Marputu Aboriginal Corporation RNTBC and Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation RNTBC v Great Western Exploration Limited
[2018] NNTTA 80
•19 December 2018
NATIONAL NATIVE TITLE TRIBUNAL
Marputu Aboriginal Corporation RNTBC and Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation RNTBC v Great Western Exploration Limited and Another [2018] NNTTA 80 (19 December 2018).
Application No: | WO2017/0723; WO2017/0744; WO2017/0747 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Marputu Aboriginal Corporation RNTBC (WCD2017/011)
(first native title party)
- and –
Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation RNTBC (WCD2008/002)
(second native title party)
- and -
Great Western Exploration Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 19 December 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – non-disclosure directions – the acts are not acts attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) s 109, 146, 151, 155, 237 |
Cases: | Andy Campbell & Others on behalf of the Birriliburu Native Title Holders v Murchison Metals Ltd [2012] NNTTA 48 (Campbell v Murchison) Albert Little & Others v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (Little v Lake Moore Gypsum) Atkins on behalf of the Gingirana People v Western Australia [2017] FCA 1465 (Atkins v Western Australia) BP (deceased) and Others on behalf of the Birriliburu People v Western Australia [2008] FCA 944 (BP v Western Australia) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Daisy Lungunan and Others on behalf of Nyikina Mangala v Geotech International Pty Ltd [2012] NNTTA 24 (Nyikina Mangala v Geotech) Karajarri Traditional Lands Association (Aboriginal Resources) Mt Gingee Munjie Resources Pty Ltd v Victoria (2003) 182 FLR Victoria) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara) Re Smith (1995) 128 FLR 300; [1995] NNTTA 31 (Re Smith) Silver v Northern Territory [2002] NNTTA 18 (2002) 169 FLR 1 (‘Silver v Northern Territory’) Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Rachlan Holdings Pty Ltd and Another [2016] NNTTA 27 (TMPAC v Rachlan) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Weld Range Metals Ltd v Western Australia (2011) 258 FLR 9; [2011] NNTTA 172 (Weld Range Metals v Western Australia) Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (Western Australia v McHenry) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara) |
| Representatives of the first native title party and second native title party: | Mr Gavin Dunn and Ms Felicity Noonan, Central Desert Native Title Services Ltd |
| Representative of the grantee party: | Ms Emma Brown, Hetherington Exploration & Mining Title Services (WA) Pty Ltd |
| Representatives of the Government party: | Ms Aisyah Ishak and Mr Frances Cardell-Oliver, State Solicitor’s Office Mr Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licences E69/3499 and E69/3496 (collectively, the licences) to Great Western Exploration Limited (Great Western Exploration). The State of Western Australia (the State) considers the grant of the licences is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The President of the National Native Title Tribunal, Honourable John Dowsett AM, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The licences are located approximately 6 kilometres from each other in the Shire of Wiluna. I note E69/3499 is also located in the Shire of Meekatharra. The native title determinations Marputu Aboriginal Corporation RNTBC (WCD2017/011) and Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation RNTBC (WCD2008/002) overlap the licences as follows:
| Licence | Size of licence (approx.) | Overlap with native title determination area (approx. percentage / square km) | Location |
| E69/3499 | 168 km2 | Marputu Aboriginal Corporation RNTBC: 100/ 168 km2 | 173 km north of Wiluna |
| E69/3496 | 332 km2 | Marputu Aboriginal Corporation RNTBC: 19/ 63km2 Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation RNTBC 81/ 269km2 | 165 km north of Wiluna |
The Marputu Aboriginal Corporation RNTBC (Marputu) hold native title rights and interests in the licence areas, on behalf of the Gingirana People, as determined in Atkins v Western Australia. The Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation RNTBC (MNR) hold native title rights and interests in E69/3496, on behalf of the Birriliburu People, as determined in BP v Western Australia. Marputu and MNR (collectively, the native title parties) exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies, and argue the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely. The State argue the expedited procedure should apply. Great Western Exploration did not express a view in the form of contentions, nor did they present any evidence in the inquiry.
If I find the expedited procedure applies, the licence can be granted without further negotiation between the parties. If I find it does not apply, Great Western Exploration and the State must negotiate in good faith with a view to reaching an agreement with the native title parties about the proposed grant of the licences. I must base my decision on the s 237 criteria. In addressing s 237 of the Act, I must make a predictive assessment. I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licences, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]–[9]). For the reasons outlined below, my determination is that the expedited procedure does not apply to any of the licences.
Material before the inquiry
Tenement E69/3499
The native title party material
Marputu submitted a statement of contentions, attaching the unsworn affidavit of Mr Slim Williams. Mr Williams’ affidavit was later affirmed and re-submitted. Mr Williams identifies as a traditional owner and a lawman for the country covered by E69/3499. I accept Mr Williams has authority to speak for the licence area. Marputu also submitted a statement of contentions in reply to submissions made by the State.
The grantee party material
Despite participating in the preliminary conference for this matter, Great Western Exploration, without explanation, failed to comply with directions and did not submit any contentions, evidence or other material in this matter.
The State’s material
The State submitted results from the Department of Aboriginal Affairs’ Aboriginal Heritage Inquiry System (AHIS) which indicates the following sites are recorded under the Aboriginal Heritage Act 1972 (WA) (the AHA) in the licence area:
·Wati Kutjurra Rockhole 1 – ID 1374.
·Wati Kutjurra Rockhole 2 – ID 1375.
The AHIS also states there is one other heritage place within the licence area, Nabberu Site 4 – MA 44, ID 17639. Two crown reserves overlap the licence by 10.4 per cent (CR11452) and 0.2 percent (CR12297), and the Marymia Pastoral Lease (N050486) overlaps the licence by 29.7 per cent. The licence area has been subject to 18 exploration licences and 3 temporary reserves. The initial term of grant for E69/3499 is five years, and is renewable.
The State outline in their contentions that as well as various conditions and endorsements, a condition will be placed on the licences where the native title parties may request, and the grantee party shall execute, a Regional Standard Heritage Agreement (RSHA) within certain timeframes.
Tenement E69/3496
The native title party material
MNR submitted a statement of contentions, attaching the sworn affidavits of Mr Darren Farmer and Mr Robert Thomas, the unsworn affidavit of Ms Lena Long, a video of on country evidence in and around the Carnarvon Ranges dated 13-15 March 2012 and maps of locations as depicted in the video. A properly deposed copy of the Ms Long affidavit was submitted at a later date. I note the affidavit of Mr Farmer and the video of on country evidence were originally produced for previous inquiries. Mr Farmer identifies as a native title holder and traditional owner for MNR. I accept Mr Farmer has authority to speak for the licence area. Mr Thomas has been employed by Central Desert Native Title Services Ltd and subsequently, Desert Support Services Pty Ltd since 2009. He has overall responsibility for running the division providing assistance to MNR to advance their land and cultural management activities. I accept the experience of Mr Thomas and that the evidence presented relates to the native title holders and the licence area. Ms Long identifies as a native title holder for both Birrilburu and Gingirana. I accept Ms Long has authority to speak for the licence area.
MNR applied for non-disclosure directions under s 155 of the Act in relation to the video of on country evidence. I was satisfied that the material is sensitive and, accordingly, made directions restricting the parties’ use of that information. While I have considered that evidence, I refer to it specifically in this decision only to the extent I need to make my reasons clear. MNR also submitted a statement of contentions in reply to submissions made by the State.
Marputu submitted a statement of contentions advising the native title holders have had the benefit of reading the contentions submitted on behalf of MNR, and both supports and adopts those submissions.
The grantee party material
Despite participating in the preliminary conference for this matter, Great Western Exploration, without explanation, failed to comply with directions and did not submit any contentions, evidence or other material in this matter.
The State’s material
The State submitted results from the AHIS which indicates the following sites are recorded under the Aboriginal Heritage Act 1972 (WA) (the AHA) in the licence area:
·Talbot Rockhole – ID 1183.
·Stone Markers – ID 1184.
·Yamada – ID 2559.
·Wampini – ID 2619.
·Mt Methwin – ID 2804.
The AHIS also states there are the following other heritage places located within the licence area:
·Katjara Camp – ID 1180.
·Katjara – ID 2558.
The licence area has previously been subject to 19 exploration licences and 7 temporary reserves. As with E69/3499, the State outline in their contentions that as well as various conditions and endorsements, a condition will be placed on the licences where the native title parties may request, and the grantee party shall execute, a Regional Standard Heritage Agreement (RSHA) within certain timeframes.
Evidentiary matters
Tenement E69/3499
The Slim Williams affidavit
As stated above (at [6]) the affidavit of Mr Williams was initially provided to the Tribunal and all parties unsworn. A properly deposed copy was to be provided ‘in due course’ to replace the un-signed statement. As at the date of the State filing its contentions (on 11 September 2018), a sworn copy of the affidavit had not been provided. The State contended the Tribunal should give limited weight to unsworn evidence.
Marputu subsequently filed the affirmed affidavit of Mr Williams on 12 November 2018. Further, Marputu assert s 109 of the Act operates to ensure that the Tribunal is not bound by technicalities, legal forms or rules of evidence, and the Tribunal is required in making a decision about the weight ascribed to an unsworn affidavit, to carry out its functions fairly and with regard to the beneficial purpose of the Act.
I accept the 12 November 2018 affirmed affidavit of Mr Williams.
Tenement E69/3496
Parties agreed on a number of facts and procedural issues regarding E69/3496 (similar submissions were not made for E69/3499), including:
·There is no evidence before the Tribunal of community or social activities by members of the Marputu native title party within the area of the licence that overlaps the Gingirana determination.
·There is a community of native title holders within the area of the licence.
·Members of the MNR native title party undertake the following community and/or social activities within and adjacent to the area of the licence:
oLaw business and the protection and maintenance of areas or sites of particular significance.
oCamping, hunting, gathering and intergeneration teaching.
oLand management activities by Birrilibulu rangers, including construction of camps, monitoring of flora and fauna, burning, cleaning rockholes, erecting signs and enforcing restrictions on access, and leading visits to the licence area by groups of native title holders or non-native title holders.
·The land management activities referred to above by Birrilibulu rangers are undertaken on a regular basis by groups of approximately 10 Birrilibulu native title holders.
·There is no evidence before the Tribunal of any areas or sites of particular significance, in accordance with their traditions, to the members of the Marputu native title party within or adjacent to the area of the licence that overlaps the Gingirana determination.
·The men’s law ground near Talbot Rockhole is a site/area within the area of the licence and is of particular significance to the Birriliburu people.
Parties did not agree on the following material facts:
·The frequency and timing of camping and hunting trips, and the number of native title holders who go camping on and adjacent to the area of the licence.
·The extent to which law business takes place within or adjacent to the licence.
·Whether the water source/sacred site and/or area referred to by Ms Long at [9]-[11] of her affidavit is located at the site labelled as ‘Virgin Springs’ on the ‘maps of locations in video’ filed by MNR.
·Whether the following sites and/or areas identified by MNR are within the licence area:
oThe area of water source/sacred site referred to by Ms Long at [9]-[11] of her affidavit.
oThe area of the rockhole referred to by Ms Long at [8] of her affidavit.
oThe area of the hills, waterholes and law grounds at Mt Methwin referred to by Mr Farmer at [12]-[13] and [18] of his affidavit.
oThe area of the secret/sacred paintings referred to by Mr Farmer at [11], and depicted in the video of on-country evidence.
oThe area of sacred objects referred to by Mr Farmer at [11], and depicted in the video of on-country evidence.
oThe area traversed by the dreaming tracks referred to by Mr Farmer at [10] and [14], and depicted in the video of on-country evidence.
Issues in dispute – E69/3496
Parties agreed the following issues remain in dispute:
·The extent to which the Tribunal’s findings in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara are relevant to the determination of this inquiry.
·Whether the grant of the licence is likely to result in direct interference with the following community or social activities of MNR:
oLaw business, and the protection and maintenance of areas and sites of particular significance.
oCamping, hunting, gathering and intergenerational teaching.
oUse of water resources.
oLand management activities by Birriliburu rangers.
· Whether the absence of information from Great Western Exploration regarding its proposed activities within the licence areas demonstrates that interference with community or social activities is likely to occur.
· Whether the sites listed below at [59] are of particular significance to MNR.
· Whether the grant of the licence is likely to interfere with these sites.
· Whether the protective regime under the AHA will be sufficient to prevent interference with these sites.
· Whether the absence of information from Great Western Exploration regarding its proposed activities within the licence areas demonstrates that interference is likely to occur.
· Whether the absence of information from Great Western Exploration regarding its proposed activities within the licence areas demonstrates that interference with these sites is likely to occur.
Initially parties did not agree whether, in the absence of cross-examination by the State or Great Western Exploration of a witness who has provided evidence in support of MNR’s contentions, the evidence should be treated as a matter of fact. On that basis, MNR considered it appropriate for the Tribunal to conduct a listing hearing, and if necessary, a hearing. The State then clarified it does not suggest Mr Farmer or Ms Long are being untruthful or mistaken and would not seek to cross-examine them at a hearing. With regard to Mr Farmer’s affidavit (at 14), the State say it has simply made a submission about whether he identifies sites with sufficient particularity. In these circumstances where Mr Farmer is commenting from his own knowledge, and talking about different licences which partially overlap the present proposed licence, The State say they are entitled to point to independent material without disputing the accuracy of Mr Farmer’s affidavit or requiring him to be cross-examined. Regarding Ms Long’s affidavit, the State note it is simply inviting the Tribunal to draw an inference based on what they say may be an inconsistency in MNR’s own evidence. In consideration of this response, MNR agreed to dispense with the listing hearing and for the matter to be heard on the papers.
Use of decision and evidence from Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara
Part of the area covered by E69/3496 was subject to a previous exploration licence, E69/2722, which overlapped approximately 50 per cent of E69/3496 and areas mentioned in this inquiry including the Katjarra area (inclusive of the Katjarra rockhole and Virgin Springs) and Talbot rockhole. Along with E69/3726 and E69/2727, E69/2722 was subject of an inquiry (Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara) where I found the grant of E69/2722 was not an act attracting the expedited procedure. In particular, I found the grant of the licence was likely to directly interfere with the community or social activities and areas or sites of particular significance of MNR. MNR have respectfully requested that this inquiry adopt the findings in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara, where I found:
·Scheduled burning and ceremonial business are community and social activities within the meaning of s 237(a), and conducted within the area of, or adjacent to, the licence area.
·The Katjarra area, which includes Katjarra rockhole and virgin springs, is an area of particular significance within the meaning of s 237(b).
·Katjarra rockhole and Virgin springs are located within the area of the licence.
·Talbot rockhole is a site of particular significance within the meaning of s 237(b), and located within the licence area; and
·Subsequently takes cognisance of the conclusions regarding interference for the purposes of s 237(a) and s 237(b).
The State concedes some of the same conclusions reached in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara are open again on the evidence in this inquiry, but contends the Tribunal should not simply adopt the findings of the previous inquiry without careful consideration of:
·The evidence in this inquiry.
·The differences in the boundaries of the licences in each inquiry and the consequent differences in the focus of the evidence.
·The age of the evidence presented in the previous inquiry (which took place in 2014 and was determined in early 2015), particularly with regard to community and social activities.
MNR contends the fact the inquiry for Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara took place in 2014 and the evidence in that matter is largely corroborated by evidence in this inquiry, adds considerable weight to its value. It asserts the matters relevant to s 237 (a) and (b) of the Act identified in the previous inquiry have remained relevant in the intervening years and continue to remain relevant into the future.
The Tribunal is not bound by its previous decisions (see Re Smith at [305]; Mt Gingee Munjie Resources v Victoria at [201]). Where relevant to this inquiry, I have adopted some of the findings in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara. The Tribunal may, in its discretion, adopt any report, findings, decision, determination or judgement of the Tribunal, a court, a recognised State or Territory body or any other person or body (s 146 of the Act). The Tribunal is also entitled, as an administrative decision-maker, to have regard to evidence that has been given in another proceeding, provided the evidence is relevant (Weld Range Metals v Western Australia at [149]). However, while I am entitled to have regard to and give weight to previous decisions of the Tribunal where relevant, I am required to consider the entirety of the evidence before me in the present proceedings (Karajarri Traditional Lands Association v ASJ Resources at [14]). It has also been necessary to have regard to the fact that the proposed exploration will be undertaken by a different grantee party, although, the grantee party did not submit any contentions, evidence, or other material in this matter. While I have considered and given weight to my previous findings, it has been necessary to have regard to the evidence before me in reaching my conclusions.
Having considered the material before me, I am satisfied it is appropriate to determine these matters ‘on the papers’ as permitted by s 151 of the Act, without the need for further oral hearing.
Section 237(a): is the grant of the licences likely to interfere directly with the community or social activities of the native title party?
To find s 237(a) interference is likely, there must be a direct and substantial interference with social or community activities (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference.
Tenement E69/3499
Although section 237(a) was one of the grounds raised in Marputu’s initial objection regarding E69/3499, their evidence and submissions do not specifically address the issue of interference with community or social activities.
I do not consider there to be any evidence in support of a conclusion that the grant of the E69/3499 is likely to interfere directly with Marputu’s community or social activities.
Tenement E69/3496
Objection WO2017/0744 is brought by Marputu, and objection WO2017/0747 is brought by MNR and relate to the part of the tenement application E69/3496 which also overlaps their respective determined land. As stated at [12] above Marputu submitted a statement of contentions advising the native title holders have had the benefit of reading the contentions submitted on behalf of MNR, and both supports and adopts those submissions.
What community or social activities do the native title parties undertake on the licence?
The native title parties’ contentions indicate the licence area (E69/3496) is used by the native title holders to carry on community and social activities in accordance with their traditional laws and customs. These community and social activities fall into three broad categories:
·Activities associated with law business and the protection and maintenance of areas and sites of particular significance.
·Activities of a general nature conducted by the native title holders.
·Activities designed to protect and maintain the land and waters in accordance with the values conferred on the area under traditional law and custom and the manifestation of these under the Indigenous Protection Area (IPA) and Indigenous Union Conversation Networks III protected area classification (IUCN Category III).
Activities associated with law business and the protection and maintenance of areas and sites of particular significance.
The evidence in this section relies heavily on the affidavit of Mr Farmer. I note this affidavit was sworn on 6 June 2014, and was produced for a previous inquiry regarding exploration licences E69/2722, E69/2726 and E69/2727. Mr Farmer is described in his affidavit as a strategic advisor, native title holder and wati with ritual authority for areas/sites and matters to do with the jukurrpa in the Birriliburru determination area.
The native title parties state initiated men or wati carry on activities associated with law business and the protection and maintenance of areas and sites of particular significance within and adjacent to the area of E69/3496. Mr Farmer says (at 13) ‘Like at Mt Methwin men regularly conduct law business in these places especially during law business time.’ The native title parties’ explain the whole of the Katjarra (an area running from Lake Kerrylyn in the north, southwards through Mt Methwin), including E69/3496, is blocked off during law business which occurs predominantly over the warmer months. Law business involves initiated men and restrictions are enforced, ‘Because these three places that is Mt Methwin, Kanatukul and Blue Hills are linked, and because Mt Methwin and Kanatukul are inseparable, the wati spend a lot of time making sure that this whole area is protected’ (Mr Farmer at 16).
The native title parties contend sacred objects are stored within and adjacent to the area of E69/3496. Reference is made to the Katjarra waterholes and the surrounding area for the previous inquiry involving E69/2722. Mr Farmer states (at 11) ‘The wati store sacred objects in and around the mens’ places in this area. The men regularly conduct law business in these places especially during law business time.’ Areas such as these are restricted and controlled. There is a lot of art on the rocks in and around the Katjarra waterholes and Mt Methwin for which Mr Farmer states (at 11) ‘Some of the art shows secret/sacred things and was created in the dreaming. This art cannot be view by ladies and is blocked off by the wati.’ The native title parties’ state restrictions are enforced by patrols which remove people if necessary, and the whole wider area is blocked off to allow for law business and ceremony to be conducted uninterrupted, ‘When travelling in the area for law business all roads are closed to non-wati. This is so the wati can travel in and through the area in their ceremonial attire and carrying their ceremonial objects without being observed by non-wati. This is very important to make sure that the proper rituals associated with the law business are observed.’ (Mr Farmer at 18). Further evidence has been provided in the video on on-country evidence which I shall not repeat here due to cultural sensitivities.
The native title parties contend uncontrolled exploration activity within and adjacent to E69/3496 will directly interfere with law business activities undertaken by the native title holders, and in particular, the wati. Mr Farmer explains there are consequences to the wati if the activity of the Birriburu rangers in protecting their important areas, is interfered with. He says it is also very important that women do not attend some places near where there are sites or places that the wati can access. Mr Farmer states (at 21) ‘Punishment against those wati who don’t control those things above from happening include a bashing or spearing. The responsible wati also have to live forever with the shame of what’s happened. ’ The video on on-country evidence provides detail on how women will suffer consequences if they enter a men’s site, and non-wati may get upset and sick if they enter a men’s site.
Activities of a general nature conducted by the native title holders.
The native title parties, and in particular the Putijarra native title holders, state they undertake activities of a general nature within and adjacent to E69/3496 (Putijarra is the language spoken in the area of the licence and the term used to self-identify the native title holders for that area). The native title holders camp, hunt and teach on the area of the E69/3496, especially in the cooler months. Mr Farmer states (at 23) ‘They camp at Blue Hills a few kilometres further north at Good Camp Rockhole…or in flat country in between.’ He notes native title holders also camp at the Blue Hills Reserve, near the old Blue Hills community, Katjarra Rockhole and Virgin Springs.
The native title parties contend uncontrolled exploration activity within and around the licence area will interfere with these activities. Ms Long states it will affect hunting by taking water used by animals and frightening them away, ‘There’s a lot of animals around Katjarra…If that mining company is doing lots of digging in that area, it might scare those animals away’ (at 23). The native title parties’ also ‘visit that area to get away from the stresses of town and re-embrace the traditional lifestyle’, and the grant of E46/3496 will affect their ability to do so.
Activities designed to protect and maintain the land and waters.
The native title parties state E69/3496 is part of a significantly larger area of both particular cultural and environmental significance known and referred to by the Putijarra as Katjarra, sometimes referred to as the Carnarvon Ranges. The whole of the MNR determination area has been declared an IPA. The high cultural and conservation values of the wider Katjarra area are recognised as classified as, IUCN Category III protected under the IPA.
The native title parties say activities such as; burning of country, feral animal control, research trips, endangered species monitoring, waterhole clearing, tourist control, signage, removing trespassers, return to country trips, and general land management activity are undertaken on and adjacent to E69/3496. These activities are planned well in advance, and may be undertaken within Katjarra and adjacent to the region every 6 weeks to 2 months, or approximately 9 times a year. Ms Long says (at 14) ‘When we plan our trips each year we always make sure we go to Katjarra. Under our IPA, Katjarra is a priority management zone.’ Mr Thomas states the program of activities ‘involves around 80 Birriliburu participants…with approximately 10 people at a time undertaking the general activities…’ (at 31).
The native title parties contend the presence of exploration activities in the licence area will directly interfere with the current and future land management and caring for country activities. Ms Long states (at 18), ‘If that mining company’s out there without telling us, that could be really bad, really dangerous. If we don’t make proper agreement…it would make it hard for us to burn because we would be worried about people being out there. If we can’t burn, then we can’t look after it.’ The native title parties also contend this can create dangers when activities such as feral animal control are being undertaken, such as the culling of camels so they do not contaminate the water, ‘Some rangers are trained to shoot camels to make sure the country is healthy. When this happens again the rangers make sure that there are no people around that could be hurt by culling the camels’ (Mr Farmer at 35). Mr Thomas further expresses his concerns regarding unregulated access due to the fragile desert ecosystem, firework, and the threat of the introduction of non-native flora brought in by seeds carried by vehicles.
What activities do Great Western Exploration propose to undertake on the licence?
In their application for this licence, Great Western Exploration state their intended work program will re-evaluate the potential for gold and base metals based on historical information, in particular gravity surveys that have been completed over the area. Exploration goals will be achieved by review of historical information, modelling from regional exploration, negotiating access to surface areas with the underlying tenure holders, ground EM survey, and undertaking detailed airborne or ground surveys.
The State proposes to grant the licence subject to a number of endorsements and conditions. The State also proposes to include the RSHA condition (as outlined at [15] above). The State notes the area of the proposed licence has been subject to prior exploration activity. It contends the grant of E46/3496 is not likely to result in direct interference with the carrying on of community or social activities within the MNR determination area because those activities are limited to identifiable sites at particular times, and advance warning is available by way of a RSHA.
Is the grant of the licence likely to interfere directly with the community or social activities of the native title parties?
As stated above (at [23]), part of the area covered by E69/3496 was subject to previous exploration licence E69/2722, and was the subject of a previous inquiry before the Tribunal (Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara). In that determination, I found the proposed grant was not an act attracting the expedited procedure. In my reasons, I made a number of findings and I concluded that both scheduled burning and the conduct of law business within and adjacent to E69/2722 were community and social activities that would be directly interfered with as a result of the grant of the licence (see Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara [115]-117]). The native title parties request that this inquiry adopt my previous findings that scheduled burning and ceremonial business are community and social activities within the meaning of s 237(a), conducted within the area of, and adjacent to, E69/3496, and subsequently the grant of the licence in this matter is likely to directly interfere with the community and social activities of the native title holders.
Along with the contentions above (see [24]), the State notes the previous inquiry took place in 2014 and a significant number of witnesses who provided affidavit evidence then have not provided evidence in this inquiry. The State also assert evidence of past community or social activity does not necessarily establish current or future activity. As I found in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara (at [52]), I accept the documents produced in relation to the previous proceedings should not be relied on solely for the purposes of determining whether community or social activities are carried on by members of the native title parties in the licence area. However, I adopt my findings in that matter (at [52]-[53]) where I state evidence of past activity may be relevant to the extent that it demonstrates an ongoing pattern of activity. There is clearly an overlap between the areas being considered in the present inquiry and the areas subject to the previous proceeding. Though I accept that evidence of this nature must be treated with caution, I accept this material has relevance to these proceedings.
The State refer to the video of on country evidence where Mr Robbie Wongawol refers to a men’s law ground. Although the State accepts, on the basis of the evidence, that the law ground is still used by the native title holders over extended periods, it contends there is no evidence from Mr Wongawol as to the frequency of that use, or the number of native title holders involved. Regarding the affidavit of Mr Farmer, the State assert any law business at, or in the vicinity of, Kanatukul would be well outside E69/3496. The State say Mt Methwin is on the boundary of the licence area, and while some sensitive travel or law business ‘may’ happen within E69/3496, it is not possible to ascertain how much actually occurs within the licence.
The State contends Ms Long’s affidavit does not provide any evidence of hunting activities other than ancillary to ranger trips, nor the frequency of trips taken to Katjarra. It says Mr Farmer mentions hunting, camping and teaching activities at the Blue Hills Reserve and Good Camp Rockhole which are located outside the licence area. The State assert there is no indication of the numbers of native title holders who camp at Katjarra Rockhole or Virgin Springs, and given the relative inaccessibility of those sites, the Tribunal should infer the numbers are fewer than those going to Good Camp Rockhole or Blue Hills. Further, the State say the Tribunal should have regard to the age of Mr Farmer’s evidence.
The State contends each of the activities referred to in the evidence is confined to identifiable sites and occurs at predictable and identifiable times. Regarding law business, the State say it appears generally to be confined to particular sacred sites at particular times of the year. The identified sites within the licence area where camping and hunting occurs are Katjarra Rockhole and Virgin Springs which the State assert these trips appear to be confined largely to school holidays. Further, the State say the evidence suggests that ranger trips to Katjarra take place in accordance with a predetermined program decided annually by MNR. The area of Katjarra shown in the maps submitted is approximately 2000 square kilometres – the State contend the significant size of the area is relevant to the likelihood of rangers and miners crossing paths.
The State says it appears the locations of law business and camping activities overlap with a number of sites relied upon by the native title parties in s 237(b), particularly Virgin Springs/Katjarra hill and a law ground referred to in the restricted evidence. The State contends the protection afforded by the AHA is relevant to determining the likelihood of interference with community and social activities of the native title parties.
Conclusion
Based on the evidence presented, I could not say the exploration activities of Great Western Exploration can be predicted. The licence application suggests the only ground activities would be ‘ground surveys’, but there is no further information provided by the grantee party as to what this entails. The company could exercise the full suite of rights open to them which are set out in s 66 of the Mining Act 1978 (WA). This includes removing up to 1000 tonnes of material from the licence area.
It is perplexing to me that Great Western Exploration provided no contentions or evidence, and provided no explanation for its failure to provide such material, in compliance with the Directions it accepted at the Preliminary conference. This exhibits, at best, a lazy or lackadaisical attitude, at worst, a cynical attitude to compliance. However, in the absence of evidence of past conduct to suggest Great Western Exploration is indifferent to its obligations under the AHA or the RSHA, or is dismissive or hostile to its obligations under the AHA or RSHA, I am unable to conclude that its failure to comply with Tribunal directions makes it likely it would fail to comply with its obligations under statute.
I accept the native title parties regularly camp, hunt and teach at Blue Hills Reserve, Good Camp Rockhole, Katjarra Rockhole and Virgin Springs especially during the cooler months, although I note Blue Hills Reserve and Good Camp Rockhole are located outside the licence area. I also accept that law business is carried on in warmer months and perhaps at other times of the year at places in the vicinity of Kanatukul and Mt Methwin, also noting Kanatukul is located outside the licence area and Mt Methwin on the border. The video evidence establishes there are law grounds near Talbot Rockhole, and I accept wati are likely to travel between Kanatukul and Mt Methwin during periods of law business.
I find there is a real risk the grant of E69/3496 will interfere with the conduct of law business. I accept there is a real likelihood Great Western Exploration could inadvertently come across native title holders while law business is being carried on. I do not consider interference would be less substantial simply because law business only occurs over specific periods of time in remote areas of country. The video evidence indicates law business can carry on for months at a time, whether continuously or intermittently. In my view, the evidence supports a conclusion that the conduct of law business would likely be interfered with if Great Western Exploration were to be come across wati while they are conducting law business or travelling through the area for that purpose.
As I found in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara (at [108]) it is clear from the evidence that the native title holders undertake a variety of activities aimed at regulating access to the Katjarra area and particular places within.. Although I am satisfied these activities may be regarded as community and social activities, I am not satisfied Great Western Exploration is likely to interfere with them.
I adopt my findings in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara (at [163]) where I found there was little evidence before the Tribunal regarding the criteria for designating land as an IUCN Category III protected area, and the process of designating such an area. Nevertheless, it is appropriate to give some weight to the designation as recognising the cultural and environmental values of the Katjarra area. It is clear MNR have invested a considerable amount of time and effort towards maintaining these values within the framework of the IPA, and I consider this relevant when considering the land care activities undertaken by the rangers.
I consider there to be a real risk that, in the absence of consultation, Great Western Exploration’s presence on the licence areas will interfere with the scheduled burning of country. Mr Farmer acknowledges that care must be taken when burning country to make sure people are not endangered, particularly given the number of people travelling to the area. I adopt my findings in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara (at [115] where I accepted the grant of the proposed licences could interfere with these activities unless the grantee party engages in direct consultation with the native title holders prior to entering the areas.
In conclusion, I am satisfied there is a real risk of interference with community and social activities carried on by the native title holders for the purposes of s 237(a).
Section 237(b): is the grant of the licences likely to interfere with areas or sites of particular significance to the native title holders?
The considerations for s 237(b) are outlined in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [17]-[18]). An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]). The evidence must identify an area or site exists on the licence; explain its significance;distinguish it from other areas within the licence; and show it is of more than ordinary significance to the native title holders in accordance with their traditions. These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17], [125]).
What areas or sites have the native title parties identified in relation to the licence areas?
Tenement E69/3496
The native title parties state there are sites, areas, objects and meandering tjukurrpa (dreaming) tracks of particular significance to the Putijarra native title holders within and adjacent to the area of E69/3496, whose location and significance is often only known to those with the requisite cultural authority and experience, and which are susceptible to interference from even low levels of exploration activity. Many of the sites and areas of particular significance within and adjacent to the licence area are linked to locations to the north and the south, and the native title parties assert interference at one place necessarily interferes with the other place. These sites, areas, objects and meandering tjukurrpa (dreaming) tracks include:
· Artefacts - grindstones
Ms Long explains at a soak where the Katjarra rockhole is, there are a lot of grinding stones. The native title holders do not touch them as they belong to their ‘old people’. Ms Long says (at 8) ‘Those grindstones are all in that place where the mining company wants to go. They might destroy those grindstones if they don’t get the right people to go out there with them.’
· Rockholes
Mr Farmer states the Katjarra area includes the Katjarra and Virgin Springs waterholes which are very significant to Putjarra. The Katjarra waterholes and the area around them contain special places that are restricted to wati only (see [35] above). The video evidence shows water sources in areas open to women and children and other restricted to wati. The significance of these areas is explained which I will shall not repeat here due to cultural sensitivities. Ms Long explains there is an important place inside the licence area called Talbot Rockhole (a recorded site under the AHA), which she is not allowed to talk about as it is a men’s only place.
· Law grounds
Mr Farmer refers to law grounds within Mt Methwin and Kanatukul where law business is undertaken and the importance of wati travelling around the area without being observed by others. The video evidence provides further restricted information regarding law grounds near Talbot Rockhole.
· Sacred paintings
Mr Farmer states there is a lot of art on the rocks in and around the Katjarra waterholes and Mt Methwin. He says (at 12) ‘Some of the art shows secret/sacred things and was created in the dreaming. This art cannot be view by ladies and is blocked off by the wati.’ These areas are shown in the video of on country evidence.
· Sacred objects
As stated above (at [35]) the wati store sacred objects in and around the mens’ places within and adjacent to the licence area. Further details are shown in the video evidence.
· Dreaming tracks
The native title parties state there are dreaming tracks meandering through area of the licence whose location is known only to certain people with the requisite cultural authority and knowledge. Mr Farmer says (at 10) ‘ The reason why it is a special area [Katjarra] is because the jukurrpa [the law, the ‘dreaming’, sites and places] is very concentrated in that area. The jukurr (dreaming tracks) criss-cross through that area and in many places stops and creates sites.’ The video evidence provides further information on the dreaming tracks.
Tenement E69/3499
Marputu state the licence area of E69/3499 contains sites of particular significance to the native title holders. These sites include:
· Wati Kutjarra tjukurrpa
Mr Williams states the Wati Kutjarra, a mens’ jukurrpa travels from west to east through the licence area and stops at two rockholes within the licence. He explains, the Wati Kutjarra travels on to Katjarra and the Carnarvon range in Birriliburu country. Mr Williams says (at 11) the Wati Kutjarra should only be spoken of and told by initiated men, and ‘Women may get sick and die if they mess with this jukurrpa.’
· Wati Kutjarra rockholes
Marputu state the Wati Kutjarra created two rockholes which the AHIS shows as registered sites, and a granite outcrop inside the licence area which are sites of particular significance to the native title holders. Mr Williams say (at 13) none of these places should be interfered with or even approached without the proper authority of the wati, and ‘Women in particular should not go anywhere near these places because that is against Gingirana laws and people may get punished for this or get sick.’
Within the area above, Marputu also refer to a number of gender-restricted sites and areas of particular significance within the licence area.
Are any of the identified areas or sites of particular significance to the native title parties?
As listed above (at [8] and [14]), the AHIS shows five registered sites within E69/3496, and two within E69/3499. Some of the sites and areas identified by the native title parties are not listed on the AHIS, however, it is well established that a site or area may be of particular significance without being recorded on the AHIS (see Little v Lake Moore Gypsum at [67]). The word ‘particular’ in s 237(b) not only means ‘special or more than ordinary’ but that the particularity of the significance must be capable of identification (Western Australia v McHenry).
Tenement E69/3496
The native title parties submit the evidence demonstrates there are sites, areas, objects and dreaming tracks within and adjacent to E69/3496. The native title parties say many of these are inexorably linked to sites and places in areas to the south. Some of these are restricted to men only and are used for ceremonial purposes and law business. At some locations, there is either ceremonial or more general rock art. The native title parties assert the precise location of some of these sites and areas are known only to certain men with the requisite cultural standing, knowledge and experience, and the consequences of even low level interference is severe. Further, the native title parties contend the grant of the licence is likely to directly interfere with these sites, areas, objects and meandering tjukurrpa tracks of particular significance to the Putijarra native title holders within and adjacent to the licence area.
The State concedes that Katjarra hill, including the water source and paintings shown in the video evidence, and the men’s law ground near Talbot Rockhole are each sites of particular significance. I agree with the State, and adopt the findings in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara (at [142]) where I accepted the ceremonial site near Talbot Rockhole is a site of particular significance.
The State contends the evidence is, for the most part, expressed at too high a level of generality to sustain an objection under s 237(b). It asserts there is no attempt to identify specific sites within a very broad area of roughly 2000 square kilometres, and no attempt to explain the sacredness of any specific sites beyond citing a generalised association with the jukurrpa. The State says general spiritual or cultural concerns which do not relate to specific identified areas or sites are not protected under s 237(b).
The State contends there is no evidence the hills and waterholes identified by Mr Farmer at Mt Methwin, given that Mt Methwin is on the border of the licence, are located within the licence area. Further, the State assert given Kanatukul is far to the south of the licence and Mt Methwin is on the north eastern boundary, the evidence does not establish the law grounds identified by Mr Farmer in these areas are within the licence area, or that exploration activities will necessarily impact on them.
Conclusion
The State contends the grant of the licence is not likely to interfere with areas or sites of particular significance. It says each of the sites which are identified with sufficient particularity, and are located within the licence area fall within a registered Aboriginal heritage site or other heritage place. The State note s 17 of the AHA makes it an offence to excavate, destroy, damage, conceal or in any way alter an Aboriginal site (or any on or under the site) without Ministerial consent under s 18 of the AHA. Again the State assert the Tribunal should presume Great Western Exploration will not commit an offence against the AHA.
The State assert the protection of the AHA is not limited to recorded sites on the register, but extends to any site that falls within the categories described in s 5 of the AHA. In these circumstances, the State say this applies to the rock art, grinding stones and ceremonial objects contained within Katjarra hill. As this area has spiritual significance for MNR, the State contend there is a strong case to be made that it is an Aboriginal site within the meaning of the AHA, and it would be prudent for Great Western Exploration to proceed on the assumption that it is.
The native title parties contend that, while the ‘protective’ aspects of the AHA may assist in some cases to reduce the likelihood of inadvertent interference with a site, it is not the case that where a site is registered it provides any reduction as to the likelihood of interference with that site. It states in the circumstances of a registered site, an explorer may lawfully seek a s 18 authority to interfere or destroy that site, and assert the native title party has no standing under the AHA to do anything about it.
On the basis of the evidence before the Tribunal in the present matter, I adopt the findings in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara where I found the Katjarra or Mt Methwin area, which includes Katjarra rockhole and Virgin Springs, is an area of particular significance to the native title holders. I also find there are sites within the Katjarra/Mt Methwin areas to which access or entry is restricted to people of a certain gender or status. I accept the ceremonial site near Talbot Rockhole is a site of particular significance, and that similar restrictions apply. In my view, breach of these restrictions may amount to interference for the purposes of s 237(b).
In conclusion, I am satisfied there is a real risk of interference with areas or sites of particular significance to the native title holders for the purposes of s 237(b).
Tenement E69/3499
Marputu assert the native title holders, and in particular the wati, are responsible for looking after sites and areas within the licence, in accordance with their traditional laws and customs. In addition, they have obligations to other members of the Western Desert Cultural Bloc to protect and maintain parts of the tjukurrpa story that travel through and stop within the licence. The native title holders, and in particular the wati, risk physical injury in the event that sites and areas within the licence are damaged by activities (including the mere presence by non-wati) conducted by Great Western Exploration. Mr Williams says (at 15), ‘If they don’t [ask permission to enter country] they may get sick if they go where they shouldn’t…then I’m not doing my job properly and may get punished by the other wati’. Marputu state non-wati, including Great Western Exploration, risk sickness in the event they enter restricted sites. The nature and number of sites and areas of particular significance within the licence area is such that interference with one part of the tjukurrpa may cause interference to sites and/or country located at other points of the tjukurrpa.
The State accepts the Wati Kutjarra travels from west to east across the licence area, intersecting the Wati Kutjarra Rockholes, but contends there is insufficient evidence to identify the precise path taken by the dreaming track. Further, the State assert there is no evidence that country traversed by the dreaming track, aside from the Wati Kutjarra Rockholes, is of greater significance than country which is not traversed by the Wati Kutjarra. Accordingly the State say the only potential sites or areas of particular significance within the meaning of s 237(b) are the Wati Kutjarra Rockholes. In reply, Marputu submit the requirement under s 237(b) is simply to demonstrate that a site or area of particular significance is located within (or adjacent) to the area of the licence and that this site or area is likely to be interfered with as a result of the grant of the licence. In these circumstances, Marputu state Mr Williams does note the Wati Kutjarra jukurrpa travel west to east through the area of the licence which sufficiently demonstrates that there exists an area within the boundaries of the licence which is capable of being interfered with under s 237(b). Marputu assert the only circumstances in which the exact location of a site or area of particular significance ‘may’ be necessary is if the relevant grantee party has sufficiently described the nature, location and extent of its proposed activities within the licence area. In this matter, Great Western Exploration have not provided any details regarding its proposed activities, and Marputu contends it is necessary for the Tribunal to make the finding that the grantee party will exercise all rights conferred by the licence.
The State contends the evidence does not particularise the location of the rockholes. Mr Williams states (at 13) ‘The two rockholes within the Tenement created by the Wati Kutjarra are special places and have important ritual importance to the Gingirana mob.’ The State ‘assumes’ the rockholes referred to by Mr Williams are the Wati Kutjarra Rockholes. Marputu contends it is not appropriate for the State to make assertions regarding the evidence, rather, it should be taken on face value. Marputu say Mr Williams had made no reference to the registered sites, and any insinuation they are a reference to the rockholes as located on the AHIS should be disregarded. In addition, the State asserts the fact these sites are registered as Aboriginal sites does not require the conclusion they are particularly significant or ‘clearly stand out in some way from the general background of other sites and the country as a whole’ (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [130]), and submits there is insufficient evidence to show the Wati Kutjarra Rockholes are sites of particular significance for the purposes of s 237(b).
The State accepts there ‘may’ be granite outcrops within the licence area, but contend Marputu do not provide any evidence as to the precise location, or establish that they are of particular significance under s 237(b).
The State contends the evidence does not indicate the number of gender restricted sites that are said to be within the licence are, nor is there an indication of the significance of these sites to the native title holders. It asserts there is insufficient evidence regarding what types of sites are being referred to, and how they are of particular significance.
Conclusion
The State say the Wati Kutjarra Rockholes, which are registered in the AHIS, are identified sites and readily recognisable. It contends there is no reasonable possibility that members of Great Western Exploration will inadvertently interfere with these sites. Although the Tribunal has recognised that entering country without permission of the native title holders can constitute interference for the purposes of s 237(b) in certain circumstances, the State asserts this has been found to apply only in limited circumstances (see Campbell v Murchison at [67]). In addition, the State say the Tribunal is entitle to have regard to the history of mining and exploration in the area in assessing the likelihood of interference, and contend it can be inferred there has been a degree of non-Gingirana presence in the licence area from time to time. Marputu contends it is not a requirement of the native title party to demonstrate whether previous interference has occurred – the question is whether the grant of the licence in this inquiry is likely to interfere with areas or sites of particular significance.
The State contends the grant of the licence is not likely to result in direct interference with these sites because of the protection afforded by the AHA, and the Tribunal should presume Great Western Exploration will comply with the requirements of the AHA. Marputu contends that the nature of the sites within the licence are such that even ‘low impact’ or non-ground disturbing activities will constitute interference pursuant to s 237(b). It states this assertion is supported by the findings of member Shurven in TMPAC v Rachlan (at [32]) where Member Shurven found that the mere presence of the grantee party in relation to a particular site would amount to interference under s 237(b) and that ‘…the AHA nor a Regional Standard Heritage Agreement would not provide the requisite protection…as the threshold for interference under those regimes is higher than that needed to constitute interference for the purposes of s 237(b).’
The State assert the protection afforded by the RSHA will alleviate the risk of interference, particularly that it would provide for heritage surveys to be conducted prior to any exploration activity in the licence area. Marputu contends the RSHA is an outdated document that does not afford the level of protection that is required to ensure sites or areas of particular significance are not interfered with.
At [8] I refer to the AHIS results identifying the Wati Kutjurra Rockholes as recorded sites, and at [60] note that Marputu identify Wati Kutjarra rockholes and Wati Kutjarra tjukurrpa as sites of particular significance. I note the responsibility and obligation of wati to protect sites and places and consequences to non-wati in the case of access or interference.
In response to the assertion by the State that the identification of a site or area requires a specific location, Marputu assert that that may be so if the relevant grantee party has sufficiently described the nature, location and extent of its proposed activities in the licence area.
I am satisfied that the Wati Kutjarra rockholes are sites of particular significance to the Marputu and on the evidence it is likely that these are the sites identified in the AHIS results. While I accept that the grantee party has not provided any evidence as to the nature, location and extent of its proposed activities in the licence area which might allow Marputu to more precisely articulate a potentially affected site or area, on the basis of the evidence provided by the Marputu in this matter I am unable to conclude to the degree necessary that the Wati Kutjarra tjukurrpa is an area or site of particular significance.
In Nyikina Mangala v Geotech at [43]:
“In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. 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 circumstance, 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”.
There is no evidence of the intentions of Great Western Exploration relating to the manner in which it intends to conduct its exploration activities.
At [42] and [43] I note the content of the tenement application regarding proposed activities and the conditions and endorsements the State proposes to attach. While I cannot conclude that Great Western Exploration is likely to fail to comply with its obligations under statute, I note (at [50]) that Great Western Exploration could exercise the full suite of rights set out in s 66 of the Mining Act 1978 (WA). The absence of detail from Great Western Exploration regarding the nature, location and extent of its proposed activities, which also hindered Marputu’s ability to identify sites and areas with greater certainty, prevents me from being satisfied that the grant of the exploration licence is not likely to interfere with areas or sites of particular significance.
Section 237(c): is the grant of the licences likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Section 237(c) was one of the grounds raised in the native title parties’ initial objections, and the native title parties subsequently indicated they did not wish to pursue this ground. As such, their evidence and submissions do not specifically address the issue of major disturbance.
I do not consider there to be any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
My determination is that the grant of E69/3499 and E69/3496 to Great Western Exploration Ltd are not acts that attract the expedited procedure.
Mr JR McNamara
Member
19 December 2018
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