Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Rachlan Holdings Pty Ltd
[2018] NNTTA 72
•26 November 2018
NATIONAL NATIVE TITLE TRIBUNAL
Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Rachlan Holdings Pty Ltd and Another [2018] NNTTA 72 (26 November 2018).
Application No: | WO2017/0527; WO2017/0528 |
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 -
Rachlan Holdings 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: | 26 November 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – non-disclosure directions – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 151, 237 |
Cases: | Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (Little v Lake Moore Gypsum) Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (Cherel v Faustus Nominees) Champion v Western Australia and Another [2005] NNTTA 1; (2005) 190 FLR 362 (Champion v Western Australia) Cheinmora v Striker Resources NL [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Jango v Northern Territory of Australia [2006] FCA 318 (Jango v Northern Territory) Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra v Western Australia) 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) Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (Western Australia v McHenry) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara) Young v Western Australia (2001) 164 FLR 1; [2001] NNTTA 42 (Young v Western Australia) |
| Representative of the native title party: | Ms Sally Raine, Fremantle Law Pty Ltd |
| Representative of the grantee party: | Mr Rhys Davies, DLA Piper Australia |
| Representatives of the Government party: | Mr Francis Cardell-Oliver, State Solicitor’s Office Mr Michael McMahon, 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 grant of exploration licences E69/3487 and E52/3494 (the licences) to Rachlan Holdings Pty Ltd (Rachlan Holdings). The State of Western Australia considers the grant of the licences are both acts attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The licences cover approximately 15.46 square kilometres (E69/3487) and 315.28 square kilometres (E52/3494) in the Shire of Wiluna. I note E52/3494 also overlaps the Shire of Meekatharra. Both licences overlap Lake Nabberu, which is the focal point of much of the material provided in this inquiry. Another area which features in the materials is Mibbeyean Creek, which runs through E52/3494.
The Tarlka Matuwa Piarku Aboriginal Corporation (TMPAC/the native title holders) hold native title rights and interests in the whole of E69/3487, and in 13.91 per cent of E52/3294, on behalf of members of the Wiluna and Tarlpa native title claims, as determined in Wiluna v Western Australia. 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 to each of the licences, 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. Rachlan Holdings argues the expedited procedure should apply.
If I find the expedited procedure applies, the licences can be granted without parties being required to negotiate with each other. If I find it does not apply, Rachlan Holdings and the State must negotiate in good faith with a view to reaching an agreement with TMPAC about the proposed grant of the licences.
Preliminary evidentiary matters
TMPAC material
TMPAC submitted a statement of contentions, attaching statements of evidence made by Dr Lee Sackett, Mr Geoffrey Stewart and Mr Paul Morgan. Mr Stewart and Mr Morgan are senior native title holders and knowledge holders for Lake Nabberu. TMPAC applied for non-disclosure directions under s 155 of the Act in relation to some of this material. I was satisfied that the material is sensitive and gender restricted. I made directions restricting the parties’ use of that information, following consultation and submissions from all parties on the nature and extent of those directions. The directions were cast so that I was able to read all of the materials. 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.
TMPAC also submitted a statement of contentions in reply, attaching a map of sites and areas of particular significance within the Wiluna determination and licence areas, in reply to submissions made by Rachlan Holdings and the State.
Dr Sackett is an anthropologist who outlines his qualifications and experience working with the native title holders. I accept the experience of Dr Sackett and that the evidence presented relates to the native title holders and the licence areas. I provide more detail on the weight I give to Dr Sackett’s evidence at [9]-[14] below.
Mr Morgan and Mr Stewart provide details of the creation of Lake Nabberu in the Dreaming which I do not repeat here due to cultural sensitivities. TMPAC state the accounts appear to, in parts, have their differences to which Dr Sackett provides information to reconcile these differences. TMPAC say Dr Sackett does not express an opinion that one account is wrong and the other is right. Based on his work in the area dating back to 1974, Dr Sackett expresses (at 18) that Mr Stewart’s account is ‘the more rounded and complete of the two’. TMPAC contend Mr Stewart’s account can be understood as ‘being more complete’ as his account covers an area much larger than the licence areas, and the difference between the statements is ‘in their scope, the details related and the details emphasised’. I accept this explanation, and that evidence provided by indigenous witnesses can differ in part, depending on which areas of country can be spoken for by each person, and their respective traditional rights, responsibilities and knowledge. I do not find the evidence of Mr Stewart and Mr Morgan contradictory – rather I find both statements cogent and clear in their description of the relevant areas and why they are important or of significance to the native title holders.
The appropriate weight to give anthropological evidence
Throughout their materials, the State and Rachlan Holdings argue I should give Dr Sackett’s evidence little weight, largely because they assert the statements of Mr Stewart and Mr Morgan do not explain why any relevant places are of more than ordinary significance in accordance with their laws and customs, and so the explanations provided by Dr Sackett are of limited value.
TMPAC assert the Tribunal should give weight to the explanation of significance provided by Dr Sackett. TMPAC state Dr Sackett is ‘eminently qualified to give it by his study, training and experience.’
The Tribunal has noted on numerous occasions that, unlike a Court, it is not bound by the rules of evidence. However, the Federal Court’s observations about the role anthropological evidence plays in native title matters are of assistance in this inquiry. The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work is probative (see Neowarra v State of Western Australia at [388]). And that this is particularly so when it accords with the native title party evidence. For example, in Jango v Northern Territory of Australia (at [291]-[292]), the Court outlined:
It is plainly correct that expert anthropological evidence is unlikely to cure certain kinds of gaps or deficiencies in evidence adduced from Aboriginal witnesses. If, for example, indigenous witnesses consistently disclaim a suggestion that their traditional laws and customs allow interests in country to be acquired in a particular manner, evidence to the contrary by an anthropologist is unlikely to carry a great deal of weight. This will be so even if the anthropologist’s evidence is not directly challenged in cross-examination, since evidence from indigenous witnesses is normally regarded as providing the most reliable account of traditional laws and customs of the relevant people.
Depending upon the circumstances, however, anthropological evidence might well supplement the testimony of indigenous witnesses and, in that sense, fill in some evidentiary gaps.
Dr Sackett describes that his statement has been prepared in accordance with the Federal Court’s 2016 Expert Evidence Practice Note. That note states (at 2.2) the ‘purpose of the use of expert evidence in proceedings, often in relation to complex subject matter, is…to receive the benefit of the objective and impartial assessment of an issue from a witness with specialised knowledge’. The note goes on to outline (at 2.4) that an ’expert witness' opinion evidence may have little or no value unless the assumptions adopted by the expert (ie. the facts or grounds relied upon) and his or her reasoning are expressly stated in any written report or oral evidence given’.
The questions Dr Sackett was asked to address for the purpose of this inquiry are clearly outlined in his statement. Those questions, in summary and in relation to s 237(b), focused on whether Lake Nabberu is a site of particular significance to the native title holders, what would constitute interference with that site, and could there be inadvertent interference with that site. Dr Sackett outlines that he has direct field experience with the country that is now subject to the TMPAC native title determination, and the native title holders. He has been to Lake Nabberu and been told of dreaming stories in relation to that lake by the native title holders.
Dr Sackett provides some general information about dreaming and belief systems of the native title holders. He then goes into detail about the statements of Mr Morgan and Mr Stewart, and explains that he has personally recorded stories about Lake Nabberu and ‘observed ancestors of today’s native title holders’ performing ceremonies and re-enacting ‘formative and foundational activities’. I accept and give appropriate weight to Dr Sackett’s opinion evidence regarding Lake Nabberu and the issues of significance and interference. I also accept and give appropriate weight to his explanations of what the State and Rachlan Holdings have referred to as inconsistencies between the statements of Mr Morgan and Mr Stewart. I believe Dr Sackett’s statement to be an impartial assessment of the questions he was asked to address, and that he has outlined the grounds upon which he relied to provide his views.
Rachlan Holdings
Rachlan Holdings submitted a restricted statement of contentions and a non-restricted statement of contentions attaching the affidavit of Mr Brett Smoothy. Mr Smoothy is the sole director and company secretary of Rachlan Holdings. Rachlan Holdings also submitted a statement of contentions in reply, after seeking and being granted leave to do so.
Rachlan Holdings statement which accompanied their application for the licences, indicates they will be targeting a potential Paleo Channel containing a brine aquifer that may contain various commodities. The State’s interactive mapping system indicates the salt lakes in the licence areas may be linked to a potential Paleo Channel, with the salt lakes being an intermittent surface expression of the system. Rachlan Holdings exploration program will aim to confirm the above theory and test the economic recovery of the commodities. Field based activities will include: access to the areas by pastoral station tracks and helicopters; geological and hydrological mapping and interpretation; geophysical surveying; surface and near surface water sampling; heritage surveys; planned exploration drilling programs; porosity testing; water drawdown testing of the aquifer; further work based on the initial drilling and survey results; and environmental surveys.
The State’s material
The results from the Department of Aboriginal Affairs’ Aboriginal Heritage Inquiry System (AHIS) indicate there is one registered Aboriginal site under the Aboriginal Heritage Act 1972 (WA) (the AHA) within E52/3494: site number 2669 Tyinki-Tyinki. There are no registered sites within E69/3487 and no other heritage places within either of the licences. Both licences are wholly covered by Pastoral Lease N049551 (Cunyu), and have been the subject of previously granted tenements and temporary reserves. E52/3494 is also overlapped by pastoral lease no. 49751 (Ned’s Creek).
The State proposes to grant the licences subject to a number of endorsements and conditions. The State also outline in their contentions that a condition will be placed on the licences where the TMPAC may request, and the grantee party shall execute, a Regional Standard Heritage Agreement (RSHA) within certain timeframes.
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 further oral hearing. All parties indicated they were content to proceed on the papers.
Facts and Issues
Parties did not dispute that:
·TMPAC did not provide statements, other material or contentions regarding s 237(a) and (c) of the Act.
·The activities Rachlan Holdings are likely to carry out on the licence areas, if they are granted, are the activities described in the affidavit of Mr Smoothy at [10]-[11]
Parties did not agree as to whether or not:
·The area identified in TMPAC’s contentions as Lake Nabberu is an area or site of particular significance to the native title holders, in accordance with their traditions.
·Parts of Mibbeyean Creek are part of an area or site of particular significance, in accordance with their traditions, to the native title holders.
·Assuming Lake Nabberu and parts of Mibbeyean Creek are a site or area of particular significance, the exploration activities of Rachlan Holdings is likely to interfere with that site or area.
I must make a predictive assessment in the context of s 237 of the Act. 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], and the principles as set out in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [15])).
(a)Is the grant of the licences likely to interfere directly with the native title holders’ community or social activities?
Section 237(a) was one of the grounds raised in TMPAC’s initial objection applications, and TMPAC subsequently indicated they did not wish to pursue this ground. As such, their evidence and submissions do not specifically address the issue of interference with community or social activities.
I do not consider there to be any evidence in support of a conclusion that the grant of the licences is likely to interfere directly with TMPAC’s 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?
The considerations for s 237(b) are outlined in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [17]-[18]). An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]). The evidence must identify an area or site exists on the licence; explain its significance and distinguish it from other areas within the licence; and show it is of more than ordinary significance to the native title holders in accordance with their traditions. These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17], [125]).
What areas or sites have TMPAC identified in relation to the licence area?
TMPAC state Lake Nabberu, a complex of dry saline lakes, is a site of particular significance to the native title holders. This site is depicted as overlapping the licence areas on a map submitted by TMPAC. The part of E52/3494 that overlaps the TMPAC determination area covers a western portion of Lake Nabberu. E69/3487 overlaps an eastern portion of Lake Nabberu.
Are any of the identified areas or sites of particular significance to TMPAC?
On the basis of the statements of Mr Stewart, Mr Morgan and Dr Sackett, the State accepts Lake Nabberu (which overlaps both licences) is a site of particular significance, in accordance with the traditional laws and customs, to the native title holders. Rachlan Holdings does not accept Lake Nabberu is such a site. The State and Rachlan Holdings are generally silent specifically on whether parts of Mibbeyean Creek (on E52/3494) are sites of particular significance, as asserted by TMPAC.
As listed above (at [17]), results from the AHIS show one registered site within E52/3494 (Tyinki-Tyinki) and no registered sites within E69/3487. TMPAC do not contend that the Tyinki-Tyinki registered site is a site of particular significance, except for where it overlaps Lake Nabberu and parts of Mibbeyean Creek. Lake Nabberu, which overlaps both licences, and parts of Mibbeyean Creek located within E52/3494, have been identified by TMPAC as sites or areas which are of particular significance to the traditional owner group. Mapping provided by TMAC was particularly helpful in conceptualising those parts of the licences which were asserted to be of particular significance, and those which were not.
Neither the lake or creek have been listed on the AHIS, however, it is well established that a site or area may be of particular significance without being recorded on the AHIS (see Little v Lake Moore Gypsum at [67]). The word ‘particular’ in s 237(b) not only means ‘special or more than ordinary’ but that the particularity of the significance must be capable of identification (Western Australia v McHenry).
TMPAC contends Mr Morgan and Mr Stewart establish that, according to the native title holders, the complex of lakes comprising Lake Nabberu were created in the Dreaming and is significant within their traditional laws and customs. Mr Morgan explains access to the lake is gender restricted, and there are possible severe consequences for others who access the lake or interfere with it. Dr Sackett supports these contentions in his statement and outlines why Lake Nabberu is of more than ordinary significance to the native title holders. I do not repeat that information here due to sensitivities and the non-disclosure directions.
Dr Sackett further explains, in his opinion, the lake and certain surrounding places are not like other areas where ‘mundane activities’ are permitted. The lake and known sites around it are places that are marked off by their creation and important to the native title holders belief system. Dr Sackett states (at 25) ‘they exist as places to be avoided, skirted around, approached with caution…’ and he goes on to outline their gender sensitivity.
Rachlan Holdings contends there is insufficient evidence to establish the precise location of the ‘site of particular significance’ and insufficient evidence to explain the nature of the significance of Lake Nabberu to TMPAC. In particular, Rachlan Holdings assert it is not clear whether the site relied upon by the native title holders comprises some or all of the areas depicted in the map submitted by TMPAC or, alternatively, areas not depicted on the map. Rachlan Holdings contend the map does not purport to represent these areas and that it is unclear what Mr Stewart and Mr Morgan are asserting. In reply to Rachlan Holdings contentions, TMPAC state it is not necessary to indicate on the map the restricted locations to establish the location of Lake Nabberu, as the whole of the lake is a site of significance. When referring to certain Jukurrpa (dreaming), TMPAC assert Mr Stewart and Mr Morgan are giving an account of the creation of the whole area of Lake Nabberu as indicated on the map.
Regarding evidence of Mr Morgan and Mr Stewart, TMPAC state Rachlan Holdings adopt too fine a reading of them. TMPAC explain they are statements from senior native title holders in their own words, one of whom had to have his statement translated, and TMPAC consider it appropriate the Tribunal read and understand the statements in this context. TMPAC contend both statements establish the existence of the native title holders’ belief in the Jukurrpa, their role in creating the lake and their ongoing presence in the area.
I find the statements of Mr Stewart and Mr Morgan confirm the location and extent of the areas of particular significance (that I will not repeat here due to cultural sensitivities) are that they are represented on the map sufficiently to be clear about which areas are of particular significance and which are not. I conclude that Lake Nabberu, and those parts of Mibbeyean Creek as marked on the map provided by TMPAC, are sites of particular significance for the purposes of s 237(b).
Is the grant of the licences likely to interfere with any of the identified areas or sites of particular significance to TMPAC?
TMPAC contends access to Lake Nabberu by people who are not senior native title holders and knowledge holders for Lake Nabberu, of the appropriate gender, constitutes interference with the lake in accordance with the native title holders’ law and customs. For example, Mr Morgan states (at 23) ‘Whitefella come in and digging round there and I have to get in trouble for breaking the Law.’ Dr Sackett explains it is not relevant that exploration activities of Rachlan Holdings might be non-ground disturbing, it is the presence on the lake by an inappropriate person that is breaking the law, ‘virtually any activity would constitute interference with it’ (at 28). TMPAC assert any disturbance created by Rachlan Holdings might result in harm to its personnel who venture onto the lake and may result in serious consequences for the native title holders. This includes activities such as hand auger sampling. The State and Rachlan Holdings do not agree. The State outline that even if Lake Nabberu is a site of particular significance, there is ‘insufficient evidence to establish mere access will constitute interference’. The State assert the regulatory regime, and the grantees willingness ‘to relocate activities to avoid interference where possible’ should avoid interference.
Mr Smoothy’s affidavit outlines the likely activities of Rachlan Holdings on the licences. He explains the resource to be explored is a fluid and so it ‘can be accessed at a number of points within the relevant aquifer’. This also means ‘fewer drill holes are required to identify the key characteristics of the deposit’ and ‘there is a much greater degree of flexibility in the location of drill holes and much less overall impact than hard rock mineral exploration activities’.
Mr Smoothy explains exploration on both licences would involve mapping and surveying ‘using non-intrusive methods in order to identify areas of interest’. I accept these activities are not likely to cause interference for the purposes of s 237(b), although arguably if Rachlan Holdings definition of ‘non-intrusive methods’ included walking across the lake, that could be such interference, and more on this below. Mr Smoothy goes on to outline that after mapping and surveying, other activities could be conducted including: use of a hand-held auger drill to take soil samples; exploration drilling; and excavation and pump testing of small trenches. He states that these ‘activities could, wherever possible, be relocated to avoid areas of significance to the native title holders’. Dr Sackett states the idea of ‘inadvertent interference’ does not make sense within the logic of the native title holders’ law and customs. He says traditional site protocols, wherein certain members of the group are warned to avoid certain dangerous areas, means those operating within the system fully know what to do in relation to those places. Only someone operating outside the system, without appropriate permission, knowledge and oversight, might inadvertently interfere with the place. TMPAC argue the State’s regulatory regime, including the AHA and the endorsements and conditions to be imposed on the licence on grant, will not make it less likely that the grant of the licences will interfere with Lake Nabberu.
Rachlan Holdings contend there is insufficient evidence to establish that simply accessing the areas of the licences subject to Lake Nabberu will constitute interference. It asserts the evidence establishes, at most, only ground disturbing activity will constitute relevant interference. In particular, Rachlan Holdings state this is highlighted in Mr Morgan’s statement where he says (at 24) ‘They can walk around the Lake’, but it is not permissible to dig or drill there ‘They’ll make a mess of the Lake if they drill on it’ (at 26).
Regarding the nature of the exploration activities, Rachlan Holdings contend TMPAC misunderstand the nature of the proposed exploration when they say (at 2) ‘the challenge for all parties posed by…[the] exploration is that it is focused on these and other lakes’. They go on to say that unlike other types of mineral exploration ‘it is not possible to identify discrete areas of significance to avoid them’. Rachlan Holdings assert the proposed exploration focuses not on lakes, but on the aquifer or paleo channel that supplies the lake. As outlined at [36] above, the fluid can be accessed at a number of points within the relevant aquifer. Aquifers and paleo channels extend beyond lakes, so Rachlan Holdings explain it is possible to explore an aquifer for the commodity from outside the surface of the lake, in addition to exploring from the surface of the lake. With this in mind, Rachlan Holdings contends the exploration is better able to avoid discrete areas of significance than hard rock exploration.
The State assert the risk of interference would involve digging or drilling on the lake bed rather than its surrounds, and allowing the wrong people to be on the lake. The State assert Rachlan Holdings have displayed a general willingness to take into account cultural or heritage issues. In reply, TMPAC state when Mr Morgan refers to the area being gender restricted, he is also referring to the area needing to be accessed by senior native title holders and knowledge holders for Lake Nabberu. For the wrong gendered person to go onto Lake Nabberu is to break the native title holders’ traditional laws and, thereby, interfere with it.
Regarding Mr Morgan’s concerns of ground disturbing activity on the lake bed, the State assert Rachlan Holdings are not likely to engage in such activity on Lake Nabberu. The State say Mr Smoothy indicates exploration activities for the proposed commodity (particularly drilling) are flexible in terms of location and can be moved to avoid sites of significance where possible. Further, the State say the Tribunal should presume Rachlan Holdings will comply with the AHA, and note they have indicated a willingness to enter into a cultural heritage agreement. TMPAC assert Mr Morgan’s statement establishes drilling anywhere on Lake Nabberu will constitute interference with it. TMPAC says it does not matter where Rachlan Holdings move the drill holes – they cannot be moved to a location on Lake Nabberu that will not cause interference with it.
As outlined above, the grantee party’s attitude to the RSHA is positive, as well as to the regulatory regime in general, and I accept that the grantee party intends to act lawfully and in accordance with the AHA and the State’s regulatory regime. However, the Tribunal has previously found that the concept of ‘interference’ in s 237(b) is of a potentially wider scope than the proscribed activities in s 17 of the AHA (see for example Young v Western Australia). Depending on the circumstances, activities permitted under s 17 of the AHA or under the RSHA for example activities which may be considered non-ground disturbing, on the surface of Lake Nabberu, may constitute interference pursuant to s 237(b) of the Act. The State contends that given TMPACs evidence, Lake Nabberu meets the description of an Aboriginal site, as envisaged under s 4 and s 5 of the AHA. Rachlan Holdings ‘does not admit that Lake Nabberu is a place to which the [AHA] applies’. However, it does acknowledge ‘that it would need to form a view of the application of that Act to Lake Nabberu in the event that it sought to conduct activities on the surface of the Lake’ (at 12).
The State notes the whole of E69/3487 and much of E52/3494 have been the subject of historical exploration licences. Given the degree of overlap between Lake Nabberu and E69/3487, the State contends it is reasonable for the Tribunal to infer that at least some work has been conducted on the Lake, and say there is no evidence any prior work has caused interference. In particular, the State assert this inference weighs against a finding that mere entry onto the lake will constitute interference. The basis for the interference contended by the State is the expenditure associated with three historic overlapping licences. TMPAC assert the State does not identify any material which establishes the existence of the asserted expenditure, hence, there is no material before the Tribunal to infer what activities took place and where. TMPAC note two of the historical exploration licences surrendered before the commencement of the Act, and the surrender of the other licence coincided with the commencement of the Wiluna native title claim. The native title holders could not assert their rights and interests over Lake Nabberu at this time.
Conclusion
There is no question that the State’s regulatory regime will apply to both the licences – the question is whether, in doing lawful exploration activities, Rachlan Holdings is likely to interfere with the sites of particular significance which have been identified by TMPAC. The regulatory regime has been described on numerous occasions by the Tribunal. While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Cherel v Faustus Nominees at [81]-[91]).
I must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the RSHA (Champion v Western Australia [30]-[34]). I note some of the parties submissions also related to the negotiations and content of a draft agreement between parties, dealing with issues such as cultural heritage. However, it is not my role in this expedited procedure inquiry to evaluate those negotiations or any agreement. My role is to decide whether or not the expedited procedure applies to the grant of the licences in the context of consideration of s 237 of the Act.
The evidence of TMPAC in this inquiry is compelling in demonstrating the importance and particular significance of Lake Nabberu, and parts of Mibbeyean Creek, in accordance with their traditions. The lake covers much of the eastern portion of E52/3494 and much of E69/3487. Mibbeyean Creek runs through E52/3494 and two of the three areas of the creek, as marked on the TMPAC map and which I have accepted as being of particular significance, are within that licence. Even though Rachlan Holdings explains they can access the resource by drilling off the lake, it also appears to be envisaged that drilling can occur on the lake, as needed.
If drilling were to occur on Lake Nabberu, or on the parts of Mibbeyean Creek which are of particular significance which are on E52/3494, I conclude that is likely to cause interference for the purposes of s 237(b). The RHSA allows ‘non ground disturbing work’ to take place without the need for consultation with TMPAC. However, evidence indicates that works considered to be non-ground disturbing under the RSHA, would constitute interference for the purposes of s 237(b). Due to the size of Lake Nabberu, the extent to which it overlaps the proposed licences, and the nature of Rachlan Holdings entitlements to explore on grant, it is my view that, without further negotiation between TMPAC and Rachlan Holdings, there is likely to be disturbance to Lake Nabberu.
Very little of the evidence focused on the two parts of Mibbeyean Creek of particular significance which are on E52/3494. There does not seem to be any mechanism in place for Rachlan Holdings to be able to clearly locate those two areas and avoid interference with them. Mapping provided by TMPAC gives some guidance, however, without the assistance of senior native title holders and senior knowledge holders for the relevant areas, I conclude there is a real chance or risk these areas are likely to suffer from interference by exploration activities of Rachlan Holdings.
(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?
Section 237(c) was one of the grounds raised in TMPAC’s initial objection applications, and TMPAC subsequently indicated they did not wish to pursue this ground. As such, their evidence and submissions do not specifically address the issue of major disturbance I do not consider there to be any evidence in support of a conclusion that the grant of the licences is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
My determination is that the grant of E69/3487 and E52/3494 to Rachlan Holdings Pty Ltd are not acts that attract the expedited procedure.
Helen Shurven
Member
26 November 2018
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