Tjiwarl (Aboriginal Corporation) RNTBC & Golden Spur Resources Pty Ltd
[2019] NNTTA 23
•16 May 2019
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC & Golden Spur Resources Pty Ltd [2019] NNTTA 23 (16 May 2019)
Application No: | WO2018/0061 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Tjiwarl (Aboriginal Corporation) RNTBC (WCD2017/001)
(Native Title Party)
- and -
Golden Spur Resources 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 Helen Shurven, Member |
Place: | Perth |
Date: | 16 May 2019 |
Catchwords: | Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) ss 17, 18 |
Cases: | Daisy Lungunan and Others on behalf of Nyikina Mangala v Geotech International Pty Ltd [2012] NNTTA 24 (Nyikina Mangala v Geotech) 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 Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL [2002] NNTTA 24 (Walley v Western Australia) Marputu Aboriginal Corporation RNTBC v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd [2001] NNTTA 42 (Ngadju People v Western Australia) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Narrier v State of Western Australia [2016] FCA 1519 (Narrier v Western Australia) Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Rachlan Holdings Pty Ltd and Another [2018] NNTTA 72 (TMPAC v Rachlan) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Yurriyangem Taam v Baibao Resources Pty Ltd and Another [2015] NNTTA 47 (Yurriyangem Taam v Baibao Resources) |
| Representatives(s) of the native title party: | Mr Michael Allbrook, Central Desert Native Title Services |
| Representative(s) of the grantee party: | Ms Acacia Hosking and Ms Sally Audeyev, King & Wood Mallesons |
| Representatives(s) of the Government party: | Ms Emma Salsano, 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 prospecting licence P36/1867 (the proposed licence) to Golden Spur Resources Pty Ltd (Golden Spur Resources). The State of Western Australia (the State) considers the grant of the licence is an act attracting the expedited procedure. By including the 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:
(a)interfere directly with community or social activities carried on by members of the native title claimants or native title holders (s 237(a));
(b)interfere with areas or sites of particular significance in accordance with the traditions of the native title claimants or holders (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 licence covers approximately 0.083 square kilometres in the Shire of Leonora. The licence is located in area of Lake Miranda, which is the focal point of much of the material provided in this inquiry.
The Tjiwarl (Aboriginal Corporation) RNTBC (TAC) holds non-exclusive native title rights and interests over the area of the licence, on behalf of Tjiwarl native title holders (as determined in Narrier v Western Australia). The TAC contentions in this matter, and the Extract from the National Native Title Register, confirm those rights and interests are:
(a)the right to access, remain in and use that part;
(b)the right to access, take and use the resources of that part for any purpose;
(c)the right to engage in spiritual and cultural activities in that part;
(d)the right to maintain and protect places of significance on that part; and
(e)the right to receive a portion of any traditional resources (not including minerals or petroleum) taken from land or waters by Aboriginal people who are also governed by Western Desert traditional laws and customs.
TAC lodged an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion the expedited procedure applies to the proposed licence. In its submissions, TAC argued the expedited procedure should not apply to the licence as interference contemplated in s 237(b) of the Act is likely. The State argues the expedited procedure should apply. In determining whether the expedited procedure applies or not, I must make a predictive assessment (see FMG v Yindjibarndi at [39]). I must look at what is likely to occur as a result of the grant and decide whether there is real chance or risk of interference. I must have regard to the rights conferred by the grant of the licence, the nature of the proposed grant and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
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, Golden Spur Resources and the State must negotiate in good faith with a view to reaching an agreement with TAC about the grant. I concluded that this matter could be determined on the papers, without the need for a hearing, and parties had no issue with that approach. For the reasons outlined below, my determination is that the expedited procedure does not apply to the proposed licence.
Preliminary Matters
TAC’s evidence
TAC provided and relies on the Affidavit of Vicki Jolene McCabe sworn 22 January 2019. There were four annexures to that affidavit: two DVDs, a map and a photo of a picture, painted by the deponent, of Lake Miranda.
The Tribunal is not bound by the rules of evidence (s 109 of the Act) and may accept a wide range of evidence in support of party contentions in inquiry matters. For example, a party may seek to rely on maps, video or audio evidence, anthropological or archaeological reports, or material prepared for another purposes. For a native title party, that could be evidence forming part of their connection material or, for a grantee party, that could be reports forming part of the licence application. This is relevant to the current inquiry as, of the materials included as annexures to the affidavit, my decision makes reference to a DVD of the Wunmulla Social History Project (the Wunmulla Video). The other annexures I have not included as being material to my consideration of the facts in this inquiry, apart from to say the photo of the painting is supported in the deponents explanation of the importance of Lake Miranda, and the map supports the deponent clearly understood the area which is the subject of this inquiry. The other DVD provided broad information about the importance of Lake Miranda, but not specifically related back to the proposed licence in this inquiry.
TAC also provided and relied upon an extract of the Kalgoorlie Miner newspaper dated 29 March 2018 (the Newspaper Article). The Newspaper Article makes reference to: culturally significant sand hills on Lake Miranda; TAC being concerned with applications under section 18 of the Aboriginal Heritage Act (AHA) in that area being approved; and such applications being made in favour of a corporation called Draig Resources. TAC’s contentions indicate that Draig Resources Ltd is a related entity of Golden Spur Resources (at 6.23(a)). A representative of Draig Resources Ltd participated in status conferences in this matter as the representative for Golden Spur Resources.
The use and content of the Newspaper Article has not been questioned or challenged by the State or Golden Spur Resources, and as such I accept it on face value as evidence of concerns TAC has, specifically related to Draig Resources Ltd, and that there is a connection between that company and the grantee in this inquiry. In the absence of any further information about the contents, I do not believe I can draw any stronger conclusions based on the Newspaper Article.
In her affidavit, Ms McCabe identifies herself as a Tjiwarl native title holder and a traditional owner with cultural responsibility for the Lake Miranda area (at 1). Further, Ms McCabe explains the area is very important to her family, and this is supported by the evidence contained in the Wunmulla Video. According to the affidavit, the Wunmulla Video shows a ceremony on a sand hill which is north of the proposed licence, but also on Lake Miranda, with the Lake being in view during the video. Given the information contained in Ms McCabe’s affidavit, I accept the contents of the Wunmulla Video is an example of the type of ceremony conducted on and around Lake Miranda, including the licence area. I accept that Ms McCabe has authority to speak for the native title holders in relation to the licence area.
Limited disclosure request
Whilst TAC did not apply for me to consider whether non-disclosure directions may be appropriate in relation to the above materials, I have been requested not to publish the contents of the affidavit ‘unless considered necessary’. After reviewing the materials, I am satisfied that, as asserted, the materials contain sensitive information. I refer to that information in this decision only to the extent necessary to ensure my reasons are explained and supported.
Sections 237(a) and 237(c)
Initially, TAC made submissions in relation to s 237(a) and s 237(b) of the Act. However, in its contentions in reply (at 4.1), TAC submits that it 'does not press its objection' in relation to s 237(a) of the Act. I took this statement to mean that the objection is no longer pursued on this limb of s 237 and that all previous submissions and evidence relating to s 237(a) are to be abandoned. I sought confirmation of this interpretation from TAC, who provided that confirmation by way of email correspondence to the Tribunal. I find there is no evidence to suggest the grant of the licence is likely to directly interfere with the carrying on of the community or social activities of the native title holders in relation to the land or waters concerned.
TAC has not made submissions in relation to s 237(c) of the Act. As such, I find there is no evidence to support a conclusion that the grant of the licence is not likely to involve, or create rights whose exercise will likely involve, major disturbance.
Tribunal mapping
The Tribunal produced a map of the licence area and surrounds and parties did not object to my use of it for the purpose of this inquiry.
Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
In relation to section 237(b) of the Act, 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). 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 (see Yindjibarndi v FMG).
(i) What areas or sites have been identified as being of particular significance to TAC?
TAC has identified the licence as being located on Lake Miranda, which it asserts is an area or site of particular significance. Lake Miranda is stated as being of ‘immense cultural and historical importance’ to TAC, with the entirety of the Lake being formed by tjukurrpa, the details of which I have refrained from repeating (see 14, 16, 18, and 20-21 of Ms McCabe’s affidavit). The tjukurrpa has resulted in a number of related sites including blowholes and sand hills which feature in the evidence.
In its submissions, the State has accepted that Lake Miranda is a site of particular significance to TAC (at 66). Given the evidence before me, I am satisfied that Lake Miranda is an area of particular significance to TAC.
In its contentions, the State asserts it is unclear whether TAC also asserts the tjukurrpa is an area or site of particular significance in its own right (at 70). I note that TAC has stated Tjiwarl ‘does not specifically contend that the tjukurrpa… is an area or site of particular significance’ (at 67). TAC have explained the tjukurrpa as being responsible for the creation Lake Miranda (at 5.3). This explanation is supported by Ms McCabe’s affidavit (at 13 and 18).
For the purposes of this inquiry, I accept that TAC has not asserted that the tjukurrpa is an area or site of particular significance in of itself. As such, I have not engaged in a detailed examination of this matter.
(ii) Is the grant of the licence likely to interfere with any of the identified areas or sites of particular significance to TAC?
When evaluating the degree of interference for the purposes of s 237(b), I must consider the nature of the site, the nature of the potential interference and the laws and traditions of the native title holders (see Silver v Northern Territory).
I rely on the laws and traditions of the Tjiwarl native title holders as expressed in Ms McCabe’s affidavit and in the Wunmulla Video. Due to the cultural sensitivities, I will not repeat the evidence in depth. I accept there are certain protocols such as being accompanied by specific people and those people needing to ‘sing out’ prior to entering or leaving the area (as demonstrated in the Wunmulla Video). I also accept there are ramifications for the native title holders such as the risk of sickness or physical injury if those protocols are not followed.
The question then is whether the prospecting activities of Golden Spur Resources are likely to interfere with the area of the proposed licence, which is on Lake Miranda. By way of correspondence to the Tribunal, Golden Spur Resources advised they would not be providing contentions or evidence in this inquiry.
Instead, Golden Spur Resources indicated that an agreement was being negotiated and this was Golden Spur Resources’ preferred method of resolution for this matter. Had the parties agreed, this matter may have been resolved by consent. Given this did not occur, I must decide whether the objection should be upheld. It is timely to refer to the fact that once the expedited procedure process takes effect (s 32) the native title party has no right, and the other parties have no obligation, to negotiate. That process provides for the lodgement of an objection by the native title party (s 32(3)), and the native title party has lodged such an objection.
The function of the Tribunal under the expedited procedure provisions are to accept an objection if it complies with s 76 of the Act and, having done so, to determine whether or not the expedited procedure is attracted. If the Tribunal determines it is, the State may do the act. If the Tribunal determines it is not attracted then, and only then, does the right to negotiate arise. The expedited procedure process has then been completed.
Consistent with Silver v Northern Territory (at [30]), I adopt the assumption that Golden Spur Resources will fully exercise the rights conferred by the granting of the licence. As this is a prospecting licence, these rights are listed in section 48 (a) to (d) of the Mining Act and includes entry to the licence area with machinery, digging pits, trenches and holes, sinking bores and tunnels, excavating and extracting and/or removing earth, soil, stone, fluids or mineral-nearing substances.
Turning to the matter of interference, I note and adopt the findings in Nyikina Mangala v Geotech (at [43]), specifically that the intentions of the grantee party regarding the manner in which it intends to conduct its activities will be of ‘pivotal importance’ to the Tribunal’s assessment of risk of interference. Further, I accept the assessment (at [43]) stating:
To the extent that the that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstance, in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely.
Finally, I accept and adopt TAC’s reiteration of the principle outlined by Justice McKerracher in FMG v Yindjibarndi, at [40]:
There is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interference under s 237 NTA is likely to arise. The task for the Tribunal is to make the predictive analysis as to whether the interference is likely to arise and to make a finding in relation to interference.
Underlying Tenure (and Proposed Condition)
The State seeks to impose, on grant, a number of endorsements and conditions on the proposed licence (contained in Annexure 5 of their contentions). Included in the list of conditions is condition 6:
No prospecting activities being carried out on Peak Hill Stock Route Reserve CR 9699 which restrict the use of the reserve.
The Department of Mines, Industry Regulation and Safety’s (DMIRS) Tengraph quick appraisal indicates the Peak Hill Stock Route Reserve (the Reserve) overlaps the proposed licence area by 65.43 per cent. The State asserts the imposition of the above condition will restrict Golden Spur Resources’ ability to undertake prospecting activities (at 50).
In response to this, TAC raises two issues. TAC notes the State has not identified the location of the Reserve so far as it relates to the licence. I note that mapping shows approximately one third of the eastern portion of the licence is not covered by the Reserve.
TAC also submits there is no evidence before the Tribunal regarding the permitted uses of the Reserve and whether those permitted activities would prevent or decrease the risk of interference. I accept TAC’s submissions and, based on the evidence before, I am unable to conclude the proposed condition regarding the Peak Hill Stock Route Reserve will result in a decreased risk of interference to the area of particular significance to TAC.
DMIRS’ Tengraph quick appraisal results indicate the remainder of the proposed licence (34.57 per cent) is overlapped by the Yakabindie Pastoral Lease (N049476) (the Lease). The State refers to the decision of Yurriyangem Taam v Baibao and submit I ought to draw the inference that some interference with TAC’s ‘community or social activities’ is likely to have occurred (see 51 to 53). It is noted that this is a submission directed towards s 237(a), however, the State sought to repeat its submissions relating to prior and ongoing tenure for the purposes of s 237(b) (see 48-59, 91).
For me to consider the Lease as being relevant to this inquiry, some evidence of the how this Lease has previously or continues to interfere with Lake Miranda would be needed to have been provided. As it has not, I do am unable to make a finding that the existence of the Lease impacts the likelihood of interference on Lake Miranda, including on this proposed licence.
Previous Tenements
In their contentions, the State notes an exploration licence was previously granted and overlapped the licence area entirely (at 90-91 and 48-59). This exploration licence was granted on 7 June 1992. As it was granted prior to the Native Title Act, the native title holders could not assert their rights and interests over the Lake Miranda area at that time. In addition, there is little information about the activities conducted on that exploration licence. As such, I do not find the previous exploration licence as pertinent to my assessment of risk of interference for the purposes of this inquiry.
Aboriginal Heritage Act and Regional Standard Heritage Agreement
The results of a DMIRS search of the Aboriginal Heritage Inquiry System (AHIS) indicates the proposed licence area includes five registered Aboriginal sites and one other heritage place. As the State notes (at 82), the licence is entirely overlapped by registered Aboriginal sites. Given this, the State argues, Golden Spur Resources is already on notice of the requirements of s 18 of the AHA, reducing the risk of contravention of s 17 of the AHA (at 82).
As TAC has noted and I accept, the concept of interference under s 237(b) of the Act is broader than that considered by s 17 of the AHA (at 6.11). This finding is supported by the decision in Ngadju People v Western Australia (at [57]).
The State also seeks to place a condition on the grant of the proposed licence that, if requested by TAC, Golden Spur Resources shall execute a Regional Standard Heritage Agreement (the RSHA) nominated by TAC (see 20 of the State’s contentions). The TAC Reply (at 5.6) noted the RSHA allows for ‘low impact’ or ‘non ground disturbing work’ to take place without the need for consultation with TAC. The evidence provided in the current matter indicates that even works considered to be non-ground disturbing under the RSHA, would constitute interference for the purposes of s 237(b). This finding is supported by Justice McKerracher’s decision in FMG v Yindjibarndi (at [75]-[76]):
… mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective non the less be non-trivial interference… That is why the focus of s 237(b) is the interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of the native title party for the purpose of s 237(b) of the NTA, may be substantial having regard to the native title party’s traditions.
Conclusion
Given that the licence is entirely overlapped by the Lake Miranda area, and the broad range of rights Golden Spur Resources would be entitled to on grant of a prospecting licence, it is my view that, without further negotiation between TAC and Golden Spur Resources, there is likely to be interference with respect of Lake Miranda and the proposed licence, for the purposes of s 237(b) of the Act.
Determination
My determination is the grant of P36/1867 to Golden Spur Resources Pty Ltd is not an act that attracts the expedited procedure.
Ms Helen Shurven
Member
16 May 2019
0
11
0