Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Elderberry Resources Pty Ltd and Another
[2018] NNTTA 73
•7 December 2018
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Elderberry Resources Pty Ltd and Another [2018] NNTTA 73 (7 December 2018)
Application No: | WO2017/0619 |
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 NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 7 December 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure – expedited procedure does not apply |
Legislation: | Native Title Act 1993 (Cth) s 237 |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC[2014] FCA 1335 (FMG v Yindjibarndi) Little v Western Australia[2001] FCA 1706 Silver v Northern Territory[2002] NNTTA 18; (2002) 169 FLR 1 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Meridan (Lennard Shelf Project) Pty Ltd and Another [2018] NNTTA 60 (Wanjina-Wunggurr v Meridan) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v FMG) |
| 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
I have been appointed to decide whether the State Government of Western Australia can, using the expedited procedure, grant exploration licence E04/2485 (the licence) to Elderberry Resources Pty Ltd (Elderberry). Under s 237 of the Native Title Act 1993 (Cth) (the Act), the expedited procedure applies to a licence if the grant is not likely to:
(a)interfere directly with the native title holders’ community or social activities; and
(b)interfere with areas or sites of particular significance, in accordance with their traditions; and
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The native title party in this inquiry is the Wanjina-Wunggurr (Native Title) Aboriginal Corporation (Wanjina-Wunggurr), who hold non-exclusive native title over the whole licence in trust for the Wanjina-Wunggurr community. They lodged an objection with the National Native Title Tribunal against the State’s assertion that the expedited procedure applies to the licence. The licence is approximately 11,124 hectares in size and is located on Napier Downs pastoral lease in the Derby-West Kimberley Shire.
Under the expedited procedure, the State can grant the licence to Elderberry without negotiations with Wanjina-Wunggurr. My decision on whether this can occur must rest on the three criteria set out in s 237 of the Act. In this decision, all references to legislation are to the Act, unless otherwise noted.
The parties’ submissions
Wanjina-Wunggurr submitted contentions and the affidavits of Mr Rex Dann and Mr Robin Dann, annexed with maps of the licence area. The affidavits are consistent and corroborate information provided by each deponent. Wanjina-Wunggurr also relied upon an audio-visual recording published in 2012 entitled ‘Congarra – Goya Dreaming’ which features Mr Kevin Dann.[1] In his affidavit, Mr Rex Dann states ‘I am a Ngarinyin traditional owner, along with my brothers, Mr Kevin Dann and Mr Robin Dann. We are the senior people for the Tenement Area’. I accept their authority.
[1] >
Elderberry provided a statement of contentions which includes some details of their proposed activities and a response to some of Wanjina-Wunggurr’s submissions. The State lodged a statement of contentions, mapping, a Tengraph Quick Appraisal form, 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. 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. They were unable to agree on such a statement and I vacated the direction. I was satisfied this inquiry could be determined on the papers.
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 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.
What are Elderberry’s intended activities?
Elderberry consider the area prospective for proterozoic nickel sulphides. They initially propose ‘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?
Wanjina-Wunggurr contend the licence boundary is about 7 kilometres northwest of Windjingayr community, which comprises members of the Wanjina-Wunggurr community, who access the licence area regularly from that community – particularly during the dry season (Contentions at 11; supported by the affidavits of Mr Rex Dann at 13; Mr Ron Dann at 4). The Tribunal recently noted members of the Wanjina-Wunggurr community live in Windjingayr community and undertake community and social activities in the community, in accordance with their traditions (Wanjina-Wunggurr v Meridan at [36]-[37]).
As well as its close proximity to the Windjingayr community, evidence shows the licence area is particularly useful for Wanjina-Wunggurr community activities primarily because of the large body of permanent water located at Kongorow Pool, which is on the licence. As a result, there is an abundance of wildlife for hunting and fishing, as well as fruits and plants for gathering (‘Congarra – Goya Dreaming’; Mr Rex Dann at 4-10; Mr Robin Dann at 12-14, 16). Evidence shows the area is used frequently by community members for these activities (Mr Rex Dann at 7-8, 11, 13; Mr Robin Dann at 12, 16). There is also evidence of regular camping (Mr Rex Dann at 11, 13; Mr Robin Dann 12), regular visiting and maintaining of sites (Mr Rex Dann at 14, 17; Mr Robin Dann at 6-7) and intergenerational teaching (Mr Rex Dann at 11; Mr Robin Dann at 13-14). Near the pool, there is a men’s site where initiation ceremonies are currently practiced (Mr Rex Dann at 4; Mr Robin Dann at 5).
By way of example, Mr Rex Dann states ‘[w]henever we have a vehicle our family go camping at Kongorow, or go for a day trip… We go there all through the dry season. Families will go out to Kongorow from Windjingayr on the weekends’ (Mr Rex Dann at 11-13). ‘Kongorow Pool is the main spot for all the food we need … because of all the animals there … it provides us with everything we need’ (Mr Rex Dann at 6-7). ‘Sometimes we cook up what we catch if we are camping there at Kongorow, other times we take back what we catch to the community and share it around’ (Mr Rex Dann at 8). Mr Robin Dann’s evidence corroborates this (Mr Robin Dann at 7, 12, 16).
Conclusion
Elderberry state ‘it is highly likely no exploration will occur in/near Kongorow Pool’ because ‘[e]xploration in areas of continuous water are impractical for exploration’. However, I consider Elderberry’s statement concerns only the permanent water of Kongorow Pool itself. Although the community and social activities described above are centred around the pool, they are undertaken over a larger area – particularly the hunting, camping, intergenerational teaching and initiation activities.
I also note Elderberry seek to explore at the same time the Wanjina-Wungurr Community activities are at their peak – during the dry season ‘from April to October’. I note (and Elderberry state) exploration work in north Western Australia typically occurs during this time. Elderberry also indicate they do not intend to limit access to or on the licence. They state ‘…any person or group is free to access the areas within or outside of the tenement boundaries’. However, given the evidence of intensive and frequent community and social activities, I find interference is likely where the activities of the explorer meet with the activities of the Wanjina-Wunggurr community, particularly in the broader area of Kongorow (see also [17] below). Such interference is not remote in the circumstances – there is a real chance and risk (Little v Western Australia at [73] and [77]), and in my view, given the nature of the activities, it is likely the interference would be substantial.
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 (Cheinmora v Striker Resources at 34–35). 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]).
Are there sites of particular significance on the licence in accordance with the Wanjina-Wunggurr Community’s traditions?
The evidence establishes an area broadly referred to as Kongorow/Congarra, which contains:
· Kongorow Pool, rock art, crocodile dreaming, barramundi dreaming and ceremonial grounds (‘Congarra – Goya Dreaming’; Mr Rex Dann at 4, 11-12, 14, 20; Mr Robin Dann at 5-6, 8-10, 15). There is also said to be an initiation site/law ground near the pool (Mr Robin Dann at 5-6; Mr Rex Dann at 4 and 17);
The evidence also refers to the Goanna dreaming ‘on the other side of the River from Kongorow’ (Mr Rex Dann at 18; and another dreaming story (Mr Rex Dann at 18)].
Goanna dreaming
There is insufficient evidence to find the goanna dreaming is a site of particular significance for the purposes of s 237(b). While the location of the goanna dreaming is known (‘on the other side of the River from Kongorow’), the significance is not explained.
Kongorow/Congarra area
The State accepts that Kongorow Pool and the rock art near Kongorow Pool are sites of particular significance. I am satisfied that the broader area around the pool, known as Kongorow/Congarra, is an area of particular significance to the Wanjina-Wunggurr Community. As outlined in Silver v Northern Territory (at [91]), the area is known and able to be located, and the nature of its significance is explained by the deponent’s evidence of:
· the goya (crocodile) dreaming associated with the pool, depicted in the rock art and in the ‘dreaming tracks connected to that story all through the Tenement Area’ (‘Congarra – Goya Dreaming’; Mr Rex Dann at 12; Mr Robin Dann at 15);
· recent spiritual manifestations relating to birth (Mr Rex Dann at 16);
· the barramundi dreaming associated with the pool and the ‘dreaming tracks connected to that story all through the Tenement Area’ (Mr Rex Dann at 12);
· it being the ‘main place’ for rock art in the area (Mr Rex Dann at 14; Mr Robin Dann at 5);
· historic use for gatherings and ceremonies which they still ‘look after’ and have responsibility for (‘Congarra – Goya Dreaming’; Mr Rex Dann at 17; Mr Robin Dann at 6); and
· current use for initiation ceremonies near the area (Mr Rex Dann at 4; Mr Robin Dann at 5).
Is the grant of the licence likely to interfere with Kongorow/Congarra?
I note Elderberry state exploration ‘in areas of continuous water are impractical for exploration. As a result, it is highly likely no exploration will occur in/near Kongorow Pool’. However, Elderberry’s statement concerns only the area of permanent water that is Kongorow Pool, and not the whole area that is Kongorow/Congarra (‘Congarra – Goya Dreaming’; Mr Rex Dann at 4, 11-12, 14, 20; Mr Robin Dann at 5-6, 8-10, 15).
The interference with Kongorow/Congarra, in accordance with the Wanjina-Wunggurr community traditions, is explained. Mr Robin Dann explains the cultural protocol in relation to this area, and explains the spiritual and physical repercussions for any failure to adhere to this protocol (Mr Robin Dann at 9-10). Mr Rex Dann’s evidence corroborates this (Mr Rex Dann at 21-22). As McKerracher J outlined (at [75]-[76]) in FMG v Yindjibarndi:
….mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference…That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions.
Elderberry state they offered a modified version of a Regional Standard Heritage Agreement (RSHA) to Wanjina-Wunggurr, and the State intends to impose a condition requiring Elderberry to enter into an RSHA if Wanjina-Wunggurr request it within 90 days of grant. However, an RSHA would only require consultation with Wanjina-Wunggurr when higher impact physical interference is contemplated. Low impact sampling, walking and surveying would not require consultation. I am satisfied, based on the evidence, that this would be substantial interference with Kongorow/Congarra, according to the Wanjina-Wunggurr traditions. Similarly, the endorsements and other conditions which the State will place on the grant of the licence would not mitigate interference in the context of s 237(b) of the Act.
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 under s 237(c) is unlikely.
Determination
The grant of exploration licence E04/2485 to Elderberry Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member7 December 2018
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