Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Autumn Gold Pty Ltd
[2022] NNTTA 48
•28 June 2022
NATIONAL NATIVE TITLE TRIBUNAL
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Autumn Gold Pty Ltd & Another [2022] NNTTA 48 (28 June 2022)
Application Nos: | WO2021/1812, WO2022/0045 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection applications
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (WCD2013/004)
(native title party)
- and -
Autumn Gold Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Melbourne |
Date: | 28 June 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – non-disclosure directions – 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 applies – the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) s 66 Mining Regulations 1981 (WA) r 20 Native Title Act 1993 (Cth) ss 29, 155, 162, 237 |
Cases: | Butcher Cherel on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (Cherel v Faustus Nominees) Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182 (FMG v Yindjibarndi) Marputu Aboriginal Corporation RNTBC v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Wildcat Resources Limited and Another [2020] NNTTA 21 (TMPAC v Wildcat) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) 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 [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Sally Raine, Fremantle Law Pty Ltd |
| Representative of the grantee party: | Paula Mitchell, Comte Legal |
| Representatives of the Government party: | Andrea Wyles and Jake Lincoln, Department of Mines, Industry Regulation and Safety Domnhall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
The State of Western Australia (the State) gave notice under s 29 of the Act that it intended to grant exploration licences E53/2174 and E38/3625 (the proposed licences) to Autumn Gold Pty Ltd (the grantee/Autumn Gold). In each notice, the State asserted the proposed grants attracted the expedited procedure. As outlined in s 237 of Native Title Act 1993 (Cth) (the Act), the expedited procedure applies where the grant of a licence is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The licences are approximately 58 square kilometres and 95 square kilometres in size respectively, and located approximately 147 kilometres and 168 kilometres easterly of Wiluna, respectively. The licences are under 10 kilometres apart approximately. The Federal Court of Australia (the Court) determined that native title exists in relation to land and waters in the area covered by the licences (Wiluna v Western Australia). Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (TMPAC) is the registered native title body corporate which holds the native title rights and interests in trust for the native title holders.
Non-exclusive native title has been held to exist in relation to much of the area covered by the licences. The non-exclusive rights and interests of the native title holders, as determined by the Court, are the rights to:
(a)access, remain in and use that part;
(b)take and use resources in that part; and
(c)have access to, maintain and protect places, and areas and objects of importance on or in that part.
TMPAC lodged objection applications with the National Native Title Tribunal in response to the State’s assertion that the expedited procedure applies to the grant of the licences. I have been appointed to decide whether the expedited procedure applies. If I find the expedited procedure applies, a licence can be granted without negotiations between the parties. If I find it does not apply, the grantee and the State must negotiate in good faith with a view to reaching an agreement with the native title holders about the grant of the relevant licences.
My decision is based on addressing the criteria set out in s 237 and making a predictive assessment (Yindjibarndi v FMG at [15]). I must look at what is likely to occur as a result of each 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, evidence of the grantee’s intentions, and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
TMPAC argue the expedited procedure should not apply, as the grant will interfere with sites of particular significance in accordance with s 237(b). They do not pursue their objection under s 237(a) or s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]-[28]), there is nothing before me which indicates the grant is likely to interfere with the native title holders’ community or social activities, or involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(a) or s 237(c) is unlikely. I focus this inquiry on s 237(b).
For the reasons outlined below, my determination is that the expedited procedure does not apply to the licences.
The parties submissions
TMPAC’s materials
For the purposes of this inquiry, I had regard to the following TMPAC materials:
(a)Statement of Contentions
(b)Statement of Victor Ashwin (from 2019, lodged in the previous inquiry matter WO2019/0118-0120, where the expedited procedure was held not to apply to the grant of the relevant tenements – Mr Victor Ashwin has passed away, and I note his statement refers to a Jukurrpa that his father, Mr Alan Ashwin, also refers to in his own statement. I also note that mapping shows two of the tenements in that previous inquiry were within 10-15 kilometres of E38/3625).
(c)Statement of Alan Ashwin together with mapping (from 2022)
(d)Statement of Contentions in reply to the grantees’ and State’s submissions
At the request of TMPAC and with no opposition from other parties, I made directions under s 155 of the Act to prohibit disclosure of sections of the evidence, because I was satisfied it contains culturally sensitive information. The directions restrict disclosure of those sections only to the male officers, employees, contractors and legal representatives of the grantee and the State, and to myself and my male support staff for the purpose of these proceedings. Section 162(2) of the Act requires me to state any findings of fact in this determination and nothing in the directions prohibits me from doing so. I have avoided setting out any details that might disclose the restricted evidence identified in the directions.
Autumn Gold’s materials and proposed activities
Autumn Gold did not provide any materials. Within the State’s materials was the Autumn Gold application for the proposed licences which set out the exploration goals and objectives. Those were similar for each proposed licence to ‘seek and define both alluvial and bedrock gold mineralisation and base metal mineralization’ for gold and base metals, including exploring ‘for alluvial gold using traditional prospecting methods’.
It is explained that methods used in year one will include office based reviews of past work, fieldwork of geological mapping and surface geochemical surveys. Year two ‘and beyond’, ‘if suitable targets are generated, would entail drill testing targets as warranted. Any ground disturbing activities will be undertaken with appropriate consents’. There is no further information about proposed activities, and I have assumed Autumn Gold are likely to utilise the full suite of rights available to them throughout the life of the grant. Under s 66 of the Mining Act 1978 (WA) (Mining Act), an exploration licence, while it remains in force, authorises the holder (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 (WA) outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 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 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
Target areas on both licences have been explained broadly, but no mapping or information has been provided regarding where those areas are on the proposed licences.
The State’s materials
The State provided initial contentions, as well as information about land tenure over the licences, a copy of the licence applications (as noted above at [10]-[11]), and proposed endorsements and conditions of grant. Included in this information are the results of searches of the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS). These results show there were no sites recorded on the AHIS on either of the proposed licences. However, this is not indicative as to whether or not there are any sites of particular significance for the purposes of s 237(b).
Section 237(b): is the grant of either licence likely to interfere with areas or sites of particular significance to TMPAC?
The question I need to answer is whether there is a real chance the grantee’s exploration activities are likely to interfere with areas or sites of particular significance. 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 (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 (Silver v Northern Territory at [91]). Each matter must be considered on its own facts (Cherel v Faustus Nominees at [81]-[91]).
What sites do TMPAC identify as being of particular significance in accordance with their traditions?
TMPAC assert, through the evidence provided by Messrs Ashwin, that a dreaming along Banjo Creek passes through both proposed licences – Mr Alan Ashwin has provided clear mapping of the path of the dreaming within each proposed licence, as well as the scope of the dreaming which is wider than the Creek itself (due to the creek claypans and areas associated with sites of traditional significance to the native title party). I refrain from providing detail about the dreaming due to the cultural sensitivities.
Mr Alan Ashwin explains the story and that exploration work ‘away from that Creek might be ok for the company to go’ (at 11). Mr Alan Ashwin also endorses the statements made by his son, Mr Victor Ashwin, in relation to the dreaming and associated sites and areas and their connectedness to each other and to the dreaming pathway.
Mr Victor Ashwin provides great detail about the dreaming which follows Banjo Creek, in the context of the native title party traditions (at 4-15). In TMPAC v Wildcat (at [20]-[21] and [30], for example) it was held that areas of the same dreaming were of particular significance. As noted above (at [2] and [8]), two of the three tenements in the previous inquiry are in the vicinity of the proposed licences, and the evidence from Messrs Ashwin shows a complex set of sites and areas which are linked by the Banjo Creek Jukurrpa, and whose pathway includes the proposed licences in this inquiry. Given the clear mapping, the description of the dreaming, and the description of the traditions of the native title party relative to the area of the proposed licences, I similarly hold Banjo Creek, as it passes through these proposed licences, to be an area of particular significance to the native title party.
Interference with sites of particular significance
As noted above, Autumn Gold has not provided any evidence or argument regards sites of particular significance, interference with such sites, or the assertions about Banjo Creek made by TMPAC. The State contends (at 30-31) that interference with sites of particular significance is unlikely due to the protection afforded by the Aboriginal Heritage Act 1972 (WA) (AHA) and its regulatory regime, including the endorsements and conditions that will be imposed on the licences. I cannot see any endorsements and conditions which would address the likely interference as outlined by TMPAC.
As referenced in the TMPAC Reply (at 5), the protections afforded under the AHA, and its relevance to considerations under s 237(b), have been considered by President Dowsett in Marputu v Gianni:
It is possible that protection under the AH Act may not extend to areas or sites to which s 237(b) applies. It is also possible that s 237(b) may not apply to sites protected under the AH Act. Once this difference in focus is recognized, it becomes difficult to identify the extent to which the AH Act might protect sites of particular significance to traditional owners (at [44]).
I similarly cannot see how the AHA will protect Banjo Creek as it relates to these proposed licences, particularly, as noted in the TMPAC reply (from 8 onwards), that the grantee party can apply to the Minister under the AHA to conduct activities on the proposed licences which are likely to amount to interference for s 237(b).
The State argue (at 29) that interference ‘must involve actual physical intervention’, however, the Federal Court in FMG v Yindjibarndi (at [76]) stated (emphasis added):
As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
The State argues (at 32-33) that if the expedited procedure were not to apply merely because of entry onto an area, this would not be consistent with the legislative regime as it would essentially mean the expedited procedure would never apply. However, a pre-condition to that is an area has to be held to be of particular significance to a native title party, and not all areas are held, or asserted, to be so.
Mr Victor Ashwin (at 30) outlined, for example, that:
[The native title party] Don’t want any digging around the creeks too [referring to Banjo Creek in TMPAC v Wildcat], mucking the flow of the kapi [water]. The kapi in Banjo Creek flows down to Jawujarra and then down to Lake Carnegie.
And (at 37) that:
Start digging a hole they might mess the Jukurrpa songline up. You see places where they’ve [referring to another grantee] destroyed the hills, make them flat. They can’t sing about them anymore. There’s nothing left to sing about, for young people... That’s why you’ve got to get the right people who know the Jukurrpa. Playing with people’s lives here...
Both Mr Alan Ashwin and Mr Victor Ashwin describe how the sites and areas around the proposed licences are connected to areas of Banjo Creek, including the proposed licences, and provide ample evidence of how the traditions of the native title holders are linked to the Banjo Creek dreaming. They also outline that because of the sensitive nature of the dreaming in accordance with their traditions, it is likely that exploration activities will cause interference to that area without relevant negotiations taking place.
Conclusion
I find the areas of Banjo Creek on the proposed licences are sites of particular significance to the native title holders, and that exploration activities, including digging around the Creek, are such that they would constitute interference for the purposes of s 237(b).
Determination
The determination is that the acts, namely the grant of exploration licences E53/2174 and E38/3625 to Autumn Gold Pty Ltd, are not acts attracting the expedited procedure.
Helen Shurven
Member
28 June 2022
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