Yurriyangem Taam v Baibao Resources Pty Ltd - [2015] NNTTA 47

NATIONAL NATIVE TITLE TRIBUNAL

Yurriyangem Taam v Baibao Resources Pty Ltd and Another [2015] NNTTA 47 (14 October 2015)

Application No: WO2014/0589

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Peggy Patrick & Others on behalf of Yurriyangem Taam (WC2010/013)
(native title party)

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The State of Western Australia (Government party)

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Baibao Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  H Shurven, Member
Place:  Perth
Date:  14 October 2015

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure is attracted – expedited procedure applies

Legislation:Native Title Act 1993 (Cth), ss 44H, 237
Aboriginal Heritage Act 1972 (WA), ss 4, 5, 17
Mining Act 1978 (WA), s 66
Mining Regulations 1981 (WA), reg 20

Cases:Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’)
Little and others v Oriole Resources Pty Ltd [2005] FCAFC 243 (‘Little v Oriole Resources’)
Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/ Brockman Iron Pty Ltd, [2010] NNTTA 106 (‘Lockyer v Brockman Iron’)
Robinson v Fielding [2015] WASC 108 (‘Robinson v Fielding’)
Silver and Others v Northern Territory and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representatives of the Ms Angela Booth, Kimberley Land Council
native title party: Ms Julia Smith, Kimberley Land Council

Representatives of the Mr Matthew Pudovskis, State Solicitor’s Office

Government party: Mr Matthew Smith and Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

Grantee party: Mr Adam McKay, Fortuna Mining

REASONS FOR DETERMINATION

This decision must answer the question of whether the State Government of Western Australia can grant exploration licence E80/4857 to Baibao Resources Pty Ltd, without the normal requirement for negotiations with the registered native title claimants for the area, which in this instance is the Yurriyangem Taam native title claim application group. The public notice issued for this licence included a statement that the State considers the expedited procedure applies to the grant of the licence.
Yurriyangem Taam, as a registered native title claim group, have lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to this licence. The Tribunal must determine whether or not the expedited procedure applies.
The licence is located 110 kilometres north west of Halls Creek in the shires of Derby-West Kimberley and Halls Creek, and is approximately 241.8 square kilometres in size. The Yurriyangem Taam claim entirely overlaps the licence.
To answer the question of whether the grant can be made in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry. A decision that the expedited procedure should apply to a grant means Baibao Resources can proceed to explore on the licence without negotiating with the Yurriyangem Taam native title claimants. A decision that the expedited procedure does not apply means Baibao Resources must negotiate in good faith with the Yurriyangem Taam native title claimants prior to the grant. Those negotiations may be done with or without the assistance of the Tribunal.
I provided parties with a copy of a map produced by the Tribunal’s Geospatial Unit to be used in the inquiry. No party objected to its use. The State and Yurriyangem Taam have provided contentions for this inquiry and, in support of their contentions, Yurriyangem Taam provided the affidavit of Lulu Trancollino. Baibao Resources did not lodge any contentions or evidence. According to Ms Trancollino, the licence is part of Kija country and she has rights to speak for the area. She states she is a senior Kija traditional owner and obtained the right to speak for this area through her mother and uncle. I accept Ms Trancollino has authority to speak for the area on behalf of Yurriyangem Taam.
Yurriyangem Taam argue it is likely the grant of the licence will directly interfere with the carrying on of their community or social activities. They argue the grant of the licence is likely to interfere with a number of sites of particular significance. Ms Trancollino’s affidavit also raises concerns about disturbance to water and land. I will address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant of the licence, as required by s 237 of the Native Title Act 1993 (Cth):
a)Will the grant interfere directly with the carrying on of Yurriyangem Taam’s community or social activities?
i.What are the social or community activities and where do they take place?
ii.Are there any other interests that have already interfered with these activities?
iii.What are Baibao’s proposed activities?
iv.Is the grant of the licence likely to substantially interfere directly with community or social activities?
b)Will the grant interfere with areas or sites of particular significance to the Kija or Gooniyandi communities?
i.What areas or sites are identified?
ii.Are any of these areas or sites of particular significance?
c)Will the grant, or the exercise of any rights created by the grant, involve major disturbance to any land or waters?
i.Is there any evidence that the land and waters have any special characteristics?
ii.Will the regulatory regime be sufficient to protect these land and waters?

Will the grant interfere directly with the carrying on of the Yurriyangem Taam’s community or social activities?

In considering this issue, I note the following principles (Smith v Western Australia at [23]-[27]):
·The inquiry into interference with community or social activities is contextual, and I may have regard to other factors that might constrain the community or social activities.
·I must determine whether the licence is likely to be the proximate cause of interference.
·The level of interference with community or social activities must be substantial and not trivial.

i.What are the social or community activities and where do they take place?

According to Ms Trancollino, her children and grandchildren access the licence area regularly by motor vehicle from Halls Creek. I note Halls Creek is approximately 100 kilometres south east of the licence. Ms Trancollino states that she has walked the area with her mother and uncle, however, the track from Elgie Cliffs up through Teronis Gorge is an old and very rough track that takes about five hours to get through. She states it is too rough for her to go there now; however, her son went there before the wet season started last year.
Ms Trancollino says that her children and grandchildren still use the licence area for a range of activities. Ms Trancollino states the area is good for fishing. She notes the part of the Chamberlain River inside the licence is especially good for barramundi and a water hole near ‘Wire Yard’ (a place she identifies on the map attached to her affidavit) is good for catching bream.
Ms Trancollino states they go hunting goanna, turkey and emu, noting that hunting is particularly good near the location of her father’s burial site. She describes this location as a place called Rocky Bar, which she has marked on the map annexed to her affidavit as near the central southern edge of the licence.
Ms Trancollino says that they chop down the palm trees which grow ‘all over this country’ and eat the root. She says there are also a lot of fig trees and Yadi gumtrees all over the licence, the sap of which they eat like a hard boiled lolly. She states that lemon grass grows very well on the licence and native honey, or sugarbag, is also all over the licence. Ms Trancollino states that the trees used to make the coolaman, a hollow log used to carry water, grow ‘over our country here’ and these are special trees.
Based on Ms Trancollino’s evidence, I am satisfied that some community and social activities are conducted by the Yurriyangem Taam over the licence area. However, there is little detail regarding the frequency of these visits, the number of people who travel out there and information that would suggest these activities are particularly tied to or limited to the licence area.
ii.Are there any other interests that have already interfered with these activities?
I must take into account other lawful activities, such as those of pastoralists, which are likely to have already impacted on any community or social activities. The exploration licence is entirely covered by two pastoral leases, one of which is an Indigenous held pastoral lease. The extent of pastoral activities is important to consider in particular because the Native Title Act that specifies a pastoralist’s activities will prevail over any native title rights and interests, although do not extinguish them (s 44H). Therefore, in circumstances where an area is overlapped by a pastoral lease, the Tribunal may draw the conclusion that some interference with a native title party’s community or social activities is likely to have already occurred. However, there are circumstances where this may not be the conclusion drawn, for instance when the pastoral lease is Indigenous held.
In this matter, the two pastoral leases overlap the licence entirely. While there is no specific evidence as to the degree of such interference, I regard it as likely that pastoral activities, at least on the non indigenous lease , have to some extent interfered with the Yurriyangem Taam’s community or social activities in the licence area.
iii.What are Baibao’s proposed activities?
Baibao Resources have not provided any contentions or evidence regarding their proposed activities and so I am entitled to consider they will exercise the full suite of rights which result from the grant of the licence. These include: digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose; and excavating, extracting or removing such land, earth, soil, rock, stone, fluid or mineral bearing substances up to the prescribed amount of 1,000 tonnes (see Mining Act 1978 (WA), s 66; Mining Regulations 1981 (WA), reg 20).
iv.Is the grant of the licence likely to substantially interfere directly with community or social activities?
In answering the above question, I must consider the activities currently being undertaken in the licence area by the Yurriyangem Taam and weigh these against the activities Baibao Resources is likely to undertake if the licence is granted. The evidence of Ms Trancollino shows the area is currently accessed by her family members, who drive from Halls Creek to camp along the rivers, fish, hunt, and search for bush tucker and bush medicine. According to Ms Trancollino’s affidavit, access to the area is limited to times of good weather in the dry season, due to the rough road. I accept there is likely to be an increased probability of intersection with Baibao’s activities which would also be during the dry season. However, what is not clear from the evidence before me is the frequency of visits or the numbers of community members involved. What is also not clear is whether any of these activities are unique or restricted to this area, or if they are able to take place elsewhere on Yurriyangem Taam country. The area of the Yurriyangem Taam claim is 23,182 square kilometres in size and the area of the licence is approximately 241 square kilometres. While I acknowledge that Yurriyangem Taam has provided evidence they carry out specific activities on the licence, such as hunting and fishing, they have provided no evidence to indicate the activities they have talked about could not be carried out in other areas of their native title claim.
The State argues that the evidence presented by Yurriyangem Taam does not indicate the frequency of their activities or the duration of their visits. I agree with this argument. Information as to the frequency and duration of the activities would allow me to assess the likelihood of the activities of Baibao Resources interfering with the ability of the Yurriyangem Taam to carry out their activities. It is information which is within the particular knowledge of the Yurriyangem Taam. Further, the State points out that Teronis George is approximately 110 kilometres from Halls Creek and if it takes five hours to get through the gorge from Elgie Cliffs, as outlined by Ms Trancollino, then it must be a reasonably substantial expedition. I agree that this does not encourage the view that Yurriyangem Taam are accessing the area at a high frequency.
In the circumstances, I must assume in the absence of evidence from the Yurriyangem Taam to demonstrate otherwise, the duration and frequency of the visits of the claimants to the licence area is such that the activities of Baibao Resources are unlikely to directly interfere with the carrying out of those activities on the licence.
I find the grant of the licence is not likely to substantially and directly interfere with the community or social activities of Yurriyangem Taam.

Will the grant interfere with areas or sites of particular significance to the Yurriyangem Taam communities?

In considering this issue, I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at (34)-(35)).
·The Tribunal may take into account activities that are likely to interfere with sites or areas outside the boundaries of the proposed future act or claim area, so long as there is a clear nexus between the activities and the issues being considered under s 237 (see Silver v Northern Territory at [35]).
·To be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91]).
i.What areas or sites are identified?
This criterion of s 237 of the Act requires me to conduct my assessment in two stages. First, I must ascertain if there are any areas or sites of particular (that is, more than ordinary) significance to the Yurriyangem Taam, in accordance with their traditions, within the licence. If I am able to answer this in the affirmative, I am then required to consider whether there is likely to be (in the sense of a real risk of) interference with those areas or sites.
The following sites are identified by Ms Trancollino in her affidavit:
·‘I remember seeing when I was a little girl, my sister riding horses along the old stock route along the Chamberlain River because she was part of the stockman. They would ride along the river through this area. This area and the old stock route is part of our heritage and should be looked after.’
·‘There is a sacred place near Elgie Cliffs, not far from the access track. No one can go there as this is very important to us and needs to be looked after so it is not damaged. People need to stay on the road here otherwise they may damage this special place.’
·‘The area where my father is buried, Rocky Bar, marked with a circle on the attached map is very important to me and my family and no one should go there. I need to protect this special place and I taught my children to also protect this special place.’
·‘Along the track to Teronis Gorge there are some rock paintings which are very special and need to be looked after. I haven’t been along this track for long time because it is too rough for me so I can’t remember where exactly these painting are. I would have to go look for the paintings before company goes there to ensure they companies know about them so they are protected.’
·There is an open valley near Wire Yard. It is very beautiful place and my children love to go there. There is beautiful freshwater over this area. My son went there last year to visit this beautiful part of the country.’
·‘About 20 kilometres before Bedford Downs Station my eldest son has a block where he lives and where we go visit him. This block is called Dolly Hole but in our language we call this place Janterriji.’ Ms Trancollino states that she goes with her children and grandchildren to this area to learn about country and get away from town. She states that her son is buried here so this is a very special place for her and her family. She states this place is ‘not far from the tenement area and we need to look after it and make sure we have a safe and quiet place to learn about country.’
The State has provided results from the Department of Aboriginal Affairs (DAA) Aboriginal sites database for sites and heritage places within the licence. The results show there is one Registered Site within the licence. This site’s name is Bull Hole Yard and is described as artefacts/scatter, modified tree, quarry and it has no file, boundary or gender restrictions recorded. A Registered Site recorded with the DAA means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (WA) (AHA). The AHA protects ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. As recently held in the Supreme Court of Western Australia, s 5 of the AHA:
...applies the Act to ‘any place of importance or significance’ where traditional cultural object [sic] have been left (s 5(a)), ‘any sacred, ritual or ceremonial site which is of importance and special significance’ (s 5(b)), ‘any place’ associated with Aboriginal people which is of historical, anthropological, archaeological or ethnographical interest which should be preserved (s 5(c)), and ‘any place where objects’ are traditionally stored (s 5(d)). It is thus apparent that ‘places’ as referred to in s 5(a), s 5(c) and s 5(d) are, by definition, ‘Aboriginal sites’.

The proscription in s 17 is against the excavation, destruction, damage, concealment or alteration of any ‘Aboriginal site’. That must necessarily include any of the places referred to in s 5 (Robinson v Fielding at [81]-[82]).
It is unclear whether any DAA recorded sites directly match the sites or areas identified in Ms Trancollino’s affidavit. A site of particular significance need not be recorded on the DAA register, however, the register can help to provide additional or supporting information when the affidavit evidence alone is limited or general in nature. There is a DAA registered site named ‘Elgie Cliffs’ (ID 14309), located a few kilometres south of the licence, near to the access track, and described as a mythological, painting site. The Yurriyangem Taam contentions note that, although it is not confirmed by Ms Trancollino, it is possible that this registered site is the rock painting site she describes in her affidavit. It would also seem reasonable to conclude that the ‘Elgie Cliffs sacred site’ described by Ms Trancollino is located in this vicinity as well.

The State’s contentions make no specific mention of DAA sites but do argue that, based on the evidence, it appears likely the ‘rock painting area’, the ‘Elgie Cliffs sacred site’ and ‘Janterriji’ are all located outside of the licence area. As noted in the guiding principles above, the fact of a site being located outside of the licence does not preclude the Tribunal from considering it in the context of s 237(b), but the evidence must demonstrate a clear nexus between the activities of Baibao Resources and the issues being considered.
ii.Are any of these areas or sites of particular significance?
I must decide whether any of the sites or areas identified in the contentions and evidence are of particular significance to the Yurriyangem Taam community in accordance with their traditions. This question is a precondition for inquiring whether the grant of the licence is likely to cause interference with areas or sites of this kind (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]).
The Quick Appraisal supplied by the State lists Bedford Stock Route as one of the services affected by this licence. It is not clear if this is the same stock route referred to by Ms Trancollino but she states that it runs along the Chamberlain River so I am satisfied it is located within the licence. However, there is no mention of the stock route’s link to Yurriyangem Taam traditions, just the statement that is ‘part of our heritage’. As such, I find there is insufficient evidence to conclude that this is a site of particular significance.
The ‘sacred place near Elgie Cliffs’ that Ms Trancollino refers to has stronger evidence to support the claim it is a site of particular significance. Ms Trancollino refers to it as ‘sacred’, a ‘special place’ and ‘very important to us’ which would imply that it is a significant site to the Yurriyangem Taam. However, the evidence also seems to support the conclusion that this site is located outside of the licence. As mentioned above, this does not preclude me from considering it within the context of s237(b), but evidence must also be presented that demonstrates a clear nexus between the activities of Baibao Resource and interference with the site.
In reference to the Rock Paintings Area (which I am satisfied is likely to be in the same vicinity as the Elgie Cliffs sacred place – see [24]), the Yurriyangem Taam contentions acknowledge this site is located outside of the licence. However, they argue there will be a greater risk of interference to this area given its close vicinity to the access track into the licence that Baibao Resources will be using. I do not believe the evidence supports this conclusion. I agree that it is likely Baibao Resources will use the access track referred to by Ms Trancollino but no compelling reasons have been supplied as to why they would be using areas near the access track particularly as these areas do not form part of the exploration licence area. Baibao Resources will now be on notice, if they were not already aware, that a site exists in that vicinity and can take any necessary steps to avoid interference.
The Yurriyangem Taam contentions state that the Rock Paintings Area is likely to be the DAA registered site mentioned at [24]. I agree that this is a possibility given that the registered site is described as a painting site and it is located near the access track to Teronis George. However, the access track is quite long and the description is quite general, so I cannot make a conclusive finding on this point. The mere fact that a site is registered is not sufficient for me to find it is a site of particular significance. Further, if the registered site is the rock paining site Ms Trancollino refers to then it is located outside of the licence and, for the same reasons outlined above, there is no evidence presented that would link the proposed activities of Baibao Resources’ activities with likely disturbance to this area.
I have no doubt the burial site of Ms Trancollino’s father at Rocky Bar would hold great importance to her and her family. I also accept that burial sites are often closely linked to the traditions of native title groups. In this matter, however, the evidence says little about the traditions of the Yurriyangem Taam and the importance of this site in relation to those traditions.
Similarly, the evidence put forward in relation to the Open Valley near Wire Yard makes no reference to its particular significance or its link to Yurriyangem Taam traditions, therefore I cannot find it is a site of particular significance.
No evidence has been provided linking the area identified as Dolly Hole to the traditions of Yurriyangem Taam. It would appear that this area is located outside of the licence and, although this is not entirely clear from the evidence, it is land held in some respect by Ms Trancollino’s eldest son and I see no reason why disturbance to this area or restrictions on her access to the area would occur as a result of Baibao Resource’s activities. I find this is not a site of particular significance.
I am not satisfied there are sites of particular significance in this matter. As such, the activities of Baibao Resources will not interfere with any sites of particular significance to the Yurriyangem Taam.

Will the grant, or the exercise of any rights created by the grant, involve major disturbance to any land or waters concerned?

In considering this issue, I note the following principles:
·The Tribunal is entitled to have regard to the context of the proposed grant, including the history of mining and exploration in the area, the characteristics of the land and waters concerned and any relevant regulatory regime (see Little v Oriole Resources at [39]).
·The assessment of whether the future act is likely to involve, or create rights whose exercise are likely to involve, major disturbance to the land and waters must be evaluated by reference to what is likely to be done, rather than what could be done (see Little v Oriole Resources at [51]).
·I must determine whether there is a real chance or risk of major disturbance to land and waters. The term ‘major disturbance’ is to be given its ordinary English meaning as understood by the whole Australian community, including the Aboriginal community (Little v Oriole Resources at [52]-[54]).
i.Is there any evidence that the land and waters have any special characteristics?
Ms Trancollino expresses a desire to protect her country and voices concerns that Baibao Resources’ exploration activities might damage water sources, bush tucker and special trees on the licence. She states that the licence is ‘right in the middle of our watershed for the major rivers in the Kimberley. The top of this area is the Chamberlain River which flows down to Wyndham, the Ord River starts at Elgie Cliffs and the bottom river connect to the Fitzroy River. These very important water systems for us and we need to protect our water. Our animals and bush foods also rely on this water system’.
ii.Will the regulatory regime be sufficient to protect these land and waters?
The State proposes to include a series of standard endorsements and conditions on the grant of the licence. Some of these relate to the protection of water and native vegetation, waste disposal and rehabilitation. A number of the endorsements relate specifically to the protection of waterways, aquifers and ground water areas within the licence. For example, Baibao Resources are prohibited from abstracting groundwater or surface water without obtaining a licence from the Department of Water and advice must be sought from the Department of Water if any exploration is proposed within close proximity to waterways within the licence. I find the regulatory regime sufficient to address the concerns of Yurriyangem Taam and there is no evidence before me to suggest Baibao Resources will not abide by this regulatory regime.
Because there is no evidence to indicate otherwise, I must conclude the regulatory regime is sufficient. The grant of the licence, or the exercise of any rights created by the grant, is not likely to involve major disturbance to the land or waters concerned.

Conclusion

The community or social activities carried on within the licence area have been described, and I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. Insufficient evidence has been provided to support a finding that sites or areas of particular significance exist on the licence, therefore, I conclude it is unlikely any sites or areas will be interfered with if the licence is granted. There is no evidence the grant of the licence, or the exercise of any rights created by the grant, is likely to involve major disturbance to the land and waters concerned.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E80/4857 to Baibao Resources Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
14 October 2015