Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Piper Preston Pty Ltd
[2018] NNTTA 3
•30 January 2018
NATIONAL NATIVE TITLE TRIBUNAL
Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Piper Preston Pty Ltd and Another [2018] NNTTA 3 (30 January 2018)
Application No: | WO2016/0939 |
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 -
Piper Preston Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
| Date: | 30 January 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licence – 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 act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 109, 151, 155, 237 Mining Act 1978 (WA) s 66 Aboriginal Heritage Act 1972 (WA) ss 5, 18 |
Cases: | Cheinmora v Striker Resources NL [1996] FCA 1147; (1996) ALR 21 (‘Cheinmora v Striker Resources’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’) Les Tullock and Others on behalf of Tarlpa v Allarrow Pty Ltd [2011] NNTTA 118 (‘Tarlpa v Allarrow’) Les Tullock and Others on behalf of Tarlpa/Western Australia/TE & CG McMahon Nominees Pty Ltd [2011] NNTTA 119 (‘Tarlpa v McMahon’) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley 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 Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representative of the native title party: | Ms Sally Raine, Hammond Legal |
| Representative of the grantee party: | Ms Janet Procak, M & M Walter Consulting |
| Representatives of the Government party: | Mr Domhnall McCloskey, State Solicitor’s Office Mr Michael McMahon, 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 licence E53/1897 to Piper Preston Pty Ltd (Piper Preston). The State of Western Australia considers the grant of the licence 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 claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The licence covers approximately 76.45 square kilometres in the Shire of Wiluna. The Tarlka Matuwa Piarku Aboriginal Corporation (TMPAC) hold native title rights and interests in the whole of the licence area, on behalf of members of the Wiluna and Tarlpa native title claims determined in Wiluna v Western Australia (the native title holders). I note, based on evidence presented in this inquiry, those determined native title claims shared many of the same members, who all identify as Martu People, belonging to a Western Desert Cultural Bloc. The evidence provided in this matter refers to the native title holders at various points as the Wiluna People, Tarlpa People, and Martu People. TMPAC 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. Piper Preston argues the expedited procedure should apply.
If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Piper Preston and the State must negotiate in good faith with a view to reaching an agreement with TMPAC about the proposed grant of the licence.
I must base my decision on the s 237 criteria. The issues I need to determine in relation to these criteria are:
(a)Is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
(b)Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
(c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
In answering these questions, 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 licence, 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.
Preliminary evidentiary matters
TMPAC submitted a statement of contentions, attaching the affidavits of Mr Frankie Wongawol, Mr Robert Wongawol and Dr William Kruse. These same three affidavits were considered by the Tribunal in Tarlpa v Allarrow.
Mr Frankie Wongawol states he is a traditional owner in the Tarlpa native title claim area (now determined) and has the authority to speak about the Lake Way area. I note from the materials provided by all parties that Lake Way is over 40 kilometres long and approximately 10 kilometres wide in parts. The licence overlaps part of the southern area of Lake Way. Mr Robert Wongawol also states he is a traditional owner, and the nephew of Mr Frankie Wongawol. I accept Mr Frankie Wongawol and Mr Robert Wongawol have the authority to speak on behalf of the native title holders for the licence area. Dr Kruse is an anthropologist who states he has experience working with the native title holders. I accept the experience of Dr Kruse and that the evidence presented relates to the native title holders and the licence area.
TMPAC’s evidence also included signed statements from Mr Paul Morgan, Mr Victor Ashwin and Professor Lee Sackett. Mr Morgan states he is a senior native title holder, a knowledge holder for Lake Way and has traditional authority to talk about the Lake Way area. Mr Ashwin states he has authority to speak about the country covered by the licence and has been initiated in all the Jukurrpa (traditional law) for the area. I accept the statements of Mr Morgan and Mr Ashwin provided by TMPAC and accept they have the authority to speak for the native title holder for the area of the licence. Professor Sackett is an anthropologist who states he has experience working with the native title holders. I accept the experience of Professor Sackett and that the evidence presented relates to the native title holders and the licence area.
TMPAC applied for non-disclosure directions under s 155 of the Act in relation to the affidavit and statement material, as well as for a ‘Men Only Section’ of the Lake Way Cultural Mapping Report. This report was produced by the Central Desert Native Title Services in 2011, to compile the various heritage surveys undertaken in the area in the past 30 or more years and explain the importance of the Lake Way area. I was satisfied that 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.
In Tarlpa v Allarrow and Tarlpa v McMahon, Member O’Dea clearly outlined the sensitive nature of the Lake Way area and its importance in accordance with the traditions of the native title party. I note the Lake Way Cultural Mapping Report, published subsequent to these decisions, which reinforces Member O’Dea’s conclusions on the significance of Lake Way. As the significance of the Lake Way area has been previously outlined, and there is nothing in this material which would lead me to a different conclusion, I do not re-state any of the sensitive evidence provided in this matter in relation to the Lake Way area. I do further discuss aspects of this area, as relevant in my consideration of ss 237(a) and 237(b) of the Act below.
Piper Preston provide contentions, which state they also support and rely on the contentions lodged by the State in this inquiry.
Having considered the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151 of the Act, without the need for an oral hearing. All parties indicated they were happy to proceed on the papers.
(a) Is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
What community or social activities do the native title holders undertake on the licence?
TMPAC’s contentions state that about half of the proposed licence covers parts of Lake Way – a large, dry saline lake located approximately 15 kilometres south of Wiluna. Mapping provide by TMPAC depicts the lake as a site and area of particular significance. They state that Lake Way, the shoreline and associated creeks and soaks are physical manifestations of the ongoing presence of Jukurrpa. The Lake Way Cultural Mapping Report describes the Jukurrpa in detail, and defines Jukurrpa generally to be the law, dreams and dreaming. The Report also notes as ‘a term it is a conceptual composite related to customary understandings of the world in both religious and pragmatic terms manifested in geographic features, songs, stories, dreams, ritual activity, and spiritual occurrences’ (at 33). The evidence details the consequences for the native title holders if the lake and the Jukurrpa are disturbed.
Mr Ashwin makes detailed statements about rites that initiated men continue to perform in connection with the Jukurrpa at Lake Way. He states that initiated Martu men have an obligation to perform these rites every year during Law Business and describes how Lake Way can get ‘hurt’ if the area is disturbed.
TMPAC assert several other main activities are undertaken on or near Lake Way, including: teaching of culture and law business, hunting, dancing/corroborees and caring for country.
What activities do Piper Preston intend to undertake on the licence?
I note that, upon the grant of a licence, an explorer can exercise their full suite of rights, 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.
The State outlines Piper Prestons exploration activities as follows:
·Drilling – mobilisation and establishment;
·Auger drilling;
·Monitoring & test wells;
·Field reconnaissance;
·Pump testing and groundwater monitoring; and
·Lab analysis.
Piper Preston contend they will not exclude any community or social activities TMPAC intend to carry out on the area of the licence unless that activity is to be conducted in an area that is unsafe to do so. If it is unsafe, they state they will consult with TMPAC to seek an arrangement agreeable to both parties. They state they will notify TMPAC prior to any exploration activity that is likely to restrict the gathering of bush tucker, medicines and hunting of game, and will consult with TMPAC on ways of minimising any disturbance.
The State note the area of the proposed licence has been subject to prior mineral exploration and possibly mining activity. I note that the mining tenements previously granted in this area all pre date the Act. The State contend the exploration activities planned by Piper Preston are not likely to have any real disruptive effect upon any community or social activities of the native title party, and Piper Preston have indicated a willingness to reach agreement and consult with TMPAC. They also state TMPAC has the opportunity to invoke the proposed regional standard heritage agreement (RSHA) condition, which the State intend to place on the proposed licence.
Consideration
I accept the native title holders undertake social or community activities, particularly rites that initiated men perform, on or near the licence area. To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native tile party’s evidence of social or community activities against a grantee party’s proposed exploration activities and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]). Thus, I balance the evidence of the native title holders’ activities against the activities Piper Preston intend to undertake, and could undertake should they exercise the full suite of rights available to them under the Mining Act 1978 (WA).
TMPAC contend Piper Preston’s exploration activities will directly interfere with the performance of the rites through the interference with the Jukurrpa. While they confirm the performance of the rites is a physical activity, they state going on to Lake Way will not result in ‘direct physical interference’ with the activity. Rather, they contend direct interference with the performance of the rites would be caused by interference with the Jukurrpa and the loss of the Jukurrpa’s spiritual potency. Mr Ashwin explains the link between the rites performed by initiated men at Law Business, the lake and the Jukurrpa of the lake, and states the Jukurrpa will be disturbed by exploration activities. Both Professor Sackett and Dr Kruse explain how Martu believe that disturbance of Lake Way would go to the very essence of interfering with the native title holders’ traditions.
In response to this contention, the State contend s 237(a) of the Act is concerned with direct interference with physical aspects of the relevant activity. The State submits the section does not allow for a consideration of spiritual and non-physical concerns in isolation from likely interference with some form of physical activity. In FMG v Yindjibarndi Aboriginal Corporation, McKerracher J dealt with the notion of physical interference (particularly at [75] and [76]). As he states, the notion of physical interference is not expressly stated in the legislation. I note much has been said on the nature of interference in relation to s 237(a), both in previous Tribunal decisions and in decisions of the Federal Court of Australia. In FMG Pilbara v Yindjibarndi Aboriginal Corporation, McKerracher J summarised the issue neatly (at [68]), when he said ‘it is clear that the interference must be substantial and must produce an ‘impact’ of some sort in relation to the activities referred to in s 237(a)’. Whether or not that interference would be physical would be a matter for the context of the particular factual matrix.
In this present inquiry, I find there is not sufficient evidence of the nature and extent of the social or community activities for me to conclude any type of interference would be likely to them from exploration activities. TMPAC argue that Piper Preston’s exploration activities will interfere with the Jukurrpa and, in this way, interfere with the activity of carrying out of rites. Nonetheless, I do not consider such interference to be the direct and substantial interference encapsulated by s 237(a).
I also cannot conclude that Piper Preston’s exploration activities will lead to direct and substantial interference with teaching of culture and law business, hunting, dancing/corroborees and caring for country. TMPAC has provided limited information about these activities, and I am unable to determine whereabouts on the licence they are undertaken, how often and by whom. There is some evidence which suggests these activities are not undertaken on Lake Way itself, because of the sensitivity of that site, and are undertaken on and around Lake Way. It is not surprising there is no further detail about the social and community activities on this licence, given the sensitive nature of the area and the activities which are undertaken generally in relation to Lake Way. However, I must make my decision based on the evidence before me, in relation to this licence.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
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]).
What areas or sites of particular significance do the native title holders identify on the licence?
TMPAC contend the evidence establishes that Lake Way is a site of particular significance to the native title holders. They state the Jukurrpa is central to understanding the significance of Lake Way. Mr Morgan and Mr Ashwin explain how Lake Way was formed by the Jukurrpa. TMPAC assert the native title holders are responsible for looking after Lake Way and there are serious consequences for failure, including inadvertent failure, to do so. Mr Ashwin also states the Jukurrpa at Lake Way is significant to other groups around Australia and refers to the consequences to the Martu People if it is disturbed. He states the lake must remain pristine, and simply accessing Lake Way to carry out exploration activity may constitutes interference with it.
Are there sites of particular significance in accordance with the native title holders’ traditions?
The State contend that an area or site of particular significance means an area which stands out in some way from the general background of other sites and the country as a whole. They assert that general evidence regarding places on or near a tenement, which can be said to fit in a generic category such as a songline or a secret place, is not sufficient to establish that an area or site is of ‘particular significance’.
Dr Kruse’s affidavit provides helpful insight into the Martu People’s understanding of the Lake Way area and why it is particularly significant to the native title holders. Dr Kruse deposes that Martu People distinguish between the significance of country generally formed during the creative epoch, and those areas and locations associated with specific activities of the mythic beings, whose actions have significance for the Martu People’s way of life. He states that Jukurrpa refers to these actions of the mythic beings during the creative epoch, which remain ever-present and which continue to have agency in the world. This is consistent with the evidence of Mr Ashwin when he describes the dangers within Lake Way, even in the present day, and states that all the places Jukurrpa has been through are still there today. Without disclosing the contents of the restricted affidavits and statements, it is clear from the evidence that the Lake Way area comprises a series of interconnected sites or areas associated with a number of Jukurrpa dreaming stories which are central to Martu traditions.
I find the evidence clearly establishes Lake Way stands out in some way from the general background of other sites and the country and is a site of particular significance to the native title holders for the purposes of s 237(b).
Consideration
From TMPAC’s evidence, it is clear that cultural information regarding the Lake Way area is extremely sensitive and restricted to certain members of the native title holder group. Under Martu traditional law and custom, those members have an enforceable obligation to monitor and control any person’s access to and activities within the area. A failure to fulfil that obligation, even if they were unable to do so due to circumstances outside of their control, has resulted, and will continue to result, in harmful consequences.
The State do not accept that mere presence in an area may cause direct interference with that area. They also note that Piper Preston are aware of their legal obligations in respect of any site and have offered to work with the native title holders to avoid interfering with such sites. The State reiterate the area of the proposed licence has been subject to prior mineral exploration and possible mining activity, and the activities contemplated by Piper Preston would be no more significant. The State outline that whether or not TMPAC sign the RSHA, Piper Preston have expressed willingness to consult with the native title holders, which the native title holders can enforce by invoking the proposed RSHA condition the State intends to place on the proposed licence. The State contend the Aboriginal Heritage Act 1972 (WA) (AHA) will likely prevent interference with any sites of significance.
Piper Preston state, ‘The Grantee Party is familiar with and understands its obligations to comply with the requirements set out in the AHA prior to conducting any exploration activities within the vicinity of an Aboriginal heritage site’. They add they have never breached or been prosecuted under the AHA. They indicate they will report any potential Aboriginal heritage site identified during the course of its activities in compliance with the AHA.
TMPAC contend the State’s regulatory regime and the AHA are not as relevant to the predictive assessment that the Tribunal needs to make when a licence is substantially covered by a site of particular significance. They contend the ability of a grantee party to avoid Lake Way in order to carry out exploration activities elsewhere is greatly reduced. As the whole of Lake Way is a site of particular significance, TMPAC note it is likely that Piper Preston will make an application for consent under s 18 of the AHA to carry out exploration activities on Lake Way, resulting in a real chance of interference.
While I cannot say whether Piper Preston would make s 18 applications, which they are entitled to do under the provisions of the AHA, I conclude the RSHA is unlikely to prevent or reduce the likelihood of interference with Lake Way, because it only requires the conduct of surveys in circumstances where ground disturbing activity is taking place. The evidence from TMPAC establishes the area is so important, and so sensitive, that even slight interference (for example, non-ground disturbing activities), would lead to interference. As McKerracher determined in FMG Pilbara v Yindjibarndi Aboriginal Corporation at [75], ‘interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) [of the Act], may be substantial having regard to the native title party’s traditions’. Notwithstanding Piper Preston’s best intentions, inadvertent interference with Lake Way is distinctly possible if the explorer enters the area without guidance from the native title holders. In such circumstances, without the consultation that is afforded by the right to negotiate provisions of the Act, there is a real risk that Lake Way, as a site of particular significance to the native title holders, will be interfered with by Piper Preston’s exploration activities.
I find the evidence clearly established that Lake Way is a very significant site for the native title holders, and that even slight interference may disturb the site and traditions of the native title holders.
(c) Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
TMPAC’s contentions do not address s 237(c) of the Act. Piper Preston contend its exploration program will not involve major disturbance to any land or waters concerned. They also contend that the endorsements and conditions provided by the State draw their attention to their ‘obligations in respect of water resources management areas and proclaimed ground water areas’. Piper Preston state they are ‘aware of its obligations to comply with the statutory regulations and requirements associated with water resource management’. They contend they will act lawfully in exercising their rights granted under the proposed licence and ‘any disturbances that may occur will be rehabilitated to the standard required under law’.
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.
Conclusion
Given that there is likely to be interference with a site of particular significance for the purposes of s 237(b), notwithstanding the State’s regulatory regime, I conclude the expedited procedure should not apply to this act.
Determination
My determination is that the grant of E53/1897 to Piper Preston Pty Ltd is not an act that attracts the expedited procedure.
Helen Shurven
Member
30 January 2018
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