Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Mark Denis Hargreaves
[2022] NNTTA 70
•22 November 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Mark Denis Hargreaves & Another [2022] NNTTA 70 (22 November 2022)
Application No: | WO2021/1085 |
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 -
Mark Denis Hargreaves
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr Glen Kelly | |
Place: | Perth | |
Date: | 22 November 2022 | |
Catchwords: | Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – lack of specificity of activities in the proposed licence area - whether act likely to interfere with sites or areas of particular significance – failure to show particular significance of sites – failure to identify actual existence of burial sites - the act is an act attracting the expedited procedure | |
Legislation: |
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Cases: |
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| Representative of the native title party: | Carolyn Ryland, Kimberley Land Council Aboriginal Corporation |
| Representative of the grantee party: | Mark Hargreaves |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety Richard Anthonisz, State Solicitors Office |
REASONS FOR DETERMINATION
Background
On 19 March 2021, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant prospecting licence P04/305 (proposed licence) to Mr Mark Denis Hargreaves (grantee party). The notice for the proposed licence included a statement that the State considers the grant is an act attracting the expedited procedure (see s 32 of the NTA).
The proposed licence is approximately 0.4 square kilometres in size, is situated approximately 128 kilometres north west of Fitzroy Crossing and falls entirely with the Wanjina-Wunggurr Wilinggin Native Title Determination No 1 determination (WCD2004/001) (Neowarra v Western Australia). The native title in this area is held in trust by the Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (Wanjina-Wunggurr).
On 15 June 2021, Wanjina-Wunggurr lodged an objection with the National Native Title Tribunal (Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the proposed licence.
I have been appointed to constitute the Tribunal for the purposes of the inquiry in this matter. In determining whether the expedited procedure applies, I must assess whether the grant of the licence is 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 (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).
In conducting this inquiry, I must look at what is likely to result from the grant of the licence and conduct an assessment of whether there is a real chance or risk of the interference or disturbance outlined in s 237 of the Act and therefore whether it is an act that attracts the expedited procedure (Smith v Western Australia at [23]). The legal principles applied in this assessment are outlined in Yindjibarndi v FMG at [15-21].
For the reasons following, I find the grant of P04/305 is an act attracting the expedited procedure.
The Conduct of the Inquiry
Directions were made on 17 June 2021 for the conduct of the inquiry and were amended on a number occasions to provide time for parties to seek to reach an agreement that would result in the withdrawal of the objection. These were vacated on 6 September 2021 as parties had indicated in-principle agreement had been reached and the matter was referred to the Tribunal’s Settlement List.
The grantee party then advised he was no longer agreeable to the costs of the agreement, so directions were reinstated on 13 October 2021. Further adjustments to directions were made in consultation with the parties to allow for materials to be lodged and each party provided materials in accordance with these amended directions.
The State, through the Department of Mines, Industry Regulation and Safety (DMIRS), provided an initial information set which included mapping, a Tengraph Quick Appraisal and searches of the Aboriginal Heritage and Inquiry System (AHIS), a copy of the grantee party’s application for the proposed licence, and details of proposed endorsements and conditions the State intended to be imposed on the grant of the licence. The AHIS searches indicate the proposed licence area contains no sites or other heritage places registered under the Aboriginal Heritage Act 1972 (WA) (AHA). The State also provided contentions (State contentions).
Wanjina-Wunggurr provided:
·contentions lodged 15 December 2021 (Wanjina-Wunggurr contentions);
·affidavit of Phillip Duckhole, lodged 15 December 2021 (Duckhole affidavit); and,
·contentions in reply lodged 14 February 2022 (Wanjina-Wunggurr reply contentions)
The grantee party provided:
· a statement lodged 7 January 2022 (grantee statement).
Mr Duckhole is a Ngarinyin Traditional Owner and Wilinggin determined native title holder and his bush name is Gadgaga. Mr Duckhole states that the area of the proposed licence is on Ngarinyin country, and the Aboriginal name for the area is Wombarella (Duckhole affidavit [2], [4] and [5]). I accept Mr Duckhole’s standing in the native title holding group and his ability to provide evidence in this matter.
All parties indicated they were content with the matter being determined on the papers as permitted by s 151(2) of the NTA. Having regard to the materials before me, I am satisfied the matter can be determined without the need for a hearing.
The proposed licence and the proposed activities
The proposed licence is a prospecting licence, a type of licence outlined in s 48 of the Mining Act 1978 (WA) (Mining Act). Prospecting licences are granted for a period of four years (with up to four years extension in specific circumstances) and limit the holder to excavating, extracting or removing mineral bearing materials up to 500 tonnes (although further amounts can be approved by the Minister).
As outlined in his contentions, the grantee party proposes to take stone boulders from the licence area with the intention of using the stones in a domestic setting. The grantee party states that the stone boulders are on the southern portion of the licence, which previous operators have lined in rows. These have been highlighted in aerial photography provided by the grantee party (grantee statement pg 4).
The grantee party proposes to also take stones from other limited areas of the proposed licence area to determine the characteristics of the stones (grantee statement pg 5). The grantee party proposes to use a crane or excavator to lift the stones on to a truck and states that his proposed activities will not require any other heavy equipment (grantee statement pg 5).
While the grantee party has provided information regarding a relatively specific work program, he is at liberty to conduct further activity within the provisions of the Mining Act. Given this, I am assuming Mr Hargreaves will exercise the extent of the rights provided (see Silver v Northern Territory [30]).
Consideration
Section 237(a): Risk of direct interference with Community or Social Activities
In approaching s 237(a), the Tribunal is required to undertake a predictive assessment on whether the proposed act will involve a real chance or risk of interference with community or social activities of the native title party (Smith v Western Australia [23]), where the ‘notion of direct interference involves rather an evaluative judgement that the act is likely to be a proximate cause of the apprehended interference where this interference is substantial in its impact rather than trivial’ (SmithvWestern Australia [26]).
Wanjina-Wunggurr contend that the area of the proposed licence is accessed regularly by the native title party due to its close proximity to the Gibb River Road (Wanjina-Wunggurr contentions [9]). Mr Duckhole, for example, states he visited and stopped near the proposed licence area shortly prior to making his statement for this inquiry. (Duckhole affidavit [8]).
Wanjina-Wunggurr contend that the prospecting activity will directly interfere with the carrying on of its community and social activities by ‘interfering with hunting, intergenerational teaching and collection of resources undertaken by the determined native title holders’ (Wanjina-Wunggurr contentions [2], [8], [9]). Mr Duckhole states that ‘we go hunting and collect bush tucker. We hunt goanna, kangaroo, turkey and echidna’ around the proposed licence (Duckhole affidavit [8]). Mr Duckhole states that ‘we also get ochre’ from the area, which is used for dancing and ceremonial purposes, and the ochre is ‘very important to us’ (Duckhole affidavit [9]).
The grantee party contends that he does not intend to interfere with community and social activities in the proposed licence area (grantee statement pg 2). The grantee party further contends his intended activities will be limited to removing and assessing the physical properties of stone boulders in readily identified areas of the proposed licence area over a period of 10 days per year and offers to work with the native title party to identify days when he should not be present in the area (grantee statement 2).
The State contends that the grantee party’s proposed activities are infrequent, low-impact and not likely to have any real disruptive effect upon Wanjina-Wunggurr’s community and social activities (State contentions [40]). The State submits that this is supported by the grantee’s intention to conduct these activities with cultural sensitivity and to maintain a proactive, cooperative relationship with Wanjina-Wunggurr (State contentions [40]).
The State also contends that Wanjina-Wunggurr has not provided sufficient evidence to conclude the proposed licence will interfere with Wanjina-Wunggurr’s hunting, collection of resources and intergenerational teaching (State contentions [17]-[23]). Further to this, the State contends that Wanjina-Wunggurr’s evidence related to intergenerational teaching refer to activities conducted primarily outside the proposed licence area (State contentions [29]). Noting a previous Tribunal finding, the State contends that interference with community or social activities is unlikely given the size of a proposed licence area in the context of a much larger determination area (State contentions [23], citing HL & Others at [36]).
In its reply, Wanjina-Wunggurr notes that Mr Duckhole specifically identifies that the activities take place within the proposed licence area (Wanjina-Wunggurr reply contentions [8]). In my view however, the evidence suggests that the activities outlined are conducted over a broader area than the proposed licence rather than being specific or limited to it. With the exception of the collection of ochre, these activities do not seem to be specific to any area within the proposed licence area, but rather to the area surrounding the proposed licence. Even in the instance of ochre collection however, no evidence is provided to show this occurs specifically on the proposed licence area.
Having considered the materials before me, even assuming the grantee party will exercise all rights, I have formed the view there is not a risk of direct interference with community and social activities.
This arises from several factors. Firstly, it appears the community and social activities outlined are not specific to the proposed licence and take place over a broader area. Secondly, the proposed licence is very small in size so poses little risk to the broader practice of these activities. Thirdly, the grantee party has demonstrated a willingness to engage with Wanjuna-Wunggur, which is in contrast to many matters that come to inquiry before the Tribunal. In this case, failure to reach agreement related to the issue of costs rather than an unwillingness to engage, which in my view lends credence to the grantee party’s statement of intent to engage with Wanjina-Wungurr.
As a result of this, I find there is not a risk of direct interference with the community and social activities of Wanjina-Wunggur.
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?
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. 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 (see Yindjibarndi v FMG [17] and cases cited therein).
Wanjina-Wunggurr contends there is a high likelihood that the grantee party’s prospecting activity will interfere directly with two areas and sites of particular cultural significance:
(a)the Goanna Dreaming; and
(b)Burial sites and artefacts.
In relation to the Goanna Dreaming, Wanjina-Wunggurr broadly states there is a ‘goanna dreaming story that travels through the Tenement Area’ (Wanjina-Wunggurr contentions at [11]). Mr Duckhole states that ‘[t]he goanna travelled from Mount Amy thought the Tenement Area and laid all its eggs at a place below the Tenement Area’ (Duckhole affidavit [14]). Further, Mr Duckhole states that ‘[t]here are two hills near Wombarella Creek nearby to the Tenement Area. The old people would say that one of the hills is connected to the goanna. I was shown these two black hills by the old people. They are around Wombarella, near the Kimberley Black Granite Mine’ (Duckhole affidavit [16]).
An examination of mapping provided in the DMIRS initial information set shows Mount Amy to be approximately 7 km to the north west of the proposed licence and the Kimberley Black Granite Mine to be approximately 10 km to the south east.
Wanjina-Wunggurr also contends there is a high likelihood that the proposed licence area contains burials sites and artefacts as the area has frequently been accessed and used by the Wanjina-Wunggurr people in accordance with their traditional law and customs (Wanjina-Wunggurr contentions [12] and [13]). Wanjina-Wunggurr does not however, note any burials or artefacts in or in the immediate surrounds of the proposed licence area.
The State contend that the submissions and evidence submitted by Wanjina-Wunggurr are general and do not sufficiently identify the parts of the proposed licence area associated with or connected to the Goanna Dreaming with the requisite degree of specificity (State contentions [46], [49]). In making this contention, the State notes the places referred to by Wanjina-Wunggurr, Mount Amy, Wombarella Creek and the Kimberley Black Granite Mine, are located well outside the proposed licence area (State contentions [46]). Additionally, the State contends Wanjina-Wunggurr have not explained the particular significance of the Goanna dreaming or the places associated with it (State contentions [47]).
In response, Wanjina-Wunggurr contends the evidence of areas or sites of significance connected or associated with Goanna Dreaming is sufficient to locate them with requisite specificity and to explain its significance to Wanjina-Wunggurr (Wanjina-Wunggurr reply contentions [26], [28]). Wanjina-Wunggurr also contend that any doubt as to the location of the sites is not fatal to a finding there are sites of particular significance within the proposed licence area (Wanjina-Wunggurr reply contentions [31]) as has been the case in previous determinations of the Tribunal such as Andy Campbell & Ors at [64].
In my view, these places have been described with sufficient specificity however the evidence, while describing the attributes of these places, does not outline their particular significance to the extent required by s 237(b). As such, I am unable to reach a finding these sites are of particular significance.
The State contends similarly in relation to burial sites and artefacts at [51]-[53]. While the State accepts that burial sites and artefacts ‘generally may be of special or more than ordinary significance’ to Wanjina-Wunggurr, it contends that Wanjina-Wunggurr has not provided evidence on location of burials or artefacts in the area of the proposed tenement (State contentions [51]). The State notes that the Duckhole affidavit states there ‘might be burial places or artefacts within the Tenement Area’ (State contentions [51], citing Duckhole affidavit [13]).
In response to this submission, Wanjina-Wunggurr reasserts its contention that a site can be particularly significant, notwithstanding a 'lack of precise identification’, if the evidence is compelling (Wanjina-Wunggurr reply contentions [40]).
In my view, the descriptions of these sites is vague and imprecise, with the notion there ‘might be’ burial places or artefact scatters in the area being insufficient for the purposes of s 237(b). As such, I cannot find these are places of particular significance.
As I have found the evidence provided does not allow me to make a finding there are places of particular significance, I further find there is unlikely to be interference with places of particular significance from the grant of P04/305.
Section 237(c): is the grant of the licence likely to involve major disturbance to the area of the licence?
In its contentions, Wanjina-Wunggurr state that it ‘does not make any contentions in relation to sub-section 237(c) of the NTA (at [4]) nor does it provide evidence in relation to this subsection. As such, there is no factual material before me which indicates the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance as contemplated in s 237(c). Therefore, applying the approach outlined in Ward v Western Australia at [26] I find that major disturbance under s 237(c) is unlikely.
Determination
The grant of P04/305 to Mark Denis Hargreaves is an act that attracts the expedited procedure.
Mr Glen Kelly
Member
22 November 2022
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