Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Wildcat Resources Limited
[2020] NNTTA 21
•26 February 2020
NATIONAL NATIVE TITLE TRIBUNAL
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Wildcat Resources Limited and Another [2020] NNTTA 21 (26 February 2020)
Application No: | WO2019/0118, WO2019/0119, WO2019/0120 |
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 -
Wildcat Resources Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 26 February 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether act likely to interfere with sites or areas of particular significance – non disclosure directions - the acts are not acts 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 Yindjibarndi 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) 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: | Matthew Banks, Quantum Business Finance |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
This decision is about whether or not the grant of exploration licences E38/3338, E38/3339 and E53/2046 (the licences) to Wildcat Resources Limited (Wildcat Resources) attracts the expedited procedure. The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) 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 licences are located in the Shire of Wiluna, and are 7058.41 ha (E38/3338), 2762.89 ha (E38/3339) and 2769.92 ha (E53/2046). Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (TMPAC) holds non-exclusive native title rights and interests over the entirety of the licence areas, as determined in Wiluna v Western Australia.
TMPAC lodged objections with the National Native Title Tribunal (the Tribunal) against the State’s assertion the expedited procedure applies to the grant of each of the licences. TMPAC initially asserted that interference contemplated in s 237(a), s 237(b) and s 237(c) was likely, however, in this inquiry TMPAC pursues only the assertion concerning s 237(b). As such, I find that the grant of the licences 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 licences. 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, Wildcat Resources and the State must negotiate with TMPAC about the grant. For the reasons outlined below, my determination is that the expedited procedure does not apply to the grant of the licences.
Parties’ submissions
TMPAC provided a statement of contentions, together with the statement of Mr Victor Ashwin dated 9 November 2019; a map of Jukurrpa Places within E38/3338 and E38/3339; and a map of Jukurrpa Places within E53/2046. TMPAC requested non-disclosure directions be made in relation to the statement of Mr Ashwin on the basis that parts of it was gender-restricted (to be viewed by men only). Having sought their views, neither the State nor Wildcat Resources opposed the making of the non-disclosure directions. Given these circumstances, I made directions pursuant to s 155 in relation to certain paragraphs Mr Ashwin’s statement dated 9 November 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 areas. I accept Mr Ashwin’s authority to speak for these areas.
The State provided contentions, tenure information including a Department of Mines, Industry Regulation and Safety ‘Quick Appraisal’ report, 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.
Wildcat Resources provided a statement of contentions.
TMPAC also provided a reply to the State’s and Wildcat 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 licences are exploration licences proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, 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 applications informs me that Wildcat Resources considers the licence areas to be prospective for gold. The statement includes a work program for Year 1 which includes a budget for geological activities, geochemical activities, airborne geophysical activities and remote sensing activities.
Wildcat Resources’ contentions say in the first year of grant, on-ground exploration will be limited to a 3-4 week ground mapping and ground truthing exercise across the licence areas. It says ground disturbance during this period would be non-existent or very minimal, however in the years to follow ‘on-ground activities may be conducted which may involve some ground disturbance’. It says drilling programs may be planned for a period of 3-4 weeks and there may be 1-2 drilling programs per year. Drilling activities would be planned ‘on old drill lines (where possible)’ and ‘it would be expected that all efforts are taken to minimise any ground disturbance’ (Contentions at [2]).
I accept that it is open to Wildcat Resources to undertake the full suite of rights, but given the way the exploration program has been described I consider that unlikely (see Tjiwarl v Giard at [20]). In this case it appears to me that there will be some ground disturbing activities including soil sampling in the initial phase, and a program of drilling in the longer term, as described by Wildcat Resources.
The AHIS search results inform me that there are no registered Aboriginal sites in the licence areas. The search results show one ‘Other Heritage Place’ in E53/2046: ID 1502 – Mangkurtu – Ceremonial, Mythological Type.
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?
The areas or sites which TMPAC contends are of particular significance within the proposed areas of E38/3338, E38/3339 and E53/2046 are:
(a)the part of Banjo Creek that crosses E38/3338 and Chowidda Pool;
(b)the hills to the west of the part of Banjo Creek that crosses E38/3338;
(c)the part of Tooloo Bluff within E38/3338;
(d)the hills within E38/3339; and
(e)the black hills and the part of the tributary to Charles Wells Creek within E53/2064.
Many of the above locations are said to be of particular significance because of their connection to Jukurrpa (‘the Dreaming’ or ‘the Law’). TMPAC native title holders’ fundamental belief in the Jukurrpa is the source of Western Desert law and custom to which they adhere, and governs 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 part of Banjo Creek that crosses E38/3338 and Chowidda Pool;
Mr Ashwin says there are three Jukurrpas within E38/3338. While the Jukurrpas are named in Mr Ashwin’s restricted statement, I have not included the names in these reasons due to cultural sensitivities. Mr Ashwin describes how one Jukurrpa being went to Chowidda Pool (‘Jawujarra’), camped there, and ultimately made the pool (Statement at [4]). Mr Ashwin also describes how the creek, Banjo Creek within E38/338, was made (at [4]).
Chowidda Pool is seen within E38/3338 on the maps provided by the State, and on the map provided by TMPAC. The path of Banjo Creek can also be seen on one of the TMPAC maps running from north to south through E38/3338.
The hills to the west of the part of Banjo Creek that crosses E38/3338
Mr Ashwin says the Jukurrpa came from the south-west of E38/3338, and having created the creek, the being made the hills ‘when he travelled back west’ (Statement at [6]-[7])
He describes in some detail the story of two Jukurrpas which resulted in the creation of the hills in the south west of E38/3338 and reason why a certain species came to exist and stay in the hills, in the caves, and in the spinifex country. This area in the south west of E38/3338 is identified on the TMPAC map to the west and south of Banjo Creek within the licence. In telling the story Mr Ashwin details initiation rites, ritual, ceremony and law (Statement at [12]-[15]).
The part of Tooloo Bluff within E38/3338
Mr Ashwin says Tooloo Bluff is in the south eastern corner of E38/3338 (Statement at [16]), and as summarised in contentions, is the physical manifestation of a spiritual being the subject of a different Jukurrpa which is also associated with initiation. The south east corner of E38/3338 is identified on the TMPAC map. Significant detail is provided by Mr Ashwin concerning the relevance of this location and this Jukurrpa to initiation and law (Statement at [17]).
The hills within E38/3339
TMPAC summarises Mr Ashwin’s evidence as follows (Contentions at [16]): ‘(Mr Ashwin) described mythical beings that live in caves in the hills on E38/3338 and E38/3339 and how native title holders try to avoid these caves’. He says the beings live there, ‘that’s their home … they protect the [Jukurrpa] sites too, they look after it too’. The map provided by TMPAC identifies the area as being a large area of the north-east section of the licence.
The black hills and the part of the tributary to Charles Wells Creek within E53/2064
In contentions TMPAC says that E53/2046 is associated with two different, restricted Jukurrpa. Mr Ashwin provides a descriptive account of the interaction between the two Jukurrpas in the area of E53/2046 and describes how the creek was created by one (Statement [22]-[23], [25]). He describes the direction the Jukurrpa travel, the actions they performed, the reactions they have, the conditions they experience, and the consequences they suffer. Importantly, Mr Ashwin describes the traditional and contemporary function of the area around the black hills within E53/2046, and the particular restrictions on visitation to the area, in terms that are relevant to its special significance.
The map provided by TMPAC identifies an area in the eastern portion and includes a tributary of the Charles Well Creek.
I note that the AHIS searches reveal an ‘Other Heritage Place’ ID 1502 Mangkurtu over a significant but lesser area of the eastern portion on E53/2046. This site is noted to have no gender-restrictions and is describes as being a ‘ceremonial, Mythological’ type.
Conclusion
In relation to the areas or sites identified by TMPAC and described above, Wildcat Resources neither admits nor denies that these areas or sites are of particular significance. The State makes no specific contentions regarding whether the areas or sites TMPAC contends are sites of particular significance.
In my view, TMPAC has provided evidence to establish all of the areas or sites described above are 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 all are located within the particular licence contended. I am satisfied that each of these areas or sites is of particular significance for the purposes of s 237(b).
Is the grant of the licence likely to interfere with the sites of particular significance?
Wildcat Resources and the State argue that interference is unlikely due to a range of factors including:
(a)the nature of Wildcat Resources’ proposed exploration activities;
(b)Wildcat Resources’ intentions (including to advise TMPAC prior to conducting on-ground activities, to ‘attempt to complete heritage surveys’, to avoid any sites or areas of significance, 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 Wildcat Resources might not undertake the full suite of rights permitted under the licences 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 a program of drilling in the longer term. 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]).
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 Wildcat Resources to the operation of the AHA is not supported by any statement or evidence from Wildcat Resources that it understands what its obligation are. Where, as here, the sites and concerns of TMPAC are particularised it is important for the State or Wildcat Resources to identify the way in which the AHA is said to apply to reduce the risk of adverse impacts (Marputu v Gianni at [62]).
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 licences and that the grants are unlikely to cause substantial interference (Contentions at [32]-[33]). Wildcat Resources says that the area ‘has seen exploration activities over many years’ (Contentions at [16]). It says that drilling activities were conducted on all three tenements by a previous tenement holder in October 2015 in locations marked on a map provided.
While some drilling may have occurred in the licence areas previously, whether consequences were suffered due to those activities is not in evidence. Further, to repeat those activities without engaging with TMPAC risks interference and consequences for the purposes of s 237(b). Further, as stated in TMPAC v Lake Wells (at [99]):
‘The issue is whether the grant is likely to cause interference with areas or sites of particular significance to the native title holders. Depending on the particular facts, such interference may be recurrent or repeated and still be interference within the meaning of s 237(b)’.
Further, 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 each of the licences is likely to cause interference within the meaning of s 237(b).
Determination
I determine that the grant of each of E38/3338, E38/3339 and E53/2046 to Wildcat Resources Limited is not an act attracting the expedited procedure.
Mr JR McNamara
Member
26 February 2020
1
9
0