Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Rox Resources Ltd
[2020] NNTTA 23
•2 March 2020
NATIONAL NATIVE TITLE TRIBUNAL
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Rox Resources Ltd and Another [2020] NNTTA 23 (2 March 2020)
Application No: | WO2019/0992 |
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 -
Rox Resources Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 2 March 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – non disclosure directions - the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 32, 151, 155, 237 |
Cases: | Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndia Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal v Gianni) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) 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 and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (TMPAC v Lake Wells) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Piper Preston Pty Ltd and Another [2018] NNTTA 3 (TMPAC v Piper Preston) Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd and Another [2019] NNTTA 67 (Tjiwarl v Giard) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (Wiluna v Western Australia) |
| Representative of the native title party: | Sally Raine, Fremantle Law Pty Ltd |
| Representative of the grantee party: | Kevin Connell, Austwide Mining Title Management Pty Ltd |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This decision is about whether or not the grant of exploration licence E53/2062 (the licence) to Rox Resources Ltd (Rox Resources) attracts the expedited procedure. The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth), which included a statement that it considers the grant to be an act attracting the expedited procedure. By including the statement, the State asserts that the grant is not likely to, in summary:
(a)interfere directly with the native title holders’ community or social activities (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with the native title holders’ traditions (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)).
The area of licence is 4603.12 ha and it is located in the Wiluna Shire. Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (TMPAC) holds non-exclusive native title rights and interests over the entirety of the licence area, as determined in Wiluna v Western Australia.
TMPAC lodged an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion the expedited procedure applies to the grant of the licence. The objection application was initially brought on the basis that interference contemplated in s 237(a), s 237(b) and s 237(c) is likely, however, in this inquiry TMPAC pursues only the assertion concerning s 237(b). As such, I find that the grant of the licence is not likely to interfere with social or community activities of the native title holders (s 237(a)), or involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned (s 237(c)).
The President of the Tribunal, the Honourable John Dowsett AM, QC, has directed me to constitute the Tribunal for the purposes of determining, under s 32(4) of the NTA, whether the grant of the licences is an act attracting the expedited procedure.
In determining whether the expedited procedure applies or not, I must make a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. 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, Rox Resources and the State must negotiate with TMPAC in relation to the grant. For the reasons outlined below my determination is that the expedited procedure does not apply to the grant of the licence.
Parties’ submissions
TMPAC provided a statement of contentions for the licence. It also provided the statement of Mr Victor Ashwin dated 12 December 2019, which attached a map entitled ‘Jukurrpa Places within Tenement E53/2062’. TMPAC requested non-disclosure directions be made in relation to certain parts of the statement of Mr Ashwin on the basis that it was gender-restricted (to be viewed by men only). Having sought their views, neither the State nor Rox Resources opposed the making of the non-disclosure directions. Given these circumstances, I made directions pursuant to s 155 in relation to the statement of Mr Ashwin dated 12 December 2019.
Mr Ashwin describes himself as a Wiluna Native Title Holder, knowledge holder, and a Lawman who has been initiated in the Jukurrpa within the licence area. I accept Mr Ashwin’s authority to speak for the licence area.
The State provided contentions, tenure information including a series of maps, the results of searches of the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS), the statement under s 58 of the Mining Act 1978 (WA) (Mining Act), and a draft Tenement Endorsement and Conditions Extract.
Rox Resources provided a statement of contentions.
TMPAC also provided a reply to the State’s and Rox Resources’ materials.
Having considered all of the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’, as permitted by s 151, without the need for an oral hearing. All parties indicated they were content with that approach.
The licence and proposed exploration activities
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61, exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
The statement under s 58 of the Mining Act, which accompanied the licence application, informs me that Rox Resources considers the licence area to be prospective for gold and nickel. Although the statement says: ‘[s]ubject to aboriginal heritage clearance processes and other access issues, an exploration program costing a minimum of $40000 is expected to be completed in the first two years’, no budget is allocated for ‘aboriginal heritage clearance processes’. The budgeted items in the initial phase include compiling and assessing all past mineral exploration data, geochemical mapping, rock chip and soil sampling. Budgeted items in Year 2 include geophysical surveys and drilling of anomalies and assaying.
Rox Resources says the intended work program is to initially conduct low impact field exploration work comprising geological reconnaissance, mapping, rock and soil sampling over the entire licence (Contentions at [16]). This would be followed by non-ground disturbing geophysics which is likely to be an Electromagnetic Survey – a non-ground disturbing electrical method that may assist in the identification of deeply buried mineralisation zones of interest. Further sampling will also be undertaken to define drill targets. Rox Resources may continue with airborne magnetic surveys, mapping and ground reconnaissance sampling would be carried out to determine other potential drill sites. Further, Rox Resources says (Contentions at [17]):
When the Grantee Party determines that it will carry out high impact exploration on the Wiluna People’s land within the Licence it shall notify the Objector and either sign or abide by the terms of an HPA and undertake any necessary heritage survey.
The AHIS search results inform me that there are no registered Aboriginal sites or ‘Other Heritage Place’ in the licence area.
Section 237(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 (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). The Tribunal must determine whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular significance.
What areas or sites have been identified as being of particular significance to TMPAC?
The areas or sites which TMPAC contends are of particular significance within the licence are:
(a)the lakes within the licence, and the creeks within the licence which run into the lakes; and
(b)part of a hill within the licence.
The licence area is said to be of particular significance because of its association with two Jukurrpa. TMPAC native title holders’ fundamental belief in the Jukurrpa as the source of Western Desert law and custom to which they adhere, and it governing their religious practices, social rules, systems of land tenure and other aspects of their lives has been previously recognised (see, for example, Wiluna v Western Australia).
The lakes and the creeks which run into the lakes
Mr Ashwin says there are two Jukurrpa (Dreamings) within the licence area. He describes them by name. In contentions (in which TMPAC says that disclosure is not intended to be restricted), TMPAC summarises Mr Ashwin’s evidence as follows:
[14] … Mr Ashwin explains that the lakes within E53/2062 were made by mythical beings the subject of one of them. These mythical beings travelled over areas beyond the proposed tenement area. They made Yelma soak and other lakes, including Lake Way. Ritual associated with this Jukurrpa and the creation of Lake Way form part of male initiation for the native title holders. Part of the significance of the lakes within E53/2062 lies in their connection with the Jukurrpa outside the tenement area.
Lake Way is to the west of Wiluna, approximately 120 km west and south of the licence. I note that Lake Way has been considered in a number of previous expedited procedure inquiry matters, including TMPAC v Piper Preston. In that matter, it was noted that the restricted evidence made it clear 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 native title holders’ traditions (at [29]).
The evidence of Mr Ashwin describes the path of the Dreaming (from the west) by reference to these places, and by reference to formations created, the lakes and claypans, soaks and rockholes (Affidavit at [8]). He says it is the same Jukurrpa as Lake Way, and describes how the ‘smaller lakes’ including those in the licence were created by the Jukurrpa. He says that the places are ‘all connected up with the Jukurrpa … song’ (at [9]).
Part of a hill within the licence
TMPAC says (Contentions at [15]):
The part of the hill within proposed E53/2062 is associated with a second Jukurrpa. Mythical beings associated with this Jukurrpa live in caves on the hill.
And (at [14]):
The part of the hill within proposed E53/2062 is also associated with this Jukurrpa. Mr Ashwin explains that only men initiated in this Jukurrpa can go beyond Yelma soak up into this hill. He says there are too many dangerous places there and risks for uninitiated people.
Yelma soak is seen on all maps produced for this inquiry, and is a short distance to the south of the eastern portion of the licence. The AHIS map of registered Aboriginal sites indicates that Yelma soak is within the area of a registered site – although it is outside the licence area.
Mr Ashwin describes in some detail the characteristics of the location within the licence, the nature of the beings, physical responses when present in the area, avoidance practices and risks and consequences to both native title holders and strangers to the country.
Conclusion
In relation to the areas or sites identified by TMPAC and described above, neither the State nor Rox Resources make specific contentions regarding whether the areas or sites are of particular significance.
In my view, TMPAC has provided evidence to establish the lakes within the licence and the part of the hill within the licence are areas or sites of more than ordinary significance in accordance with their traditions; the areas or sites are well known to TMPAC and have been located and the nature of their significance explained; and they are located within the licence area. The evidence of Mr Ashwin is particularly strong regarding the nature and the consequences of disturbance with areas or sites in the licence which I have found to be of particular significance for the purposes of s 237(b).
I was unable to find sufficient evidence concerning the creeks to conclude that they are areas or sites of particular significance in accordance with s 237(b).
Is the grant of the licence likely to interfere with the sites of particular significance?
As noted above, Mr Ashwin has provided an explanation consequences of interference with a Jukurrpa place. TMPAC provides the below extract from Mr Ashwin’s evidence (Contentions at [17]):
‘They [exploration company] might break the songline up. When they damage the site. You know, like, we got nothing to sing about. Or show the next generation. Then you got nothing. Like you’re living without your soul.
This situation we’re talking about, people will get killed for not looking after their country’.
Rox Resources and the State argue that interference is unlikely due to a range of factors including:
(a)the nature of Rox Resources’ proposed exploration activities;
(b)Rox Resources’ intentions (including to notify TMPAC prior to conducting on-ground activities, to ‘establish dialogue… with a view to negotiating’ a heritage agreement, to ensure sites of significance are not disturbed, and its willingness to enter into a regional standard heritage agreement (RSHA));
(c)the effect of historical exploration and drilling activities on the licence areas; and
(d)the protection afforded by the Aboriginal Heritage Act 1972 (WA) (AHA), the draft tenement endorsements and conditions, and the RSHA.
While I accept Rox Resources might not undertake the full suite of rights permitted under the licence it does appear that there will be access to the licence areas and some ground disturbing activities including soil sampling in the initial phase, and in the longer term that high impact activities are foreseen. These activities in my view are capable of causing interference to the areas or sites of particular significance identified.
In relation to the various statements of intent, good intentions may change when circumstances change (see Tjiwarl v Gianni at [106]).
I note that Rox Resources offered to enter into a RSHA ‘but this was not accepted’ (Contentions at [11]). I understand that it is a precondition to the making of a licence application that such an offer be made – it does not require an applicant to engage with the relevant native title party. Rox Resources further contends that the parties ‘have been in negotiations for several months but have been unable to conclude a Heritage Protection Agreement’ (at [23]). It is encouraging that Rox Resources did engage in negotiations, however the fact remains that this matter has proceeded to inquiry and the Tribunal is required to make a determination.
As noted in a number of recent matters, reliance on the possible entry into an RSHA that has not been negotiated by the parties and asserting this should have bearing on whether interference under s 237(b) is likely ‘seems … to require a number of long bows to be drawn’ (Nyamal v Gianni at [66]).
The draft tenement endorsements and conditions alerting Rox Resources to the operation of the AHA is somewhat supported by the acknowledgement of its obligations and an undertaking to comply with the relevant statutes including provisions of the AHA (Contentions at [19]-[21]). Given this and the ‘small number of areas or sites of particular significance identified’, the State says I ‘should conclude that protection under the AHA will be adequate’ (Contentions at [39]). However, where, as here, the sites and concerns of TMPAC are particularised, the State or Rox Resources need to identify how the AHA will reduce the risk of interference (Marputu v Gianni at [62]). That has not been attempted.
The State contends that there is a sufficient basis to infer that there has been ‘previous potential’ interference because of prior exploration activity in the area of the licence and that the grant is unlikely to cause substantial interference (Contentions at [30]-[31]). Rox Resources says that the area ‘has been the subject of previous mining tenements and historic exploration activity by other explorers’ (Contentions at [4]). While this may be so, whether consequences were suffered due to those activities is not in evidence. Further, as noted in TMPAC v Lake Wells, the issue at hand is whether the grant of this licence is likely to cause interference. Such interference may be recurrent or repeated and still be interference within the meaning of s 237(b) (see [99]). While not required, evidence of this reality has been provided by Mr Ashwin (Affidavit at [21]-[32]).
The contentions from TMPAC and the evidence of Mr Ashwin in respect of the areas or sites of significance (particularly those areas identified on the maps provided) is such that even slight interference may be unacceptable. Such a proposition was accepted by the Federal Court of Australia in FMG v Yindjibarndi at [75]-[76].
As such, I find the grant of the licence is likely to cause interference within the meaning of s 237(b).
Determination
I determine that the grant of exploration licence E53/2062 to Rox Resources Ltd is not an act attracting the expedited procedure
Mr JR McNamara
Member
2 March 2020
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