Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Christopher William Reindler
[2019] NNTTA 7
•28 February 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Christopher William Reindler and Another [2019] NNTTA 7 (28 February 2019)
Application No: | WO2017/0771 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WC2004/001)
(native title party)
- and -
Christopher William Reindler
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 28 February 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) s 237 |
Cases: | Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Silver v Northern Territory(2002) 169 FLR 1; [2002] NNTTA 18 (Silver v Northern Territory) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara) |
| Representatives(s) of the native title party: | Andrew Topfer & Ania Maszkowski, Kimberley Land Council |
| Representative(s) of the grantee party: | Kevin Connell, Austwide Mining Title Management Pty Ltd |
| Representatives(s) of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety; Emma Salsano, State Solicitor’s Office |
REASONS FOR DETERMINATION
Introduction and background
I have been appointed to decide whether or not the State Government of Western Australia can grant exploration licence E80/5080 (the licence) under the expedited procedure. As outlined in s 237 of the Native Title Act 1993 (Cth) (the Act), the expedited procedure applies to a licence whose grant is not likely to:
(a)interfere directly with the carrying on of the community or social activities of the native title party;
(b)interfere with areas or sites of particular significance to the native title party in accordance with their traditions; and
(c)involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance.
The native title party in this inquiry is the Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WNTAC). WNTAC holds non-exclusive native title rights in trust for the Wanjina-Wunggurr community over 98.24 per cent of the licence. The size of the licence is 85.14 square kilometres and is located 147 kilometres north of Halls Creek in the Shire of Wyndham-East Kimberley. WNTAC lodged an objection with the National Native Title Tribunal against the assertion of the expedited procedure on this licence.
Under the expedited procedure, the State can grant the licence to Christopher William Reindler (the grantee party) without negotiations with WNTAC. My decision on this must rest on the criteria set out in s 237 of the Act.
Parties’ submissions
WNTAC submitted a statement of contentions accompanied by the affidavit of Ms Daisy Walker Bear. Ms Walker Bear’s affidavit has two maps of the licence and its surrounds annexed. Ms Bear states she is a senior native title holder and her family is the only family that can speak for the country that the licence sits over. I accept her authority to speak for the licence area and its surrounds.
The grantee party and the State each submitted a statement of contentions. The State also provided a number of supporting documents, being: mapping of the area; a Tengraph Quick Appraisal; search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches); and, a list of proposed endorsements and conditions to be imposed on the grant of the licence. WNTAC submitted a statement of contentions in reply.
The grantee party sought leave to provide further submissions in response to WNTAC’s contentions in reply. In response, WNTAC requested the opportunity to respond to any further submissions made by the grantee party. To allow these remaining issues to be ventilated fully, I convened a listing hearing at which parties were invited to provide any further submissions orally. In anticipation of the listing hearing, the grantee party provided the Tribunal and all parties with a document containing two Google Earth images and an accompanying statement. The listing hearing was held and both WNTAC and the grantee party made brief oral submissions. The State advised it had no further submissions.
At the conclusion of the listing hearing all parties supported the matter proceeding on the papers. I was satisfied the matter could be determined on the papers, therefore, I vacated all remaining directions.
Section 237(a): is the grant of the licence likely to interfere directly with the Wanjina-Wunggurr community or social activities?
To find s 237(a) interference is likely, there must be a direct and substantial interference with social or community activities (Yindjibarndi v FMG at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities to determine whether the activities can coexist without direct or substantial interference (Rosas v Northern Territory at [71]).
What are the grantee party’s intended activities?
The grantee party states the area of the licence is considered geologically prospective for diamonds and plans to conduct exploration using airborne magnetic surveys, mapping and ground reconnaissance sampling via helicopter to determine potential drill sites. The grantee party’s contentions state this ‘low impact exploration will not involve the grading of tracks and the Wanjina-Wunggurr People would be provided details of all planned exploration programs prior to their commencement.’
The grantee party’s contentions state when it ‘determines that it will carry out high impact exploration on the licence it shall notify the Wanjina-Wunggurr People’. On this basis, I conclude Mr Reindler intends to exercise the full suite of rights available to him upon the grant of the licence under s 66 of the Mining Act 1978 (WA).
What are Wanjina-Wunggurr’s community and social activities?
On the map annexed to her affidavit, Ms Walker Bear has marked a location to the south of the licence along the Chamberlain River which is used for fishing. She states she has been going to this area her whole life and that she, along with her sister, take ‘all the kids out there’ to fish barramundi, bream and catfish. Ms Walker Bear states that they camp nearby at an old mustering yard named Percy No. 1 Yard. She states ‘You can walk up to the Tenement Area from the bottom yard but it’s a long walk, takes a few hours.’ Ms Walker Bear states they use the road that goes along the side of the Chamberlain River and Elgee Cliffs to access the area.
In its contentions, WNTAC argues interference with these camping and fishing activities is likely if the licence is granted. Specifically, the contentions argue if the grantee party uses the same road to access the licence as that used by Traditional Owners to access the camping and fishing area without prior consultation, it is likely to disrupt these practices.
Conclusion
The activities described in WNTAC’s evidence centre on a location some distance away from the licence – approximately nine kilometres according to the grantee party’s submissions. I am at liberty to consider activities, both of the grantee party and the native title party, that occur outside the area of the licence. However, if those activities are to be taken into account, a clear nexus between them and the issues being considered under s 237 must be drawn (Silver v Northern Territory at [35]). The native title party reply makes this point.
However, based on the evidence before me, I am not satisfied there is sufficient information to explain that nexus, particularly given the size of the licence and the location of the activities. As such, I am not satisfied the grantee party’s activities are likely to directly or substantially interfere with the activities undertaken by the Wanjina-Wunggurr community.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Wanjina-Wunggurr?
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 (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17]). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]).
What areas or sites have been identified?
Ms Walker Bear’s affidavit describes two hills in the middle of the licence that are connected to the Jirriny (kangaroo) dreaming. She states the story is of two grey kangaroos, one travelling down from the north and the other travelling up from the south (near Percy No. 1 Yard), who met in the middle of the licence in the dreamtime. She states the ‘two hills there in the middle of the Tenement Area, that’s them. They’re on a plain and separate from the other hills so they stand out, and I can see them clearly.’ Ms Walker Bear has marked a location on the map annexure which she attests to being the location of the two hills.
Ms Walker Bear states the Chamberlain River is also important to her family. She states it is connected to the kangaroo dreaming and the two hills. She states ‘If you mess with the Kangaroo dreaming, you will mess with the water.’
The grantee party has challenged the affidavit evidence, arguing there are no high points that could be described as hills in the area marked on the affidavit map annexure. During oral submissions the grantee party’s representative argued the grantee party, being Mr Reindler, had been an exploration consultant for the previous land holder and had good knowledge of the topography in the area. The grantee party provided a Google Earth image showing altitudes at various points within the licence in support of its contention. It describes the area as relatively high ground in undulating country but suggests the term to describe this terrain is ‘plateau’ rather than ‘hill’.
During oral submissions WNTAC argued the Google Earth images provided by the grantee party are poor quality and some of the elevation points shown are illegible. I agree it is difficult to clearly read the majority of the altitude points on the maps provided by the grantee party. It is possible to read a few of the altitude points marked on the west side of the licence, in the vicinity of the location marked by Ms Walker Bear.
WNTAC argued the grantee party’s statement and maps are not inconsistent with the affidavit evidence of Ms Walker Bear. WNTAC notes both the State and grantee party concede there are high points within the licence. It states the main point of the affidavit is not the particular use of the word ‘hill’ but that there are two particular high points in the vicinity of the location marked on the map annexure.
Having weighed the evidence before me, I am satisfied the ‘two hills’ site is likely to be located in the vicinity of the location marker on the affidavit’s map annexure. I use the term ‘hill’ to refer to those sites, as used by Ms Walker Bear. I also accept Mr Reindler considers the features to be more of a plateau.
Are any of the identified areas or sites of particular significance?
While I accept the location of the two hills, the affidavit evidence regarding the two hills site and the Chamberlain River is brief and general in nature. In particular, the nature of these sites’ significance has not been explained in any detail. The focus of s 237(b) is the significance of sites in accordance with the native title party traditions. In this inquiry, it has been stated the areas are of particular significance, but only the briefest of information has been provided about the traditions associated with the sites which make them of particular significance.
Conclusion
I have concluded that while there is no doubt the two hills and Chamberlain River are important to the Wanjina-Wunggurr people, they are not sites of particular significance for the purposes of s 237(b). The issue of excision of the site areas from the grant of the licence to avoid interference was one covered by parties in the oral exchange. I do not go into any further detail on that in this decision, as the discussion of interference for the purposes of an inquiry rests on whether or not a site is found to be of particular significance.
Section 237(c): is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
There were no contentions in relation to s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(c) is unlikely.
Determination
For the reasons stated above, I find the grant of exploration licence E80/5080 to Christopher William Reindler is an act attracting the expedited procedure.
Ms Helen Shurven
Member
28 February 2019
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