Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v WA Mining Resources Pty Ltd Another - [2015] NNTTA 41

NATIONAL NATIVE TITLE TRIBUNAL

Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v WA Mining Resources Pty Ltd Another [2015] NNTTA 41 (8 September 2015)

Application No: WO2014/0324, WO2014/0329

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (native title party)

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WA Mining Resources Pty Ltd (grantee party)

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The State of Western Australia (Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Mr JR McNamara, Member
Place:  Brisbane
Date:  8 September 2015

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – gender-restricted evidence – non-disclosure directions – whether grant of licence is likely to interfere with sites of particular significance –area covered by site – dreaming tracks – objects – whether real risk of interference – limited evidence as to proposed activities – likelihood of access by other land users – condition on licence requiring proponent to offer regional standard heritage agreement – presumption of regularity – expedited procedure applies

Legislation:Native Title Act 1993 (Cth), s 162(2)
Mining Act 1978 (WA), ss 58(1)(b), 66
Aboriginal Heritage Act 1972 (WA), s 6(1)
State Records Act 2000 (WA)
Rights in Water and Irrigation Act 1914 (WA)

Cases:Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa [2008] NNTTA 127 (‘Wurrunmurra v Ling’)
Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1 (‘Champion v Western Australia’)
Cheinmora v Striker Resources NL & Ors; Dann v Western Australia (1996) ALR 21; [1997] FCA 1147 (‘Cheinmora v Striker Resources’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Lungunan v Geotech International’)
FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia [2011] NNTTA 107 (‘FMG Pilbara v Cheedy’)
Freddie and Others v Western Australia (2007) 213 FLR 247; [2007] NNTTA 37 (‘Freddie v Western Australia’)
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91 (‘Murray v Money’)
Jack Dann & Ors (Unggumi Ngarinyin)/State of Western Australia/GPA Distributors Pty Ltd [1995] NNTTA 43 (‘Dann v GPA Distributors’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNNTA 18 (‘Silver v Northern Territory’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert Lands v Teck Australia’)
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘WF v Emergent Resources’)
WF (deceased) & Ors on behalf of Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2013] NNTTA 83 (‘WF v Kingx’)
Yindjibarndi Aboriginal Corporation RNTBC/Croyden Gold Pty Ltd [2013] NNTTA 71 (‘Yindjibarndi v Croyden Gold’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG Pilbara’)

Representative of the Ms Sally Raine, Hammond Legal
native title party:

Representative of the Mr Hong-Jim Saw, Hetherington Exploration & Mining Title
grantee party Services Pty Ltd

Representatives of the Mr Matthew Pudovskis, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum

REASONS FOR DETERMINATION

The present decision is concerned with whether the State of Western Australia and the applicant for an exploration licence situated west of Wiluna in the State’s Mid West are required to negotiate with an Aboriginal corporation about the proposed grant of the licence, where that Aboriginal corporation holds native title rights and interests on behalf of the common law holders for the area. Central to that issue, and the question which I must address in these reasons, is whether the grant is likely to interfere with an area or site of particular significance to the common law holders in accordance with their traditions.
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC holds native title rights and interests on trust for the common law holders in respect to approximately 40,000 square kilometres of land and waters on the edge of the Western Desert. As a registered native title body corporate under the Native Title Act 1993 (Cth), TMP is entitled to certain procedural rights in connection with development proposals that are wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests in the lands and waters concerned. These procedural rights include the right to negotiate with the State and the proponent about proposals which involve the creation of a right to mine or explore for minerals, subject to certain exceptions.
The State gave notice of its intention to grant exploration licence E53/1789 to WA Mining Resources Pty Ltd in January 2014. That notice included a statement that the State considers the grant of the licence to be an act attracting the expedited procedure. An act attracting the expedited procedure is a proposal which does not need to go through the normal negotiation procedure required under the Native Title Act in order to validly affect native title. Where it is asserted that a proposal attracts the expedited procedure, a registered native title holder or claimant may object to the inclusion of the statement and, unless the objection is withdrawn or dismissed, the Tribunal must determine whether the proposal is an act attracting the expedited procedure. If the Tribunal determines that the proposal is not an act attracting the expedited procedure, then the State and the proponent must negotiate in good faith with the registered native title holders or claimants with a view to reaching agreement about the proposal.
In May 2014, the registered native title claimants for the Wiluna and Tarlpa native title claims each made applications to the Tribunal objecting to the application of the expedited procedure to the grant of the licence. Although a determination of native title had already been made in favour of the claimants when the objections were lodged, it was conditional on the claimants nominating a prescribed body corporate to hold the native title rights and interests on trust for the common law holders, which was not completed until December 2014. As a consequence of its nomination as trustee and its subsequent registration as the registered native title body corporate for the determination, TMP has assumed the procedural rights associated with the proposal to grant the licence and has effectively stepped into the shoes of the Wiluna and Tarlpa claimants as the ‘objector’ in these proceedings.
The Tribunal’s task is to determine whether the exploration licence is likely to:
·interfere directly with the carrying on of the community or social activities of the native title holders;
·interfere with areas or sites of particular significance to the native title holders in accordance with their traditions; or
·involve major disturbance, or create rights whose exercise is likely to involve major disturbance, to any land or waters concerned.
If the answer to any of these questions is ‘yes’, then the expedited procedure does not apply and the licence must go through the normal negotiation procedure. If the answer to each question is ‘no’, then the grant of the licence may validly proceed without negotiations with TMP.
I was appointed by the President of the Tribunal, Raelene Webb QC, to constitute the Tribunal for the purpose of conducting an inquiry into these objections. That inquiry took place on the papers. TMP asserts that the proposed licence is likely to interfere with ‘sites, areas, places and meandering dreaming [jukurrpa] tracks’ within and adjacent to the licence area which are said to be of particular significance to the native title holders. TMP also asserts that interference with these sites, areas, places and dreaming tracks is likely to cause harm to Aboriginal and non-Aboriginal people. While the evidence relied upon by TMP indicates the possible existence of other areas or sites within or adjacent to the licence, it is concerned primarily with a site or area known as Tarlka, which is associated with two hills in the north-west of the licence.
The State accepts that Tarlka is an area or site of particular significance, though TMP says the State has adopted a narrow interpretation of the evidence regarding the geographical extent of the site. The State contends that the evidence does not establish the existence of any other areas or sites of particular significance, and while it accepts that Tarlka is an area or site of particular significance, it argues that the grant of the licence is not likely to interfere with it, having regard to the existing and previous use of the area, the intentions of the proponent and the applicable regulatory regime. WA Mining Resources declined to make any submissions to the Tribunal on these issues.
In light of these matters, the following issues are relevant to determining whether the grant of the licence is an act attracting the expedited procedure:
·    Is Tarlka an area or site of particular significance to the native title holders?
·    What is the area covered by Tarlka according to the evidence?
·    Are there are other areas or sites of particular significance within the licence?
·    What activities are likely to be carried out on the licence?
·    Is there a real risk of interference with Tarlka?

TMP’s evidence and non-disclosure directions

TMP relies on the affidavits of Paul Morgan and Timmy Paterson. Mr Morgan and Mr Paterson are initiated men or wati and possess the cultural authority to speak for places within the Wiluna and Tarlpa determination areas. Both men are considered to be senior wati and are involved in ceremony. Mr Morgan is also a director of TMP. The authority of Mr Morgan and Mr Paterson to speak on behalf of the common law holders for the country where the licence is proposed to be granted is not in dispute.
The affidavits of Mr Morgan and Mr Paterson were provided to the Tribunal and the other parties on the basis of draft non-disclosure directions prepared on behalf of TMP. These directions purported to restrict the disclosure of the affidavits to male officers and legal representatives of the parties and their respective employees and consultants, as well as male Tribunal members and staff assisting the Tribunal. The directions also purported to limit the disclosure of any communications or documents containing details of or references to the content of the affidavits.
The directions were proposed on the basis that the affidavits contain cultural material which must not be viewed by women. After reviewing the affidavits and seeking comment from the other parties, I agreed that the directions should be made, and they were issued on 15 June 2015. The State subsequently raised concerns about the directions, including and specifically those directions requiring the return or destruction of the documents and their interaction with its obligations under the State Records Act 2000 (WA). After further consultation with the parties, I proposed to reissue the directions with the relevant directions removed and including an additional direction specifying steps that must be taken by the parties to ensure the confidentiality of the documents. As no party objected to that proposal, I issued amended directions on 10 August 2015.
Section 162(2) of the Native Title Act requires the Tribunal to state in its determination any findings of fact on which it is based. As the evidence of Mr Morgan and Mr Paterson is subject to the non-disclosure directions, I have refrained from restating the detail of the evidence except where necessary to meet that requirement. In doing so, I have had due regard to the cultural and customary concerns of the deponents and the broader community of native title holders regarding the dissemination of information which would not otherwise be disclosed in accordance with traditional laws and customs.

Is Tarlka an area or site 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 it is asserted that an area or site is of particular significance, the area or site must be identified and the nature of its significance explained (see Silver v Northern Territory at [91], referring to Western Australia v McHenry).
Mr Morgan and Mr Paterson describe Tarlka as ‘one of the main places’ for a specific jukurrpa or dreaming which extends across and beyond the determination area. They also describe Tarlka as ‘one of the most important places’ in that country. Their evidence indicates that Tarlka is a place where the jukurrpa interacts, but does not necessarily intersect, with another jukurrpa which is also present in the licence area. The evidence of Mr Morgan also establishes that Tarlka is the setting for a part of the story which can only be known to men. According to Mr Morgan, Tarlka is ngulu (secret, sacred or dangerous) and women cannot ‘go too close to that place.’ Mr Paterson also gives evidence about the existence of ngulu places within the licence area, and though he does not specifically identify Tarlka as one of these places, it can be inferred from his evidence that Tarlka or parts of it are ngulu.
The State submits that the evidence of Mr Morgan and Mr Paterson is sufficient to establish that Tarlka is an area or site of particular significance to the native title holders. WA Mining Resources has made no comment as to whether Tarlka meets the description of an area or site of particular significance. Based on the evidence of Mr Morgan and Mr Paterson, I find that Tarlka is an area or site of particular significance to the common law holders in accordance with their traditions.

What is the area covered by Tarlka according to the evidence?

A further issue that arises in relation to Tarlka is whether the area or site, as understood by the common law holders, is confined to the two hills or encompasses a broader area which includes the hills, which are approximately two and a half kilometres from one another. This is relevant to the issue of interference, which I will return to later in these reasons.
The State submits that Tarlka is the two hills in the north-west of the licence area and ‘comprises the two hills themselves.’ TMP submits that, insofar as it implies that Tarlka is limited to the two hills, the State’s submission represents an overly narrow and restrictive view of the evidence. In TMP’s submission, the correct inference to be drawn from the evidence is that Tarlka is broader than the two hills, which ‘are part of a site complex that includes the surrounding area and the land in-between the hills.’
It is clear from the evidence of Mr Morgan and Mr Paterson that Tarlka is associated with the two hills. Mr Paterson, for example, deposes that Tarlka is the Martu word for the two hills. However, the evidence also suggests that the area referred to as Tarlka is not circumscribed in the manner attributed to the State. Mr Paterson, for example, states that Tarlka is ‘those hills and the places around them.’ Likewise, Mr Morgan states there is ‘a road that runs right through it,’ referring to the highway which divides the two hills. It follows that the area between the two hills and an area surrounding them are also regarded as being part of the site. On the other hand, Mr Morgan states that women are allowed to use the road so long as they ‘don’t go too close to that place, because it’s ngulu like I said.’ Similarly, Mr Paterson states that, while the road ‘hasn’t stopped that story,’ it has meant the men have to ‘take extra care so those [ngulu] places don’t get messed up.’
My view of the evidence is that Tarlka at least comprises the two hills and the area between them, including the Goldfields Highway. The evidence also suggests that Tarlka includes an area extending outwards from the hills themselves, which is consistent with the way the site is depicted on the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs. At the same time, there are clearly different areas within Tarlka which, though interconnected, give rise to different concerns. This is evident from the evidence concerning the road. What that evidence discloses is that certain places within Tarlka are ngulu whereas others are not, even though they are regarded as being part of the same site. This is consistent with TMP’s characterisation of Tarlka as a site complex.

Are there other areas or sites of particular significance which may be affected?

TMP contends that there are ‘sites, areas, places and meandering dreaming [jukurrpa] tracks’ of particular significance to the native title holders within and near the licence. These include: ngulu places within and adjacent to the licence area; sites that are linked with male initiation practices; sacred objects stored within and adjacent to the licence area; dreaming tracks whose location is only known to people with the requisite cultural authority and knowledge; and locations outside the licence area which are linked to sites, places and areas within it. While some of these references are to Tarlka, the clear implication is that there are other areas or sites of particular significance to the common law holders that are within, adjacent to or connected with the licence area.
Mr Morgan and Mr Paterson refer to two jukurrpa in connection with the licence. As discussed, one of these jukurrpa is directly associated with Tarlka and connected to other locations outside the licence area. The other jukurrpa is also linked to Tarlka, as well as a location east of the licence and a third place referred to by Mr Morgan, which I have been unable to identify precisely but whose proximity to the licence area may be inferred from information in the Tengraph documents provided by the State. Mr Paterson deposes that the second jukurrpa is ‘there in that tenement’ and says there are ngulu places within the licence area associated with the two jukurrpa. It is not clear whether the two jukurrpa intersect either at Tarlka or elsewhere in the licence area.
Mr Morgan and Mr Paterson also refer to certain objects that can be found within the licence area. Mr Morgan states that these objects were ‘probably wrecked’ when the road was constructed, though it is not clear in what sense they were ‘wrecked,’ as his evidence suggests they still exist and that some of them are still in use. Mr Paterson states that the objects have been hidden by wati ‘so they don’t get stolen by people using the road.’
The State contends that, if there are ngulu places apart from Tarlka within the licence area, then TMP has provided insufficient evidence as to the existence, nature and location of such places. Furthermore, the State contends that a jukurrpa or dreaming track is neither an area nor a site, though it concedes that particular areas and sites, such as the two hills, may be associated with dreaming tracks. The State argues that TMP has not identified any places outside the licence area or explained in any detail how the areas or sites within the licence area are linked to those places. It also argues that TMP has not identified any area or site associated with the objects.

I accept the State’s submission that there is an insufficient evidentiary basis to establish the existence of any ngulu sites within the licence area, apart from Tarlka. Although Mr Paterson refers to the existence of ngulu sites which are said to be associated with the two dreamings, he does not indicate where they are or why they are of particular significance to the common law holders.
I do not accept the State’s argument that a jukurrpa or dreaming track cannot qualify as an area or site. The Tribunal has previously found that dreaming tracks can be regarded as areas or sites of particular significance (see Freddie v Western Australia at [45]-[47]; Lungunan v Geotech International at [41]). Nevertheless, it is evident that the concerns expressed by Mr Morgan and Mr Paterson regarding the integrity of the songlines are mainly directed to the maintenance of areas or sites such as Tarlka, which are linked with particular events in the songline, rather than places over which the songline may simply have travelled. A similar distinction was identified by Member O’Dea in WF v Emergent at [39].
I accept that the present inquiry is concerned with the likelihood of interference with areas or sites rather than objects per se. In FMG Pilbara v Cheedy at [74], the Tribunal accepted that places where a certain kind of stone could be found were areas of particular significance to the native title holders. However, that decision concerned objects found in situ, whereas the objects to which Mr Morgan and Mr Paterson refer do not appear to be associated with any particular area or site. In this regard, the better view of the evidence is that significance attaches to the objects themselves rather than the places where they are currently being stored.
The presence of ceremonial objects may be relevant to whether a proposal is likely to interfere with the community or social activities of the native title holders: see WF v Kingx at [57]-[58]. There is evidence that some of the objects referred to by Mr Morgan and Mr Paterson are used during law time, which suggests they have ceremonial value. As it is unclear what role these particular objects have in the ceremonial activities of the common law holders, it is difficult to conclude that there will be direct interference with these activities if the objects are damaged, destroyed or removed. I also note that protection under the Aboriginal Heritage Act 1972 (WA) extends to objects which are or have been of ‘sacred, ritual or ceremonial significance’ to persons of Aboriginal descent: s 6(1).
There is one Aboriginal site on the Register of Aboriginal Sites within the licence area (Wiluna-Meekatharra 03, artefact/scatter, quarry). Although some weight can be placed on a site’s registration under cultural heritage legislation, it is not conclusive evidence of the site’s particular significance according to the traditions of the native title holders. In this case, there is no evidence before me concerning the significance of Wiluna-Meekatharra 03 or any traditions that may relate to it.

What activities are likely to be carried out on the licence?

An exploration licence authorises the holder of the licence to do any of the following, subject to any conditions to which the licence may be subject:
·    Enter and re-enter the licence area with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals.
·    Explore for minerals, and carry on such operations and works in the licence area as are necessary for that purpose including digging pits, trenches and holes, and sinking bores and tunnels.
·    Excavate, extract or remove earth, soil, rock, fluid or mineral bearing substances from the licence area within the prescribed amount or in such greater amount as the Minister responsible may approve in writing (the prescribed amount is 1,000 tonnes over the life of the tenement).
·    Take and divert, subject to the Rights in Water and Irrigation Act 1914 (WA), water from any natural spring, lake, pool or stream situate in or flowing through the licence area and to sink wells or bores and take water so obtained for domestic purposes and for any purpose in connection with exploring for minerals: see s 66 of the Mining Act 1978 (WA).
Relevantly, the State proposes to grant the licence with the following conditions:
·     All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
·    All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, are to be backfilled and rehabilitated to the satisfaction of the Department of Mines and Petroleum’s Environmental Officer, which must be undertaken no later than six months after excavation unless otherwise approved in writing by the Environmental Officer.
·    All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings must be removed from the licence area prior to or at the termination of the exploration program.
·    The use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited unless the written approval of the Environmental Officer is first obtained. Following approval, all topsoil must be removed ahead of the mining operations and separately stockpiled for replacement after backfilling or completion of operations.
·    No excavation, excepting shafts, approaching closer to the Great Northern and Goldfields Highway, highway verges or road reserves than a distance equal to twice the depth of the excavation and mining on the highways or highway verges being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge to below a depth of 15 metres from the natural surface.
·    No interference with identified geodetic survey stations and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
The licence is also subject to endorsements drawing the licensee’s attention to the provisions of the Aboriginal Heritage Act and regulations as well as other matters relating to water resources in the licence area.
WA Mining Resources has not provided information about the activities it proposes to undertake in the licence area. However, the State has provided a redacted copy of the statement filed by WA Mining Resources with the Department of Mines and Petroleum under s 58(1) of the Mining Act. According to the statement, WA Mining Resources plans to target cobalt and base metals and aims to re-evaluate the potential of the area by analysing historical exploration results to identify areas of interest. It will also conduct a field trip, which will involve additional reconnaissance and activities such as sampling and mapping to identify drill targets. The statement suggests that exploration will not be particularly intensive in the initial stages of the work program, but may intensify if potential prospects are identified.
The State contends that WA Mining Resources has signed and sent to TMP a Regional Standard Heritage Agreement. That is not in evidence. Nevertheless, the State proposes to apply a further condition requiring WA Mining Resources to enter into such an agreement if requested to do so by TMP. The State submits that the RSHA provides, among other things, that the proponent must:
·    notify the native title holders about proposed on-ground works, whether ground-disturbing or not, and provide details information about those works before commencing them;
·    consult with the native title holders about surveys of the land in relation to ground disturbing works before carrying out those works;
·    carry out surveys with the participation of the native title holders prior to commencing ground disturbing work in some circumstances; and
·    consult the native title holders before applying for any consent to destroy or damage a site under the Aboriginal Heritage Act.

Is there a real risk of interference with Tarlka?

TMP contend that the grant of the licence will put areas and sites of particular significance at real risk of interference. In particular, TMP submits there are restrictions placed on non-wati approaching or entering secret or sacred places. TMP argues that the location of these places is only known to a limited number of people, and it is therefore inconceivable how even low level exploration activity could be undertaken without posing a real risk of interference, even if inadvertent. In TMP’s submission, the consequences of interference could be severe: people may get bashed or speared if they are unable to exclude other people from certain areas; members of the community may get upset, sick or be ‘killed’; and women will suffer ‘adverse consequences’ if they enter a men’s site.
Mr Morgan states that he gets ‘frightened about companies coming and saying they would dig around Tarlka.’ If that were to happen, people ‘would get sick, and a lot of our mob would be killed.’ Mr Morgan states that they have done surveys over the area for other mining companies, but ‘we always tell them to move west, away from that place ... we always tell those companies where it’s okay to drill or dig up little bits of country.’ Mr Morgan states that women are able to use the road between the two hills, but cannot go ‘too close to that place.’ Mr Morgan also emphasises the ‘need to make sure that any company that tries to look around Tarlka knows that they can’t send women to some places there.’ Mr Paterson states that men will get punished and possibly speared if the ngulu places get ‘messed up’ or if women go there. Mr Paterson also deposes that women who go to these sites may die as a result.
The State submits that, contrary to TMP’s submission, there is no evidence that non-wati are prohibited under traditional law from approaching or entering any place within the licence area. The State contends that the only evidence about access restrictions concerns women, though it argues that the basis for these restrictions is not made clear in the evidence. The State also submits there is no evidence about any physical disturbance that would amount to interference with the hills, apart from Mr Paterson’s statement that they cannot be ‘messed up.’ In the State’s submission, this suggests that at least some low level activities may be acceptable.
The evidence establishes that traditional laws and customs prohibit women from entering some, but not all, places within Tarlka. As the State submits, there is no evidence of any broader restrictions on access, either with respect to Tarlka or elsewhere in the licence area. Although Mr Morgan deposes that other companies have been asked to move away from the site, his evidence suggests this is a precaution that has been taken to protect the area from activities such as drilling or digging, rather than an incidence of any traditional proscription on access by non-wati.
Furthermore, the State contends that the extensive history of exploration and pastoral activity and the lack of evidence regarding prior interference suggest that previous activities have not interfered with any areas or sites of particular significance in the licence area. In reply, TMP argues that no inferences can be drawn about existing levels of interference from prior grants. TMP submits that the State has failed to provide any evidence that exploration or mining activity has actually occurred or detail how the principal activities permitted by a pastoral lease can be compared to the activities authorised by an exploration licence. Furthermore, TMP says it should not be assumed that any activity which has already taken place in the area was carried out unconditionally. TMP points in particular to the evidence of Mr Morgan regarding surveys undertaken by the group for other mining companies.
The licence area is currently subject to two pastoral leases, Lake Way and Paroo. The area is also subject to an existing exploration licence, overlapping by three per cent, and a miscellaneous licence which encroaches over 60 per cent of the licence area. The area has previously been subject to six exploration licences, four of which overlapped the area by more than 25 per cent, including two which encroached on more than half of the proposed licence area (a prospecting licence, granted in 2009 and withdrawn in 2013, covered 1.5 per cent on the area). The area is also bisected by the Goldfields Highway, which runs between the two hills. Although the section between Wiluna and Meekatharra is currently unsealed, it is nevertheless a key regional thoroughfare. There are also several minor roads and tracks running through the licence area.
It cannot be assumed that the holders of the historical mining tenements have exercised the full suite of rights available to them over the entire area of the licence. It is also important to bear in mind the possibility that at least some exploration activity has been undertaken subject to conditions in heritage protection agreements. Those caveats notwithstanding, it remains the case that other users of the land, whether they have been previous explorers, pastoralists or road users, have had access to areas within Tarlka. TMP does not hold exclusive rights and interests in the area. It is reasonable to infer that some of these land users have travelled within Tarlka and may have inadvertently come across places to which access is restricted under traditional laws and customs. There is no evidence of adverse effects arising from the previous use of the area. This is not to downplay the serious cultural and customary concerns that attach to ngulu sites and the dire consequences that are said to occur if the relevant laws and customs are transgressed. However, it does suggest the risk of interference is likely to be remote. WA Mining Resources may in fact exercise greater caution than other land users, given they are now on notice through this inquiry of the potential risk of interference with areas within Tarlka.
The State contends that, given the execution by WA Mining Resources of an RSHA, the fact that WA Mining Resources has budgeted for heritage surveys, and the protective effective of the Aboriginal Heritage Act, there is not likely to be interference with Tarlka or any other areas or sites of particular significance, other than on terms agreeable to TMP. Putting to one side the matter of whether an RSHA has in fact been executed, TMP states that it does not accept the RSHA as an adequate means of dealing with the issues raised in the inquiry and does not endorse the use of the RSHA. In particular, TMP contends that the RSHA does not prevent interference and arguably enables it, as the explorer is not required to obtain the consent of the native title holders before making an application under the Aboriginal Heritage Act for ministerial consent to destroy or damage a site. Indeed, TMP argues that the RSHA facilitates such an application by requiring the native title holders to identify the precise nature, location and physical extent of any sites (as opposed to merely identifying whether areas are ‘cleared’ or ‘not cleared’ for exploration) and does not address circumstances where the disclosure of information would be culturally inappropriate and may itself constitute an interference. Furthermore, TMP contends that the definition of ‘non ground disturbing activity’ in the RSHA permits activities which may interfere with an area or site without a heritage survey.
The fact that a proponent is entitled to apply to the Minister for consent to use the land in a way that is likely to breach the Aboriginal Heritage Act does not mean an application is likely to be made or that consent will necessarily be given (see Dann v GPA Distributors; Yindjibarndi v FMG Pilbara at [114], citing Yindjibarndi v Croyden Gold at [32]). One of the objects of carrying out a survey is to inform the proponent as to the existence or otherwise of Aboriginal sites, so that it can take the necessary steps to avoid or minimise interference. If the survey discloses the existence of an Aboriginal site, the proponent may decide to seek ministerial consent under the Aboriginal Heritage Act. It does not follow that the Minister will consent. It is also possible that consent may be given subject to conditions that are intended to ensure the ongoing protection of the site, or at least minimise or mitigate the interference. Alternatively, the proponent may decide to relocate the proposed works to another area or undertake them in a manner which avoids any impact with the site. Although TMP may disagree about the specific arrangements or methodologies which underpin the RSHA, the requirement to perform a survey in relation to ground disturbing activities has a clear protective effect.
In relation to so-called ‘non ground disturbing’ activities, which under the terms of the Central Desert RSHA include the use of hand tools for water and soil sampling, geophysical surveying and the establishment of tent or caravan camps not involving heavy vehicles or water bores, the RSHA requires the proponent to notify the native title holders about the location, nature and duration of the proposed activity, as well as the proposed number of personnel. If the native title holders reasonably consider that the proposed activity is not a ‘non ground disturbing activity’ or would otherwise be contrary to the RSHA or in breach of State or Federal heritage legislation, then the parties must meet to endeavour to resolve the matter. While this does not provide for the same level of protection as the requirement to undertake a survey, it nevertheless provides the native title holders with an opportunity to consult with the proponent where they believe the activity may interfere with a site. In the present context, there is no definite evidence that low level, non ground disturbing activity is likely to interfere with Tarlka, apart from the access issue already addressed.
TMP argues there is no evidence before the Tribunal to suggest that WA Mining Resources has indeed executed an RSHA in its favour. It also argues that the mere fact the company has budgeted for heritage surveys does not reveal anything meaningful about its intentions, the manner in which the surveys would be undertaken, or whether native title holders would be involved in the surveys. While I accept both of those propositions, I note that the State intends to impose a condition requiring WA Mining Resources to enter into an RSHA if requested to do so by TMP. Although TMP states that it has never agreed to enter the RSHA and does not intend to do so, I am entitled to take the condition into account as a minimum standard available to TMP in the absence of a negotiated outcome: see Champion v Western Australia at [32]-[34].
TMP raised an issue regarding the wording of the proposed condition, noting that it only refers to TMP as holding the determined native title of the common law holders recognised in the Wiluna determination. I do not consider anything turns on this. TMP is the native title party in these proceedings and possesses the relevant procedural rights that give rise to the application. It holds the native title rights and interests for the entire determination area, irrespective of whether the lands and waters were claimed in the Wiluna application or in the Tarlpa application. Insofar as the RSHA refers to a ‘claim’ and ‘claimants,’ it would presumably require amendment in any event. I do not think this would be fatal to claiming the benefit of the proposed condition.
I am also entitled to rely, in the absence of evidence to the contrary, on the presumption that WA Mining Resources will not act in breach of the relevant legislation, regulations or conditions: see Murray v Money at [56]. TMP contends that it is incumbent on WA Mining Resources to provide evidence as to how interference can be avoided. There may be circumstances in which the proponent will be required to show how it intends to avoid interference with areas or sites of particular significance. For instance, the evidence may indicate a large number of sites within a given area (see Western Desert Lands v Teck Australia at [135]). Another example is where the Tribunal is satisfied as to the existence of a site whose location cannot be precisely determined (see Wurrunmurra v Ling at [52]-[53]). These circumstances are not a feature of the present case.

The location of Tarlka is clear, as are the risks of interference. It is possible to avoid those risks. WA Mining Resources is on notice about Tarlka and, if charged with breaching the Aboriginal Heritage Act, will be unable to rely on the defence that it did not know or could not reasonably be expected to have known of the existence of an Aboriginal site in the area. In the circumstances, I am satisfied there is no real risk of interference with Tarlka or any other area or site of particular significance to the common law holders.

Conclusion

For the reasons outlined above, I find that the grant of the licence is not likely to interfere with Tarlka or any other areas or sites of particular significance to the common law holders.
TMP has not sought to contend that the grant of the licence is likely to interfere directly with the community or social activities of the native title holders or involve major disturbance to the land and waters concerned. Based on the evidence before me, I am satisfied there is no real risk that the grant of the licence will interfere with any community or social activities carried on by the native title holders or involve major disturbance to the land and waters concerned.
Accordingly, I find that the grant of the licence attracts the expedited procedure and may be done without according the right to negotiate to TMP.

Determination

The determination of the Tribunal is that the grant of exploration licence E53/1789 to WA Mining Resources Pty Ltd is an act attracting the expedited procedure.

Mr JR McNamara

Member
8 September 2015