Tjiwarl (Aboriginal Corporation) RNTBC & Green Empire Resources Pty Ltd and Another
[2019] NNTTA 80
•3 October 2019
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC & Green Empire Resources Pty Ltd and Another [2019] NNTTA 80 (3 October 2019)
Application Nos: | WO2018/0512, WO2018/0513, WO2018/0514, WO2018/0515 |
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 -
Green Empire Resources Pty Ltd
(Grantee Party)
- and -
State of Western Australia
(Government Party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 3 October 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites or areas of particular significance – whether acts likely to involve major disturbance to land or waters – expedited procedure – the acts are not acts attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) ss 17, 18 |
Cases: | Albert Little v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (Little v Lake Moore Gypsum) Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (Cherel v Faustus Nominees) 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) Walley v Western Australia [2002] NNTTA 24 (Walley v Western Australia) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal #1 v Gianni) Marputu Aboriginal Corporation RNTBC 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) Narrier v State of Western Australia [2016] FCA 1519 (Narrier v Western Australia) Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (Western Australia v McHenry) |
| Representatives of the native title party: | Gavin Dunn and Michael Allbrook, Central Desert Native Title Services |
| Representatives of the grantee party: | Acacia Hosking and Sally Audeyev, King & Wood Mallesons |
| Representatives of the Government party: | Jeff O’Halloran, State Solicitor’s Office Michael McMahon and Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
I have been appointed to decide whether or not the expedited procedure applies to the proposed grant of exploration licences E36/906, E36/907, E36/908 and E36/909 (the proposed licences) to Green Empire Resources Pty Ltd (Green Empire). The State of Western Australia (the State) considers the grant of each 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 licences 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, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
Each licence is in the Shire of Leonora. Proposed licence E36/909 is also in the Shire of Wiluna. The licences are contiguous with each other, running north south over approximately a 60 kilometre span. A snapshot of the relevant details are as follows:
Tribunal Number
Licence Number
Approx. Size (km2)
WO2018/0512
E36/906
212.94
WO2018/0513
E36/907
212.55
WO2018/0514
E36/908
182.23
WO2018/0515
E36/909
213.15
The Tjiwarl (Aboriginal Corporation) RNTBC (Tjiwarl) holds non-exclusive native title rights and interests over the area of the licences, on behalf of Tjiwarl native title holders (as determined in Narrier v Western Australia). The Extract from the National Native Title Register confirms 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.
Tjiwarl lodged an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion the expedited procedure applies to the grant of each licence. In its submissions, Tjiwarl argued the expedited procedure should not apply to the licences as interference contemplated in s 237(b) of the Act is likely. The State and Green Empire argue the expedited procedure should apply. In determining whether the expedited procedure applies or not, I must make a predictive analysis (see FMG v Yindjibarndi at [39]). I must look at what is likely to occur as a result of each 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 licences, the nature of the proposed grants and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
If I find the expedited procedure applies, a licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Green Empire and the State must negotiate in good faith with a view to reaching agreement with Tjiwarl about the grant. For the reasons outlined below, my determination is that the expedited procedure does not apply to the grant of the proposed licences.
Parties’ submissions
Tjiwarl provided contentions and the sworn affidavit of Mr Graeme George Narrier. Mr Narrier outlines that he is a native title holder and I accept he has cultural authority to speak for the area of the licences. There are two annexures to Mr Narrier’s affidavit: a brief DVD of Mr Narrier on country dated 22 April 2018 and a map of the proposed licences. While Tjiwarl did not apply for me to consider whether non-disclosure directions may be appropriate in relation to these 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, they contain sensitive information. I refer to that information in this decision only to the extent necessary to ensure my reasons are explained and supported, as required by s 162(2) of the Act.
The State provided contentions, information about the land tenure, the results of searches undertaken of the Department of Planning Lands and Heritage Aboriginal Heritage Inquiry System (AHIS), copies of the licence applications and proposed endorsements and conditions to be applied on grant.
Green Empire provided contentions and the affidavit of Mr Stephen Andrew Parsons (Managing Director of Bellevue Gold (‘Bellevue’)). Mr Parsons states that ‘Bellevue is a public company listed on the ASX. The Grantee Party is an exploration company and is a wholly owned subsidiary of Bellevue’ (at 6). Mr Parsons states he is authorised by Green Empire to make the affidavit on their behalf, and I accept he has such authority.
Tjiwarl also provided a reply to the State’s and Green Empire’s materials.
Sections 237(a) and 237(c)
Sections 237(a) and s 237(c) were raised in Tjiwarl’s initial objection applications. However, in their contentions, Tjiwarl submit that it ‘does not seek to pursue its objection’ in relation to ss 237(a) or s 237(c) (at 1.3). They lead no evidence relating to s 237(c). They do provide some limited evidence regarding community and social activities (relevant to s 237(a)), but these are referenced to show the particular significance of the sites on the licences as required by s 237(b). I therefore apply the common sense approach to evidence as outlined in Ward v Western Australia (at [26]). I find there is no evidence to suggest the grant of the proposed licences 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 (s 237(a)). I also find there is no evidence to support a conclusion that the grant of the proposed licences is likely to involve, or create rights whose exercise will likely involve, major disturbance (s 237(c)).
Considering the matter ‘on the papers’ – no need for an oral hearing
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 of the Act, without the need for an oral hearing. All parties indicated they were content for me to proceed on the papers.
Section 237(b): Is the grant of the licences likely to interfere with areas or sites of particular significance to the native title holders?
In relation to s 237(b), 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).
As this decision is concerned with the grant of a number of licences, it is important to note that each matter must be considered on its own facts (see Cherel v Faustus Nominees at [81][91]). This includes considering the nature and extent of any sites of particular significance, Green Empire’s proposed exploration activities and whether the State’s regulatory regime is sufficient to make it unlikely those activities will interfere with any sites of particular significance.
What areas or sites have been identified as being of particular significance to Tjiwarl?
E36/907 and E36/908
Lake Miranda; breakaways; sandhill
In their contentions, Tjiwarl identify E36/907 and E36/908 as being located on Lake Miranda, which they assert is an area of particular significance. Lake Miranda and the sandhills are said to be associated with a tjukurrpa (Dreaming) which is of ‘immense cultural and historical importance’ to the Tjiwarl people, with the entirety of the Lake being formed by this tjukurrpa (at 5.20). The tjukurrpa is named, and details about it provided, however, I do not repeat those details here due to the sensitivities of the material. One of the sandhills is said to be outside of E36/907 and the other is within that licence (Mr Narrier at 15). I focus my attention on the sandhill within the licence, given the nature of the evidence says little about the sandhill outside. The breakaways are said to be located within both licences and their manifestation of the tjukurrpa is also explained (Mr Narrier at 17).
The State’s search results from the AHIS show various sites and other heritage places registered under the Aboriginal Heritage Act 1972 (WA) (AHA). In relation to Lake Miranda, this includes:
Licence Number
Registered Sites
Other Heritage Places
E36/907
Lake Miranda (Katawili) (ID 1301)
Lake Miranda 01 (ID 1443)
Lake Miranda 02 (ID 1444)
Lake Miranda 04 (ID 15257)
Lake Miranda 06 (ID 15258)
E36/908
Lake Miranda (Katawili) (ID 1301)
It is well established that a site or area may be of particular significance without being recorded on the AHIS (see Little v Lake Moore Gypsum at [67]). The word ‘particular’ in s 237(b) not only means ‘special or more than ordinary’ but that the particularity of the significance must be capable of identification (Western Australia v McHenry at 14-15).
Green Empire are not satisfied that Lake Miranda, the breakaways and the sandhill are sites or areas of particular significance. Their contentions assert that Tjiwarl have not identified the location of the areas said to be of particular significance, and that there is a lack of clarity about the extent of the areas described. Further, Green Empire asserts (at 59-74) that Tjiwarl does not provide evidence regarding the nature of the significance of the sites or areas described. For example, although Mr Narrier places the sandhill within a specified Dreaming story, Green Empire argue Tjiwarl does not provide evidence that it is special or of more than ordinary significance to the native title holders.
Green Empire submit that the Tengraph Plan for E36/908 establishes Lake Miranda does not overlap that licence (at 64). While the Tengraph Plan/Quick Appraisal provided by the State does not refer to the geographical feature of Lake Miranda as overlapping E36/908, I note the AHIS records the site Lake Miranda (ID 1301) as intersecting that licence (as well as covering a large portion of E36/907), and this is supported by the State’s mapping. The Lake Miranda site (ID 1301) is recorded as being a ceremonial, mythological, plant resource site, which is consistent with the evidence provided by Tjiwarl in this inquiry.
In relation to a plant referred to by Mr Narrier in his affidavit, Mr Parsons assumes this is the same plant about which he commissioned an independent report (at 47-50). Mr Parsons has attached a copy of that report to his statement (at SAP11). The DVD annexed to Mr Narrier’s affidavit shows footage of him and another witness standing beside a plant, briefly outlining why the plant is important to Lake Miranda (at GN-2). The photographs of the plant in the independent report show a similar looking plant to that in the DVD evidence (at Plate 1). Mr Parsons and the independent report indicates the plant is widespread across parts of Western Australia, which Mr Parsons states is contrary to Mr Narrier’s evidence. The State’s AHIS record identifies that Lake Miranda is a ‘plant resource site’. Mr Narrier asserts that the plant is intertwined with the ceremonial and mythological nature of Lake Miranda and the traditions of the native title holders (at 19-20). In my view, the combined evidence of the parties does not provide sufficient certainty about the nature and extent of the plant’s significance. I therefore say nothing further about it significance or in relation to question of interference.
The State do not appear to have adopted a view about the significance of these sites. They do acknowledge that Green Empire mapping shows Lake Miranda and the sandhill to be within E36/907 (at 44).
While the information about the breakaways is brief, I accept it, given the interconnectedness of the breakaways with the tjukurrpa, as well as the clarity, consistency and cogency of the evidence provided by Tjiwarl. I also accept that the breakaways are within both E36/907 and E36/908, as Mr Narrier has provided an approximate location for those breakaways in context with the geography of the area and Lake Miranda. Given the evidence before me, I am satisfied that Lake Miranda, the sandhill and the breakaways are areas of particular significance to Tjiwarl, given their connection to Tjiwarl traditions, which are explained. I will turn my consideration to interference with these sites (below at [32]-[54]).
E36/906 and E36/908
Yakabindie Claypan and Jones Creek
Tjiwarl identify E36/906 and E36/908 as containing the Yakabindie Claypan and parts of Jones Creek, which they assert are areas and/or sites of particular significance to the native title holders. Yakabindie Claypan and Jones Creek are said to be associated with the tjukurrpa and of ‘immense cultural and historical importance’ to the Tjiwarl people, having been formed by the tjukurrpa (at 5.20). While the evidence is brief, it does explain how the Creek was created, how it is linked to the Claypan and the location of the Claypan relative to the Yakabindie Homestead (Mr Narrier at 23). I accept that evidence and I have refrained from repeating details, given the cultural sensitivities.
Search results from the AHIS show the following registered sites and other heritage places associated with the Yakabindie Claypan and Jones Creek:
Licence Number
Registered Sites
Other Heritage Places
E36/906
Ngulu Wuri Wuri/Jones Creek
(ID 1252)
E36/908
Ngulu Wuri Wuri/Jones Creek
(ID 1252)
Yakabindie Claypan 1 (ID 18263)
Yakabindie Claypan 2 (ID 18318)
Leinster-Mt Keith (Yakabindie) (ID 17314)
Green Empire contend the only evidence of the significance of the Yakabindie Claypan and parts of Jones Creek is set out in Mr Narrier’s affidavit at (9) and (23) in which a connection to a Dreaming story is asserted. Green Empire submits the mere fact an area or site is connected with a Dreaming story is not conclusive of whether it is a site or area of particular significance (at 78). Further, Green Empire argue there is insufficient evidence from Tjiwarl to suggest the Yakabindie Claypan and parts of Jones Creek are of any greater significance than the surrounding country. They also assert there is insufficient evidence to explain the nature of their significance in accordance with Tjiwarl’s traditions (80-81).
In their reply, Tjiwarl submit Green Empire ‘erroneously over-simplified’ Mr Narrier’s evidence and fail to acknowledge the specific comments made which clearly describe the significance of the Dreaming story, and that Yakabindie Claypan and parts of Jones Creek are manifestations of the tjukurrpa (6.16).
The State do not appear to have adopted a view about the significance of these sites. The evidence provided by Tjiwarl, particularly Mr Narrier’s affidavit, confirm, and the State’s AHIS records show (as listed above at [22]), there is a site called Jones Creek which runs across both licences. Mr Narrier states the Claypan is across both licences (at 23) and Green Empire’s contentions (at 76) accepts the approximate location of both the Claypan and Jones Creek.
I accept both these places are sites of particular significance for the purposes of s 237(b). The evidence shows the connection to the traditions of the Tjiwarl people, particularly in relation to the importance of the tjukurrpa and its role in creating Yakabindie Claypan and Jones Creek. I will consider whether or not they are likely to be interfered with by the exploration activities of Green Empire (below at [32]-[54]).
E36/906 and E36/909
Dry Lake
Tjiwarl states E36/906 and E36/909 contains the Dry Lake which is an area of particular significance to the native title holders. This area is also associated with the tjukurrpa and said to be of ‘immense cultural and historical importance’ to Tjiwarl people, having been formed by the tjukurrpa (at 5.20). I do not repeat information provided by Mr Narrier in his affidavit, but I accept the evidence as to why the Dry Lake is of significance to Tjiwarl traditions and his explanation as to why the area around the Dry Lake is flat (at 24-25).
Mr Parsons notes the Dry Lake is situated on both licences (at 43) and the map at Annexure SAP10 to his affidavit confirms this to be the case.
The State do not appear to have adopted a view about the significance of Dry Lake.
Based on evidence provided by Tjiwarl and Green Empire, I accept the Dry Lake crosses through both licences. I also accept it is of particular significance to Tjiwarl in accordance with their traditions. I examine whether or not it is likely to be interfered with by the exploration activities of Green Empire at [32]-[54] below.
Is the grant of the licences likely to interfere with any of the identified areas or sites of particular significance to Tjiwarl?
My conclusion about the sites that are of particular significance, for each of the licences in this inquiry, is as follows:
E 36/906
E 36/907
E 36/908
E 36/909
Yakabindie Claypan
Lake Miranda
Lake Miranda
Dry Lake
Jones Creek
Breakaways
Breakaways
Dry Lake
Sandhill
Yakabindie Claypan
Jones Creek
I will now consider the likelihood of interference with these sites.
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 accept that some of these sites or areas, as outlined above at [14]-[30], are associated with AHIS sites. However, I do not conclude the AHIS record completely encapsulates each site or area it is associated with. Even if it did, I am not convinced that the protections afforded by the AHA, and the State’s regulatory regime in general, will be sufficient to mitigate against interference for the purposes of s 237(b). I outline my reasoning and conclusion below.
Green Empire activities
The State has included in their initial submissions in relation to each of the licences, Green Empire’s statement in support of its applications, outlining its proposed mineral exploration work program. According to these documents, Green Empire’s goal for each licence is to ‘explore, discover and develop brines, gold and base metal deposits’ and to explore for commodities ‘where the paleo drainage potentially acts as a sump for minerals’.
Mr Parsons sets out Green Empire’s proposed activities which, in summary, comprise what they refer to as non-ground disturbing and ground disturbing activities:
Non-ground disturbing activities:
(a)Surface mapping
(b)Geochemical analysis
(c)Ground magnetic activities
(d)Field visits
i)involving approximately 20 days of field work per annum by geologist and field assistant;
ii)limited sampling of soil and rock outcrop may be undertaken (samples less than 2 kilograms; will not involve any clearance or disturbance) (at 10).
Ground disturbing activities (subject to results of non-ground disturbing activities):
(a)Exploration drilling in areas indicative of mineralisation:
i)‘Limited’ exploration drilling may be undertaken by air core or reverse circulation (at 12) – would involve a drill crew of 2-3 persons and a small truck-mountable drill rig and may require ‘minimal’ track clearance for access and sump construction for drill water – notes that any drilling activity would comply with the relevant program of work from DMIRS [Department of Mines, Industry Regulation and Safety] (at 11).
(b)No foreseeable need to dig pits, trenches or other excavations, nor the need to exercise the full rights available to extract up to 1,000 tonnes of earth or other substance (at 13).
Green Empire submissions regarding interference
Green Empire contentions (at 94 for example), and Mr Parsons (for example at 22 and 45-46), outline steps Green Empire has taken, or will take, which Green Empire states mitigates any interference with sites of particular significance. This includes ensuring Green Empire’s internal policies and procedures take into account cultural sensitivities, as well as:
(a)providing an opportunity for a NTP [Native Title Party] representative to accompany Bellevue or its subsidiaries’ representatives on the first visit to undertake exploration in any area the subject of the Applications, to point out cultural constraints to be taken into account during exploration activity;
(b)following heritage survey procedures prior to ground disturbing exploration activities occurring (where surveys have not already been undertaken);
(c)providing an opportunity for the NTP to identify areas of heritage value; and
(d)consulting about how those heritage values may be protected or managed alongside exploration activities.
The Tjiwarl reply (at 7.14) rejects that these type of measures ‘…would mitigate the risk of interference and further submits that a policy stated in such broad terms over-simplifies the Native Title Party’s cultural obligations and the complexity of the sites/areas and further fails to consider the reality that the Native Title Party is a society with various levels of knowledge’.
Green Empire contentions (at 106) state that a native title party does not have a right to veto. Tjiwarl reply to this (at 7.7 – 7.8) that:
The Native Title Party submits that this is incorrect…It is clear…that the Native Title Party is not asserting a ‘right to veto’; rather, due to the nature of the sites, the Native Title Party submits that meaningful consultation and negotiation resulting in an agreement which provides for surveys over certain areas of the Tenements is required in order to avoid interference of the kind contemplated by section 237(b) of the NTA [the Act].
Tjiwarl assertions regarding interference
Mr Narrier makes assertions about exploration activities conducted by a grantee in Tjiwarl country. For example, he outlines that:
On 22 April 2018, we went to Lake Miranda, me and some other wati, because we were told that a company…was making an application to the Minister to destroy our sacred sites there on the lake. That company thought that drilling on Lake Miranda wouldn't interfere with our story but we knew that it would. Any drilling done in the wrong place on the lake or in these Tenements is against our law, it will hurt the tjukurrpa there today.
…the Minister allowed that company to drill on Lake Miranda even though we gave him that special evidence. It's not right for the Minister to give away our country like that, he doesn't own it and he doesn't know how to protect it. I don't think that the Aboriginal Heritage Act protects our tjukurrpa because if the Minister listened to us he should have known that it is important and he would have told that company "no" they can't touch it.
That tjukurrpa is strong and there are places on Lake Miranda in those Tenements that it's dangerous for white people to go to… (at 26-28).
Mr Parsons confirms a Section 18 Notice was given under the AHA by a company which, like Green Empire, is a wholly owned subsidiary of Bellevue (at 25-34). Rather than repeat the entire circumstances of the concerns raised by Mr Narrier, and responded to by Mr Parsons, the evidence can be summarised that the grantee lodged the Section 18 Notice in relation to what Mr Parsons describes as ‘a limited exploration program involving three small drill pads…on previously disturbed areas of…an island situated on Lake Miranda’ (at 29). Mr Parsons states it was not on Lake Miranda itself and did not involve drilling. I note the Section 18 Notice does indicate the drill pads were to be installed within the AHIS boundary of four sites, including site 1301, which is the large Lake Miranda site (SAP7). The Section 18 Notice outlines that Tjiwarl did not support ‘any land based operations within sites or buffer zones’ (SAP7).
Mr Parsons goes on to state, in his affidavit:
The sites where the three drill pads were proposed to be located were carefully chosen based on the fact they were previously disturbed areas and of a sufficient distance from Aboriginal sites in the vicinity, such that the drill pads would not impact those sites, as outlined in the Notice (at 30).
As I noted above, the drill pads were to be installed within the AHIS boundary, and it is not clear who assessed the location as being ‘a sufficient distance from Aboriginal sites’. In addition, as the Tribunal has outlined in previous decisions, the fact there has been previous exploration activity in an area does not necessarily mean that future activities will not be interference for the purposes of s 237 of the Act. In addition, there is no evidence about whether any previous activity was conducted under an agreement with the native title holders. Mr Parsons outlines the circumstances in which the work has not in fact proceeded, despite the grantee having approval to do so.
While it is not entirely clear what conclusions I am being invited to draw in this present inquiry based on these allegations and responses, I do note a common tension in inquiry evidence is demonstrated. That tension is between a grantee indicating their exploration will be of limited impact to native title rights and interests, versus the native title holders indicating the very same exploration activities will cause considerable impact on such rights and interests. This is the very essence of what I need to determine in examining such evidence, by considering the facts presented by both parties and taking into account the States regulatory regime.
Mr Parsons also responds to concerns raised by Mr Narrier regarding drilling north of Lake Miranda (at 35-37). A copy of a letter from DPLH is provided about those concerns, concluding that according to DPLH investigations in 2018, there had ‘not been a breach of the Aboriginal Heritage Act 1972 with respect to the 12 drill holes in the vicinity of Lake Miranda’ (SAP9). As there is no other evidence in relation to this, there is little further I can say regarding the application of these circumstances to the current inquiry.
Proposed exclusion zones and protection areas
Green Empire contentions and Mr Parson’s affidavit refer to exclusion zones and protection areas which Green Empire will establish over parts of each licence.
Mr Parsons gives an undertaking to establish internal policies and procedures to instruct representatives of Green Empire not to enter the surface of what is termed ‘Application Exclusion Zones’ to a depth of 30 metres to carry out exploration activities without prior consent from Tjiwarl (at 42).
Mr Parsons annexes, to his affidavit, mapping which proposes Application Exclusion Zones for the sandhill and the Yakabindie Claypan (at 41 and SAP10). For example, Green Empire identifies ‘what it believes’ to be the sandhill within E36/907 (at 41). However, it is not clear how the sandhill was identified. In their reply, Tjiwarl state:
… the Native Title Party strongly opposes any such submission that seeks to define the boundary of a site of significance in the absence of consultation with the Native Title Party. By its very nature, Tjukurrpa and its relationship/connectedness with the surrounding landscape is complex and cannot be defined by reference to a topographical map in the absence of consultation with those persons who possess the requisite cultural knowledge (at 6.4).
Mr Parsons’ mapping also shows ‘Proposed Protection Areas’ for Lake Miranda; parts of Jones Creek; and the Dry Lake (43 and SAP10). In respect of the natural surface of the Proposed Protection Areas to a depth of 30 metres, Mr Parsons undertakes to establish internal policies and procedures that instruct representatives of Green Empire to notify Tjiwarl of its proposed exploration activities (including non-ground disturbing activities) and to consult with Tjiwarl about how heritage values can be protected and managed alongside exploration activities before they occur (at 44).
Green Empire submit that Tjiwarl’s contention that Lake Miranda is an area of particular significance should be limited to the area identified as a Proposed Protected Area by Green Empire. It is not clear how that Proposed Protection Area was identified in the context of Lake Miranda. As noted above at [45], Tjiwarl oppose Green Empire defining site boundaries without their consultation.
Tjiwarl submit there can be no assurance that any such policies will be adopted, nor do internal policies offer any enforceable rights or avenues to legal remedies for the native title party in the event they are not followed or subsequently amended by Green Empire. Tjiwarl asserts the only way to ensure that effective procedures are in place and enforceable is to include them in an agreement (7.13).
I accept that Green Empire is endeavouring to establish exclusion zones and protection areas in regards to areas and sites Tjiwarl have identified. However, these internal policies and procedures do not appear, on the evidence, to be contractually enforceable between them and Tjiwarl. I agree with Tjiwarl that the only way to ensure they are enforceable is to include them in an agreement. Also, in the event that commercial circumstances change and the proposed licences pass to another holder, the new holder may not be bound by the internal policies and procedures of Green Empire.
It is not clear how the exclusion zones and protection areas were developed. The Tjiwarl reply (at 7.11) states that:
These proposed policies have been developed in response to Mr Narrier’s evidence only. The Native Title Party submits that the affidavit evidence of Mr Narrier should not be taken to represent a complete account of all sites within the Tenements nor should it be seen as sufficient to develop the Grantee Party’s internal policies for the following reasons:
(a) the nature of sites within the WDCB [Western Desert Cultural Bloc] is complex, with no one individual possessing a full account for the location of those sites on their own; and
(b) the evidence provided by Mr Narrier is limited to what he is able to say given the cultural sensitivities around some of this information.
On the evidence provided, and acknowledging the good intentions of the grantee party, I cannot conclude that internal policies and procedure regarding the exclusion zones or protection areas will give a protection against interference (see also, for example, Tjiwarl v Gianni at [106] and Nyamal #1 v Gianni at [61]).
The State’s regulatory regime
Mr Parsons states in his affidavit that he has executed a Regional Standard Heritage Agreement (RSHA), but that Tjiwarl has advised him they do not endorse it (at 18-20). He also states that Green Empire is cognisant of its obligations under the AHA, is on notice that it must comply with the State’s endorsements and conditions in respect of the licences as well as other regulations and guidelines pertaining to Aboriginal heritage (at 23-24).
The State submits the willingness and intentions of Green Empire to enter into agreement with Tjiwarl, to offer Protected Areas and Application Exclusion Zones, as well as Green Empire’s awareness of its obligations under the State’s regulatory regime, demonstrates its willingness to ‘avoid disturbance to areas or sites of particular significance’ (at 31). It contends that Green Empire’s intentions to offer Protected Areas and Application Exclusion Zones further establishes that interference is unlikely to be caused by the proposed exploration activities (at 52).
In reply to the State’s and Green Empire’s contentions about the degree of protection offered by the State’s regulatory and heritage regimes, Tjiwarl contends that due to the nature of the sites and areas of particular significance, neither the RSHA nor the AHA will be ‘sufficient to mitigate against the type of interference’ contemplated by s 237(b) (at 1.2). It is Tjiwarl’s view that the RSHA is outdated and inadequate, enabling ‘non-ground disturbing activities to be conducted in the absence of a heritage survey’. Tjiwarl assert the RSHA is ‘ineffective in reducing the likelihood of interference …. and ‘operates to facilitate some kinds of interference, by failing to require consideration of whether heritage surveys are needed prior to all activities’ (7.25-7.27).
Conclusion
Given the level of information and evidence provided by Tjiwarl in this inquiry, I cannot be satisfied that the risk of interference will be mitigated by the regulatory regime of the State, including the endorsements and conditions to be applied to each licence on grant, and the intentions of Green Empire. Recent Tribunal determinations have considered and discussed the operation of the State’s protective regime under the AHA and the provisions of an RSHA, as well as proposed actions by a grantee party in mitigation of s 237(b) interference. As outlined by President Dowsett in Marputu v Gianni:
Although the terms of any RSHA may reduce the risk of adverse impact, to some extent, they leave open the real possibility, perhaps likelihood that there would be further disputes, in good faith or otherwise, about concepts such as “take into account”, “significantly affect” and “discuss”. As I have previously observed, protection of that general kind may be appropriate where the traditional owners’ concerns are unparticularized, but that is not the present case. In those circumstances, the proposed grantee’s willingness to enter into such an agreement says little about the extent to which the sites will be at risk. The State’s proposed special condition similarly offers little or no protection in this case. In all of these circumstances, I am satisfied that the native title holders’ concerns are reasonable (at [66]).
Member Cooley in Nyamal #1 v Gianni stated that to decide that interference under s 237(b) is unlikely on the basis of ‘possible entry into a standard agreement’ seems ‘to require a number of long bows to be drawn’ (at [66]). This reasoning can also be applied to the proposed protection and exclusion zones offered by Green Empire in this inquiry. Even accepting Green Empire may not utilise the full suite of rights available to them under the Mining Act, they are still likely to undertake, at the least, soil and rock sampling, some track clearance, and possibly drilling, in due course. Green Empire has asserted soil and rock sampling less than 2 kilograms will not lead to disturbance, however, it is not clear how this conclusion was drawn in the absence of consultation with Tjiwarl native title holders. In addition, it is not clear that soil and rock sampling would be limited to less than 2 kilograms. I accept that Tjiwarl are not asserting a right to veto exploration works on these licences, and that each of the sites and areas outlined by Tjiwarl (as summarised at [31]) are interconnected with a highly significant tjukurrpa. I accept that even activities which Green Empire consider to be non-ground disturbing would cause interference as envisioned by s 237(b), in accordance with the traditions of the native title holders.
Determination
My determination is the grant of E36/906, E36/907, E36/908 and E36/909 to Green Empire Resources Pty Ltd are not acts which attract the expedited procedure.
Helen Shurven
Member
3 October 2019
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