Keith Narrier & Others on behalf of Tjiwarl v Montezuma Mining Company and Another
[2016] NNTTA 58
•20 December 2016
NATIONAL NATIVE TITLE TRIBUNAL
Keith Narrier & Others on behalf of Tjiwarl v Montezuma Mining Company and Another [2016] NNTTA 58 (20 December 2016)
| Application No: | WO2015/1046 |
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 & Others on behalf of Tjiwarl (WC2011/007)
(native title party)
- and -
Montezuma Mining Company Ltd
(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: | 20 December 2016 |
| Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere with areas or sites of particular significance – expedited procedure not attracted |
| Legislation: | Native Title Act 1993 (Cth) ss 31(1)(b), 237 Aboriginal Heritage Act 1972 (WA) s 5 Mining Act 1978 (WA) s 66 Mining Regulations 1981 (WA) |
Cases: | Keith Narrier and Others on behalf of Tjiwarl v WA Mining Resources Pty Ltd and Another [2014] NNTTA 112 (‘Tjiwarl v WA Mining Resources’) Mungarla Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘MNR v FMG’) |
| Representatives of the native title party | Mr Mike Allbrook, Central Desert Native Title Services Ms Shanti Fatchen, Central Desert Native Title Services |
| Representative of the grantee party: | Mr Michael Giles, Montezuma Mining Company Ltd |
| Representatives of the Government party: | Ms Bethany Conway, Department of Mines and Petroleum Ms Sarah Power, State Solicitors Office |
REASONS FOR DETERMINATION
This decision is about whether or not the grant of exploration licence E36/843 (the licence) to Montezuma Mining Company Ltd (Montezuma) attracts the expedited procedure. The State of Western Australia issued a public notice for the grant of the licence and included a statement that it considers the grant to be an act attracting the expedited procedure. I have been appointed by the President of the National Native Title Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies. My decision must be based on the criteria set out in s 237(a)–(c) of the Native Title Act 1993 (Cth). All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth), unless otherwise stated.
The whole licence area (approximately 78.8 square kilometres) is overlapped by the Tjiwarl native title claim (WC2011/007, registered since 13 January 2012). Tjiwarl lodged an objection with the Tribunal against the assertion the expedited procedure applies to the grant of the licence.
My decision in this inquiry is that the expedited procedure does not apply. This means the normal negotiation procedure is required: that is, the State and Montezuma must negotiate in good faith with the Tjiwarl native title claimants with a view to reaching agreement about the grant of the licence, as outlined in s 31(1)(b). I explain my reasons below.
The State and Tjiwarl have provided contentions, evidence and replies to the Tribunal for this inquiry, both in writing and orally at a listing hearing, where certain issues relating to mapping and the contentions and evidence were discussed and clarified between parties. At the end of that listing hearing, all parties were content for me to make my decision based on the papers provided, and I saw no reason for further hearings. Montezuma have not made any submissions for the purpose of the inquiry. Tjiwarl provided an affidavit of Mr Kado Muir. Mr Muir states he is an initiated man – a wati – and has cultural authority to speak for the area of the licence. Mr Muir also states he has been shown a copy of the map for the area of the licence and he knows the area well. I accept the affidavit as provided and accept Mr Muir has authority to speak in his stated capacity for the area of the licence.
In pursuing its objection, Tjiwarl has not made any submissions in relation to the ss 237(a) or 237(c) criteria, relating to community or social activities and major disturbance to land and waters. Based on the limited evidence before me, I therefore find the grant of the licence is not likely to interfere with social or community activities of Tjiwarl, or involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
To answer the question of whether the expedited procedure applies to the grant of the licence, I consider the following issues based on s 237(b) criteria:
(a)Is there a real risk of 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)What are the considerations in relation to interference with areas or sites of particular significance?
(a)Is there a real risk of interference with areas or sites of particular significance to Tjiwarl?
The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions.
The Department of Aboriginal Affairs (DAA) Register of Aboriginal Sites shows seven registered sites and 14 other heritage places overlap areas of the licence. Sites recorded with the DAA Register 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 about which information has been received, but have not yet been assessed. This does not mean there may not be other sites or areas of significance or of particular significance to Tjiwarl within, or in the vicinity of, the licence. The DAA Register does not purport to record all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of areas or sites of particular significance, within the scope of s 237(b), in each inquiry.
What are the areas or sites identified by Tjiwarl?
The State says Tjiwarl’s contentions assert the whole of the licence is an area of particular significance. On my reading of the contentions, however, it appears Tjiwarl claims the whole licence is an area of ‘particular importance’, and then identifies with greater specificity sites or areas of particular significance for the purposes of s 237(b). I accept the area is important, generally, to Tjiwarl, and other people of the Western Desert cultural bloc. I consider the sites and areas of particular significance on the licence identified by Tjiwarl in further detail below.
Tjiwarl asserts there are areas or sites of particular significance to the claim group in the licence area which will be subject to interference as a result of the grant of the licence. Specifically, they submit the licence contains:
(a)the Tjutjuralmal Tjukurrpa (honey blossom dreaming), which creates and transforms the landscape and is associated with Tjutjuramal rockhole and Yapu Piti;
(b)ceremonial law grounds associated with increase ceremonies practiced by Tjiwarl and other traditional Western Desert peoples;
(c)objects closely associated with tjukurrpa stories and increase ceremonies (for example, a wana).
Mr Muir states the Tjutjuramal rockhole and Yapu Piti (a rock formation located 50 metres east of the Tjutjuramal rockhole) are located in the south east corner of the licence, west of the Goldfields highway. Mr Muir describes the colour, shape, form and use of the dreamtime Yapu Piti. Mr Muir provides particulars of this site, which I do not repeat here as the information is described by Tjiwarl’s representative as being sensitive in nature.
Tjiwarl also contend the licence contains ceremonial law grounds associated with increase ceremonies practiced by Tjiwarl and other traditional Western Desert peoples. Mr Muir describes a wana (digging stick) found when travelling past Tjutjuralmal Tjukurrpa, which is associated with ceremonies conducted by women in the area. The wana was identified by Mr Muir and those he was travelling with as being part of ceremonies conducted by women at this increase site (Tjapia) and it was not touched due to fear of it still containing women’s magic. Mr Muir states the wana remains in place today, and gives an approximate location. From the evidence provided, the wana appears to be one of the objects listed as closely associated with the tjukurrpa stories and increase ceremonies.
The State suggests the ‘rockhole’ (Tjutjuramal) and ‘rock formation’ (Yapu Piti) are registered sites and that the wana is recorded by DAA as an Other Heritage Place. Having considered the mapping provided by parties and that created by the Tribunal geospatial services, I am unable to see how this conclusion has been drawn. The State do not specifically outline which recorded sites or places they consider are equivalent to the rockhole, rock formation and wanna, and there appear to be no such recorded places in the south east of the licence, to the west of the highway.
Are the areas or sites identified of particular significance to Tjiwarl?
Tjiwarl’s contentions refer to my decision in Tjiwarl v WA Mining Resources, in which I found the expedited procedure did not apply. The tenement in that matter (E36/807) overlapped the licence in this current inquiry by 15.4 per cent, in the south eastern part. It appears that the sites identified by Tjiwarl in this inquiry are located in whole or part, on or near that 15.4 per cent area of overlap. My decision in Tjiwarl v WA Mining Resources was based on my conclusion that a rock hole and a rock formation connected to the honey blossom dreaming were sites of particular significance.
The State also refers to Tjiwarl v WA Mining Resources, seeking to apply some parts of the decision and distinguishing others. The State submits I should adopt the findings from Tjiwarl v WA Mining Resources in relation to the Tjutjuramal rockhole, Yapu Piti and the wana site. In that matter, I found the Tjutjuramal rockhole and Yapu Piti are sites of particular significance, but the wana site is not. I will examine the evidence relating to the particular significance of each site individually in the context of the current inquiry.
While the Tribunal is not bound by previous decisions, I may adopt any findings or decision, or have regard to relevant evidence submitted in another matter (MNR v FMG). I note the evidence provided by Mr Muir in Tjiwarl v WA Mining Resources in relation to the Tjutjuramal rockhole, Yapu Piti and the wana site is very similar to the evidence provided in this matter, which Mr Muir also notes in his affidavit. I will examine the evidence relating to the particular significance of each site individually.
Tjutjuramal rockhole
Mr Muir states the Tjutjuramal rockhole is part of the honey blossom dreaming, the word Tjutjuramal meaning honey blossom. Mr Muir states the honey blossoms are ‘bright orange and yellow grevillea flowers that grow in spinifex country’ with the nectar able to be sucked straight from the bush itself or collected and soaked in water to make a sweet drink. Mr Muir attests the Tjutjuramal rockhole is a dreaming place associated with certain ceremonies that are very important to Tjiwarl. Mr Muir provides some further details on the nature of these ceremonies, which I do not outline here due to their sensitive nature.
Mr Muir states Tjiwarl have a responsibility to look after country including clearing out the rockholes and observing who has been visiting by monitoring imprinted tracks. Mr Muir states, as a wati, he has a responsibility to care for country and look after the tjukurrpa. If something happens to the tjukurrpa, Mr Muir advises he will ‘get in trouble from other wati’ and states that any damage to the rocks may result in the destruction of special places.
Based on the affidavit evidence provided by Mr Muir in this matter, and my findings in Tjiwarl v WA Mining Resources, I conclude the Tjutjuramal rockhole is a site of particular significance to Tjiwarl.
Yapu Piti
In his affidavit, Mr Muir describes Yapu Piti as being part of a rock formation, which protrudes from the ground and is orange in colour. The particular section of the rock known as Yapu Piti is located in the centre of the formation and is raised approximately 0.5 metres above the ground. Mr Muir states Yapu Piti represents a dreamtime piti dish and is used for soaking honey blossoms. Mr Muir also describes in detail a number of activities that occur at Yapu Piti, which I will not outline further here due to their cultural sensitivity.
Based on the affidavit evidence provided by Mr Muir in this matter, and my findings in Tjiwarl v WA Mining Resources, I conclude Yapu Piti is a site of particular significance to Tjiwarl.
Wana site
Mr Muir relates a story that took place when he travelled past Tjutjuralmal Tjukurrpa: he states a wana (digging stick) was found beside the ashes of a campfire and was thought to be leftover from a women’s increase ceremony, conducted at a time some desert women would have been travelling from Warburton to Wiluna for law business. Mr Muir describes being careful to not touch the wana as it ‘still contained women’s magic in it because it will cause considerable harm to the men if they touched it’. Mr Muir states the wana is still there today.
I note in Tjiwarl v WA Mining Resources, I found the wana site was not a site of particular significance in its own right, but was rather ‘evidence in support of Mr Muir’s contention that the rock formation and rock hole connected to the honey blossom dreaming are increase sites and are still used for increase ceremonies and rituals’. I find the evidence provided in this matter similarly does not establish the wana site is site of particular significance for the purposes of s 237(b).
Law grounds and licence area
Tjiwarl contends the area of the licence contains ceremonial law grounds associated with certain ceremonies practiced by Tjiwarl. However, there is little further evidence provided in support of this contention. Lacking specific details as to the location of the law grounds and the nature of their significance to Tjiwarl, I cannot find they are areas of particular significance for the purpose of s 237(b).
What are the considerations in relation to interference with areas or sites of particular significance?
I note Montezuma have not provided any contentions or evidence in this inquiry. Through the State’s contentions, they have provided information about their proposed activities in year 1 of their exploration program, and have indicated they will be exploring for nickel and gold across the whole licence. Depending on what is found in the first year of exploration, drilling is proposed in the second year and beyond.
The State asserts that part of the area in the south east of the licence is not able to be granted, as it contains an overlap with a live tenement, and provided mapping in support, although it is unclear which tenement the map is referring to. More recent mapping by Tribunal geospatial services outlining current live tenements do not show any live tenements overlapping the south eastern portion of the licence. As such, the entire area could be subject to exploration activities of Montezuma. According to s 66 of the Mining Act 1978 (WA), those activities can include:
(a)to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d)to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 (WA) outline the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1000 tonnes.
In this context, and noting: the State’s proposed conditions and regulatory regime; previous exploration, mining and pastoral activity; and the consistent nature and location of the identified sites of particular significance, I adopt my findings in Tjiwarl v WA Mining Resources as follows:
[48] In undertaking a predictive assessment, the intentions of the grantee party in relation to the protection of sites of particular significance may be relevant to s 237(b) considerations (Walley v Western Australia (at [9]))…there is no evidence in relation to the grantee party’s proposed activities over the proposed licence area…or how they intend to minimise the risk of interference with sites or areas of particular significance to the native title party. As such, consistent with the legal principles set out by the Tribunal in Silver v Northern Territory at [30]-[32], in the absence of evidence of the grantee party’s intentions, the question of likelihood must be assessed on the basis that the rights given by the grant of the proposed licence will be exercised to the full. However, even in circumstances where it is assumed that a grantee party will exercise its rights to the full, it does not necessarily follow that a finding that interference is likely will be made…the native title party evidence in respect of these areas in the southern portion of the proposed licence is so strong that nothing short of consultation with the native title party regarding that area would ensure there was no likelihood of interference.
In the current inquiry, the State outlines that in their view, the Tjutjuramal rockhole and Yapu Piti are geographical features which are readily identifiable, for example, by the grantee party, and that the location of the sites is clear. They argue it is therefore possible for Montezuma to avoid interference. However, Montezuma provides no information indicating how they might identify the sites or what steps they may take to avoid interfering with the sites. The information provided by Montezuma, through the State, only indicates they intend to explore across the whole licence, and these activities may include drilling in prospective areas once they are identified.
The State contends concerns raised by Tjiwarl and Mr Muir regarding interference with sites are addressed by the regulatory regime. The State points to a combination of: an endorsement drawing Montezuma’s attention to the relevant provisions of the AHA and the regulations associated with the AHA; and a condition requiring Montezuma to execute a Regional Standard Heritage Agreement (RSHA) in favour of Tjiwarl. Tjiwarl highlight the difference between an endorsement and condition, being that only a condition carries the possibility of forfeiture of the licence upon breach. Tjiwarl also state the RSHA has never been accepted by Tjiwarl and does not provide adequate protection against interference with sites of particular significance due to the lack of a requirement for co-operation to ensure ongoing protection of Aboriginal heritage.
Given the nature of these sites of particular significance, and the activities proposed by Montezuma on the licence, I conclude the regulatory regime would not be sufficient to avoid interference with the sites.
The State also outlines prior tenements which have been granted over the area of the licence, and indications of exploration and mining activity from those grants. However, there is little evidence such exploration has occurred in the south eastern portion of the licence, or caused interference with the sites of particular significance. For example, there is no indication as to whether the exploration was done under an agreement between Tjiwarl and the relevant grantee. Even had exploration taken place, it does not necessarily follow that further exploration in the area would not constitute interference for the purposes of s 237(b).
Taking all of these factors into account, I find there is a real risk of interference with sites of particular significance as a result of the grant of the proposed licence, as envisioned by s 237(b).
Conclusion
On the evidence before me, I find the Tjutjuramal rockhole and Yapu Piti are sites of particular significance to Tjiwarl, and the grant of the licence is likely to interfere with these sites. I do not find it likely that Montezuma’s exploration activities will interfere with social or community activities of Tjiwarl, or create rights whose exercise is likely to involve major disturbance to the land or waters concerned.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E36/843 to Montezuma Mining Company Ltd, is not an act attracting the expedited procedure.
Helen Shurven
Member
20 December 2016
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