lodged 11 March 2022 (Wanjina-Wunggurr contentions)
·Affidavit of Mr Desmond Williams (Williams affidavit)
·Healthy Country Plan
·Copy of the determination in WO2009/0529 (Uunguu v Kimberley Bauxite)
·Contentions in reply lodged 7 May 2022 (Wanjina-Wunggurr contentions in reply)
The Williams affidavit is dated 22 September 2020 and was prepared for objection WO2020/0182 concerning the grant of E80/5342. The initial DMIRS material provided by the State shows E80/5342 overlapped approximately 79% of the current application and was finalised following the withdrawal of that particular tenement application.
In this affidavit, Mr Williams states he is a Wunambal Gaambera and Wanjina-Wunggurr (Uunguu) determined native title holder who knows the area of E80/5342 ‘very well’ and that he is connected to that country though his mother’s father’ side (Williams affidavit [4]-[6]).
The State contend the affidavit of Mr Williams should be afforded lesser weight given it was produced for a separate inquiry (State contentions [32]-[34]). In their contentions in reply, Wanjina-Wunggurr provides that the current proposed licence is identical to that in WO2020/0182 but includes the addition of 9 graticular blocks in the north eastern portion of Cape Bougainville, that the relevance of the evidence is indisputable and that the contention of the State should be disregarded (Wanjina-Wunggurr contentions in reply [6]).
Section 109 of the NTA establishes that the Tribunal is not bound by the rules of evidence while s 146 provides the Tribunal discretion to receive into evidence materials produced for other proceedings. Acting on this discretion and in consideration of the fact this inquiry covers largely the same area of land, I accept the affidavit of Mr Williams as evidence in this matter. Based on the information contained within his affidavit, I also accept Mr Williams has the necessary authority to speak on behalf of Wanjina-Wunggurr in this matter.
The contention of the State was not about acceptance of Mr Williams’ affidavit however, but rather about the weight it should be afforded. On this issue I am inclined to agree with Wanjina-Wunggurr. The land area of the matter the affidavit was originally intended for is entirely encapsulated within this new lease application, with the current application covering a slightly larger area. Given this, and in the absence of any material to the contrary, I am of the view the affidavit is of direct relevance to the matters subject to this inquiry and will rely on it in my consideration. I accept however, that the age of the affidavit means more care must be taken in relying on this material in relation to community or social activities than would be the case for an affidavit sworn for the purposes of this matter.
The grantee party provided:
·contentions lodged 30 March 2022 (grantee contentions)
·additional material lodged on 4 April 2022 consisting of:
(a) a paper entitled ‘Kimberley Bauxite and Tidal Hydropower Project’ authored by the principal of Kimberley Bauxite, Mr Peter Lewis (Bauxite and Hydropower Paper); and
(b) a short biography of Mr Peter Lewis (Lewis biography)
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA. Having regard to the material before me, I am satisfied the matter can be determined without the need for a hearing.
Features of the proposed licence and the proposed activities
The proposed licence is an exploration licence, a type of licence outlined in s 66 of the Mining Act. Pursuant to this section, exploration licences are granted for a period of 5 years, with potential for a further 5 year extension in specific circumstances.
The Tengraph Quick Appraisal provided by the State reveals that:
(a)the underlying land tenure is:
i)C-Class Reserve R 24705 for the ‘Use & Benefit of Aborigines’ (73.5%, the land area);
ii)North Kimberley Marine Park Reserve M 20 (26.5%, the sea area)
iii)File notation area: Wunambal Gaambera Uunguu Fire Project Over Reserve 24705 (73.5%);
iv)Groundwater Area Canning - Kimberley (64.2%); and,
v)National Heritage Listing - West Kimberley (100%).
There are also several pre-existing mining leases underlying portions of the proposed license. The Tengraph quick appraisal provided by the State show these are held by a subsidiary of Alcoa Australia. Seven of these pre-existing mining leases overlap the proposed licence, each of which were granted in 1983. These pre-existing mining leases overlap approximately 12% of the area of the proposed licence.
The AHIS search provided by the State indicates the proposed licence contains 13 sites registered under the Aboriginal Heritage Act 1972 (WA) (AHA). These sites include ceremonial places, mythological sites, art sites, burials, structures, shell middens, grinding grooves and artefact scatters/camping places. The AHIS search also indicates the proposed licence area contains 11 areas labelled as ‘Other Heritage Places’.
The information provided in the State initial materials sets out that ‘Other Heritage Places’ include those which have been assessed as not meeting s 5 of the AHA or those where materials have been lodged, however this assessment has not been completed. This material further explains the status of 10 of these places as ‘Lodged’. This is taken to mean that materials have been lodged but an assessment on meeting s 5 of the AHA has not yet been conducted. The status of the remaining place is set as ‘Stored Data/Not a Site’, taken to mean an assessment has been completed and this area has been determined not to be a site within the meaning of s 5 of the AHA.
In terms of proposed activity, in its s 58 statement, Kimberley Bauxite proposes targeting bauxite profiles in the area to assess alumina grade and tonnage. Kimberley Bauxite’s work programme includes:
(a)literature research;
(b)aerial photo interpretation;
(c)The capture, processing analysis and evaluation of remote imagery datasets;
(d)Geophysical surveys and analysis;
(e)Vacuum, RAB, auger and diamond drilling using ‘heli-rigs’ to minimise ground disturbance; and
(f)Ore grade and volume estimates.
Kimberley Bauxite states its year 1 expenditure will total $43,000 which will be allocated to administration costs, some geological works and further interpretive work and modelling. Additionally, Kimberley Bauxite submits its year 2 expenditure will be allocated to drilling and depend on results from its year 1 activities but that expenditure in excess of $2,000 per graticular block is anticipated. From the State initial materials it can be seen that the proposed licence consists of 43 graticular blocks. Year 2 expenditure then, is projected to be in excess of $86,000.
In its materials, Kimberley Bauxite also sets out that its activities will be conducted in areas external to the pre-existing mining lease boundaries.
Although it references the proposed licence, the supplementary Bauxite and Hydropower Paper is not focussed on information surrounding exploration activities. Rather it presents prospectus type information on the potential aluminium production from the proposed licence and 2 others, in addition to hydropower potential in the area. While the paper is informative concerning the intentions of Kimberley Bauxite, any mining or other development proposals will be subject to a separate approvals process that are outside of this consideration, although the provision of this information does point to a broader intent.
National Heritage Listing
The entirety of the proposed licence area is covered by the National Heritage Listing – West Kimberley. A place that is on the National Heritage List is a National Heritage Place (see Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) s 324C(3)). Indigenous heritage values form part of the national heritage listing for this region.
Section 15C of the EPBC Act provides a number of offences in relation to National Heritage Places. This includes that it is an offence if an action results or will result in a significant impact on the Indigenous heritage values where these form part of the national heritage values of the place.
Conviction under s 15C of the EPBC Act can be punishable by imprisonment for a term of not more than 7 years, a fine of not more than 420 penalty units (as at the time of writing $115,500), or both (see EPBC Act s 15C(13), Crimes Act 1914 (Cth) s 4AA). Section 6.1 of the Criminal Code Act 1995 (Cth) provides that an offence of strict liability requires no element of fault on behalf of the offender- although reasonable mistake of fact is a defence.
Reserves
Aboriginal Lands Trust
Approximately 73% of the area of the proposed licence is covered by C-Class Reserve R 24705 for the ‘Use & Benefit of Aborigines’. The State contentions set out that Reserve R 24705 is land to which Part III of the Aboriginal Affairs Planning Authority Act 1972 (WA) (AAPA Act) applies (State contentions [8]).
Part III of the AAPA Act contains provisions through which the Governor may proclaim reserves to be exclusively for the use and benefit of Aboriginal people. These provisions make it an offence for any person who is not an Aboriginal person, a member of Government or acting under a lawful authority under the AAPA Act or Aboriginal Affairs Planning Authority Act Regulations 1972 (WA) (AAPA Regulations) to enter the land unless specifically authorised (AAPA Act s 31).
Regulation 8(1) of the AAPA Regulations provides for this access authorisation, setting out that the Minister for Aboriginal Affairs may grant permission for someone not of Aboriginal descent (or otherwise authorised) to enter a reserve upon application. Such permission may provide the conditions for entry and can only be granted following consultation with the Aboriginal Lands Trust (reg 8(2)-(3)).
Marine Park
A further 26.5% of the proposed licence area is covered by the North Kimberley Marine Park Reserve M 20. As I am satisfied exploration activity will only occur on the landward portion of the proposed licence (see paragraph [58]), I will not further examine the regulatory framework pertaining to this particular reserve. I also note that while the Wanjina-Wunggurr made arguments concerning s 237(c), the arguments made pertained to the land-based areas and not the Marine Park reserve.
Previous Determinations
The proposed licence almost entirely overlaps (by 93%) a previous application for the grant of E80/3859 which was also made by Kimberley Bauxite. The previous application was larger, being approximately 511 km2, meaning the current application is almost entirely contained within the previous tenement, with only 3 graticular blocks on the western extremity of the proposed licence not overlapping.
This previous application was subject to a determination by Deputy President Sosso in Uunguu v Kimberley Bauxite, in which it was found there were places of particular significance but that ultimately the expedited procedure applied.
Although not bound by previous determinations of the Tribunal, pursuant to s 146(b) of the NTA, I may ‘adopt any report, findings, decision, determination or judgment of any court [or other recognised body]… which may be relevant to the inquiry.’ In this case, I will examine the findings of this determination alongside my own consideration throughout the course of this determination.
Predictive assessment for s 237
Section 237(b): is the grant of the licence likely to interfere directly with areas or sites of particular significance to Wanjina-Wunggurr?
What sites or places are on the proposed licence?
For a site to found to be of ‘particular significance’ under s 237(b), it must be known, able to be located and the nature of its significance explained to the Tribunal (Yindjibarndi v FMG at [120]). An area or site need not be registered under the AHA to be of particular significance for s 237(b) of the NTA, as the Tribunal must consider the evidence provided in each matter on its merits (see Yindjibarndi v FMG at [119]-[120], [126] and the cases therein).
As noted previously at [22] and [23], the State initial materials provide that there are 24 registered sites or other heritage places on the proposed licence. These materials also show the majority of the registered site areas are either within or substantially within the proposed licence, while a small remaining number have a portion of the registered area within the proposed licence. The situation is reversed for those places noted as ‘other heritage places’ with a small number being entirely or substantially within the proposed licence and the majority being located immediately to the north of the proposed licence.
In their contentions, Wanjina-Wunggurr explains the various types of significance these sites possess including Lalai (dreaming) sites, story lines and art sites, and contends that the high density of these places on the Bougainville Peninsula act together to create an area of particular significance (Wanjina-Wunggurr contentions [11]).
In his affidavit Mr Williams explains that the licence area is ‘deeply connected to Lalai (dreaming) and spiritually significant … [t]he high density of cultural sites make Bougainville Peninsula extremely culturally sensitive and vulnerable to disturbance’ (Williams affidavit [17]). He further provides there ‘are many stories for that Peninsula and we don't want exploration in this area disturbing the secret things there’ (Williams affidavit [18]). Mr Williams also outlines areas that Wanjina-Wunggurr consider should not be disturbed (Williams affidavit [19], [24]).
The State submits that there is a ‘degree of uncertainty’ as to the location of specific sites identified by Mr Williams and whether they are wholly or partly located on the proposed licence (State contentions [60(a)]).
Regarding previous Tribunal findings, it is open for me to accept these and in particular, those findings that the whole of the landward side of the peninsula is ‘site rich’ and is in itself, of particular significance in accordance with the traditions of the native title party.
Although this particular matter is over a slightly smaller area, the sites listed in this matter were contained in the area of land considered in Uunguu v Kimberley Bauxite. Wanjina-Wunggurr note that this determination at [69] states:
The combination of the evidence of the deponents with the areas and sites recorded on the Sites Register makes it clear that the landward portion of the proposed tenement area is “site rich”. I find that all of the area of the mainland portion of the proposed tenement comprising Aboriginal Reserve land is infused with special sacredness and is of particular significance to members of the native title party in accordance with their traditions.
I adopt these findings of Uunguu v Kimberley Bauxite in this matter: that the mainland portion of the proposed licence is infused with special sacredness and is of particular significance to members of the native title party in accordance with their traditions noting again the significant overlap between the tenements. In forming this view I have also taken note of the significant number of registered sites and other heritage places within the proposed licence area and the evidence of Mr Williams concerning sacred places within the proposed licence area.
Is there likely to be interference to these sites or places of particular significance?
In its contentions, Kimberley Bauxite sets out that its areas of interest, as illustrated in the mapping provided, are ‘external to the specific sites defined within the Affidavits submitted by the Native Title Party’ (Kimberley Bauxite contentions [6]). Kimberley Bauxite also provides that access to the area for exploration will be ‘confined to prior exploration tracks’ and primarily conducted by helicopter (Kimberley Bauxite contentions [7]).
Kimberley Bauxite also contends the area encompassed by the proposed licence has been the subject of extensive exploration with some 1,050 drill holes made in exploration campaigns by previous explorers (Kimberley Bauxite contentions [1]). Kimberley Bauxite further submits that it intends to conduct activity outside of the pre-existing mining leases (Kimberley Bauxite contentions [3]-[5]). As previously mentioned, these pre-existing mining leases overlap approximately 12% of the area of the proposed licence.
It seems that implicit in these contentions is the idea that, as the area has been previously subject to previous activity, further disturbance is unlikely when new exploration activity takes place. This has been explored in previous Tribunal determinations which have found that while previous activity may have occurred, it may not necessarily diminish the particular significance of a place (see Nyalpa v Anderson at [16] for example), although ongoing and particular significance would need to be established in the evidence of each matter.
The State contends that the evidence of Kimberley Bauxite is that it will carry out its exploration activities away from the sites identified by Wanjina-Wunggurr and that, in any event, it’s activities will be low impact and non-intrusive (State contentions [61](a)-(b)). Additionally, the State submits that the reserve protections and regulatory regime make it unlikely that the grant of the proposed licence will cause interference with any relevant area or site (State contentions [61](c)-(d)).
The State also contends that, in the absence of evidence to the contrary, I should assume Kimberley Bauxite will not act in breach of relevant statute, regulations or conditions placed upon them (State contentions [29]). I accept this contention, and note there is nothing in the approach of Kimberley Bauxite to this matter that would suggest otherwise.
Consideration of Proposed Activities
On the first contention of the State, that activities will be undertaken away from places of particular significance, Wanjina-Wunggurr contend that Kimberley Bauxite has not established that it will carry out its activities away from significant sites and that the evidence of the native title party establishes Kimberley Bauxite’s areas of interest overlap significant sites (Wanjina-Wunggurr contentions in reply [15]). Based on the mapping provided by Kimberley Bauxite, this would appear to be the case. Additionally, my finding that the mainland portion Bougainville Peninsula is in itself a place of particular significance means this is a certainty in this instance.
While Dann v Western Australia was decided prior to the Native Title Amendment Act 1998 (Cth) which amended s 237, Nicholson J reflects that the intentions of a licence holder holds good for only so long as the licence holder maintains that intention (Dann v Western Australia at 20). The Native Title Amendment Act 1998 (Cth) however, changed the nature of s 237 by codifying the predictive assessment approach now taken by the Tribunal. In making this assessment, the statements of Kimberley Bauxite warrant some examination.
The State contend that, in the absence of evidence to the contrary, weight should be given to what Kimberley Bauxite proposes to do rather than what it could do (State contentions [26]). In terms of what Kimberley Bauxite proposes to do, its s 58 statement sets out that its activities from year 2 are dependent upon year 1 results, indicating its ongoing intention will be informed and potentially modified depending on new information or increased understandings. This would seem a sensible approach.
In its s 58 statement, Kimberley Bauxite sets out that its expenditure for year 2 will be ‘in excess’ of $2000 per block. Given the proposed licence looks to be 43 blocks, a figure of in excess of $86,000 for year 2 activities can be estimated. While there is no evidence on this point before me, considering the remoteness of the proposed licence and the indicated use of ‘heli-rigs’ and other heavy machinery, on the face of it, this would appear to be a substantial underestimate. Even noting the use of the words ‘in excess’, this lack of particularised information regarding the proposed activities and expenditure of Kimberley Bauxite in years 2 and beyond gives me concern about the extent the statements of Kimberley Bauxite can be relied on.
In its supplementary materials, the Principal of Kimberley Bauxite also sets out that it is his objective to structure an Indigenous focussed entity to develop the deposits and then transfer ownership as a gift to the native title holders (Lewis Biography), a factor the State points to in contending significant weight should be given to what Kimberley Bauxite proposes to do rather than what it could do (State contentions [25]-[26]). For their part, Wanjina-Wunggurr state they have not been informed of or consulted on this proposal, that it is not supported by any evidence and that it should be disregarded (Wanjina-Wunggurr contentions in reply [9]). In my view, this lack of discussion or consultation casts further doubt over the statements of Kimberley Bauxite.
The supplementary materials, particularly the Bauxite and Hydropower Paper, indicate a much broader intention by Kimberley Bauxite. While proposals for mining and hydroelectric projects are outside the scope of this consideration, these materials suggest Kimberley Bauxite possesses broader plans concerning the area. I am uncertain whether the statements made are hyperbole, however it does speak of an approach of pursuing opportunities to their fullest extent, which again, I am of the view is sensible for a grantee party.
In terms of this consideration though, it casts doubt upon the statements that paint a picture of a small and unobtrusive exploration phase. This factor, along with the other reservations I have expressed, lead me to the conclusion that Kimberley Bauxite is more likely to do to what it could do, as it is at liberty to once the proposed licence is granted.
I do accept though, that Kimberley Bauxite will not conduct activity in the ocean area of the proposed licence. This is based on the location of the target materials being situated on the land portion of the proposed licence.
Given this, and given my finding that the mainland portion of Bougainville Peninsula is a place of particular significance, I am of the view there is a risk of interference from the activities of Kimberley Bauxite. This is due to the particular circumstances of this matter, namely that the Bougainville Peninsula is a place of particular significance and my view that it is likely Kimberley Bauxite will conduct further activity than its materials indicate.
The State contends the regulatory regime that is in place overcomes this risk. In Uunguu v Kimberley Bauxite, Deputy President Sosso accepted the contentions of the State on this topic (at [76]). Given the materials before me however, I am of the view this topic deserves fresh scrutiny.
Regulatory Regime – National Heritage Listing
While the provisions of the EPBC Act relating to places of national heritage provide for prosecution, fines and imprisonment, these are actions which occur after an offense has been committed. While this would be hoped to provide a disincentive to such offenses, it is my view that the retrospective nature of these provisions don’t overcome the risk of interference in the first instance.
Regulatory Regime – Aboriginal Heritage Act
On the AHA, the State contends its processes are likely to minimise interference with places of particular significance (State contentions [61](d)). I note however, that the test provided in s 237(b) of the NTA is not concerned with the extent of interference as would appear to be suggested by the State’s contentions, but rather whether interference is ‘likely’ to occur.
The minimisation of interference is due, the State contends, to any site that fits the definition of an Aboriginal site under s 5 of the AHA being afforded protection under s 17 of the AHA. This makes it an offence to excavate, destroy, damage, conceal or in any way alter any Aboriginal site or similarly deal with an object found on an Aboriginal site. The State also notes that, under ss 16-18 of the AHA, approval from the Minister of Aboriginal Affairs or the Registrar of Aboriginal Sites is required for such disturbance to occur (State contentions [61](d)).
The State further contends that if Kimberley Bauxite applies for this consent to disturb pursuant to s 18, the Aboriginal Cultural Materials Committee would need to be satisfied of the adequacy of consultation with relevant Aboriginal people which they say is ‘likely to include’ Wanjina-Wunggurr. Further, the State contend that any consent provided by the Minister for Aboriginal Affairs under s 18 is ‘likely to be subject to conditions requiring development of a Cultural Heritage Management Plan in consultation with’ Wanjina-Wunggurr (State contentions [61](d)).
In my view, the idea that Wanjina-Wunggurr are ‘likely’ to be consulted and that a s 18 approval is ‘likely’ to have the aforementioned condition is imprecise and vague. There is no statutory requirement to consult with Aboriginal people under the AHA, and while it would be sensible to do so, the State has not provided material detailing how the outcomes it contends will occur, will actually occur.
Additionally, the majority of the area I have found to be of particular significance is not recognised as a site pursuant to s 5 of the AHA. As such, the s 17 protections don’t apply and no permissions will be required under the AHA to disturb this area. Therefore, the AHA provides no protections against interference in this area.
I give further regard to the regulatory regime in the following section and at [85]. It is for the reasons outlined in these paragraphs, in addition to the above, that I have formed the view that the AHA is not likely to overcome the risk of interference within the area of particular significance.
Regulatory Regime – AAPA Act and the Mining Act
The landward area of the proposed licence is situated on an Aboriginal reserve proclaimed under Part III of the AAPA Act to be exclusively for the use and benefit of Aboriginal people. Access to this area for non-Aboriginal people requires permission from the Minister for Aboriginal Affairs, attained via a permit (AAPA Act s 31) which may include conditions.
The State contends that ‘in practice, the Minister for Aboriginal Affairs requires that a grantee party negotiate an agreement with any relevant Aboriginal community in respect of access to the land for exploration activities’ (State contentions [11]). The State further contends that the agreement referred to forms the basis of conditions for access and that in practice, this includes conditions relating to protection from interference (State contentions [12]-[13]).
Wanjina-Wunggurr contend ‘it is not a requirement under the statutory provisions in relation to Reserves to enter into an agreement with’ Wanjina-Wunggurr (Wanjina-Wunggurr contentions in reply [17]). Wanjina-Wunggurr further contend ‘there is nothing in the conditions or endorsements requiring consultation with’ Wanjina-Wunggurr and that insufficient evidence has been presented that Kimberley Bauxite will consult with Wanjina-Wunggurr and/or comply with the requests of Wanjina-Wunggurr (Wanjina-Wunggurr contentions [10], [22]).
Perhaps the most difficult component of the State’s contentions here is the lack of material to support what it says occurs ‘in practice’. The State contends that in practice, several things occur. There is however, no material provided to support these assertions.
The AAPA Act at s 31 does create an obligation for a person to be authorised to enter such reserves and the AAPA Act Regulations at reg 8 set out that a person is required to apply to the Minister for this authorisation. It also sets out that the Minister must consult with the Aboriginal Lands Trust (see AAPA Act ss 20-24) in making this decision and that authorisation may be subject to conditions.
The State contends that in practice, the Minister for Aboriginal Affairs requires that a grantee party negotiate an agreement with native title holders and this agreement forms the basis of conditions for access. It may be that the Minister exercises this type of discretion in the granting of these permits. As Wanjina-Wunggurr point out though, there is nothing in the statutory provisions that requires this and nothing has been put before this inquiry to show this does occur, simply an assertion in the contentions of the State.
A similar issue arises in relation to the Mining Act provisions that relate to these types of reserves. Mining activity on reserves such as this may only be carried out with the written consent of the Minister for Mines and Petroleum who may provide or refuse consent, or may provide consent subject to conditions (Mining Act s 24(7A)). Section 24(7B) of the Mining Act further sets out that when providing consent under subsection 7A, whether with conditions or not, the Minister for Mines and Petroleum shall consult with the Minister for Aboriginal Affairs and obtain their recommendation.
The State plans to add as a condition of the grant of the lease that prior written consent of the Minister responsible for the Mining Act is obtained before commencing activity (State Contentions [27](e)). As this is already a statutory requirement, this would seem unnecessary to include as a condition.
Again though, this statutory provision provides a wide range of discretion. While the Minister for Mines and Petroleum may apply conditions, they may not. There is no particular guidance as to what these conditions might be or the process on how they are arrived at aside from consulting the Minister for Aboriginal Affairs. Perhaps it is assumed the Minister for Aboriginal Affairs represents the interests of the Wanjina-Wunggurr in this situation, however it is difficult to conclude that Wanjina-Wunggurr would agree with this proposition.
There is a spectrum of outcomes that may arise from these components of the regulatory regime, from non-conditional approval to refusal. The State is contending that only a small band of this spectrum occurs in practice: access approval under the AAPA Act with conditions driven by agreement with Wanjina-Wunggurr and conditional approval from the Minister for Mines and Petroleum with an undefined set of conditions driven by advice from the Minister for Aboriginal Affairs.
This stands in sharp contrast to other jurisdictions where expedited procedure matters are heard. In Ross v Oosen at [20]-[46], I examined the legislative and regulatory framework that has been constructed in Queensland. This includes the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) which contains within it a legislated duty of care towards Aboriginal heritage places and provisions for the development of Cultural Heritage Management Plans (CHMP). Regulations under the ACHA (the Aboriginal Cultural Heritage Duty of Care Guidelines or Duty of Care Guidelines) set out what it terms ‘reasonable and practical measures’ for ensuring any potential harm to Aboriginal cultural heritage values is minimised and includes measures for several categories of activity (ACHA ss 23(1), 28(1)).
Additionally, the Mineral Resources Act 1989 (Qld) (MRA) has given rise to a regulatory instrument titled the Native Title Protection Conditions (NTPCs) which are stated to be for the purpose of satisfying the requirements of the expedited procedure of the NTA (NTPCs p1). The NTPCs codify a series of processes for both native title and grantee parties regarding notification, meetings, the conduct of heritage assessments, reporting, work program development, dispute resolution and monitoring in the absence of a previously negotiated agreement between the parties.
The Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (Common Provisions Act) sets out procedures the holder of an exploration licence is required to follow when accessing privately held lands. The relevance in the Queensland instance is that the equivalent Aboriginal land is often Aboriginal freehold, therefore notice goes directly to the community holding the land rather than via Government instruments and the land holder, being the Aboriginal community, is the direct decision maker. As far as I am aware, Western Australia is the only jurisdiction in Australia that remains without this tenure type, favouring instead that these lands are held in trust by the State.
In Queensland the above mechanisms are in turn is supported by the Land Access Code. This is a regulation under s 36 of the Common Provisions Act that sets out best practice guidelines for communication between a grantee party and land holders (in the case of Ross v Oosen, the native title party) in addition to imposing mandatory conditions for the conduct of activities on land.
In the case of Ross v Oosen, these instruments working together presented compelling reasons as to why the expedited procedure should apply. This is due to them containing a large body of codified steps aimed at mitigating risk and directing decision making to the parties. This contrasts sharply with the current circumstances where no instruments of this type exist. Instead, there are statutory head powers in which decision making resides in the State and in which a wide range of discretion is permitted.
While the State contends the exercise of Ministerial discretion would achieve a particular outcome, no body of evidence has been submitted to show how this might actually be the case or how this might be achieved. It may be there is a body of information on process and decision making that exists, along with sample or expected conditions that would be applied and perhaps other materials. None of these have been submitted before this inquiry.
Perhaps conditions applied by the State could achieve the outcomes the State contends are likely. As it stands, the only condition the State is seeking to apply is an existing statutory requirement. Perhaps a more appropriate set of conditions would include the requirement for any heritage consultation to include Wanjina-Wunggurr, that a CHMP be developed and that the grant of a permit under s 31 of the AAPA Act is conditional upon agreement being reached with Wanjina-Wunggurr. Admittedly, if an agreement such as this is a conditional requirement, it would seem to negate the State’s position that the expedited procedure apply as a s 31 agreement under the NTA would likely fulfil this purpose.
Given the issues I have raised here, I do not find, at least on the materials currently before me, the regulatory regime provided by the AAPA Act or the Mining Act overcome the risk of interference. While it would be preferable for the outcomes contended by the State to be those that are achieved, the contentions of the State cannot bind the respective Ministers and the statutes provide a wide range of possible outcomes alongside broad and relatively unfettered Ministerial discretion. I find similarly in relation to the AHA, as discussed above.
As a result of these factors, I am not satisfied that the risk of interference is overcome by State’s regulatory regime and find there is a risk of interference with sites of particular significance.
Section 237(a): is the grant of the licence likely to interfere directly with Wanjina-Wunggurr’s community or social activities?
General
In conducting my analysis, I must make a predictive assessment of whether the activities that result from the grant of the proposed licence are likely to directly interfere with the community or social activities of the native title party, where ‘likely’ is a real chance of risk of interference or major disturbance and ‘directly interfere’ is where it can be evaluated there will be substantial impact upon community or social activities (Smith v State of Western Australia [23], [26]).
The terms ‘community’ and ‘social’ are examined in Silver v Northern Territory at [59]-[60] which I adopt for the purposes of this determination. Silver v Northern Territory also concludes that for the purposes of s 237(a), it is the physical manifestation or ‘active manifestation’ of these activities that are in question including where the activities have a spiritual dimension (Silver v Northern Territory [61]-[62]).
In Drury v Western Australia at [17.2], Deputy President Franklyn provides a useful summation of consideration under s 237(a):
[I]n construing s 237(a), it is necessary to first identify the activity in question. To that end it is necessary to have evidence of its nature. It may or may not be spiritual in nature or have a spiritual dimension. It is then necessary to identify from the evidence how the activity is carried on in the sense of how it is conducted. That in my view involves a consideration of the physical aspects of the carrying on of the activity as disclosed by the evidence. The next step is to assess whether the carrying on of the activity is likely to be interfered with directly by the future act. That requires a predictive assessment as to how (if at all) implementation of the future act is likely to impact on the carrying out of the activity.
I adopt this framework in making this determination.
What community and social activities are identified by Wanjina-Wunggurr?
The Williams affidavit provides he visits the area in his capacity as an Uungu Ranger and to check on country as a traditional owner (Williams affidavit [9]). The Uungu Rangers conduct research, including trapping animals, undertake beach patrols and ‘often’ visit the area to check on a fence they installed in or around 2015 to keep feral cattle off the peninsula (Williams affidavit [11], [13]-[14]).
Mr Williams deposes that ‘[e]very year between April and June the Uungu Rangers perform aerial burning over parts of Wargu/(Bougainville Peninsula) using a helicopter’ (Williams affidavit [10]). Mr Williams discusses the importance of teaching kids about the area and notes ‘if I had a boat I would go out there and show the kids’ (Williams affidavit [12]). The affidavit also mentions Jar Island, which appears to be a few kilometres to the southeast of the proposed licence area, where tourists are allowed to visit although the Uungu Rangers control access (Williams affidavit [15]).
Wanjina-Wunggurr has also provided a ‘Healthy Country Plan’ for the period 2010-2020 and dated March 2010 (at 3). This Plan tells ‘the story of how [Wanjina-Wunggurr] will look after Wunambal Gaambera Country into the future’ (at 12) and identifies a number of targets, threats and strategies for the period of 2010 to 2020.
Is the grant of the licence likely to interfere directly with Wanjina-Wunggurr community and social activities in a substantial way?
Wanjina-Wunggurr submit that they use the licence area throughout the year and if Kimberley Bauxite enter the licence area without their knowledge, they might interfere with the aerial burning (Wanjina-Wunggurr contentions [7]-[8]). Wanjina-Wunggurr also contend that Kimberley Bauxite may disrupt wildlife, affect the availability of flora and fauna and ‘interfere with the willingness of members of the NTP to access the area and undertake the community activities’ (Wanjina-Wunggurr contentions [9]-[10]).
Given the reservations expressed at [16], I will be placing lesser weight on the Williams affidavit in regard to s 237(a) considering it was produced some time ago. When reading the Healthy Country report, Williams affidavit and contentions of the native title party together however, I am satisfied that the evidence of the native title party establishes an ‘ongoing pattern of activity’ (MNRAC v FMG [50]-[53]).
The State contends that the evidence concerning activities, aside from the material concerning aerial burning, provides insufficient detail concerning the frequency, nature and extent of the activities to properly assess how the grant would affect the activities (State contentions [50](a)-(b)). The State contends it is unclear even should the parties access the proposed licence area at the same time how exploration would interrupt the community or social activities (State contentions [50](c)). I agree with the submission of the State on this issue.
In relation to the burning activities, the State notes that the grant of the licence will be subject to the Reserve protections discussed above, as well as an endorsement that draws Kimberley Bauxite’s attention to the existence of the licence granted for the conduct of the Gaambera Uunguu Fire Project (State contentions [50](d)).
I have examined the reserve protections previously and found them insufficient to prevent interference with significant sites and conclude similarly in relation to community and social activities here. I also note the endorsements proposed by the State are effectively an encouragement for Kimberley Bauxite to be cognisant of the fire project rather than being an enforceable condition.
In examining this, I follow the approach taken in WDLAC v Teck as outlined at [79]-[84] of that determination. The circumstances are different in that there is no proposal in this instance for the Regional Standard Heritage Agreement to be implemented. Rather, Kimberley Bauxite states it ‘will provide detailed proposed exploration programmes and extend every effort to comply with the requests of Traditional Owners when conducting exploration activities’ (Kimberley Bauxite contentions [8]). While not being critical of this stated intent, I note it does not form an enforceable instrument and falls short of being a guaranteed outcome.
In essence, there are safety concerns surrounding the conduct of fire programs which are likely to impact on their conduct. While there is a body of regulation that accompanies these programs, a risk remains for the safety of any exploration team without clear communication and coordination between the parties. In the instance where clear processes of communication and coordination are not codified in some way prior to Kimberley Bauxite undertaking exploration activities, I am of the view there is likely to be interference. Activities such as burning are likely to impaired not only due to the actual presence of Kimberley Bauxite personnel or contractors on the ground but also in circumstances where there are not clear processes to establish whether there are personnel or contractors on the ground.
To conclude, I am satisfied there is a real risk of interference with community and social activities carried on by the native title holders.
Section 237(c): is the grant of the licence likely to involve major disturbance to the area of the licence?
In making this assessment, I follow the approach set out Yinhawangka v Korab at [166]-[169]. I also note further guidance on the question of what constitutes major disturbance in Margarula v Northern Territory at [349]-[353].
Wanjina-Wunggurr notes that the proposed licence area is particularly remote, active mining has not occurred and that given ‘the ecological significance of the area the grant of the Tenement in this case would cause major disturbance to the land’ (Wanjina-Wunggurr contentions [21]). Wanjina-Wunggurr also contends, albeit without supporting evidence, that relatively ‘minor earthworks could constitute a major physical disturbance to the land given the geographical features of the Bougainville Peninsula which places it not far above water level’ (Wanjina-Wunggurr contentions [23]).
The State submits Kimberley Bauxite’s activities will be low impact and geographically limited and that Kimberley Bauxite’s activities would be no more significant than previous use of the area (State contentions [68](c)). Finally the State submits the area of the proposed licence does not have ‘any particular characteristics that would be likely to result in "major disturbance" to land and waters arising given the activities being proposed by the Grantee Party’ (State contentions [68](d)).
Taking into account the remoteness of the area and the views of Wanjina-Wunggurr, I have not formed the view there is a risk of major disturbance. This is a conclusion I have arrived at upon examination of the manner in which s 237(c) is contemplated in the Native Title Act and subsequent authorities surrounding this as they apply to the activities proposed.
Determination
I find the grant of E80/5631 to Kimberley Bauxite is not an act attracting the expedited procedure.
Mr Glen Kelly
Member
17 April 2023
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