Keith Narrier and Others on behalf of Tjiwarl v Dubois Group Pty Ltd and Another
[2015] NNTTA 27
•17 July 2015
NATIONAL NATIVE TITLE TRIBUNAL
Keith Narrier and Others on behalf of Tjiwarl v Dubois Group Pty Ltd and Another [2015] NNTTA 27 (17 July 2015)
Application Nos: WO2014/0581, WO2014/0582
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Keith Narrier and Others on behalf of Tjiwarl (WC2011/007) (native title party)
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The State of Western Australia (Government party)
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Dubois Group Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms H Shurven, Member
Place: Perth
Date: 17 July 2015
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites or areas of particular significance – expedited procedure attracted – expedited procedure not attracted
Legislation:Native Title Act 1993 (Cth) ss 237
Aboriginal Heritage Act 1972 (WA) ss 5, 17
Rights in Water and Irrigation Act 1914 (WA)
Mining Act 1978 (WA) s 66
Cases:Amangu People/Black Peak Holdings Pty Ltd/State of Western Australia [2013] NNTTA 173 (‘Amangu v Black Peak Holdings Pty Ltd’)
Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Jamie Dean Duffield, Belinda Anne Forrester, Gary John Humphrey [2010] NNTTA 89 (‘Wurrunmurra v Duffield’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG v Yindjibarndi’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (‘Tullock v Allarrow’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/TE & CG McMahon Nominees Pty Ltd [2011] NNTTA 119 (‘Tullock v TE & CG McMahon Nominees’)
Little v Oriole Resources Pty Ltd (2005) 146 FLR 576 (‘Little v Oriole Resources’)
Murray on behalf of the Yilka Native Title Claimants v Goldphyre WA Pty Ltd [2013] NNTTA 101 (‘Yilka v Goldphyre’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNNTA 18 (‘Silver v Northern Territory’)
Tullock v Western Australia (2011) 257 FLR 320 [2011] NNTTA 22 (‘Tullock v Western Australia’)
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 ('Western Desert v Teck')
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Bogada Gold Pty Ltd [2013] NNTTA 82 (‘Wiluna v Bogada Gold’)
WF (deceased) & Ors on behalf of Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2013] NNTTA 83 (‘Wiluna v Kingx’)
Wilma Freddie v Adelaide Prospecting [2003] NNTTA 120 (‘Wilma Freddie v Adelaide Prospecting’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 ('Yindjibarndi v FMG')
Representatives of the Mr Mike Allbrook, Central Desert Native Title Services Ltd
native title party: Ms Tessa Herrmann, Central Desert Native Title Services Ltd
Representatives of the Mr Luke Villiers, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines & Petroleum
Representative of the Mr Glenn Wright, TAS Legal
grantee party:
REASONS FOR DETERMINATION
This decision must answer the question of whether two proposed exploration licences, E36/832 and E57/962, can be granted by the State Government of Western Australia to Dubois Group Pty Ltd, without Dubois negotiating with the Tjiwarl native title claim group. The State has asserted the grants can be made without such negotiations, as they have included an expedited procedure clause in the public advertisement of the licences. That is, they say the grant of the licences can be made expeditiously, without negotiation between the Tjiwarl community and Dubois. The Tjiwarl native title claim wholly overlaps both licences, and members of the Tjiwarl community lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to these grants.
The licences are both located just over 60 kilometres east of Sandstone in Western Australia. Licence E36/832 is approximately 6 square kilometres in size and E57/962 is approximately 48 square kilometres.
To answer the question of whether the licences can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter. No party requested a hearing, and I am satisfied the matter can be determined on the basis of the written materials provided by all parties. A map was produced by the Tribunal’s Geospatial Unit for use in this inquiry, and provided to parties.
A decision that the expedited procedure should apply to the grants means Dubois can proceed to explore on the licences without negotiating with Tjiwarl. A decision that the expedited procedure does not apply means Dubois must negotiate in good faith with Tjiwarl prior to the grant. Those negotiations may be done with or without the assistance of the Tribunal.
I will address the following issues in this decision to determine whether or not the expedited procedure should apply to the grants, as required by s 237 of the Native Title Act:
a)Will the grants interfere directly with the carrying on of the community or social activities of the Tjiwarl native title claim group?
i.What are Tjiwarl’s community or social activities?
ii.Are there already any activities which interfere?
iii.What are Dubois’s proposed activities?
iv.Will the activities of Dubois be likely to interfere with Tjiwarl’s community or social activities?
b)Will the grants interfere with areas or sites of particular significance to the Tjiwarl native title claim group?
i.Are there any sites of particular significance?
ii.What is the underlying tenure of the licences and has this already interfered with any sites of particular significance?
iii.What are Dubois’ proposed activities in relation to those sites?
iv.Will the activities of Dubois be likely to interfere with the sites of particular significance?
c)Will the grants be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned?
The submissions of Tjiwarl include a statement of contentions, the affidavit of Mr Kado Muir and the affidavit of Ms Jennifer Narrier. Annexed to both affidavits is a map produced by Tjiwarl’s representative, showing the licences and surrounding area. Annexed to Ms Narrier’s affidavit is a picture of Ms Narrier with her painting of the Booylgoo Range, which is both a geographical site, and a site recorded with the Department of Aboriginal Affairs as an Other Heritage Place overlapping part of both licences. Sites recorded with the DAA can be characterised in two main ways. Firstly, as a Registered Site, which means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (‘AHA’). Secondly, as an Other Heritage Place, which includes sites or places which have been assessed as not meeting s 5, and places where information has been received in relation to the place but an assessment has not been completed to determine if it meets s 5. The State advises the two Other Heritage Places in this inquiry, Booylgoo Range and Mata-Yams, have not yet been assessed. There is no mention of Mata-Yams in the Tjiwarl evidence, and no Registered Sites on the licences.
Dubois contentions question Mr Muir’s connection to the area of the licences and his authority to speak for the area (at 11-14). Mr Muir states (at 1) he is an initiated man - a wati - and has cultural authority to speak for the area of the licences. Mr Muir also notes he is a Tjarurru man, has family ties to the Martu people in the north and in other parts of the desert, and indicates (at 2-4) he was shown a copy of the map of the licences. Who has authority to speak for an area is a complex matter, and would in itself take volumes to explain. I accept Mr Muir’s sworn evidence and his status as being such that he has authority to speak on behalf of Tjiwarl for the country which is subject to these licences, which has also been endorsed by the contentions of Tjiwarl, prepared by their legal representative.
Dubois contend that Mr Muir ‘appears to be qualified as an anthropologist’ (at 15) and refer to an article written by a Kado Muir in 1999, but there is nothing in that article, nor Mr Muir’s affidavit in this inquiry, which indicates his qualifications as an anthropologist or that he is putting himself forward in a capacity as an anthropologist. Dubois contend it is unknown as to whether Mr Muir resides on or near the licences, and I agree with the Tjiwarl contentions that the important question is whether he conducts social or community activities in the area, or accesses the area to protect sites of particular significance. Mr Muir swears he does this ‘often’, and I accept that evidence.
Dubois do not dispute Ms Narrier’s ability to speak for this country. Ms Narrier states (at 1) she is a traditional owner for the area of the licences and (at 3) an elder for the area of country. Ms Narrier (at 4) also states she was shown a copy of the map of the licences. I accept Ms Narrier has authority to speak on behalf of Tjiwarl for the country which is subject to the licences. Dubois do state that Ms Narrier’s evidence is ‘lacking in key respects’, and these issues are dealt with as they arise throughout this decision.
The non exclusive rights and interests claimed by Tjiwarl and which are currently on the Register of Native Title Claims may be summarised as the right to:
(a) access, to remain in and to use the claim area for any purpose;
(b) access resources and to take for any purpose resources in the claim areas for the purposes allowed under traditional laws and customs of the Western Desert Cultural Block and does not confer any rights to control the conduct of others;
(c) engage in spiritual and cultural activities on the claim area;
(d) maintain and protect places and objects of significance in or on the claim area.
Will the grants interfere directly with the carrying on of the community or social activities of the Tjiwarl native title claim group?
For the purpose of this inquiry, I note the term ‘community or social activities’ is concerned with physical activities. The Tribunal may consider the non-physical or spiritual aspects of the native title party’s community or social activities, but only to the extent those aspects are rooted in physical activities (see Silver v Northern Territory at [50]-[62]; Tullock v Western Australia at [65]-[77]). Physical activities of a community or social nature are not necessarily limited to a localised community, but can be a small group or collective experience. President Webb confirmed this in Yindjibarndi v FMG (at [16]). She also confirmed previous Tribunal and Federal Court decisions that such interference must be substantial and not trivial, and the evidence will be insufficient if it is of a general or unspecified nature.
What are Tjiwarl’s community or social activities?
Material provided by the State does not indicate any Aboriginal communities within, or in the vicinity of, the licence areas. This is confirmed by the map produced by the Tribunal’s Geospatial Unit. However, this does not necessarily mean there are no Aboriginal communities which access or use the licences for the purpose of their community or social activities. I accept Mr Muir and Ms Narrier have led evidence about their own activities on the licences, as well as making it clear that members of the Tjiwarl community also conduct such activities. As such, I am satisfied there is a community of Tjiwarl people who regularly access the proposed licences.
Tjiwarl submit the ‘community of native title claimants carry on community and social activities in accordance with their traditional law and custom...’ in the area of the licences in the following ways:
·The Tjiwarl community, including rangers, regularly visit the licences to look after country, camp and undertake traditional activities (at 5.13(a); Ms Narrier affidavit at 12 and 16; Mr Muir affidavit at 6-7);
·The community transfers knowledge about looking after country from one generation to the next (at 5.13(b); Ms Narrier affidavit at 6; Mr Muir affidavit at 7); and
·The Tjiwarl community take watja (bush potato) from the licences. The watja is considered by Tjiwarl to be rare and valuable (at 5.13(c); Ms Narrier affidavit at 10, 14 and 21; Mr Muir affidavit at 9 and 14).
Tjiwarl’s contentions in reply counter a number of arguments raised by Dubois in relation to the Tjiwarl evidence. Tjiwarl oppose the contention that evidence has not been led in relation to E36/832 by pointing to the discussion by Mr Muir and Ms Narrier of the Tjukurrpa story which is part of the Booylgoo Range located in both licences (at 2.9). I accept that evidence has been led in relation to both licences by Tjiwarl. The nature and frequency of these community or social activities which are conducted by Tjiwarl are more problematic.
The State assert the evidence is lacking in relation to the ‘nature, frequency and extent’ (at 50), of camping, a ranger program and gathering watja. The State notes Mr Muir states the western part of E57/962 is the only place you can find watja (at 9 of his affidavit), and so contend this evidence does not apply at all to the other licence. I agree the evidence suggests the watja collection is focussed on the west side of the Booylgoo Range on E57/962.
I agree with Dubois’s contention that obligations in respect of land (for example, to look after country) do not necessarily translate to being a social or community activity of the group (citing [12] of Wilma Freddie v Adelaide Prospecting). The ranger program and transfer of cultural activity is also outlined in only the broadest way, as well as camping activities. The collection of the watja is the only social and community activity where detailed evidence is led.
Are there already any activities which interfere?
The State and Dubois contend that interference with community or social activities may have already occurred on the licences due to current and previous pastoral, mining and exploration activity. The Tjiwarl reply suggests the activities which can be done on pastoral leases are different to those which Dubois can do under their proposed grants. The Tjiwarl suggest I adopt my findings in Yilka v Goldphyre (at [73]), and I do adopt that finding as there is no evidence in this matter that community or social activities have been affected by current or previous pastoral or exploration activities. The Tjiwarl also indicate in relation to mining and exploration activities interfering with community or social activities, no detail has been provided by the State or Dubois about what occurred under the previous or current tenure.
Dubois state that such has been provided, particularly in reports attached to an affidavit provided by Ms Jennifer Johnson, Policy & Planning Manager of Tenement Administration Services Pty Ltd, who act as an agent for Dubois. One report details exploration activities done in 1996 over two tenements, one of which would have overlapped each of the licences in this inquiry by approximately 100 per cent. That tenement was also 168 square kilometres in size, so much larger than the licences in this matter, and it is not clear from the report whereabouts on the tenement the activities were undertaken. That is, they could have occurred on the portion which overlapped with the licences in this inquiry, or not. The report also outlines a history of exploration in the Booylgoo Range from 1966 to 1996. However, it is limited in the assistance it can provide on the activities which were undertaken on the two licences in this inquiry. For example, not all the tenements referred to in the report were given a reference identity or location as to where they sat in the Booylgoo Range, and so it is not clear whether they overlap the licences in this inquiry. Others, which were identified (for example, E36/46 and E57/118) noted that rock chip sampling, among other activities, had occurred, however, these tenements do not appear in the State documentation as ever having overlapped the licences in this inquiry. In addition, the report shows that for any previous tenement between 1966-1996, mostly mapping, and aerial and other surveying, was performed.
Another report details work done on two tenements which both overlapped E57/962 at approximately 30 and 60 per cent respectively. These two tenements are said in the report to cover approximately 205 square kilometres, so again are much larger than E57/962 and it is difficult to say precisely whether the activities done under the two tenements were on the overlap portion of E57/962.
Tjiwarl point to the fact that I cannot presume other grantee parties have carried out the same activities. I agree - in this matter there is no evidence that community or social activities have been, or have likely been disturbed either at all, or to such an extent that any further exploration would not create further disturbance.
It does not appear the underlying tenure of the licences, or any other activity has directly interfered with the community or social activities of Tjiwarl on these two licences.
What are Dubois’s proposed activities?
Dubois Managing Director, Mr Alan Boys, provided an affidavit which outlines Dubois has never been subject to proceedings under the State's regulatory regime and is aware of the Guidelines for Consultation with Indigenous People by Mineral Explorers. He provides an attachment to his affidavit which outlines the proposed method of exploration and the exploration program. He states (at 10) the activities will only use existing roads or tracks with one or two vehicles in limited areas of interest, and with no disturbance of any off road areas in relation to ‘preliminary field reconnaissance’. He states (at 11) that access, preparation and line clearing will be conducted in accordance with the works program Dubois submitted to the Department of Mines and Petroleum, and that with the approval of the DMP, those activities will take place each year for up to five years under the licence grants. He states ‘any access, preparation and line clearing will involve no more than very minimal disturbance to the land and any flora or fauna at any time’.
The Tjiwarl reply states the activities of Dubois have only been outlined in a broad way, and that line clearing ‘would interfere’ with the activity of collecting the bush potato (watja). I accept that if the preliminary exploration activities were restricted to existing roads or tracks it is unlikely that interference would occur with the collection of the watja, both Dubois and the Tjiwarl could likely use the tracks without running into each other and no off the track activity would mean no change to existing vegetation.
Dubois’s contentions outline that Endorsement 2 provides for protection of the watja, through the operation of the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained. However, it does not appear that prior permission requires consultation with the Tjiwarl community.
Mr Boys goes on to outline that drilling is ‘not a confirmed activity’ and ‘will only take place if and only if the initial phase of exploration has indicated that drilling would be necessary to test areas of potential prospectivity’ (at 12). He states (at 13) that ‘any greater rights’ would be conducted in accordance with the approvals and conditions and ‘will only take place with full knowledge of the Tjiwarl people and with their approval’. I note that the approval’s process is not outlined by Dubois, and that any such process has not been agreed between Dubois and the Tjiwarl people.
Mr Boys estimates (at 15) no more than three people will be involved in any exploration activity at any one time apart from drill testing which, if it does take place, will involve no more than four contractors with one small drill rig in a couple of locations in the licences. He also states Dubois will protect the bush potato (at 17), and that no activities will be interfered with except where they may present a safety risk.
Tjiwarl’s contentions state the activities of Dubois will interfere with the carrying on of community or social activities both within and outside of the licence areas (at 5.14 – 5.15). I could not find any evidence to suggest the activities of Dubois would interfere with such activities outside of the licences, so I focus on interference within the licences.
Tjiwarl assert that activities permitted by the grant of an exploration licence may damage or destroy the watja resource within and outside the area of the licences (at 5.14(a) and 5.15(a); Ms Narrier affidavit at 10 and 21; Mr Muir affidavit at 14). Tjiwarl argue the only way to ensure community or social activities are not interfered with is through meaningful consultation and negotiation between parties (at 5.16).
Tjiwarl submit that Dubois’ stated intention to undertake field reconnaissance using existing roads and tracks is not practical due to the location of the licences, and it is likely a track will need to be cleared through the bush (at 3.3). State documents show one track on E36/832, and six tracks on E57/962 - it is not apparent where these tracks are, or whether these are the entirety of tracks on the licences. Given the licences are approximately 6 and 48 square kilometres in size respectively, and given Dubois have not provided any information about which existing tracks will be used, it is likely that to explore all parts of the licences, tracks would need to be made. This would require clearing of vegetation. However, I accept Dubois contention that in the early phases of exploration, existing tracks would be used.
Tjiwarl submit that as the evidence of Dubois intentions is broadly stated and not particularly informative, the Tribunal should assume Dubois will undertake the full range of activities allowed under the licence (at 3.8 and 3.11-3.12). I do note the broad characterisation of Dubois’s activities, and do assume the full suite of rights could be exercised over any part of the licences once the preliminary exploration activities are concluded.
Dubois states they have forwarded a Regional Standard Heritage Agreement to Tjiwarl. State contentions indicate (at 22) it will place the following RSHA condition on the grant of each licence:
In respect of the area covered by the licence the Licensee, if so requested in writing by Tjiwarl, the applicants in Federal Court application no. WAD 228/2011 (WC 2011/007), such request being sent by pre-paid post to reach the Licensee’s address, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Tjiwarl the Regional Standard heritage Agreement endorsed by peak industry groups and Central Desert Native Title Services.
Dubois provided the affidavit of Ms Johnson which shows an RSHA was sent to Tjiwarl on 28 January 2014. Mr Boys states Dubois is open to come to some type of agreement with Tjiwarl after the initial and non invasive phase of the exploration activities. Dubois would then be happy to agree to the conduct of a cultural heritage survey and would consult fully to the location of and nature of intended exploration activities from there (at 21). Tjiwarl note the RSHA does not cover consultation regarding community or social activities and I agree with this contention. Tjiwarl also note that Dubois’ willingness to enter into the RSHA should not be viewed as inferring willingness to consult with Tjiwarl (at 6.1-6.2). I note the affidavit of Mr Boys indicates a willingness to consult with Tjiwarl, but no mechanism has been agreed for such consultation.
Will the activities of Dubois be likely to interfere with the Tjiwarl social or community activities?
Dubois agree there is potential to ‘damage or destroy’ the watja, but state they do not agree the watja is rare, or that the damage will be anything but minimal. Tjiwarl state the assertion by Dubois that the watja locations can be seen by the tree that spawns it should not be given any weight as it is not backed by expert opinion. I agree. So, there are community or social activities in E57/962 relating to the collecting of the watja, which I accept is a special plant for the purposes of the Tjiwarl group. I also accept there is likely to be interference with that activity by the activities of Dubois. The question then is, whether that interference will be minimal, as Dubois assert, or substantial, as the Tjiwarl assert.
The evidence submitted by Tjiwarl does not provide specific detail in relation to when the watja is collected, how often this takes place, and who the watja is collected by. Without this level of specificity, I cannot ascertain whether the activities proposed by Dubois will result in minimal or substantial interference. Based on the evidence before me, I am unable to conclude the grant of the exploration licence to Dubois will interfere with the carrying on of the community or social activities of Tjiwarl for the purposes of s 237(a) of the Act. I will now, however, consider whether the site where the watja is located may be of particular significance and it turn, whether this site may be interfered with by the proposed activities of Dubois.
Will the grants interfere with areas or sites of particular significance to the Tjiwarl native title claim group?
A site of particular significance for the purpose of this inquiry is one which is of particular or more than ordinary significance to the Tjiwarl community in accordance with their traditions. To be of particular significance, the site must be known, be capable of identification, and its significance explained. Even slight interference may be unacceptable, depending on the nature of the site, the nature of the potential interference and the Tjiwarl laws and traditions, but there must be physical interference. There must be a real chance or risk of interference with the site or area, not just a possible chance of interference, and the Tribunal will give weight to the State’s regulatory regime. President Webb confirmed this reasoning in Yindjibarndi v FMG (at [17] – [18]), which was endorsed by McKerracher J in FMG v Yindjibarndi. In that Appeal case, McKerracher J held (at [40]) ‘There is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interferences under s 237 NTA is likely to arise. The task for the Tribunal is to make the predictive analysis as to whether the interference is likely to arise and to make a finding in relation to interference.’
i. Are there any sites of particular significance?
Tjiwarl contend sites and areas of particular significance exist on the licences and provide the following evidence to support this:
·The licences are located within the Booylgoo Range which they identify as a site and/or area of particular significance to Tjiwarl (at 6.14(a); Ms Narrier affidavit at 5-9; Mr Muir at 5-12);
·The Booylgoo Range was formed by the Tjukurrpa and there is an important dreamtime story which is part of the Tjukurrpa (at 6.14(b); Ms Narrier affidavit at 6-9; Mr Muir affidavit at 8-9);
·The members of Tjiwarl responsible for the Tjukurrpa story that forms the Booylgoo Range are aware of the location of the licences and identify them as forming part of the Tjukurr story for the country (at 6.14(d); Ms Narrier affidavit at 4; Mr Muir at 4);
·Ms Narrier talks about the importance of the area for her and members of her own family, and also indicates (at 13) how the Range is special for all of the other people who speak for that Ngurra (home country) as well;
·The watja located within the licences are created by, and connected to, the Tjukurrpa, therefore the area where the watja are found is a site and/or area of particular significance (at 6.14(c); Ms Narrier affidavit at 7 and 10; Mr Muir affidavit at 8-9);
·Tjiwarl risk sickness or physical injury if the Tjukurrpa story and/or the sites or areas of particular significance are damaged by the activities of Dubois (at 6.14(e) and 6.15(e); Mr Muir affidavit at 13);
·The Booylgoo Range contains a number of artefacts left by the ancestors of Tjiwarl (at 6.15(b)); Ms Narrier affidavit at 18 and 20); and
·Guardian beings known as mamajiltji and/or kukaparr are associated with the Booylgoo Ranges and will punish unauthorised access and activities in the licences (at 6.15(c); Ms Narrier affidavit at 15-17 and 20; Mr Muir affidavit at 11). Such activities can include chipping rocks or disturbing the old people things, according to Ms Narrier, and Mr Muir states drilling, excavation and clearing would impact on the Tjukurrpa.
Access and activities within the area of the licences can only be conducted following the performance of a ritual known only to members of Tjiwarl (at 6.15(d); Ms Narrier affidavit at 15 and 17). Ms Narrier states the area is ‘a special area’, even up to the Agnew Sandstone road, and the watja exists on the west side of the Range left by the Tjukurrpa (see Ms Narrier 10-12). The Agnew Sandstone road appears to run across the south east portion of E57/962. Ms Narrier states it is the only place you can get the bush potato apart from Wongawal which is ‘far away’, but those two places are connected. Ms Narrier states the watja makes 'this area really special’. It is not clear from the evidence exactly where Wongawol is, but Ms Narrier states it is 'north east of the Tjiwarl area and far away'.
Mr Muir’s outline of the Tjukurrpa story is consistent with Ms Narrier’s. He states the Tjukurrpa goes back to Windidda which is the only other place for a long way that you’d find the bush potato. It is not clear whether Windidda and Wongawol are the same place, but it is clear that apart from the watja on E57/962, other watja exist some distance away, outside the claim area. He also states the western part of E57/962 is the only place within the Tjiwarl claim that the bush potato can be found. Ms Narrier states a ‘big bunch’ of watja can be found on the west side of the Range on E57/962, especially at the bottom. Mr Muir says digging the watja or putting a camp on watja would be problematic. It may be the Other Heritage Place Mata-Yams is associated with the watja, as it is located on the bottom west side of the Range, but there is insufficient information provided by any party for me to draw that as a firm conclusion.
Dubois and the State accept that Booylgoo Range is of significance to Tjiwarl, but not that the Range is of particular significance. Dubois state that Tjiwarl do not distinguish between how and why the Range is different to any other site of significance or in comparison with the Tjiwarl claim area. They refer to [130] of Yindjibarndi v FMG where the Tribunal held that (emphasis in original):
a distinction must be drawn between areas and sites which are generally culturally significant, and specific culturally significant areas and sites which are of particular significance to [the native title claim group].There is no basis provided for distinguishing the part of the river within the proposed licence area as being of particular significance as compared with the rest of the river.
However, the passage on which Dubois rely focused on a small part of a river, which the native title claim group in that matter did not provide sufficient information to distinguish its significance from the rest of the river (which is some kilometres in length). In this matter, Tjiwarl clearly say why the whole Range is important and special as compared to the rest of the claim area, and outline the features associated with the Range which contribute to making it special, including its association with the Tjukurrpa and the watja on E57/962.
Dubois state the evidence in relation to the artefacts, camps, mamajiltji, and Tjukurrpa is too vague to assist the Tribunal determine they are of particular significance. Dubois states the sites associated with the Tjukkurpa, that is the watja, are also vague. Tjiwarl’s contentions in reply argue the State’s comments in relation to the significance of the watja as distinct from the Booylgoo range, are an overly narrow view of the evidence (at 8.1-8.2). Mr Muir identifies the Tjukurrpa being responsible for the creation of the Booylgoo Range and explains why the watja is found in that area and no other (at 8.2). I have not repeated that explanation here about the dreaming story as it appears to be sensitive to the members of the Tjiwarl community. The Tjiwarl reply (at 8.3) points to a number of Tribunal decisions which establish sites made by the Tjukurrpa can be characterised as sites of particular significance (‘Wiluna v Bogada Gold’ (at [51]); ‘Wiluna v Kingx’ (at [74]); and ‘Tullock v TE & CG McMahon Nominees’ (at [37]). While these previous decisions do support the argument that sites associated with a Tjukkurpa can be sites of particular significance, this does not automatically apply to all Tjukurrpa sites and specific evidence needs to be provided, for example, about the nature of the sites and their cultural complexity, in each individual matter.
In relation to E57/962, the Tjiwarl evidence has drawn special attention to an area in the west of the Booylgoo Range where the watja is found. They have explained the dreaming story which makes up part of the Tjukurrpa, which also resulted in the deposits of watja in that place, and the evidence relating to the guardian beings, which further supports the significant nature of this area. I am not able to conclude the Range as a whole is an area or site of particular significance; however, the area in the west of the Range, running through the centre of the licence, is distinguished from the rest of the Range by the existence of the watja. Based on the evidence provided on behalf of the Tjiwarl community, I am able to conclude the west side of the Range, where the watja is found, is a site of particular significance. The evidence relating to the artefacts found in the western area of the Range is not specific enough to support a finding of particular significance for those artefacts.
In relation to E36/832, Tjiwarl assert the Range is an area of significance but as stated above, I am unable to conclude the Range as a whole is a site or area of particular significance. Therefore, I will not address the issue of interference with sites in relation to E36/832 as I have not found any sites of particular significance exist on that licence.
ii. What is the underlying tenure of the licences and has this already interfered with any sites of particular significance?
To answer whether there will be interference with sites of particular significance, it will assist me to establish what tenure already exists or has existed on E57/962. The Tengraph quick appraisals submitted by the State detail the land tenure, current and historical mining tenements, native title areas, relevant services, and other features within the licence. E57/962 is wholly covered by pastoral leases, substantially covered by live exploration leases, and has had previous exploration leases granted upon that land. As noted earlier in this decision, Dubois has provided a number of reports in relation to exploration licences previously granted in the Booylgoo Range, but do not point to information specifically relevant to the current inquiry. I note that some of the exploration licences included in the reports do not overlap the licences in question. In relation to the previous exploration licences which do overlap E57/962, the activities undertaken are mostly related to initial surveying work.
State documents also show the services affected for E57/962 include: one undeveloped prospect outcrop; one undeveloped prospect costean/trench; six tracks; five fence lines; one yard; two well/bores with windmill; and 444 non-perennial minor watercourses.
DAA Sites Register documentation indicates there are no Registered sites and the following Other Heritage Place located on the licence:
·ID 19856 – Mata-Yams – no gender restrictions – mythological
·ID 20850 – Booylgoo Range (Pulyku) – no gender restrictions
Documents provided by the State indicate the grant of E57/962 will be subject to endorsements and conditions as part of the regulatory regime imposed by the State. These are outlined in Appendix A. Endorsements differ from conditions as breach of an endorsement does not make the licensee liable to forfeiture of the licence.
Tjiwarl point to the finding in Yilka v Goldphyre (at [73]) that ‘mere existence of a pastoral lease or previous exploration activities does not constitute evidence that areas of particular significance have, in fact, been affected’ (at 4.3). Tjiwarl’s contentions point to the lack of evidence provided in relation to actual exploration activities previously and currently undertaken in the area (at 4.4-4.5). Tjiwarl note the contention of Dubois that previous exploration activities have been undertaken in the area of the Booylgoo Range, but advise they are unable to locate the evidence to support this in the annexures provided (at 4.6). Tjiwarl contend the evidence provided by Dubois would not automatically lead to the conclusion that sites or areas had lost their significance ‘or that interference would not be likely as the activity may not have affected the sites/areas “to such a degree that further activity would not constitute interference”’ (at 4.8), citing Western Desert v Teck (at [213]).
Similar to the argument the State and Dubois mounted in relation to previous and current mining and exploration activities interfering with social or community activities, I agree little detail has been provided by the State or Dubois about what occurred under the previous or current tenure in relation to sites of particular significance. I cannot say without evidence that sites of particular significance have been disturbed at all, or to such an extent that any further exploration would not create further disturbance.
iii. What are Dubois’s proposed activities in relation to those sites?
The licence, if granted, will authorise Dubois to:
·enter and re-enter the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals;
·explore for minerals, and carry on such operations and works in the licence as are necessary for that purpose including digging pits, trenches and holes, and sinking bores and tunnels;
·excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances from the land within the prescribed amount or in such greater amount as the relevant Minister may approve in writing. The prescribed amount is currently 1,000 tonnes over the life of the licence; and
·take and divert, subject to the Rights in Water and Irrigation Act 1914 (WA), water from any natural spring, lake, pool or stream situate in or flowing through the licence and to sink wells or bores and take water so obtained for domestic purposes and for any purpose in connection with exploring for minerals on the land: see s 66 of the Mining Act 1978 (WA).
Dubois has provided a ‘Proposed Method of Exploration and Exploration Programme’ which outlines the activity proposed to be undertaken on the licence. The first phase of work is designed to identify targets for further drill testing. The activities to be undertaken in the initial phase of exploration work include:
·literature search and analysis of previously publicly available data;
·acquisition of public aerial photography (1:50,000 B & W), landsat imagery, aeromagnetic and digital elevation model data sets;
·acquisition of 1:25,000 scale colour aerial photography;
·orientation low level aeromagnetic surveying and processing;
·geological mapping and field reconnaissance; and
·access preparation and line clearing.
If suitable targets are identified, further phases of work may include reverse circulation drilling; analysis of samples, complication of data, drafting of sections, writing of technical reports; and mineralogical examination, metallurgical testing.
iv. Will the activities of Dubois be likely to interfere with the sites of particular significance?
In deciding whether the activities of Dubois will interfere with the western side of the Booylgoo Range on E57/962, I must consider any protection that may be found in the RSHA or regulatory regime. Dubois has offered to enter into a RSHA with the Tjiwarl community and the State intend to impose a condition on the grant of the licence allowing Tjiwarl to request Dubois execute a RSHA if the request is made not more than 90 days after the grant. Tjiwarl’s contentions in reply point to a number of unsatisfactory elements of the RSHA, including that the under the RSHA, surveys are not required for a range of activities, thus ‘inadvertent interference would occur to sites of particular significance, without guidance from the Tjiwarl people’ (at 6.10, citing paragraph [81] of Amangu v Peak Holdings), as Tjukurrpa sites are not readily identifiable by persons not instilled in the mysteries of the Tjukurrpa (citing Tullock v Allarrow), at 6.16(a).
Neither the State nor Dubois agree inadvertent interference could occur with the Booylgoo Range, as it is not a hidden site, and any interference with the watja could be cured by signing the RSHA (for example, at 87 of the State contentions). Dubois contentions rely on, among other things, the Tribunal decision in Yindjibarndi v FMG (at [117]-[120]) regarding the interplay between the AHA and s 237 of the NTA. Tjiwarl assert it is incorrect to assume interference pursuant to s 237(b) is unlikely due to the State’s regulatory regime and Dubois’s awareness of its obligations under the Aboriginal Heritage Act (at 5.3). Tjiwarl state in their contentions in reply that the State's regulatory regime will not be sufficient to protect sites of particular significance – for example, that s 17 of the AHA won’t provide protection against the activities of Dubois. Tjiwarl also assert the nature of the sites in the licence reduces the utility of the proposed AHA endorsement (at 5.3).
The RSHA requires Dubois to notify Tjiwarl of any non-ground disturbing activity to be undertaken, but does not require a heritage survey be performed prior to non-ground disturbing activity taking place. The definition of non-ground disturbing work in the RSHA includes: the use of hand tools for sampling purposes including water and soil sampling; geophysical surveying; and the establishing of tent or caravan camps not involving heavy vehicles or water bores. If parties disagree about whether a proposed activity is non-ground disturbing, the RSHA requires the parties to ‘meet to endeavour to resolve this issue’; there is no mechanism included in the RSHA if parties are unable to resolve the issue. Tjiwarl point out that the ‘consent of [Tjiwarl] to these activities is not required, even where [Tjiwarl] have asserted that these will interfere with a site or area of particular significance’ (at 6.9).
As part of the activities deemed to be non-ground disturbing under the RSHA, Dubois is able to use hand tools for soil sampling. This type of non-ground disturbing activity could disturb or interfere with the watja, for example Dubois may dig up the watja during soil sampling. As the watja are not readily identifiable by persons outside of Tjiwarl, it will not be identified until after the interference has occurred (at 6.16(b)). In a previous matter which addressed the grantee party ceasing ground disturbing work if sites are visually located (Wurrunmurra v Duffield), it was noted (at [53]), that:
It is not clear to the Tribunal how any of the persons comprising the grantee party have the necessary knowledge or expertise to assess whether a particular part of the country is of special significance to the native title party. The Tribunal is aware from its own experience that topographical or other features of the land can be very important culturally to Aboriginal people when to European eye they may be no significance or not even be noticed.
Tjiwarl point to statements in the affidavit of Mr Boys which acknowledge it would be easier to avoid interference with the watja if Tjiwarl were to inform Dubois of the location and appearance of the watja (Mr Boys affidavit at 17). Mr Boys has also indicated that Dubois ‘would be pleased to receive any information at any time from the Tjiwarl People as to where watja and where any other places of importance might be located’ and this will be taken into account from the planning of preliminary field reconnaissance onward. There does not appear to be, however, a plan or agreement regarding how the information will be used by Dubois when conducting exploration activities.
Tjiwarl stress the need for meaningful consultation and negotiation between Dubois and members of Tjiwarl who have the ability and cultural knowledge to speak for the area, to avoid interference with sites and/or areas of particular significance (at 6.18(a), Ms Narrier affidavit at 15 and 17; Mr Muir affidavit at 11 and 14). This is frequently achieved through a process for a cultural heritage survey. Under the RSHA, a survey will only be contemplated when Dubois intends to undertake ground disturbing activity, including drilling, with a consultation process triggered by Dubois providing a work program to Tjiwarl. If parties are unable to agree on whether a survey is required, the RSHA contains a dispute resolution process to be followed.
Dubois has indicated they are open to reaching an agreement of some kind with Tjiwarl after initial exploration has taken place (that is, field reconnaissance and access preparation and line clearing) and are ‘happy to agree to the conduct of a cultural heritage survey’ as part of the agreement. In these circumstances, however, it is likely a survey at the stage of ground disturbing activity is likely to be too late; the watja may have already been disturbed during non-ground disturbing activity.
Both Tjiwarl and Dubois have provided persuasive arguments, supported by relevant evidence, in this inquiry and the matter has been a difficult one to decide. It is clear Dubois has good intentions in relation to avoiding interference with the watja and ordinarily, vegetation would not necessarily be considered a site of particular significance. However, in this inquiry the watja is integral to the Tjukurrpa story; Ms Narrier describes how the wajta grow where seeds were dropped in the story. Given the significance of the watja on the west side of the Range, even minor interference will be substantial interference to the area (see Silver v Northern Territory at [88]).
A cultural heritage survey conducted with the relevant experts from the Tjiwarl community would remove all doubt and risk of interference with the watja on the west side of the Booylgoo Range. Without a formal mechanism to protect this site of particular significance, it is likely inadvertent interference will occur. For the purpose of this inquiry, I conclude that the activities of Dubois will interfere with areas or sites of particular significance to Tjiwarl in relation to E57/962.
Will the grants be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned?
Tjiwarl have made no specific contentions on the issue of major disturbance. Consequently, neither Dubois nor the State has addressed s 237 (c) of the Act. Nonetheless, the original objection raised this limb of s 237 of the Act, and the Tribunal is required to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense of whether there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, taking into account the concerns of the Tjiwarl people (see Little v Oriole Resources at [41]-[57]).
In the present matter, there is no evidence of any special topographical, geological or environmental factors that might lead members of the Australian community to believe the grant of the proposed licences would result in major disturbance to the land and waters concerned. As such, looking at the proposed future acts, and the effect of the rights created by those future acts, I am unable to conclude there is a real chance or risk of major disturbance to land and waters, for the purposes of s 237 (c) of the Act.
Conclusion
Ms Narrier describes community or social activities which are carried on within the area of the licences, however, based on the evidence provided, I am not satisfied the grant of the licences is likely to directly or substantially interfere with these activities. Regarding areas or sites of particular significance to Tjiwarl which may be affected by the grant of the licences, there is not sufficient evidence to conclude any such interference in relation to E36/832. Tjiwarl have provided sufficient evidence to support a finding that an area or site of particular significance exists on E57/962, and that this site will be interfered with by the activities of Dubois. There is no evidence the grant of the licences is likely to involve, or create rights whose exercise 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 E36/832 to Dubois Group Pty Ltd, is an act attracting the expedited procedure; and
·the act, namely the grant of exploration licence E57/962 to Dubois Group Pty Ltd, is not an act attracting the expedited procedure.
Helen Shurven
Member
17 July 2015
Appendix A: Draft Tenement Endorsement and Conditions
The grant of E57/962 will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tullock v Western Australia at [11]-[12]). The following additional conditions would also be imposed:
5. The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs, water carting equipment or other mechanised equipment.
6. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:
·the grant of the Licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7. The prior written consent of the Minister responsible for Mining Act 1978 being obtained before commencing any exploration activities on Depot Springs Water Reserve 2.
8. The rights of ingress to and egress from Miscellaneous Licence 36/137 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will be imposed:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3. The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
4. The Licensee’s attention is drawn to the provisions of the:
·Water Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
5. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
6. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
7. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.
In respect to Waterways the following endorsement applies:
8. Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependent vegetation of any perennial waterway; and
·30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
9. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
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