Keith Narrier and Others on behalf of Tjiwarl v Justin Charles Cavallaro and Another
[2016] NNTTA 52
•17 November 2016
NATIONAL NATIVE TITLE TRIBUNAL
Keith Narrier and Others on behalf of Tjiwarl v Justin Charles Cavallaro and Another [2016] NNTTA 52 (17 November 2016)
| Application No: | WO2015/0260 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Keith Narrier and Others on behalf of Tjiwarl (WC2011/007)
(native title party)
- and -
Justin Charles Cavallaro
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 17 November 2016 |
| Catchwords: | Native title – future act – proposed grant of exploration licence –expedited procedure objection application – whether act is likely to directly interfere with community or social activities – whether act is likely to interfere with areas or sites of particular significance –whether act is likely to involve major disturbance to land and waters – expedited procedure not attracted |
Legislation: | Native Title Act 1993 (Cth) s 237 Mining Act 1978 (WA) ss 58(1)(b), 66 Aboriginal Heritage Act 1972 (WA) |
Cases: | Balanggarra Aboriginal Corporation Registered Native Title Body Corporate v Bar Resources Pty Ltd [2014] NNTTA 62 (‘Balanggarra Aboriginal Corporation v Bar Resources’) Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 (‘Champion v Western Australia’) Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Nyikina and Mangala v Geotech’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’) Keith Narrier and Others on behalf of Tjiwarl v Dubois Group Pty Ltd and Another [2015] NNTTA 27 (‘Narrier v Dubois Group’) Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo v Queensland (No 2)’) Re Cheinmora [1996] NNTTA 75; (1996) 129 FLR 223 (‘Re Cheinmora’) Silver v Northern Territoryof Australia [2002] NNTTA 17; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) The Miriuwung Gajerrong 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd [2006] NNTTA 74 (‘Miriuwung Gajerrong 1 v Seaward Holdings’) Tullock v Western Australia [2011] NNTTA 22; (2011) 257 FLR 320 (‘Tullock v Western Australia’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward 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 native title party: | Michael Allbrook, Central Desert Native Title Services |
| Representative of the grantee party: | Justin Charles Cavallaro |
| Representatives of the Government party: | Jane Langworthy, State Solicitors Office Bethany Conway, Department of Mines and Petroleum |
REASONS FOR DETERMINATION
The State Government of Western Australia issued a public notice for the grant of exploration licence E36/840 (the licence) to Justin Charles Cavallaro, which included a statement that it considers the grant to be an act attracting the expedited procedure. If the grant is an act attracting the expedited procedure, it can proceed without the need for the negotiating parties to negotiate in good faith with a view to obtaining the agreement of those relevant native title parties to the grant of the licence. The negotiation parties are the State, Mr Cavallaro and any native title party whose claim or determined lands overlaps the licence.
One hundred per cent of the licence (approximately 87.9 square kilometres) is overlapped by the Tjiwarl registered native title claim. Tjiwarl lodged an objection with the National Native Title Tribunal against the assertion that the expedited procedure applied to the grant of this licence.
I have been appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies. My task is to determine whether the grant of the licence is an act attracting the expedited procedure (in which case the State can grant the licence to Mr Cavallaro without negotiations with Tjiwarl), or is not an act attracting the expedited procedure (meaning Mr Cavallaro, Tjiwarl and the State must negotiate in good faith with a view to reaching agreement about the grant of the licence).
My decision must be based on the criteria set out in s 237 of the Native Title Act 1993 (Cth). All subsequent references to sections of legislation in this determination are to the Act unless otherwise stated. To answer the question as to whether the expedited procedure applies to the grant of the licence, I will address the following issues based on the s 237 criteria:
(a)Is there likely to be interference with community or social activities of Tjiwarl?
i)What are the community or social activities identified by Tjiwarl?
ii)Is harvesting wild potato (wutha) a community or social activity?
iii)What activities does Mr Cavallaro propose to undertake on the licence?
iv)Conclusion
(b)Is there likely to be interference with areas or sites of particular significance to Tjiwarl?
i)What are the areas or sites identified by Tjiwarl?
ii)Are the areas or sites identified of particular significance to Tjiwarl?
iii)Conclusion
(c)Is there likely to be major disturbance to the land or waters concerned?
All parties lodged contentions in compliance with directions issued. Tjiwarl also provided an affidavit deposed by Mr Brett Lewis, and one deposed by Mr Sean Calderwood. Mr Lewis states he is a traditional owner for the area of the licence and a registered native title claimant for the Tjiwarl claim. I accept Mr Lewis’ affidavit and accept he has authority to speak in his stated capacity for the area of the licence. Mr Calderwood states he is an anthropologist, employed by Central Desert Native Title Services, and provides evidence in support of Mr Lewis’s affidavit and the Tjiwarl contentions. I accept his evidence.
No party requested a hearing, nor did I consider such to be necessary in this matter, and this decision has been made on the papers. A map was prepared by the Tribunal’s Geospatial Services and circulated to all parties. The Tjiwarl representative asked that cultural information about the traditional laws and customs be kept confidential where possible, due to their sensitive nature. I endeavour to maintain such confidentiality, while bearing in mind I must provide sufficient reasons for my decision.
(a) Is there likely to be interference with community or social activities of Tjiwarl?
What are the community or social activities identified by Tjiwarl?
Tjiwarl contend that Aboriginal people, particularly members of the Tjiwarl claim group, visit the area of the licence and carry on a range of community or social activities in accordance with their traditional laws and customs. These activities are said to include: hunting native animals including kangaroo, emu and goanna; harvesting wild potato or ‘wutha’, which is considered to be a rare and valuable resource; and camping for extended periods of time. Tjiwarl also submit the area is important for the transfer of knowledge about these activities, and that parts of the area are associated with the ‘maintenance and continuing intergenerational transfer of knowledge’ about sacred places associated with the initiation practices of the claim group.
Mr Lewis deposes an area in the south of the licence is ‘the main place where you find wutha’. He says wutha ‘runs right down along’ the Booylgoo Range and gives some information about where wutha ‘sprouts’, which I do not repeat here due to the sensitive nature of that information. Mr Lewis states ‘[l]ots of Aboriginal people in Wiluna and Leonora know about the wutha plant so they come and harvest it in big groups when the time is right.’ Wutha is usually harvested around Easter time ‘when the earth is soft and it is easier to dig out,’ but can also be harvested at other times of the year.
Mr Lewis states he and his family usually harvest wutha at Easter but others in the community come and harvest the plant at any time of year. Mr Lewis states when he refers to ‘community,’ he is ‘talking about members of the Tjiwarl native title claim group and also some other Aboriginal people who share our traditional laws and customs and who visit the area of the Tenement to hunt and camp on weekends or holidays’. According to Mr Lewis, wutha is ‘a bit of a delicacy because you don’t find it in many places in the desert’ and he says the areas where wutha can be found in the licence area ‘are hard to get to ... because they are off the tracks in the bush’ (and he again gives information about the location of wutha which I do not repeat here).
Mr Lewis states he goes hunting and camping in the area ‘as often as I can, at least five or six times a year.’ Mr Lewis outlines landmarks which are important to his camping. According to Tribunal mapping, one of the locations is a short distance to the south of the licence, with another situated a few kilometres east of the licence. A third landmark is situated in the centre of the licence. Mr Lewis states ‘[w]e hunt marlu [kangaroo] all around there and emu or goanna if we see them.’ He says the best time to hunt for kangaroo is ‘when you see the everlastings out,’ at which point he comes to the licence with his ‘sons and grandkids or some other families on the claim and get[s] some fat kangaroos.’
Mr Lewis says he goes hunting ‘all around that country’ and recalls giving evidence in the claim proceedings about a hunting trip around other areas, which he notes are further east of the licence area. He also states ‘lots of people on the claim’ visit that country, including the area of the licence, and that another family who he names, ‘go out bush there a lot, nearly every second week to hunt and camp the traditional way and get wutha to eat.’
In relation to the use of the area for the intergenerational transfer of knowledge, Mr Lewis states he ‘can talk for this country because I learned it from my father.’ Mr Lewis says he ‘grew up in the area of the Tenement around Depot Springs and Booylgoo Springs’ and his father would camp with him at one of the landmarks identified in his affidavit. He says his father ‘showed me this country and taught me how to hunt and live out there in the area of the Tenement and surrounding areas and I have taught my children and grandkids the same things.’ These things include how to cook kangaroos ‘the traditional way.’
Mr Lewis also talks about a law trail which travels through the licence area and which is ‘a part of our Aboriginal law and culture where people learn about things – get initiated and learn about sites and what we call the tjukurrpa.’ He states that people going through initiation would follow the trail ‘to learn about the country’ and says there are things in the licence area which are connected to ceremony, though he did not want to discuss those things in his affidavit. Mr Lewis states his father ‘looked after’ the law trail until the mid-1960s but says the ‘wati have responsibly for those things now, they have to maintain it.’
In relation to transfer of knowledge, the State contends that, while Mr Lewis states his father taught him to live and hunt in the licence area and that he taught his children and grandchildren the same thing, there is no evidence such teaching continues to occur on a regular basis. My assessment is that the evidence suggests teaching does occur in parallel with other activities such as hunting and camping. However, there is limited evidence that teaching takes place in other contexts. Although Mr Lewis states the law trail is connected with initiation and ceremony, it not clear whether, or to what extent, it is still used for those purposes. Similarly, it is not clear what activities are involved in ‘maintaining’ the law trail.
Is harvesting wild potato (wutha) a community or social activity?
The State contends the harvesting of wutha is more of an economic activity than a community or social activity, given it is valued by members of the claim group for its rarity and delicacy. Tjiwarl argues the State’s characterisation of the activity as economic rather than community or social in nature is not supported by the evidence of Mr Lewis and in any case the two concepts are not mutually exclusive.
The meaning of the term ‘community or social activities’ was considered by Deputy President Sosso in Silver v Northern Territory at [49]–[62]. His views on this question were later endorsed by Deputy President Sumner in Walley v Western Australia at [13]–[21] and subsequently set out in Tullock v Western Australia at [64]. Drawing on the history of s 237(a) and the comments of Deputy President Sumner in Re Cheinmora and Brennan J in Mabo v Queensland (No 2), Deputy President Sosso observed that the term ‘community activities’ is not necessarily limited to the activities of a particular residential or localised community. However, if the evidence is not derived from the collective experiences of a localised group of persons, then specific evidence would need to be provided to identify the individuals as a community.
Deputy President Sosso also observed (at [60]):
In the context of paragraph [237](a) if the term ‘social activities’ is to be given a meaning that comprehends external manifestations of human behaviour that fall outside ‘community activities’ then it would only be those social manifestations of traditional laws and customs which nevertheless are grounded in the communal concept of native title.
That is, ‘social activities’ would not usually include the activities of individuals unless those activities have ‘a wider social dimension.’ Critically, Deputy President Sosso observed the Tribunal inquiry is not directed at ascertaining the likely interference with activities in general, but rather activities which are manifestations of claimed native title rights and interests.
Tjiwarl’s registered native title rights and interests include non-exclusive rights to access and take resources for any purpose, to the extent they are exercised for purposes allowed under traditional laws and customs. Mr Lewis states that wutha is harvested by ‘people in the Community,’ meaning both members of the claim group and ‘some other Aboriginal people who share our traditional laws and customs.’ He states that ‘[l]ots of Aboriginal people in Wiluna and Leonora know about the wutha plant’ and ‘come and harvest it in big groups when the time is right.’ He also deposes the wutha is part of a Dreaming story connected to Booylgoo and says members of the community ‘would worry about someone, like a mining company, accidentally digging up the plant.’
Based on this evidence, it is clear to me the harvesting of wutha is a community or social activity. It is an activity carried on by a geographically localised group of people with a shared system of law and custom, in the exercise of their registered native title rights and interests, and regulated by a set of rules or expectations. There is no evidence wutha is harvested for ‘economic’ purposes, at least in the narrow sense of it being sold for profit. In a broader sense, any activity involving the exploitation of resources could be characterised as economic in nature. The fact that a particular activity has an economic dimension does not necessarily mean the activity cannot also be characterised as a community or social activity for the purposes of s 237(a). Difficult questions of interpretation are likely to arise in relation to business or commercial activities undertaken by or on behalf of members of the community (see for example Miriuwung-Gajerrong 1 Aboriginal Corporation v Seaward Holdings at [34]). However, it is unnecessary to consider these issues further in the present case as I have concluded the gathering of wutha, as outlined in this inquiry, is not a purely commercial activity.
What activities does Mr Cavallaro propose to undertake on the licence?
The grant of an exploration licence under the Mining Act1978 (WA) authorises the holder to undertake the following activities:
(a)enter and re-enter the land 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)explore, subject to any conditions imposed, for minerals in, on or under the land, and to carry on such operations and carry out such works as are necessary for that purpose on the land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose;
(c)excavate, extract or remove, subject to any conditions imposed, from the land earth, soil, rock, stone, fluid or mineral bearing substance in such amount, in total during for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing; and
(d)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 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 domestic purposes and for any purpose in connection with exploring for minerals on the land.
The prescribed limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances that may be excavated, extracted or removed is currently 1,000 tonnes.
The State has indicated the grant of the licence will be subject to standard conditions 1–4, requiring the licence holder to:
1.cap, fill or otherwise made safe all surface holes drilled for the purpose of exploration;
2.backfill and rehabilitate all disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, to the satisfaction of the Department of Mines and Petroleum;
3.remove all waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings prior to or at the termination of the exploration program; and
4.obtain the approval of the Department prior the using drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans.
In addition to these standard conditions, the State proposes to apply conditions 7–10, which relate to what may be done on the licence:
7.The rights of ingress 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.
8.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on CR 12835 Water.
9.Mining on any road, road verge or road reserve being confined to below a depth of 15 metres from the natural surface.
10.No interference with the use of the Aerial Land Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
Miscellaneous Licence 36/137 is held by BHP Billiton Nickel West Pty Ltd and covers the entire area of the licence. ‘CR 12835 Water’ refers to a 20 hectare water reserve located in the northern section of the licence and Condition 9 refers to a road reserve which traverses that section of the licence.
The State also intends to impose the following condition on the grant of the licence:
In respect of the area covered by the licence the licensee, if so requested in writing by the Tjiwarl, the applicants in Federal Court application no’ WAD 268 of 2010 (WAD228/2011), 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 (“RSHA”) endorsed by peak industry groups (e.g. the Goldfields/South West/ Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council) and offered by the Native Title Party or their representative.
According to the State, this condition will allow Tjiwarl to choose a regional standard heritage agreement (RSHA) from any of the representative regions for which such an agreement exists.
Mr Cavallaro has not made any contentions or provided evidence in this inquiry. However, the State has provided the Tribunal with a copy of the statement he filed with the Department of Mines and Petroleum (DMP) pursuant to s 58(1)(b) of the Mining Act. Section 58(1)(b) requires an application for an exploration licence to be accompanied by a statement specifying the proposed method of exploration, details of the programme of work, the estimated amount of money proposed to be expended and the technical and financial resources available to the applicant.
The s 58(1)(b) statement says Mr Cavallaro owns and operates the Depot Springs Cattle Station (a pastoral lease which overlaps 99.7 per cent of the licence). The State contends Mr Cavallaro’s familiarity with the area through his relationship with the cattle station is relevant to the Tribunal’s assessment of the risk of interference. However, the Tjiwarl reply notes the s 58(1)(b) statement predates 1 July 2015, when pastoral leases came up for renewal in Western Australia, and there is no further information provided about or confirmation of Mr Cavallaro’s association with the Station or the lease. As such, I give little weight to that part of the statement.
The statement also outlines the proposed method of exploration will involve visual inspection ‘by way of Boots on ground and Quad Bikes Ensuring Minimal damage is done to cattle feed and none to places of aboriginal significance.’ According to the statement, this will be followed by auger drilling activities which ‘will be drawn up and completed over a two year period using our own Drill Rigs, Labour, tools and Expertise.’ I also note the statement indicates he intends to take approximately 700 ‘auger geo chemical samples’ over the first two years of exploration. It is not clear where drilling will occur, or how deep such drilling will be.
Tjiwarl contends the State’s contentions place disproportionate weight on the s 58(1)(b) statement. They argue Mr Cavallaro’s intentions cannot be ascertained from the statement, which was prepared for purposes that are not relevant to the present inquiry, and argue no further evidence or information has been provided by Mr Cavallaro in support of the statement. Tjiwarl submit the circumstances of this matter are similar to the facts before the Tribunal in Balanggarra Aboriginal Corporation v Bar Resources, where the expedited procedure was held not to apply to the grant of that licence, and I should adopt the same approach.
In Balanggarra Aboriginal Corporation v Bar Resources, the State provided the Tribunal with a copy of the grantee’s statement in support of its application for the exploration licence. That statement was confined to the activities which the grantee party intended to carry out in the first year of that licence. As I noted in my reasons for that decision, the grantee provided no further evidence or information in support of the statement. After referring to the Tribunal’s findings in Silver v Northern Territory at [29]–[30], I concluded that, in the absence of any contentions or evidence from the grantee regarding the remainder of the exploration program, it was open for me infer that the grantee would, at least after the first year, exercise its rights to their full extent.
Applying that approach to the present matter, I am satisfied the statement provides an indication of the activities Mr Cavallaro intends to undertake in the first two years of the licence. However, in the absence of any contentions or evidence from Mr Cavallaro, I infer that any activities undertaken beyond the first two years may well take advantage of the full extent of the rights conferred under the grant of the licence. This is consistent with a common sense approach to the evidence (see Ward v Western Australia at 231), and Mr Cavallaro could undertake the activities I have outlined at [21]–[22] of the present decision, under s 66 of the Mining Act.
Conclusion
Tjiwarl contend that Mr Cavallaro’s activities will interfere with the ability of the native title holders to conduct their community or social activities within the area of the licence. They submit meaningful consultation between Tjiwarl and Mr Cavallaro is required to ensure the community and social activities are not likely to be interfered with. In particular, Tjiwarl argue the mere presence of others, including Mr Cavallaro and his employees or agents, will interfere with the ability of native title holders to use weapons to hunt traditional food, and the use and operation of heavy machinery or explosives will cause disturbance to the habitats of native wildlife. The State contends there is an insufficient evidentiary basis to conclude that substantial interference with the community or social activities is likely.
The State submits the evidence of Mr Lewis does not support Tjiwarl’s contention that the community of registered native title claimants frequently accesses the area to take resources by hunting, or remain in the area to camp for long periods of time. Among other things, the State says it is unclear whether a named person in the other family (see [11] above) is a member of the claim group and that Mr Lewis’ evidence on this point is uncorroborated hearsay. In reply, Tjiwarl states the evidence establishes a consistent pattern of visitation by members of the claim group for the purposes of carrying out community or social activities. In terms of the State’s contentions with respect to the named person and their family, Tjiwarl seek to rely on the affidavit of Mr Calderwood, who identifies that person as a member of the ‘Tjiwarl Group’ with authority to speak for the area. In the alternative, Tjiwarl contend that, while the evidence is hearsay, the Tribunal is not bound by the rules of evidence and has given such evidence due consideration in the past.
I am satisfied Mr Lewis and his family visit the area several times a year to hunt and camp. The evidence suggests these visits vary in length from a single night to a few days at a time, depending on the time of year. I am also satisfied other members of the claim group visit the area from time to time for the purpose of hunting and camping. Although the evidence concerning the other family is hearsay, I am prepared to give it a certain amount of weight in the circumstances. While it would have been preferable for Tjiwarl to obtain a statement from that person or a member of their family directly, I acknowledge it may not have been possible to do so, and to require direct evidence from many members of the claim group who are engaged in activities of a community or social nature on the licence area would impose an unreasonable burden on the native title party.
In terms of the evidence regarding the harvesting of wutha, the State submits the evidence provided to the Tribunal in a previous matter (Narrier v Dubois Group) suggests the plant only grows on the west side of Booylgoo Range. The State argues alternatively that wutha is present in a much larger area and there is no evidence that Mr Lewis or anyone else relies solely on the licence area for the purpose of harvesting it. I will address the first point later in these reasons when I come to consider the question of interference with areas or sites of particular significance. With respect to the argument that wutha can be found in areas outside the licence, this would seem to be supported by the evidence of Mr Lewis, who states that wutha ‘runs right down along the ranges’ and sprouts at a place on the range, and in places between the range and the licence, and on the licence itself.
The risk of interference with the harvesting of wutha and other activities such as hunting and camping must also be considered in the context of the existing use of the area. As French J (as he then was) observed in Smith v Western Australia at [27], the evaluation is contextual, and it is legitimate to have regard to constraints already imposed by third parties and external regulation. In this regard, I have already noted the licence is currently subject to the Depot Springs Pastoral Lease and miscellaneous licence 36/137. In light of these existing interests, I am not satisfied the presence of Mr Cavallaro and his employees or agents is likely to interfere with the use of weapons for hunting, as members of the claim group already need to exercise care when discharging firearms on the licence area.
Another principal contention made on behalf of Tjiwarl is that the use and operation of heavy earth-moving machinery or explosives will disturb the habitats of native wildlife. There are two aspects to this contention. First, Mr Lewis expresses concern the use of heavy machinery or drilling rigs or the grading of tracks may destroy the wutha plants. I will return to this issue in relation to interference with areas or sites of particular significance, however, it is sufficient to note in the present context that the evidence suggests wutha can be harvested from areas outside the licence area. Any potential disturbance to wutha sites inside the licence would have less of an impact on the activity of gathering it, because traditional owners could still gather wutha from those other places. The effect on this social or community activity of gathering is distinct from the effect of interference to the wutha as a site of particular significance, which is dealt with at [41]-[66] below.
Second, Mr Lewis states if ‘a mining company came out to the country and made a lot of noise in the country it would make hunting really hard because it would scare away the animals.’ This might occur if a hunting trip were to coincide with the use of heavy machinery. However, I am not satisfied there is a real risk of these circumstances arising. Moreover, it is unlikely that exploration activity will have an enduring effect on the number or distribution of wildlife in the licence area. Given the size of the licence area (at 87.9 square kilometres) and the generally limited and temporal nature of most exploration activity, I am not satisfied there is a real risk these circumstances will arise to such a degree that it will have a substantial effect on hunting.
For these reasons, I am not satisfied the grant of the licence is likely to interfere substantially with the carrying on of the community or social activities of the native title holders.
(b) Is there likely to be a real risk of interference with areas or sites of particular significance to Tjiwarl?
What are the areas or sites identified by Tjiwarl?
Tjiwarl contends the licence area contains sites and areas of particular significance to members of the claim group which are likely to be subject to interference as a result of the grant of the licence. Specifically, they submit:
(a)the licence is on the Booylgoo Range, which is an area and/or site of particular significance to Tjiwarl;
(b)the wutha plant is created by, and connected to, the tjukurrpa, or Dreaming. An area where the wutha plant is found is therefore an area and/or site of particular significance; and
(c)the licence contains part of a law trail that is important to initiated members of Tjiwarl who are responsible for the site.
Mr Lewis states the wutha is ‘part of a Dreaming story connected to’ the Booylgoo Range. He says the wutha is ‘connected up to Windidda country, Lorna Glen and beyond.’ According to Mr Lewis, if ‘anything happened to the wutha here in the Tenement then people in other parts of the desert would know and there might be trouble – like cultural punishment.’
Mr Lewis also describes a ‘very special law trail’. He states the law trail is ‘part of our Aboriginal law and culture where people learn about things – get initiated and learn about sites and what we call the tjukurrpa.’ Mr Lewis gives particulars of the direction of the trail and features associated with it, which include areas within the licence.
Are the areas or sites identified of particular significance to Tjiwarl?
Booylgoo Range
I am not satisfied the evidence establishes the particular significance of Booylgoo Range in accordance with the traditions of the native title holders. The mere fact the range is connected with a Dreaming story is not necessarily conclusive of whether it is a site or area of particular significance. In particular, there is no evidence presented in this inquiry to suggest the entire Booylgoo Range is of any greater significance than the surrounding country.
The Law Trail
The State contends there is no evidence of any specific sites associated with the law trail or any explanation of their particular significance. The State argues there are no sites on the law trail registered under the Aboriginal Heritage Act 1972 (WA) and says the description provided by Mr Lewis as to the location of the law trail is imprecise. It also says Mr Lewis does not explain the significance of the trail in relation to the impact of the proposed exploration activities. In reply, Tjiwarl submits the evidence of Mr Lewis outlines the significance of the law trail, distinguishes it from other features on and around the licence, and identifies parts of the law trail at specific locations within the licence area.
Although I agree the description of the path taken by the law trail is in some respects imprecise, I am satisfied there is sufficient evidence to support a finding that areas covered by the trail are of particular significance to Tjiwarl according to their traditions. Mr Lewis’ evidence establishes the law trail is ‘very special’, is associated with initiation rituals, and that initiated members of the claim group continue to have obligations with respect to the maintenance of the law trail. The evidence also suggests parts of the law trail within the licence area are associated with the tjukurrpa Dreaming stories and with ceremony, and while it is unclear whether those ceremonies are still performed, I accept this association is a continuing source of traditional significance to the Tjiwarl.
The Wutha plant
In terms of the areas associated with the wutha plant, the State contends the evidence does not identify any specific areas or sites of particular significance and suggests the plant may in fact grow over a relatively extensive area. In this respect, the State refers to the Tribunal’s findings in Narrier v Dubois Group, which concerned the proposed grant of two exploration licences on the Booylgoo Range, to the west of the present licence. In that matter, evidence was given on behalf of Tjiwarl to the effect that ‘watja’ or bush potato could be found on the western side of the range and was considered to be a rare and valuable resource created by and connected to the tjukurrpa.
In Narrier v Dubois Group, one of the Tjiwarl deponents gave evidence that the area on the western side of the Booylgoo Range is the only place where bush potato exists apart from Wongawol, which is ‘north east of the Tjiwarl area and far away.’ Similarly, another deponent outlined that the bush potato could only be found within the Tjiwarl claim on the western part of one of the tenements (E57/962) and that Windidda is the only other place for a long way that you can find it. I observed the watja ‘appeared to be focussed on the west side of the Booylgoo Range on E57/962.’ The State contends the evidence in Narrier v Dubois, where the Tribunal accepted the deponents as having the cultural authority to speak for the area on behalf of the claim group, is inconsistent with the evidence in the affidavit of Mr Lewis.
Tjiwarl accepts that wutha and watja refer to the same plant, but says the State’s characterisation of the evidence as inconsistent is based on ‘a shallow understanding of the traditional laws and customs of the Native Title Party.’ Referring to the affidavit of Mr Calderwood, Tjiwarl contends multiple people within the claim group have authority to ‘speak for country’ and cultural knowledge about areas of significance is not held by any one individual. Instead, there are multiple levels of cultural knowledge held by different members of the group depending on their status within the group and the sources from which they have derived that knowledge. Mr Calderwood states that, in his experience of working with the claim group, ‘one individual does not hold all the knowledge about cultural sites or areas of significance by themselves’ and ‘there are different levels of knowledge held by different people within the group.’
Tjiwarl argues the evidence provided in Narrier v Dubois Group is consistent with the affidavit of Mr Lewis in that it establishes: there is a tjukurrpa story associated with the area of Booylgoo Range; the story is related to wutha or watja, which grow in the area of the Booylgoo Range; and the wutha/watja is located in limited places around the desert. Tjiwarl contend the fact the evidence in Narrier v DuboisGroup established the deponents were aware of the wutha/watja growing only on the western side of the range does not necessarily mean the evidence provided by Mr Lewis is incorrect. Rather, they say the evidence ‘should be read with the cultural complexities of the Tjiwarl Claim Group in mind’ and that one set of evidence should not be preferred over the other.
I agree the evidence in Narrier v DuboisGroup suggests the watja collection is focussed on the west side of the Booylgoo Range (see Narrier v DuboisGroup at [15] for example), and the licence in this current inquiry is on the eastern side of the Range. I accept that knowledge held by one member of a claim group may differ from another’s, depending on the cultural complexities of the area, the status of the person within the group and other factors that may be difficult to capture in a written affidavit, which is often not suited to expressing the nuances of a native title parties’ cultural knowledge. Mr Calderwood has given some broad examples of where those difficulties may arise in relation to the possible restrictions or limitations on a person’s knowledge associated with gender or seniority. However, these have not specifically been applied to the facts in this inquiry.
Nonetheless, I accept the sworn evidence of Mr Lewis. In reaching this conclusion, I had regard to the fact that Mr Lewis has a particular connection with the licence area and the east side of the Booylgoo Range through his father, and has direct experience of visiting the area for the purpose of harvesting bush potato. None of the parties have put in dispute his knowledge of the area or authority to speak for the area on behalf of the claim group. I accept there is an area of particular significance on the western side of the Booylgoo Range (as outlined in Narrier v DuboisGroup) where wutha is harvested and forms sites of particular significance, and an area on the eastern side of the Booylgoo Range, around the licence area, where wutha exists and is harvested.
The question then arises as to the particular significance of the wutha sites within the licence area. There is some force in the State’s argument that the evidence suggests wutha or watja may actually grow over a relatively extensive area. However, reading the evidence of Mr Lewis side by side with that presented in Narrier v Dubois Group, it is clear that, at least within the boundaries of the claim, wutha or watja is confined to areas around Booylgoo Range. This is consistent with evidence of Mr Lewis that the wutha is part of a Dreaming story connected to the range.
The fact that wutha or watja can also be found in other parts of the range does not necessarily mean the places in the licence where it can be found are not areas of particular significance. The evidence establishes that wutha or watja is a rare and valuable resource. The evidence also establishes the existence of cultural protocols around the use, care and maintenance of wutha/watja sites, and that there may be repercussions for the breach of those protocols. Mr Lewis has clearly identified the areas where wutha can be found in the licence area. In my view, there is sufficient evidence to establish the particular significance of these areas according to the traditions of the native title holders.
In this present inquiry, the proximity of the wutha/watja to the law trail/Dreaming stories, and the explanation of how the plant is important to the traditions of the Tjiwarl community are sufficient for me to say the location of the plants form areas of particular significance for the purposes of s 237(b).
Conclusion
I note maintaining and protecting places and object of significance in or on the claim area is one of the non exclusive rights and interests claimed by Tjiwarl. I have concluded there are sites or areas of particular significance to Tjiwarl on the licence: the law trail; and the wutha sites. The question then is: will the exploration activities of Mr Cavallaro be likely to interfere with those sites?
In Nyikina and Mangala v Geotech (at [43]), Member O’Dea summarised circumstances where a grantee party provided no evidence and the native title party had provided evidence of the risks of interference. He stated:
To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstances, in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely.
In their reply, Tjiwarl state where ‘the Grantee Party does not tender such evidence ... then the presumption will be that it is likely that there will be interference for the purposes of s 237’. They submit Mr Cavallaro has not provided any information in relation to how interference with those sites could be avoided or mitigated to avoid offending s 237. While I note Member O’Dea’s comments in Nyikina and Mangala v Geotech, I would not characterise them as supporting the presumption for which Tjiwarl contends. That Mr Cavallaro has not provided any evidence does not automatically lead me to conclude interference will be likely. I need to weigh up the evidence provided by all parties before making a decision about each of the elements which apply to s 237(b), including whether there is a real chance or risk of interference to any sites of particular significance.
The law trail: interference
Tjiwarl outline the course of the law trail, including specific directions, and broadly describe features associated with the trail (for example, certain wells), in detail sufficient for me to conclude the trail is an area of particular significance to the Tjiwarl. However, noting the scope of the trail, which extends west of the licence and at least 10 kilometres to the east of the licence, it is difficult for me to say how the trail could be interfered with by exploration activities without specific evidence.
In relation to the law trail, there appear to be other ‘things connected to ceremony in the Tenement’ and Mr Lewis says he ‘won’t talk about that in this statement.’ It is difficult for me to draw any conclusions that interference is likely, based on such information. While I appreciate a reticence to disclose cultural information in inquiries, I note I can make non-disclosure directions or discuss with parties ways disclosure of information may be made safely where possible. It may be that, in respect of information relating to this licence, safe disclosure was not possible. Nonetheless, on the evidence before me, I am unable to find there is a real risk of interference with the site arising from exploration activity.
Wutha sites
Tjiwarl contends the wutha plant sites are connected to the law trail and Dreaming stories, which extend through parts of the Tjiwarl claim. Mr Lewis says ‘you don’t find [wutha] in many places in the desert.’ As noted above, I accept the wutha sites are of particular significance and an important part of the Tjiwarl traditions. The State argue that interference by Aboriginal people appears to have been accepted by the Tjiwarl, as no cultural punishment seems to have eventuated, and it is not clear how harvesting activities of non-Tjiwarl Aboriginal people differed from exploration activities. The Tjiwarl reply confirms that ‘the evidence in the Lewis Affidavit clearly establishes that this type of activity (harvest by other Aboriginal people) is contemplated under the system of laws and customs of the Tjiwarl Claim group and, rather than being a kind of “interference”, actually points to the existence of an intra-mural system of regulation for the harvest of the wutha, which in this case is evidenced in the breach of that system.’ Mr Lewis is clear that other Aboriginal people who ‘share our traditional laws and customs’, as well as the Tjiwarl native title claim group, visit the licence. I accept the Tjiwarl reply on this point.
The State also argue if any sites of particular significance exist within the licence, an RSHA will ‘generally trigger a heritage survey’, and any such site could be avoided by Mr Cavallaro who ‘is familiar with the area as he owns and operates Depot Springs Cattle Station.’ I have two difficulties with this argument. Firstly, an RSHA is unlikely to be sufficient to prevent interference with wutha sites, as I outline in [64] below. Secondly, there is no evidence Mr Cavallaro currently owns and operates the Depot Springs Cattle Station (as discussed at [28] above).
The Tribunal has dealt with the difference between the right to veto exploration or mining activities, versus the right to negotiate, in many previous decisions. If I conclude the expedited procedure does not apply to the grant of this licence, Tjiwarl obtain the right to negotiate with Mr Cavallaro about mechanisms which can be agreed to protect the wutha. Mr Cavallaro has been on notice of the concerns of the Tjiwarl about wutha sites since the contentions were lodged in this inquiry. State contentions suggest Mr Cavallaro can avoid sites of particular significance because he is ‘familiar with the area’ due to his ownership of the cattle station (at least as at October 2014 when the s 51(1)(b) statement was made). However, aside from the status of any ownership of the cattle station, there is no evidence from Mr Cavallaro, as the explorer, about how he intends to avoid interference, including inadvertent interference, with such sites, or about what areas of the licence he may explore.
In relation to the State’s regulatory regime, and the RSHA condition which will be imposed on the grant of the licence, I adopt my reasoning in [52]–[55], [57], [59]–[60] of Narrier v Dubois, which outlines why I conclude such mechanisms will not be effective in this present inquiry to prevent likely interference with the wutha. In particular, I note the RSHA authorises an explorer to carry out, in the absence of a heritage survey, a range of ‘non-grounding activities’ such as soil sampling, which could disturb or interfere with wutha sites.
Given the nature of the wutha sites and their importance to the traditions of the Tjiwarl, I conclude it is likely interference may occur should normal negotiation between Tjiwarl and Mr Cavallaro not occur prior to any exploration activities being conducted on the licence. Although activities such as soil sampling are often regarded as ‘low-impact’ activities, it is important to note that interference, which may appear trivial to a person who is not a member of a native title party, may be substantial having regard to the native title party’s traditions.
As McKerracher J noted in FMG Pilbara Pty Ltd v Yindjibarndi at [75]–[76]:
... the nature of interference referred to under s 237(a) NTA is not the same as the nature of interference referred to under s 237(b) NTA. The risks addressed in the two subsections are quite different. The range of community and social activities referred to in s 237(a) NTA is very broad, whereas s 237(b) NTA is directed only at areas or sites of ‘particular significance’. It follows that interference that may be trivial in the context of a social activity may be substantial in the context of a site of ‘particular significance’. That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions. This, as suggested in Parker, may require an evaluation of the extent of particular significance of the site …
There is no reference to physical interference [in s237(b)] 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.
(c) Is there likely to be major disturbance to the land or waters concerned?
Tjiwarl has not made any contentions or adduced any evidence on the issue of whether the grant of the licence is likely to involve major disturbance to the land or waters concerned. Consequently, the State has not addressed this question in its contentions.
The Tribunal has generally found the grant of an exploration licence is unlikely to involve major disturbance in the absence of exceptional circumstances (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [143], citing the cases referred to in Champion v Western Australia at [77]). As there is no evidence before me of any special topographical, geological or environmental factors that might lead members of the community to conclude that the grant would result in major disturbance to the land or waters concerned, I am satisfied there is no real risk of disturbance pursuant to s 237(c).
Conclusion
I have considered the community or social activities carried on within the licence as described in the evidence provided by parties, and I am not satisfied the grant of the licence is likely to directly or substantially interfere with those activities. I have found two sites of particular significance exist on the licence, and I am satisfied the grant of the licence is likely to interfere with one of those sites. 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 or waters concerned.
Determination
The determination of the Tribunal is that the grant of exploration licence E36/840 to Justin Charles Cavallaro is not an act attracting the expedited procedure.
H Shurven
Member
17 November 2016
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