Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Alexander Macintyre Butchart
[2022] NNTTA 15
•28 February 2022
NATIONAL NATIVE TITLE TRIBUNAL
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v Alexander Macintyre Butchart and Another [2022] NNTTA 15 (28 February 2022)
Application No: | WO2021/0684 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC (WCD2005/002)
(native title party)
- and -
Alexander Macintyre Butchart
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven | |
Place: | Melbourne | |
Date: | 28 February 2022 | |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – act is likely to interfere with sites or areas of particular significance – anthropological evidence - expedited procedure does not apply | |
Legislation: |
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Cases: | Cheinmora v Striker Resources NL [1996] FCA 1147; (1996) ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG Pilbara v Yindjibarndi Aboriginal Corporation) Jurruru #1 (Part B) claim & Another v Eastern Goldfields Mining Company Pty Ltd & Another [2022] NNTTA 10 (Jurruru #1 v Eastern Goldfields) Merle Forrest & Ors on behalf of Central East Goldfields People v Aruma Exploration Pty Ltd v State of Western Australia [2012] NNTTA 59 (Forrest v Aruma Exploration)
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| Representative of the native title party: | Frances Bryony Nicholson, Ngaanyatjarra Council (Aboriginal Corporation) |
| Representative of the grantee party: | Tony Ly, Tenement Administration Services Pty Ltd |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety Anthony Civiello, State Solicitors Office |
REASONS FOR DETERMINATION
Background
This is a decision about whether the expedited procedure applies to the proposed grant of exploration licence E69/3719 to Alexander Macintyre Butchart (Mr Butchart). The proposed exploration licence is approximately three square kilometres in size and approximately 124 kilometres north-easterly of Warburton in Western Australia.
By including an expedited procedure statement in their notice of the proposed grant under s 29 of the Native Title Act 1993 (Cth) (the Act), the State of Western Australia (the State) asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Act. That is, the State asserts the grant is not likely to, in summary:
·interfere directly with community or social activities carried on by members of native title claims or determined areas (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The proposed licence falls within the Ngaanyatjarra Lands (Part A) determination area, which came into effect on 29 June 2005 (see Stanley Mervyn v Western Australia). The Ngaanyatjarra Council (Aboriginal Corporation), on behalf of the Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC (Yarnangu Ngaanyatjarraku Parna) lodged an objection with the National Native Title Tribunal against the inclusion of the expedited procedure statement. The objection noted, among other things, that on preliminary examination, the area of the proposed licence held a dreaming track (Tjukurrpa), and explained why such tracks can be of significance to a native title party. Yarnangu Ngaanyatjarraku Parna noted they intended to adduce relevant evidence in the course of this inquiry, which they did through the affidavit of Mr Alwyn Bates, a traditional owner for the area of the licence, and Ms Frances Bryony Nicholson, an anthropologist for the Ngaanyatjarra Council (Aboriginal Corporation) (further detail at [11] below and throughout my consideration of s 237(b)).
Consideration and Conclusions regarding Section 237(a) and 237(c)
The information and evidence provided in relation to s 237(a) was very broad, and referred generally to going to the area of the licence to conduct social and community activities, including hunting. However, no detail was provided in relation to those activities. The State argue in relation to s 237(a) that there is insufficient information on which to draw a conclusion that community and social activities are conducted on the licence, or in such a way, that interference for the purposes of s 237(a) would occur (at 23, 26-28). I agree with that argument.
The leading case on the proper interpretation of s 237(a) is Smith v Western Australia, where French J made these observations (at [26]):
The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section.
If the evidence about the alleged activities is general and unspecific, then this is insufficient to find that the grant will create such direct or substantial interference (Freddie v Western Australia at [13]). The evidence in this matter regarding social and community activities is general and unspecific.
Yarnangu Ngaanyatjarraku Parna did not maintain their objection on the basis of s 237(c) of the Act.
Based on a common sense view, I conclude there is unlikely to be interference with social and community activities of the native title party, or major disturbance with the relevant lands or waters. The focus of this inquiry is on s 237(b).
Native title rights and interests
Yarnangu Ngaanyatjarraku Parna holds exclusive native title on trust in the area of the proposed licence for the common law native title holders, the Ngaanyatjarra people, who are identified in the Federal Court native title determination Stanley Mervyn v Western Australia. The native title determined area of Ngaanyatjarra Lands (Part A) overlaps all of the proposed licence, and the underlying tenure is unallocated crown land. Decisions I make in relation to the limbs of s 237, and the application of the expedited procedure, must be done so in the context of the native title rights and interests which relate to the relevant licence. The native title rights and interests in relation to Ngaanyatjarra Lands (Part A) (WCD2005/002) are:
3.Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests held in relation to Reserve 24980 (Warburton Range Stock Route) [being an area where there has been partial extinguishment of native title] are:
(a)the right to enter and remain;
(b)the right to take fauna and flora;
(c)the right to take water for personal, domestic, or non-commercial communal purposes;
(d)the right to take other natural resources such as ochre, stones, soils, wood and resin; and
(e)the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the native title holders.
4.Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in each other part of the Determination Area [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] are:
(a)except in relation to flowing and subterranean water - the right of possession, occupation, use and enjoyment to the exclusion of all others; and
(b)the right to take flowing and subterranean water for personal, domestic, or non-commercial communal purposes.
5.The native title rights and interests described in paragraphs 3 and 4(b) do not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others.
In the context of these native title rights and interests, and the evidence and materials provided by parties in this inquiry, I must decide whether the expedited procedure applies – if it does, negotiation between the parties under s 31 is not required. The State will be able to grant the licence and Mr Butchart can proceed with his exploration activities, without negotiating with the determined native title holders. A decision that the expedited procedure does not apply means all parties must negotiate in good faith with a view to reaching agreement with the native title holders about the grant of the licence (see s 31(1)(b)). My conclusion in relation to s 237(b) is that there is a site of particular significance to the native title holders, and that the exploration activities to be conducted by Mr Butchart are likely to interfere with that site. On that basis, I find the expedited procedure should not apply.
The inquiry process
I was appointed to determine this inquiry by the Tribunal President, I made that determination on the papers, no party took issue with that approach, and I provide reasons for my conclusions below.
Submissions from Yarnangu Ngaanyatjarraku Parna
Yarnangu Ngaanyatjarraku Parna submitted contentions and evidence to the Tribunal in this matter, including the affidavit of traditional owner Mr Alwyn Bates, with a map annexed to the affidavit. Mr Bates indicates he was born near the proposed licence and that is confirmed by mapping provided, and he speaks for the area of the licence. Yarnangu Ngaanyatjarraku Parna also submitted the affidavit of Ms Frances Bryony Nicolson, who is the senior anthropologist for the Ngaanyatjarra Council (Aboriginal Corporation) and has been an anthropologist on staff since 2010. She holds a Bachelor of Arts, Anthropology (Honours) from the University of Sydney. She has worked in remote communities with Western Desert Aboriginal people since 2006, and currently lives in a community in the Ngaanyatjarra lands. Ms Nicholson provided mapping annexed to her affidavit, and outlines her experience and understanding of the ways in which the Ngaanyatjarra people are associated with and maintain a connection to country, and their interactions with the exploration industry.
Yarnangu Ngaanyatjarraku Parna requested non-disclosure directions be placed over parts of the evidence which were personally and culturally sensitive. Parties took no issue with me granting those directions, and I reference the sensitive and protected information only to the extent necessary so that my reasoning is clear.
Submissions from Mr Butchart
Mr Butchart provided contentions through his representative. The contentions are brief, and may be summarised as follows:
i)‘The Grantee Party contends that the conclusion of a mutually agreeable cultural heritage agreement will adequately protect such activities [relevant to s 237 of the Act]’ (at 2, and also at 3)
ii)That insufficient evidence has been provided to show the dreaming is associated with the proposed licence (at 5)
iii)Sites would be afforded protection under the Aboriginal Heritage Act 1972 (WA) (AHA) (at 3, and also at 5)
iv)Rights afforded to Mr Butchart under s 66 of the Mining Act1978 (WA) (Mining Act) ‘which restrict activities to those which would be considered low impact, and those activities will be carried out in accordance with the conditions imposed by the State upon grant’ (at 6, emphasis in original).
v)‘The Grantee Party notes that it has already been in regular contact with Alwyn Bates and submits that the Agreement supplied by the Objectors to the Grantee Party would protect any potential areas, sites or sites of particular significance’ (at 5, and also at 6),
vi)‘[N]one of the activities proposed involve any disturbance beyond sampling and planning of drill hole collar locations (any actual drilling to occur only upon completion of a Heritage survey and approval of POW [program of works]’) (at 6).
Brief information about Mr Butchart’s proposed work program was provided with the State’s materials. Mr Butchart provided further details of the proposed work program in his contentions (at 6):
·Desk top evaluation of magnetite occurrences with similarities to [the area noted to be of particular significance to the native title party].
·Gridding of tenement.
·Mapping of outcrop geometry.
·Geochemical sampling over outcrop.
·Infill Ground magnetics and interpretation.
·Reinterpretation of magnetic results and mapping.
·Plan of Drill hole collar locations subject to Heritage survey approval and POW.
Submissions from the State
The State provided their contentions, together with mapping and information about underlying and surrounding tenure, and the proposed endorsements and conditions they intend to impose on the licence on grant.
Is the grant likely to interfere with sites or areas of particular significance to the Ngaanyatjarra people (s 237(b))?
In relation to s 237(b) of the Act, 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 (see 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]).
Mr Bates names and provides detail about a dreaming track which runs through the proposed licence, and a site which is on the licence connected to that dreaming (at 7-13). Mapping provided by Mr Bates also confirms the location of the site. He provides a great deal of commentary about why the site is significant in accordance with the native title party traditions, including that ‘it is a big story’ (at 10). Ms Bryony Nicholson provides additional information and support for Mr Bates evidence – for example, she explains the taboo nature of the story, that the site is related to the dreaming story, and is highly sensitive according to the native title party traditions (at 9-14).
The State accepts the site may be a site of particular significance (at 39), but does not concede it is likely to suffer from interference by the explorers activities.
I accept the site is on the licence, and that it is connected to the dreaming – I do not provide further detail due to the highly sensitive nature of the dreaming story and the site. I am satisfied the site and the connection to this dreaming have been sufficiently explained and described. While the pathway of the track is not specifically outlined, I am satisfied on the evidence that has been provided that it does travel through the proposed licence, and that the site itself is located on the licence and is an area of particular significance for the purposes of s 237(b) in accordance with the Ngaanyatjarra people’s traditions. I then must turn my mind to whether it is likely the site will be interfered with.
Is it likely a site or area of particular significance will be interfered with by the exploration activities of Mr Butchart?
I have assumed Mr Butchart will, throughout the period of the grant of the proposed licence, undertake the full scope of activity to which he is entitled as set out in s 66 of the Mining Act:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a)to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d)to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 (WA) outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
While Mr Butchart states his exploration activities will include geochemical sampling initially, which he describes as being low impact, he does intend to conduct drilling at some time. In addition, he does not indicate his activities will necessarily be limited in any way with reference to the site described and located by Mr Bates. My understanding of geochemical sampling is that such is usually conducted using hand held tools, and does involve rock chipping and taking of materials from areas of interest – no information has been provided about how these activities will be conducted or how the explorer will access the geochemical sampling areas. It is after this stage, when drilling is contemplated, that Mr Butchart says heritage surveys will be conducted (presumably with Yarnangu Ngaanyatjarraku Parna).
What an explorer considers ‘low impact’ may not necessarily be what a native title party considers to be low impact, or be an activity which will not cause interference to a site which is of particular significance according to native title party traditions. Mr Bates has made it clear that the site he has described is of high importance, associated with a big story, and that Mr Bates is responsible for the right people going to the area and showing them how to look after the site (at 12-13). Mr Butchart acknowledges he has been in discussion with Mr Bates about the grant of the proposed licence, and that the Yarnangu Ngaanyatjarraku Parna preferred agreement would ‘protect any potential areas, sites or sites of particular significance’ (as outlined at [13] above). It appears that parties could not reach agreement on terms relating to costs, and this is why the objection to the expedited procedure has not been resolved by agreement, and the matter is in this inquiry.
Mr Butchart also argues that the States regulatory regime, including endorsements and conditions to be imposed, and the AHA, will protect the site, and that drilling will not occur until after heritage surveys have been conducted. The State asserts similar arguments (11, 12, 16 and 17). In relation to the protection afforded by the AHA, I note the concerns raised by the native title reply (at 14-15) regarding that regime, and I adopt my comments and reasoning from Jurruru #1 v Eastern Goldfields (at [41]). In relation to the proposed endorsements and conditions to be imposed on the grant, none require consultation with Yarnangu Ngaanyatjarraku Parna in relation to the named site of particular significance, or in relation to exploration activities by Mr Butchart generally on the proposed licence.
The State argue there have been previous exploration licences granted over the area which includes this proposed licence, implying that this negates any further interference under s 237(b) (at 40). However, as has been noted in other Tribunal decisions, previous grants of tenure does not mean a site or area cannot be subject to interference for the purposes of s 237(b) (for example, Forrest v Aruma Exploration at [64]; Western Desert v Teck at [123]). In addition, the Yarnangu Ngaanyatjarraku Parna reply (at 6) notes that of the two tenements which have been granted over the area, one was prior to the Act, and the other was subject to a negotiated agreement between the relevant explorer and Yarnangu Ngaanyatjarraku Parna.
Ms Nicholson explains (at 16) that:
Accessing this country is to enter and impact upon a landscape that is an expression of Ngaanyatjarra law in relation to this taboo kinship relationship. To access this country without knowledge of the story and the landscape or without permission for those responsible for protecting this area, disturbs and disrespects the Tjukurrpa.
Ms Nicholson goes on to outline (at 17) that:
The grant of tenement E69/ 3719 under the expedited procedure, would permit unauthorised access and low-impact exploration activities, including driving around on and taking soil samples from country that expresses the most sensitive aspect of this Tjukurrpa
Conclusion
I am satisfied based on the evidence of Mr Bates and Ms Nicholson that merely entering onto the area of the site of particular significance would cause interference for the purposes of s 237(b), given the sensitivity of the area. As McKerracher J outlined in FMG Pilbara v Yindjibarndi Aboriginal Corporation (at [76]):
There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that 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.
Determination
The determination of the Tribunal is that the grant of licence E69/3719 to Alexander Macintyre Butchart is not an act attracting the expedited procedure.
H Shurven
Member
28 February 2022
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