Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC & Matilda Operations Pty Ltd and Kimba Resources Pty Ltd
[2019] NNTTA 50
•12 July 2019
NATIONAL NATIVE TITLE TRIBUNAL
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC & Matilda Operations Pty Ltd and Kimba Resources Pty Ltd [2019] NNTTA 50 (12 July 2019)
Application No: WO2017/0753, WO2017/0770, WO2018/0017, WO2018/0047
IN THE MATTER of the Native Title Act 1993 (Cth)
- and-
IN THE MATTER of an inquiry into an expedited procedure objection application Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (WCD2013/004)
(native title party)
- and-
Matilda Operations Pty Ltd and Kimba Resources Pty Ltd (grantee parties)
- and-
State of Western Australia (Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Place: Date:
Ms Helen Shurven, Member Perth
12 July 2019
Catchwords: Native title - future act - proposed grant of exploration licences - expedited procedure objection applications - whether acts likely to interfere directly with the carrying on of community or social activities - whether acts likely to interfere with sites or areas of particular significance - whether acts likely to involve major disturbance to land or waters - expedited procedure - non disclosure orders - the acts are not acts attracting the expedited procedure
Legislation: Aboriginal Affairs Planning Authority Act 1972(WA) Part III
Aboriginal Heritage Act 1972(WA) ss 5, 19
Mining Act 1978(WA) s 66
Mining Regulations 1981(WA) r 20
Native Title Act 1993(Cth) ss 155,237
Cases:Barbara Sturt and Others on behalf of the Jaru Native Title Claimants v Baracus Pty Ltd [2014] NNTTA 32 (Sturt v Baracus Pty Ltd)
Butcher Chere and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (Chere v Faustus Nominees)
Linda Champion on behalf of the Central West Goldfields People/ Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1 (Champion v Western Australia)
Cyril Gordon and Others on behalf of Kariyarra/Western Australia/Chalice Gold Mines Ltd [2009] NNTTA 89 (Gordon v Chalice Gold Mines)
Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] fCA 1147; 142 ALR; [2019] NNTTA 29 (Cheinmora v Striker Resources)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi)
Harvey Murray on behalf of the Yilka Native Title Claimants/State of Western Australia/Drew Griffin Money (2011) 257 FLR 450 [2011] NNTTA 91 (Murray v Money)
Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL [2002] NNTTA 24 (Walley v Western Australia)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (Tullock v Allarrow)
Marputu Aboriginal Corporation RNTBC v Peter Romeo Gianni
[2019] NNTTA 18 (Marputu v Gianni)
May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory
[2002] NNTTA 113 (Rosas v Northern Territory)
Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory)
Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Piper Preston Pty Ltd and Another [2018] NNTTA 3 (TMPAC v Piper Preston)
Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of the Wajarri Yamatji [2011] NNTTA 172 (Weld Range Metals v Western Australia)
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR
WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (Wiluna v Western Australia)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representatives(s) of Ms Sally Raine, Fremantle Law Pty Ltd
the native title party:
Representative(s) of the Ms Katherine Perincek & Mr Rhys Davies, DLA Piper
grantee party:
Representatives(s) of the Government party:
Ms Emma Salsano & Mr Tom Ledger, State Solicitor's Office
Mr Matthew Smith & Ms Bethany Conway, Department of Mines, Industry Regulation and Safety
REASONS FOR DETERMINATION
I have been appointed to decide whether or not the expedited procedure applies to the proposed grants of exploration licences E53/1905 to Matilda Operations Pty Ltd, and E53/1803, E53/1952 and E53/1864 to Kimba Resources Pty Ltd (collectively, the licences). The licences are being addressed in this single determination as Matilda Operations Pty Ltd and Kimba Resources Pty Ltd (collectively, the grantee parties) are identified as wholly-owned subsidiaries of the same parent company, being Blackham Resources Limited.
The State of Western Australia (the State) considers the grant of each licence to be an act attracting the expedited procedure. By including the expedited procedure statement in their notices of the proposed grants, the State asserts the activities permitted under the licences are not likely to have the effects outlined ins 237 of the Native Title Act 1993 (Cth) (the Act). That is, in summary, the State asserts the grants are not likely to:
a)interfere with community or social activities carried on by members of the native title claimants or native title holders (s 237(a));
b)interfere with areas or sites of particular significance in accordance with the traditions of the native title claimants or holders (s 237(b)); or
c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
Each licence is in the Shire of Wiluna, and a snapshot of other relevant details are as follows:
Tribunal Number
Licence Number
Approx. Size (km2)
WO2017/0753
E53/1905
42.90
WO2017/0770
E53/1803
116.56
WO2018/0017
E53/1952
6.12
WO2018/0047
E53/1864
193.05
The Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (TMPAC) holds native title rights and interests on behalf of the Wiluna and Tarlpa native title holders as
determined in Wiluna v Western Australia. Where exclusive native title rights and interests have been determined, the native title holders have the right of possession, occupation, use and enjoyment of the land and waters as against the whole world. Where non-exclusive rights and interests have been determined, the native title holders have the rights, in accordance with their traditional laws and customs, to:
(a)access, to remain in and to use the land and waters;
(b)take and use resources; and
(c)have access to, maintain and protect places, and areas and objects of importance.
The following rights and interests have been determined in relation to the area of the licences:
Licence Number
Native Title Determination Outcomes
E53/1905
Non-exclusive Native Title - 21.78%
Native Title Extinguished - 78.22%
E53/1803
Exclusive Native Title - 3.21%
Non-exclusive Native Title - 87.47%
Native Title Extinguished - 9.32%
E53/1952
Non-exclusive Native Title - 100%
E53/1864
Non-exclusive Native Title - 95.73%
Native Title Extinguished - 4.27%
TMPAC lodged an objection with the National Native Title Tribunal (the Tribunal), for each licence, against the State's assertion that the expedited procedure applies. The State argues the expedited procedure should apply to the grant of each licence. In determining whether the expedited procedure applies or not, I must make a predictive assessment (see FMG v Yindjibarndi at [39]). I must look at what is likely to occur as a result of the grants and decide whether there is real chance or risk of interference.
For example, I must have regard to the rights conferred by the grant of each licence, the nature of the proposed grants and the applicable regulatory regime (see Walley v Western Australia).
If I find the expedited procedure applies, the relevant licence can be granted without parties being required to negotiate with each other. If I find it does not apply, the grantee parties and the State must negotiate in good faith with a view to reaching agreement with the native title party about the grant of the relevant licence. For the reasons outlined below, my determination is that the expedited procedure does not apply to the grant of any of the proposed licences.
Preliminary Matters
The grantee parties filed a statement of contentions for the licences, together with the affidavit of Jonathan Robert Lea who is the Chief Geological Officer for the grantee parties. The State provided evidence and contentions for each licence.
The below materials were provided and relied upon by TMPAC:
Licence Number
Materials provided by TMPAC
E53/1905
· Statement of Mr Robbie [Robert] Wongawol dated 6 November 2018
· Statement of Mr Victor Ashwin dated 6 December 2018
· Statement of Ms Glenys Williams dated 6 December 2018
· Statement of Dr Lee Sackett dated 14 November 2018
· Map entitled 'Areas of Particular Significance and DPLH ID's within Tenement E53/1905'
· Department of Planning, Lands and Heritage files for registered Aboriginal sites 2149 and 2701.
E53/1803 · Statement of Mr Robbie [Robert] Wongawol dated 6 November 2018
· Statement of Mr Victor Ashwin dated 6 December 2018
· Statement of Mr Geoffrey Stewart dated 9 December 2018
· Statement of Ms Glenys Williams dated 6 December 2018
· Statement of Dr Lee Sackett dated 15 November 2018
· Map entitled 'Areas of Particular Significance and DPLH ID's within Tenement E53/1803'.
E53/1952
· Affidavit of Mr Frankie Wongawol sworn on 15 April 2011
· Affidavit of Mr Robert Wongawol sworn on 13 April 2011
· Affidavit of Dr William Kruse affirmed on 11 April 2011
· Statement of Mr Paul Morgan dated 28 September 2017
· Statement of Mr Victor Ashwin dated 2 October 2017
· Affidavit of Professor Lee Sackett affirmed on 6 October 2017
· Map entitled 'Map 1: Sites and Areas of Particular Significance at E53/1952'.
E53/1864
· Statement of Mr Robbie [Robert] Wongawol dated 6 November 2018
· Statement of Mr Victor Ashwin dated 6 December 2018
· Statement of Mr Geoffrey Stewart dated 9 December 2018
· Statement of Dr Lee Sackett dated 16 November 2018
· Map entitled 'Areas of Particular Significance and DPLH ID's within Tenement E53/1864'
· Department of Planning, Lands and Heritage file for registered Aboriginal site 17236.
TMPAC also submitted contentions for each licence, and contentions in reply to those submitted by the grantee parties and the State. The reply documents included various mapping and the Bondini Layout Plan Report (regarding Bondini Reserve (Crown Reserve 23985) - more on this is outlined at [29] below). The Bondini Layout Plan Report was published by the Western Australian Planning Commission in 2004 and updated in 2012.
Following TMPAC's reply, the grantee parties sought the opportunity to provide further submissions. I permitted this by way of oral submissions at a directions hearing attended by all parties. In response, TMPAC requested, and was granted, an opportunity to reply to the grantee parties' additional oral submissions. I concluded this inquiry could be determined on the papers, without the need for a hearing, and the parties had no issue with that approach.
Further information about evidence provided E53/1952
In relation to the inquiry regarding E53/1952, the statements provided are dated 2011 and 2017 because TMPAC sought to rely on materials provided to the Tribunal in the previous matters of TMPAC v Piper Preston (determined in 2018) and Tullock v Allarrow (determined in 2011).
A Member of the Tribunal is entitled, as an administrative decision-maker, to have regard to evidence that has been given in another proceeding, provided the evidence is relevant (see Weld Range Metals v Western Australia (at [149])). TMPAC seeks to rely upon those materials in this present inquiry as they relate 'directly to Lake Way' (at 10). Further, it is noted that one of the deponents of the previous affidavits has since passed away.
Mapping shows the tenement in TMPAC v Piper Preston was approximately 12 kilometres south east of E53/1952. Mapping also shows the tenement in Tullock v Allarrow was approximately 6 kilometres south east of E53/1952. What the three tenements have in common is they all overlap Lake Way, which TMPAC contends is an area of particular significance for the native title holders. On this basis, I accepted these materials as relevant to these proceedings and have had regard to them in relation to the inquiry for E53/1952.
As to the authority of the deponents and witnesses in regard to those materials, I rely on my previous findings in TMPAC v Piper Preston (at [7]-[9]) that Mr Frankie Wongawol, Mr Robert Wongawol, Mr Paul Morgan, and Mr Victor Ashwin have authority to speak on behalf of the native title holders for the Lake Way area, which includes a substantial portion of E53/1952 in the present inquiry.
The significance of Lake Way is outlined in some detail in TMPAC v Piper Preston Pty Ltd and Tullock v Allarrow and I adopt my conclusions with respect to Lake Way from those matters, given the materials in this present inquiry are consistent and
cogent with respect to the previous materials. This is outlined in more detail in my consideration of s 237(b).
E53/1905; E53/1803 and E53/1864
Mr Robert Wongawol and Mr Victor Ashwin have provided statements in relation to the other three licences subject to this inquiry. I similarly accept their authority to speak for those licence areas on behalf of the native title holders. Professor Sackett has provided recent statements in relation to the other three licences which are the subject of this inquiry and, similarly, I accept his experience and evidence for the purpose of this present inquiry.
Mr Geoffrey Stewart has provided a statement for E53/1803 and for E53/1864. In his statements, Mr Stewart identifies as a senior Wiluna native title holder, a knowledge holder for the country, a Lawman and Elder and as having the traditional authority to talk for the area of E53/1803 and E53/1864 (at 3-4 of each statement). I accept Mr Stewart's authority to speak for those areas.
Ms Williams has provided a statement for E53/1905 and E53/1803. Ms Williams identifies as a Wiluna native title holder, a Law woman, a knowledge holder for the country within E53/1905 and E53/1803, and as having the traditional authority to speak for that country (at 2-4). I accept Ms Williams' authority to speak for those areas.
Non-disclosure directions
TMPAC applied for non-disclosure directions under s 155 of the Act in relation to much of the material listed above at [9]. There was no resistance to this request from the other parties, and I was satisfied the relevant materials are culturally-sensitive. On that basis, I made directions restricting the use of that information. I have had due regard to the cultural and customary concerns as outlined in the evidentiary material regarding the dissemination of the information which would not otherwise be disclosed, in accordance with the traditional laws and customs. I refer to that information in this decision only to the extent necessary to ensure my reasons are explained and supported.
Grounds for objections
Initially, TMPAC argued the expedited procedure should not apply to these licences on the basis that the grants were likely to cause the interference contemplated in sections 237(a) ands 237(b) of the Act.
In contentions and evidence provided for E53/1905 and E53/1803, TMPAC confirmed its final position was that the grant will likely interfere directly with the community or social activities of the native title holders (as per s 237(a)), and with sites of particular significance (as per s 237(b)).
In relation to licences E53/1952 and E53/1864, TMPAC's contentions and evidence outlined it no longer wished to pursue its objection in relation to s 237(a). As such, I find there is no evidence to suggest the grant of these two licences is likely to directly interfere with the carrying on of the community or social activities of the native title holders in relation to the land or waters concerned. TMPAC did maintain its objection to the expedited procedure on the grounds of s 237(b) for these two licences.
TMPAC has not made submissions in relation to s 237(c) of the Act in relation to any of the licences. As such, I find there is no evidence to support a conclusion that the grant of the licences is likely to involve, or create rights whose exercise will likely involve, major disturbance.
Areas of the licences
The parties' materials indicate there are a number of relevant factors which affect the areas of the licences and, therefore, the areas relevant to this inquiry. Where such factors are present and relevant, I have taken them into consideration for each licence.
Firstly, the State has identified the presence of granted mining leases which overlap E53/1905, E53/1803 and E53/1864. The State has noted that such land is not 'open for mining', as required by s 18 of the Mining Act, and therefore the grantee parties could not, as a matter of law, 'acquire or exercise any rights in respect of the overlapped parts' (see, for example, 5 - 10 of the State's contentions in relation to E53/1905). I have examined the mapping the State has provided and outline more commentary about this in my consideration of s 237(b).
Secondly, TMPAC and the grantee parties appear to agree that certain areas of the licences ought to be excluded from the focus of this inquiry due to underlying tenure resulting from the determination outcomes outlined above at [4] and [5]. For example, TMPAC and the grantee parties agree that the area of Reserve 6217 (overlapping a large portion of E53/1905 and parts of E53/1864 and E53/1803) should not be included in the focus of the inquiry. Schedule 1 of Wiluna v Western Australia outlines that Reserve 6217 is an area where native title has been extinguished. Further examination of this issue is outlined later in this decision (see for example at [75]-[76], and see also [29] below).
Finally, Aboriginal Heritage Area AHA/11 referred to as 'Sacred Store' (also a site recorded under the AHIS as site 2138), is a protected area under s 19 of the Aboriginal Heritage Act (AHA) and the State contentions (at 10) has noted this results in it 'automatically [being] excised from' the area of licence E53/1803. Further consideration of the Sacred Store area is outlined in respect of interference, at [80] below (and see also [29] below).
Bondini
Much of the evidence in relation to E53/l803 and some of the evidence in relation to E53/1905 and E53/1864 related to areas variously including the name 'Bondini' or relating in some way to an area called 'Bondini'. In order to navigate the complexity relating to that terminology, which was also aired during the grantee parties oral submissions, and to assist navigating through this decision, I offer the following points of clarification, based on the mapping, contentions and submissions provided by parties:
(a)TMPAC have labelled an area on mapping as the 'Bondini Reserve Lawground and Ceremonial Area'. TMPAC contentions and the native title holders evidence refer to it as an area of particular significance and an area where social and community activities occur (more on that is outlined in the analysis of those limbs of s 237 below). To avoid confusion in nomenclature in this decision, I refer to that as the Bondini lawground and ceremonial area.
(b)The Bondini lawground and ceremonial area includes the Bondini Reserve (Crown Reserve 23985) and extends for approximately 4 kilometres north of
Bondini Reserve, within E53/1803, according to TMPAC mapping and native title holder evidence. The Bondini lawground and ceremonial area is said to include: the Sacred Store area (see [28]); sites associated with the women's dreaming and law ground (AHIS sites 1369 and 1370) (see [40f)]); and the area between the northern boundary of the Sacred Store AHIS site boundary and, roughly, Negrara Creek (see [40c]). A portion of AHIS site 1369 and the Bondini lawground and ceremonial area is also shown on TMPAC mapping to extend into the north of E53/1905.
(c)The Bondini Layout Plan Report confirms that Bondini Reserve (Crown Reserve 23985) is a permanent residential area for Aboriginal families. TMPAC accepts (in their contentions at 12-13) the imposition of a standard condition by the State in relation to Bondini Reserve (Crown Reserve 23985) will, to some extent, make it likely that interference will be 'slight in all the circumstances'. That condition states: 'The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use & Benefit Of Aborigines Reserve 23985... ' I note according to the decision in Wiluna v Western Australia, Bondini Reserve is a reserve for the 'Use & Benefit of Aborigines' and is held by the Aboriginal Lands Trust.
(d)Reserve 6217 (an area where native title has been extinguished - see [27] above) covers an area which is marked on some mapping as 'Bondini Reserve' however, this is in fact a distinct area from Bondini Reserve (Crown Reserve 23985). Where parties have mentioned Bondini Reserve, it appears they are referring to Crown Reserve 23985 rather than to Reserve 6217.
(e)In summary, I refer to the area of extinguished native title rights and interests as 'Reserve 6217', to Bondini Reserve (Crown Reserve 23985) as 'Bondini Reserve' and the area described by TMPAC and the native title holders as being an area of cultural practice and of particular significance as 'Bondini lawground and ceremonial area'.
Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the TMPAC community on or related to E53/1905 and E53/1803?
To find section 237(a) interference is likely, there must be direct and substantial interference with social or community activities (see Yindjibarndi v FMG). The Tribunal must balance the grantee parties' proposed exploration activities with any evidence of community and social activities, to determine whether the activities can coexist without direct or substantial interference (see Rosas v Northern Territory at [71]).
As outlined above, TMPAC continues to pursue its objection in relation to E53/1905 and E53/1803 on the basis that interference contemplated by section 237(a) is likely.
E53/1905
TMPAC contentions (at 1) submit that the contents of the statements of Mr Wongawol and Dr Sackett can lead to an inference that ceremonial and ritual activities occur at a law ground partly within E53/l 905. Dr Sackett's statement explains that such activities include looking after places/areas, transmitting knowledge and performing songs and dances (at 48). TMPAC also provides some clarifying information about the community and social activities which occur on this licence, and make submissions about interference with those.
In its assessment, the State submits that insufficient evidence has been provided to establish that community or social activities occur in E53/1905 (at 42.1). Specifically, the State suggests the evidence lacks details about the location, intensity and frequency of the activities. The grantee parties appear to agree with the State's views (at 26).
I accept that TMPAC has provided little information about specific social or community activities occurring in the area of E53/l905. I find there is insufficient evidence provided to be satisfied the grant of E53/1905 is likely to interfere directly with the community or social activities of the native title holders.
E53/1803
In relation to E53/l803, TMPAC asserts the native title holders carry out community and social activities on the Bondini lawground and ceremonial area.
It is said that the lawground continues to be used today and there is an important ritual site nearby (Mr Wongawol's statement at 10). Further, Dr Sackett's statement sets out the activities the native title holders carry out on the lawground (at 20). However, the evidence in relation to these community and social activities is broadly cast.
Similarly to E53/1905, the State and the grantee parties argue there is insufficient evidence provided for s 237(a) to be made out. Having examined the limited information provided regarding community and social activities on this licence, I conclude the native title holders' community and social activities are unlikely to be subject to interference by the grantee parties' exploration activities.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders on or related to E53/1905, E53/1803, E53/1952 and E53/1864?
As this decision contemplates a number of licences, it is important to note that each matter must be considered on its own facts (see Cherel v Faustus Nominees at [81] [91]). This includes considering the nature and extent of any sites of particular significance, the grantee parties' proposed activities, and whether the State's regulatory regime is sufficient to make it unlikely there will be interference. In making the predictive assessment under s 237(b) of the Act, the Tribunal can have regard to material provided by the grantee party (see for example Champion v Western Australia at [32] and [34]).
The words 'particular significance' means the area or site must be of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34-35). It must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]). As the Federal Court noted in FMG v Yindjibarndi (at [14]-[15]):
... the Tribunal is obliged to consider the detailed factual circumstances of each case ... to determine whether any of the sites were of particular significance and whether any interference was likely if the proposed exploration licences were granted.
(i)What areas or sites have been identified by TMPAC on the licences?
Across the licences, TMPAC has asserted that various sites are of particular significance to the native title holders. Given the abundance and complexity of the evidence, occasionally the contentions place areas slightly differently to what is outlined in the evidence from native title holders and the mapping. Where there is an inconsistency, I have relied on the evidence from the native title holders, which was very helpful to my analysis and consideration of the s 237(b) criteria. The following areas or sites have been identified:
(a)Part of West Creek/Lake Way (E53/1905, E53/1864)
(b)Bondini law ground and ceremonial area (E53/1905, E53/1803)
(c)area associated with two tjukurrpa (dreaming tracks) between Bondini Reserve and Negrara Creek (E53/1803) (I note that tjukurrpa is variously spelled jukurrpa, and I have adopted whichever spelling was used in the relevant source document)
(d)A hill feature associated with a tjukurrpa (E53/1864)
(e)Lake Way (E53/1952)
(f)Women's dreaming and law ground (E53/1905; E53/1803)
In its contentions for each licence, the State outline it accepts the evidence is likely to establish the sites listed (at [40a-e] above) are sites of particular significance. It is less clear whether the State considers the women's dreaming and law ground area (at [40f]) is a site of particular significance.
For all the licences, the grantee parties initially advised it 'neither admits nor denies' there are sites of particular significance (at 42), although this position has been expanded by them, including during the oral submissions, and detailed below.
(ii)Are any of the identified areas or sites of particular significance in accordance with the native title holders' traditions?
The grantee parties' contention, including from the oral submissions, was that there was little or no evidence of sites of particular significance. The grantee parties asserted that the TMPAC evidence lacked specificity in regarding the alleged sites of particular significance. The grantee parties further outlined that the significant area boundaries depicted in the TMPAC mapping was not based upon 'a traditional or topographic feature but rather a bureaucratic construct imposed by the Department' (at 44(b)). This argument was also ventilated during the oral submissions.
In its final reply TMPAC advised that the boundaries were derived from data and heritage information supplied to the Department by the native title holders and was assessed by the Aboriginal Cultural Material Committee (at 2 of email dated 27 June 2019). It was noted that such boundaries may include a 'buffer area'. This is consistent with statements such as that outlined in the Bondini Layout Plan Report (at page 9):
A number of registered Aboriginal heritage sites exist in close proximity to the Bondini settlement. These sites are variously mythological, and ceremonial. The sites are all closed. Closed sites are often restricted to people who have knowledge of the site because they have undergone a process of initiation or because it would be culturally inappropriate for the site's details to be in the public domain.
Rather than rely solely on the AHIS boundaries, or what was written in the TMPAC contentions regarding the nature and scope of each site, I have relied heavily on the evidence provided by the native title holders themselves for each licence. I provide only broad information about each site (sufficient to enable my reasons to be understood) given the sensitivities as outlined in the native title holders' statements, and the non-disclosure orders which apply to the release of this information.
E53/1905
West Creek/Lake Way
West Creek is described in TMPAC's contentions as a major natural feature running through the licence area and draining into Lake Way (at 2). West Creek is predominantly on E53/1864, however, there is an important junction as West Creek runs into Lake Way in the south of E53/l 905. Mr R Wongawol has outlined how the creek and the lake interact, and how tjukurrpa travel around the area (at 5-7 for example), as has Mr Ashwin (at 24-34).
There is evidence of important ceremonies related to the tjukurrpa associated with West Creek/Lake Way that continue to be practiced. While there was not sufficient evidence of those ceremonies for the purposes of s 237(a), Dr Sackett supports the West Creek/Lake Way connection and significance in relation to s 237(b) (see for example at 16-18). Based on the evidence before me, I accept the area in the south of this licence where West Creek drains into Lake Way is a site of particular significance.
Bondini law ground and ceremonial area
Mr R Wongawol describes this area as a 'no go zone' (at 27). This is consistent with the Bondini Layout Plan Report, which includes a map which shows a 'no go' area adjacent to the north boundary of Bondini Reserve, and which includes reference to 'no go' areas which are described in the Report (at page 6) as including: ' ... places where deceased people ('old people') are buried, hunting grounds and ceremonial sites. These places are routinely avoided with access regulated'.
Mr Ashwin outlines the importance of the area to the community, and Dr Sackett also provides support that this is a particularly sensitive area for the native title holders. I find it encroaches on E53/1905 and is largely on E53/1803, and that it is a site of particular significance to the native title holders. Given the detail of evidence provided about this area, and its links to features and song lines I find the Bondini law ground and ceremonial area is a site of particular significance.
Women's dreaming and law ground
[50] Ms Williams' affidavit outlines a women's law ground on the licence and provides particulars of this (at 4-6). From the mapping provided by TMPAC, I note its location appears to be adjacent to this licence and overlapping the south portion of E53/1803, and there are AHIS registered sites identified by TMPAC over a similar area crossing into this licence. Given the evidence provided about this area, and its significance particularly to women native title holders as outlined in the evidence, I accept it is a site of particular significance.
E53/1803
Area associated with two tjukurrpa (dreaming tracks) between Bondini Reserve and Negrara Creek
TMPAC contends (at 2) this site is important because of its connection to the relevant dreaming tracks and the interconnected hills. The related AHIS site is said to overlap approximately half of the licence area and mapping confirms this. Mr R Wongawol and Dr Sackett provide information in support of this site being of particular significance. I find there is sufficient evidence to support a finding this is a site of particular significance.
Bondini law ground and ceremonial area
As noted at [50] above, I accept the Bondini law ground and ceremonial area is a site of particular significance. Mapping shows the area of particular significance covers much of the south/easterly portion of this licence.
Women's dreaming and ceremonial areas
Ms Williams outlines particular features on this licence which I will not repeat due to gender specific sensitivities. The map attached to Ms William's statement locates areas on this licence, and provides the approximate boundaries of these. I accept each of these features is of great importance to female native title holders and this area is a site of particular significance.
Tjukurrpa dreaming track/up to Negrara Creek area
This area is outlined by Mr R Wongawol as being associated with jukurrpa, and an area which should not be disturbed. I accept this is an area of particular significance. I am satisfied from the description that it is a discrete area on the licence which is of great importance to the native title holders and is an area of particular significance.
E53/1952
Lake Way
In relation to Lake Way, the State advises it 'concedes that Lake Way is a site of particular significance' (at (25)). Given the material provided in relation to E53/1952, and given my findings in TMPAC v Piper Preston Pty Ltd and Tullock v Allarrow, I accept Lake Way is a site of particular significance to the native title holders. This licence is substantially overlapped by Lake Way.
E53/1864
West Creek
For this licence, Mr Stewart provided evidence consistent with that provided by Mr R Wongawol in relation to West Creek and E53/1905, and confirms it is a forbidden
area. A large portion of West Creek runs through E53/1864. As outlined at [46]-[47] above, I accept West Creek is a site of particular significance.
A hill feature associated with a tjukurrpa
Mr Wongawol outlines the importance of the hills and that they are a dangerous place. He outlines the reason for this (and distinguishes them from West Creek, which itself is an important and sensitive place, but not a dangerous place like these hills). Dr Sackett provides support for the evidence Mr Wongawol outlines. I am satisfied the hill feature is a site of particular significance for the purposes of s 237(b) and the hill feature is at least partially overlapped by this licence.
(iii)Are the grants of the licences likely to interfere with any of the identified areas or sites of particular significance to TMPAC?
When evaluating the degree of interference for the purposes of s 237(b), I must consider the nature of the site or area, the nature of the potential interference and the laws and traditions of the native title holders (see Silver v Northern Territory). I also consider materials and evidence provided by the grantee parties and the State, regarding the likely nature and extent of the exploration activities on each licence.
Mr Lea for the grantee parties has provided evidence in relation to the grantee parties' activities and their nature and scope. He outlines information regarding the grantee parties' awareness of the State's regulatory regime, and the internal policies the grantee parties have in relation to interactions with native title holders when conducting exploration activities. He also outlines that the grantee parties are willing to enter into an agreement with the native title holders but have not yet been able to successfully negotiate one.
For each licence, the State's material included the grantee parties' work programs. There is limited detail here, and the program provides information about the first year stage of exploration only. I note drilling is listed as a possible activity.
Given the limited information before me and the fact that drilling is mentioned, I have assumed the grantee parties will undertake the full scope of activities to which they are entitled under the grant of an exploration licence (see Silver v Northern Territory at [25]-[32]). These activities are set out in s 66 of the Mining Act:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(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 outline the amount of material able to be removed from an exploration licence:
20. Limit on amount of earth etc. that may be removed (Acts. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on 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 I 000 tonnes in total, and the excavation, extraction or removal ofa larger tonnage, without the Minister's written approval, shall render the licence liable to forfeiture.
Aboriginal Heritage Act (AHA)
The State contends the grants are not likely to result in direct interference with any of the sites of particular significance because of the protection afforded by the AHA. It is asserted, where the relevant sites are not already registered, then ss 5(a), (b) and (c) of the AHA would apply to those sites. Further, it is noted that the grantee parties are aware of their statutory obligations, intend to consult with the native title holders, and the location of the intended activities can be modified to avoid areas of significance (at 54 and 56 of grantee parties' submissions). In Marputu v Gianni, President Dowsett acknowledged the operation of the AHA as relevant to the extent of any risk of interference, but also noted its relevance will depend on the facts of the matter (at [62]):
When a traditional owner fails to identify, with sufficient precision, sites said to be of particular significance, the Tribunal might well infer that the Act [the AHA] may offer
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a sufficient degree of protection against any adverse impact such as that contemplated by s 237(b). Where, as here, the sites and concerns are particularized, one would expect that the State or the proposed grantee party would identify way in which the AH Act is said to apply so as to reduce the risk of the adverse impacts.
In the present matter, I am not satisfied that the State, by identifying the possible sections of the AHA applicable to unregistered sites, has sufficiently identified how the AHA will reduce the risk of interference as outlined by TMPAC. As mentioned above, the grantee parties have indicated they can move their activities to avoid areas of particular significance, but have not provided any detail about which sites, or how that avoidance would work in practice.
TMPAC expressed concern about the 'high' probability that the grantee parties will have to seek an application under s 18 due to the geographic extent of the sites on these licences. The grantee parties asserted if a s 18 application was sought under the AHA, it would be the exercise of the Minister's discretion under that section which would cause interference, rather than the explorers activities (at 57-61 and referred to in oral submissions). The grantee parties relied upon Western Australia v Smith at [37] to support their assertion. In response, TMPAC referred to Murray v Western Australia at [57]:
... There are numerous cases where despite the acceptance of a presumption of regularity that the Government party and grantee party will comply with the AHA, the Tribunal has found, based on the evidence (usually that the area is rich in sites), that there is likely to be interference with them.
In the current inquiry, I do not accept the assertion raised by the grantee parties. The purpose of examining the relevant statutory regime is to determine whether its operation sufficiently reduces the risk of interference. Given the pervasive cultural sensitivity of the sites (some being subject to gender-restrictions or restrictions regarding the transmission of knowledge inside and outside the native title holders and restrictions regarding access), I am not satisfied the regulatory regime, including the AHA, will reduce the risk of interference as contemplated by the native title holders' traditions. This is irrespective of whether or not Ministerial approval is sought under s 18 of the AHA.
Endorsements and Conditions (including Regional Heritage Standard Agreement)
The State outlines the endorsements and conditions they will impose on each licence on grant. While these afford some protections to the native title holders, I can see nothing which would mitigate against interference with sites of particular significance for the purposes of s 237(b) on each of the licences.
A further condition to be imposed by the State is one regarding the Regional Standard Heritage Agreement (RSHA). The RSHA provides some protections to native title holders and claimants. However, if what is defined to be non-ground disturbing activities are conducted, for example, the explorer can proceed without consulting the relevant Aboriginal group. Given the sensitivities outlined regarding the sites of particular significance on each of these licences, I do not believe the RSHA will afford protection sufficient to mitigate against the likelihood of interference for the purposes of s 237(b), as outlined in more detail below for each licence and each site.
Underlying Tenure and Previous Tenements
The State also points to pastoral leases and previous tenements which have been granted on the licences, however, there is limited information about any pastoral activities or previous exploration on each licence resulting in prior interference. In addition, the existence of previous exploration or pastoral activities does not necessarily mean future such activities will not cause interference with sites of particular significance for the purposes of s 237(b).
E53/1905
The State notes that part of this licence is not available for grant, as there are existing mining tenements on the area which preclude the grant of overlapping exploration licences (see above at [26]). However, I note the area available for grant still substantially overlaps the native title holders' determination area.
The State outlines that only part of the Bondini reserve law ground and ceremonial area overlaps the licence (at 35), and that any intersection between the native title holders and the explorers will be for a limited period each year. It also outlines the explorer will consult with the native title holders in order to keep the intersection to a minimum.
The grantee parties suggested that there was no likelihood of interference with the Bondini law ground and ceremonial area, partly because of the way they will conduct their activities (although this is only expressed in broad terms), and partly because the grant will be subject to a condition requiring the consent of the relevant Minister before commencing exploration activities on Bondini Reserve (Crown Reserve 23985). However, based upon my reading of the materials before me, the State proposes to only apply that condition to E53/1803 and not E53/1905 (see [37] above). Despite this, I acknowledge that the Bondini Reserve appears to be subject to statutory and regulatory provisions which impose similar requirements to that condition in any event. As outlined by the grantee parties (at 34), Bondini Reserve is a reserve held by the Aboriginal Lands Trust for the 'Use and Benefit of Aborigines' regulated by the Aboriginal Affairs Planning Authority Act 1972 (WA) (the AAPAA - see Part III). As was noted in Sturt v Baracus Pty Ltd, previous Tribunal decisions outline that the regulatory regime applicable to Aboriginal reserve land, such as the Bondini Reserve, is such that an exploration is 'unlikely to cause the interference or disturbance referred to ins 237 of the Act' (at [42]). As was explained in Gordon v Chalice Gold Mines (at 35):
Access to the Reserve area by the grantee party is only approved by the Minister for State Development [now the Minister for Mines, Industry Regulation and Safety] once the Minister for Indigenous Affairs [now the Minister for Aboriginal Affairs] is satisfied that an adequate agreement has been entered into between the grantee party and relevant Aboriginal community. Where the relevant Aboriginal community is the native title party which has objected to the expedited procedure, it can safely be assumed that access is not likely to be granted for exploration unless the matters in s 237 are dealt with to the satisfaction of the objector.
As outlined by the grantee parties', prior written consent of the Minister for Mines, Industry Regulation and Safety (the Minister for Mines) is required for the grantee parties to conduct activities in this Reserve (at 34). I accept the grantee parties' submission that the nature of the Bondini Reserve and additional statutory regime surrounding it does make interference with the Reserve unlikely. However, there is still a likelihood of interference with the Bondini law ground and ceremonial area, which is not covered by any of these provisions.
As noted at [27] above, Reserve 6217 overlaps a large portion of E53/1905 and that reserve is an area where native title has been extinguished (as detailed in Wiluna v Western Australia). The grantee parties' argued, including in their oral evidence, that where native title is extinguished, there can be no interference with any native title holder's rights or interests. They further argue there are only a couple of very 'small areas' left where interference could be possible, and that the grantee parties' flexible work programs, compliance with the State's regime, and focus on areas of historic exploration, would mean interference would be unlikely.
I will focus on the areas of the licence where native title has not been extinguished. According to mapping, those areas coincide with where the women's dreaming and ceremonial site overlap the licence (in the north) and where mapping and statement evidence shows is a particularly sensitive area owing to its overlap with where West Creek drains into Lake Way (in the south). The relevant tjukurrpa associated with West Creek are clearly marked on TMPAC mapping and explained in the evidence.
There is an AHIS recorded site over the women's ceremonial site and the West Creek/Lake Way area. However, even by acting lawfully with the State's regulatory regime, and taking into account the proper processes and procedures relating to AHIS recorded sites, I am satisfied, based on the depth and intimacy of the evidence provided by the native title holders, that interference is likely. That is because the State's regulatory regime allows activities to occur on such sites which would cause, according to the evidence provided about the sites and the native title party traditions, interference with such sites. As McKerracher noted in FMG Pilbara v Yindjibarndi (at [76]):
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.
Having accepted there are sites of particular significance on this licence, and examining the State's regulatory regime and the grantee parties' submissions, I conclude that interference is likely with those sites of particular significance, apart from Bondini Reserve itself, and the expedited procedure should not apply.
E53/1803
As noted at [29b], Bondini law ground and ceremonial area overs a substantial portion of the south east of this licence. The Bondini Layout Plan Report confirms that 'Residents have a keen awareness of the cultural sites within and around Bondini' (at page 6). The Bondini Layout Plan Report confirms (at page 9) that a:
... number of registered Aboriginal heritage sites exist in close proximity to the Bondini settlement. These sites are variously mythological, and ceremonial. The sites are all closed. Closed sites are often restricted to people who have knowledge of the site because they have undergone a process of initiation or because it would be culturally inappropriate for the site's details to be in the public domain.
The State notes that part of this licence is not available for grant, as there are existing mining tenements on the area which preclude exploration grants over certain areas. However, I note the area available for grant still substantially overlaps the native title holders' determination area. I note this whilst also taking into account Reserve 6217 (which overlaps a portion of the licence in the south) and that a small protected area (Sacred Store) will be excised on grant (as outlined above at [27]). The conclusion I draw from the State's materials is that Sacred Store will not be interfered with by the grant of this licence as it will be excised on grant. In relation to the broader women's ceremonial areas which have been found to be of particular significance for this licence, I adopt my conclusions at [77] above in relation to the likelihood of interference.
The State outlines that intersection between the native title holders and the explorers will be for a limited period each year. It also outlines that the explorer will consult with the native title holders in order to keep the intersection to a minimum. I adopt my reasoning at [72]-[74] in relation to Bondini Reserve, and conclude that interference with the Reserve itself is not likely. However, the Bondini lawground and ceremonial area extends beyond the Bondini Reserve itself, and I accept there are sites of particular significance such as the women's dreaming and law ground which are likely to suffer from interference from exploration activities. Even given the AHIS recording of sites 1369 and 1370 (see [29b] above) would not provide them with sufficient protection, given their sensitivities.
Considering the tjukurrpa dreaming track/up to Negrara Creek area, I consider sufficient information has been provided about why this area is so sensitive in accordance with the traditions of the native title holders, and conclude that it is likely it would be interfered with by activities of the explorer, should it be granted under the expedited procedure.
Having accepted there are sites of particular significance on this licence, and examining the State's regulatory regime and the grantee parties' submissions, I conclude that interference is likely with those sites of particular significance, as outlined above, and the expedited procedure should not apply.
E53/1952
Dr Kruse and Professor Lee Sackett provided evidence in those two previous inquiries, and that evidence relates to the native title holders and the importance of Lake Way. I have adopted my reasoning in TMPAC v Piper Preston Pty Ltd and Tullock v Allarrow (as outlined above at [15]-[16]). For example, in TMPAC v Piper Preston (at [22]), I commented that ' ... Professor Sackett and Dr Kruse explain how Martu [the native title holders] believe that disturbance of Lake Way would go to the very essence of interfering with the native title holders' traditions'.
I have carefully considered the information provided by the State and grantee parties in this current inquiry. Given the sensitivities in relation to Lake Way, and given that this licence is substantially overlapped by Lake Way, I cannot see how the grantee could avoid interference with this site of particular significance. As such, I find that, even operating within the State's regulatory regime, exploration activities are likely to cause such interference.
E53/1864
There is an AHIS recorded site, noted as being mythological, covering some of West Creek. I adopt my conclusions and reasoning as outlined at [77] above in relation to West Creek.
Regarding the hill feature associated with a tjukurrpa, I also believe it is of such a sensitive nature, and intertwined with the native title holders' traditions, that exploration activities are likely to interfere with them for the purposes of s 237(b).
Having accepted there are sites of particular significance on this licence, and examining the States regulatory regime and the grantee parties' submissions, I conclude that interference is likely with those sites of particular significance, and the expedited procedure should not apply.
Determination
My determination is the grant of E53/1905 to Matilda Operations Pty Ltd, and E53/1803, E53/1952 and E53/1864 to Kimba Resources Pty Ltd are not acts which attract the expedited procedure.
Helen Shurven Member
12 July 2019
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