Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Elderberry Resources Pty Ltd
[2018] NNTTA 66
•31 October 2018
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Elderberry Resources Pty Ltd and Another [2018] NNTTA 66 (31 October 2018)
Application No: | WO2017/0630 |
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 (WCD2011/002)
(native title party)
- and -
Elderberry Resources Pty Ltd
(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: | 31 October 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 an act attracting the expedited procedure – expedited procedure applies |
| Legislation: | Native Title Act 1993 (Cth) ss 32, 237, |
Cases: | Gooniyandi Aboriginal Corporation v Inventum Resources Pty Ltd and Another[2018] NNTTA 41 (Gooniyandi v Inventum Resources) Josephine Forrest on behalf of Yi-Martuwarra Ngurrara; Butcher Wise on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 100 (Forrest v Brockman Exploration) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 (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) |
| Representative of the native title party: | Ashley Mumford, Kimberley Land Council |
| Representative of the grantee party: | Chris Piggott, Elderberry Resources Pty Ltd |
| Representatives of the Government party: | Jeff O’Halloran, State Solicitor’s Office Bethany Conway & Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether the expedited procedure applies to the proposed grant of exploration licence E04/2486 (the licence) to Elderberry Resources Pty Ltd (Elderberry). The State of Western Australia (the State) gave notice of their intention to grant the licence under s 29 of the Native Title Act 1993 (Cth) (the Act). In their notice, they included a statement that the grant is an act attracting the expedited procedure. By doing so, they assert the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Act. All references to sections of legislation in this determination are to the Act, unless otherwise stated.
The Wanjina-Wunggurr (Native Title) Aboriginal Corporation (Wanjina-Wunggurr) hold non-exclusive native title over 20.7 percent of the licence, in trust for the Wanjina-Wunggurr community. They exercised their right to lodge an objection with the Tribunal against the State’s assertion that the expedited procedure applies (s 32(3)). They argue the expedited procedure should not apply because interference or disturbance with one or more of the criteria in s 237 is likely.
According to s 237, a future act (that is, the grant of the licence) is an act attracting the expedited procedure if it:
(a) is not likely to interfere directly with the carrying on of the community or social activities of the native title holders; and
(b) is not likely to interfere with areas or sites of particular significance, in accordance with their traditions; and
(c) is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The former President of the Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies. If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other (s 32(4)). If I find it does not apply, Elderberry and the State must negotiate in good faith with a view to reaching an agreement with Wanjina-Wunggurr about the grant of the licence (s 32(5)). I base my decision on the three s 237 criteria noted above. I am satisfied I can make a determination on the papers without a hearing (s 151(2)).
The parties’ submissions
Wanjina-Wunggurr submitted contentions and the affidavit of Mr Rex Dann annexed with a map of the licence area. Mr Dann’s evidence is that he is a traditional owner and one of the senior people to talk for the licence area. I accept his authority. Elderberry provided contentions which outlines some details of their proposed activities and a response to some of Wanjina-Wunggurr’s submissions. The State lodged a statement of contentions, mapping, Tengraph Quick Appraisal form, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS) and a list of proposed endorsements and conditions to be imposed on the grant of the licence. The conditions include imposing a Regional Standard Heritage Condition on the licence. After the State and Elderberry lodged their submissions, Wanjina-Wunggurr submitted contentions in reply.
Parties conferred and attempted to draft a statement of agreed facts to submit to the Tribunal, as per inquiry directions. Parties were unable to agree and the direction was vacated.
Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the Wanjina-Wunggurr community?
To find s 237(a) interference is likely, there must be a direct and substantial interference with social or community activities (Yindjibarndi Aboriginal Corporation v FMG Pilbara 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 Elderberry’s intended activities?
Elderberry considers the area prospective for a certain type of nickel sulphides. They propose to initially conduct ‘open file data reviews, target generation and ranking with an initial field inspection and first pass geochemical sampling.’ If this is successful, they indicate a ‘more systematic approach to geochemical sampling would be applied to the target areas, in anticipation that by year 3, targets of significant merit may justify more financially intense exploration activities’. They state ‘work programs, at this point in time, are dependent on … achieving encouraging results’. On this basis, I conclude Elderberry intend to exercise the full suite of rights available to them upon the grant of the licence under s 66 of the Mining Act 1978 (WA).
What are the Wanjina-Wunggurr Community’s activities?
The evidence states ‘[w]e go hunting all through that area… Our whole family goes through there’. Activity also includes that members of the community ‘hunt for turkeys on the tenement area’ and there ‘are a lot of different species of kangaroos there’. It is also noted that ‘[w]e take the kids out there too and we tell them the stories about the area’ (at 27-28).
Wanjina-Wunggurr contend (at 10) ‘the close proximity of the Aboriginal community at Windjingayre (approximately 22 kilometres from the Tenement Area) increases the likelihood that members of the NTP access the Tenement Area often to carry out the community and social activities referred to above’ and ‘the likelihood of interference with these activities by the Grantee Party’s exploration activities is therefore increased’. Indeed, proximity and ease of access from Aboriginal communities can suggest frequent and intensive use of the area (Forrest v Brockman Exploration at [43]).
Conclusion
As I noted in Gooniyandi v Inventum Resources (at [29]), there does need to be information and evidence supporting assertions that social and community activities are conducted on the relevant licence, and will suffer interference from activities of the explorer. Apart from the general statements as outlined above, there is no evidence about the nature, frequency or intensity of the activities the Wanjina-Wunggurr community undertake on the licence area. As such, I cannot conclude that Elderberry’s exploration activities would directly or substantially interfere with them.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the Wanjina-Wunggurr community?
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 are on the licence?
The Wanjina-Wunggurr contentions (at 4) refer to ‘a men’s site, a site of drownings and burials, a site where remains of ancestors have been repatriated, and several sites listed on the [AHIS]’. These are said to be within or very close to the licence, although there is very little information about these sites. Evidence outlines the following areas or sites are on the licence:
·rock art near an old granite mine (at 24);
·‘many places on the Tenement Area’ (at 31); and
·a ‘men’s site’ on ‘a hill there in the south of the Tenement Area’ (at 30).
There is also a place said to be near but not on the licence, where remains were repatriated. However, there is little further information about this place, or about its connection or nexus to the licence, and so I have not relied on this place in my consideration of this limb of s 237.
According to the AHIS, the licence contains four registered sites under the Aboriginal Heritage Act 1972 (WA). The location of all four sites is restricted and the areas are defined with buffer zones on the AHIS mapping. In the northern part of the licence, the AHIS shows one mythological site without gender restrictions, described as ‘artefacts/scatter, engraving, grinding patches/grooves, painting, quarry, skeletal material/burial, camp’ (site 12973).
In the south eastern part of the licence, there are two male access only ceremonial sites and one male access only mythological site (sites 13062, 13063 and 13064 respectively). The AHIS mapping shows the buffer zones for these three sites overlap each other and are located over a contoured surface, portions of which are within the licence area. It is reasonable to assume this surface is a hill. Mapping shows there is one such hill in the southern part of the licence. On this basis, I accept that the ‘men’s site’ on ‘a hill there in the south’ described by Mr Dann is likely to comprise one or more of the male access only registered sites 13062, 13063 and 13064.
A site of particular significance for the purpose of s 237(b) does not need to be on the AHIS. Equally, the existence of sites recorded on the AHIS does not necessarily mean they are of ‘particular significance’ for the purposes of s 237(b). I must consider whether there is evidence which establishes there are areas or sites of particular significance to a native title party, in accordance with their traditions.
Is there evidence these areas or sites are of particular significance in accordance with the Wanjina-Wunggurr Community’s traditions?
I appreciate that native title holders are often restricted by their traditions in the extent to which certain information about sites or areas, or cultural practices, can be disclosed. For the purposes of my consideration of s 237(b), evidence and information about what constitutes a site of particular significance is often crucial (see for example, Gooniyandi v Inventum Resources (at [42]-[47])).
To the extent he is culturally permitted, Mr Dann has explained the significance of the men’s site - he states ‘[W]e look after that place. It is very special to us, and we can’t talk too much about that place’ (at 30). The AHIS supports Mr Dann’s evidence and, as mentioned earlier in this decision, it is likely registered sites 13062, 13063 and 13064 are at least part of the men’s site described by him, as those AHIS areas are male access only and the exact location is restricted. I accept this is an important area for the native title holders, however, there is insufficient evidence for me to conclude the men’s site is one of particular significance.
Information related to the other areas referred to in Wanjina-Wunggurr’s contentions, and those referred to in the evidence, is sparse. The Wanjina-Wunggurr reply attempts to provide further context for sites of particular significance, however, there simply is insufficient evidence for me to be able to conclude any of the sites or areas fall into that category. In Ward v Western Australia (at [26]) the Federal Court held ‘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’. Applying this approach (see Silver v Northern Territory at [91]), there is insufficient evidence to conclude any areas or sites are of particular significance.
As I have concluded there are no sites of particular significance on this licence, I do not need to examine whether or not any such sites are likely to be subject to interference by the activities of Elderberry.
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?
Wanjina-Wunggurr state they do not make any 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 is unlikely.
Determination
The grant of exploration licence E04/2486 to Elderberry Resources Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
31 October 2018
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