Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Paul Winston Askins
[2019] NNTTA 5
•8 February 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Paul Winston Askins and Others and Another [2019] NNTTA 5 (8 February 2019)
Application Nos: | WO2017/0721 and WO2017/0722 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Wanjina-Wunggurr (Native Title) Aboriginal Corporation
(native title party)
- and -
Paul Winston Askins and Andrew Drummond & Associates 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: | 8 February 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – 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 151, 237 |
Cases: | Barunga v State of Western Australia [2011] FCA 518 (Barunga v Western Australia) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Gooniyandi Aboriginal Corporation v Inventum Resources Pty Ltd and Another[2018] NNTTA 41 (Gooniyandi v Inventum Resources) Hale on behalf of Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale v Western Australia) Neowarra v Western Australia [2004] FCA 1092 Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Investmet Limited and Others and Another[2018] NNTTA 47 (WNTAC v Investmet) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Alex Romano, Kimberley Land Council |
| Representative of the grantee party: | Paul Askins |
| Representatives of the Government party: | Zoe Bush, State Solicitor’s Office Matthew Smith, 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 E04/2490 (the licence) to Paul Winston Askins and Andrew Drummond & Associates Pty Ltd (Askins and Drummond). 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 (WNTAC), who hold native title in trust over portions of the licence for the Wanjina-Wunggurr community (following Neowarra v Western Australia) and the Dambimangari community (following Barunga v Western Australia). Objections were lodged by WNTAC 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 Askins and Drummond without negotiations with WNTAC. My decision on whether this can occur must rest on the three criteria set out in s 237 of the Act.
The parties’ submissions
WNTAC submitted contentions, the affidavit of Ms Pansy Nulgit and the joint affidavit of Ms Janet Oobagooma and Mr Donny Woolagoodja. The affidavits are annexed with maps of the licence area. Ms Oobagooma and Mr Woolagoodja state they are senior traditional owners for the licence area, and they are some of the senior people who speak for areas of the licence. Ms Nulgit states she is a determined native title holder and a senior person with knowledge of the licence. I accept the deponents’ authority to speak for areas within the licence and surrounds.
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. Askins and Drummond provided a short, unsigned statement. After Askins and Drummond and the State lodged their material, WNTAC submitted contentions in reply.
The inquiry directions required parties to submit a statement of agreed facts. WNTAC and the State requested this direction be vacated and I agreed. The directions also contemplated a listing hearing and hearing and I gave all parties the opportunity to comment on whether these should be held. Askins and Drummond emailed further comments to the Tribunal and the parties, who were given the opportunity to respond. No party sought a listing hearing or hearing. I vacated the directions for hearings because I was satisfied the issues could be determined on the papers (s 151(2)(b)).
Jurisdictional Issues
Geospatial background information
Tribunal staff generated geospatial overlap analyses when the objections were lodged. The analyses show 7.08 percent of the licence is subject to the Wanjina-Wunggurr Wilinggin native title determination No. 1, where non-exclusive native title exists (Neowarra v Western Australia). The remainder of the licence is subject to the Dambimangari native title consent determination (Barunga v Western Australia): non-exclusive native title exists over 0.1 percent, exclusive native title exists over 0.09 percent and native title does not exist over 92.73 percent (also known as the Yampi Defence Area which is held by the Commonwealth Government). I note there is some small difference between the Tribunal’s and the State’s geospatial data (about 1 percent), however nothing in this decision turns on this discrepancy.
Jurisdiction over the proposed excision area
The State proposes, with Askin and Drummond’s consent, an excision that means ‘no ground will be granted on land where Dambimangari has been determined to hold Native Title as part of Exploration Licence 04/2490’ (State’s letter to Registrar of the Tribunal dated 23 August 2018; Contentions at 2). Because of this proposed excision, the State contend the ‘entirety of the Dambimangari determination area that overlaps the proposed tenement is [now only] comprised of the Yampi Defence Area’ (Contentions at 6).
This contention appears to contest the Federal Court’s answer to the same question of law that the Tribunal referred to the Court in Halev Western Australia. Put broadly, the Tribunal asked the Court if the scope of an inquiry into an expedited procedure objection was concerned with a) the area specified in the s 29 notice; b) the area subject to an excision; or c) only the area overlapped by the objector’s claim. The Court’s answer was a).
Despite any implied or express protests parties might raise in Tribunal inquiries, the Tribunal is bound by the Court’s answer. In relation to proposed excisions, the Court’s reasons in Halev Western Australia (at [50]-[54]) are clear and directly applicable to this matter:
What has happened is that, in the course of the Tribunal’s inquiry, the State has indicated that, in light of the objection made, it proposes (with [the grantee’s] consent) to grant the tenement in respect of the proposed area less the “excised” area.
Accordingly there is no presently notified “act” which constitutes a proposal to grant a tenement in respect of an area different from that proposed in the s 29 notice.
All that the State and [the grantee] have done is indicate a course of action they propose to adopt… There is, however, no current excision and no “act” that reflects such an excision; there is only a proposed excision which, on one view, may or may not happen…
Thus the proposed excision is apt to be a misleading factor when it comes to consideration of the current jurisdiction of the Tribunal to determine the objection application before it. The Tribunal is possessed of the power to conduct the inquiry in relation to the objection application currently before it, regardless of the excision proposal.
Jurisdiction over the Yampi Defence Area
As for the area of the licence covered by the Yampi Defence Area, the State contends the Tribunal does not have jurisdiction to consider whether s 237 interference or disturbance is likely in this area because the Court has determined that native title does not exist in the Yampi Defence Area (at 33). The State made the same contention recently in WNTAC v Investmet, which I did not accept (at [10]-[12] and [33]). Again, I note the guidance the Court provided in Hale v Western Australia at [111-113] about the statutory construction of s 237:
The criteria in s 237(a) require the Tribunal to ask whether the grant of the tenement is likely to interfere directly with the carrying on of the community or social activities of the objector in relation to the land or waters concerned – that is to say the land or waters to which the act in question – the grant of the tenement – relates. The same is to be said of the criteria to be regarded in paras (b) and (c)…
Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body.
The Court’s guidance indicates the words ‘the land or waters concerned’ in s 237 are broad. These words do not limit the Tribunal’s jurisdiction to only the area of the future act that is overlapped by an objector’s claim or only the area where it is determined that the objector holds native title. Nor do the words limit the objector’s standing to only the area of the future act where they claim native title or hold native title. Because the Tribunal is required to consider whether interference or disturbance is likely within any of ‘the land or waters concerned’ by the future act, the objector is entitled to argue that interference or disturbance is likely within the same. As the Court noted, it ‘is always going to be an evidentiary question as to whether or not an objector … will be affected in relevant ways by the act’ (Halev Western Australia at [112]).
Section 237(a): is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
To find s 237(a) interference is likely, there must be evidence supporting direct and substantial interference with social or community activities (Yindjibarndi v FMG at [16]). WNTAC state they do not make any contentions in relation to s 237(a) and do not submit evidence on this issue. 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 interfere directly with the carrying on of the native title holder’s community or social activities. Therefore I find disturbance under s 237(a) is unlikely.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
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]). Silver v Northern Territory (at [88]) is also authority for the importance of the focus of an expedited procedure objection inquiry on ‘areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title’.
What areas or sites are identified by the native title holders?
WNTAC contentions outline that ‘the area of Worrorra country known as Larrinyi (which is within the Dambimangari determination area WCD2011/002) is an area of particular significance to the Native Title Party. The evidence provided locates a number of features (which themselves are sites of significance) which are part of Larrinyi country and are contained within the Tenement Area. These sites include Wanjina rock art sites, stone arrangements, ancient camp ground sites, artefact scatters and physical sites linked to Dreaming stories of great significance to the Native Title Party’.
WNTAC contentions go on to outline that ‘the boundary between Larrinyi country and Ngarinyin country which the deponents identify as located at Humbert Creek, is also identified as an area of particular significance to the Native Title Party, this boundary area includes a campsite and spring which members of the Native Title Party have used since time immemorial’.
I have examined the evidence provided, which outlines broad information about areas or sites on or near the licence area. There is also only very broad information about the relationship between the traditions of the native title holders, and the areas and sites outlined. For example:
· Artefacts near the creeks ‘where the old people camped’ (Ms Oobagooma and Mr Woolagoodja at 9; Ms Nulgit at 11);
· A meeting ground near a spring/creek along Humbert Creek at the border of Larrinyi and Ngarinyin Country (Ms Oobagooma and Mr Woolagoodja at 10; Ms Nulgit at 10, 14);
· The sugar bag story running ‘down by the marshes and the creeks that run from that Secure Bay’ (Ms Oobagooma and Mr Woolagoodja at 11);
· Stories that run from Walcott Inlet and through the licence area (Ms Oobagooma and Mr Woolagoodja at 16);
· The area as a whole is sacred because certain animals and items cannot be taken from the area (Ms Oobagooma and Mr Woolagoodja at 8; Ms Nulgit at 16-17).
The areas of artefacts associated with creeks and camping are not marked on mapping provided with the affidavits, so it is difficult to draw conclusions about them with respect to s 237(b). Humbert Creek travels through the licence at least some 10 kilometres. An area called Humbert Creek is recorded on the State’s AHIS as an artefact/scatter site with no gender restrictions. It is not clear whether these areas are the same, or the location of the meeting ground. I note Walcott Inlet is some distance from the licence and it is not clear where the stories run with respect to the licence, or what features are associated with the stories.
The evidence also refers to ‘stone arrangements near the mouth of the creek there from Secure Bay’ which relate to the licence area and ‘Wanjina paintings that run right around Secure Bay’ that cannot be disturbed (Ms Oobagooma and Mr Woolagoodja at 12-15). It is unclear which creek is being referred to: mapping shows there are two creeks within the licence area that run from Secure Bay. The mouths of these creeks are approximately 7 kilometres northwest of the licence. Secure Bay lies between 10 and 30 kilometres to the northwest. There is little information about the connection or nexus between these sites and the licence area.
Is there evidence these areas or sites are of particular significance in accordance with the native title holders’ traditions?
It is clear the native title holders’ traditions restrict the extent to which certain information about sites or areas, and the traditions of the community, can be disclosed (Ms Oobagooma and Mr Woolagoodja at 11, 16). 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])).
I accept the area of the licence and the sites described above are important to the native title holders. However, the licence is some 22,000 hectares in size, and the lack of detail about the areas important to WNTAC means there is insufficient evidence for me to be able to conclude that they are ‘areas or sites of particular significance’ as required by s 237(b). 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’.
As I have concluded there are no areas sites of particular significance on this licence, I do not need to examine whether or not these are likely to be interfered with by Askins and Drummond’s exploration activities.
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?
WNTAC state they do not make any contentions in relation to s 237(c). Again, 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 E04/2490 to Paul Winston Askins and Andrew Drummond & Associates Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
8 February 2019
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