Tjiwarl (Aboriginal Corporation) RNTBC v Duketon Consolidated Pty Ltd
[2020] NNTTA 9
•5 February 2020
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC v Duketon Consolidated Pty Ltd and Another [2020] NNTTA 9 (5 February 2020)
Application No: | WO2018/0873 |
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 -
Duketon Consolidated Pty Ltd
(grantee party)
- and -
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: | 5 February 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere with areas or sites of particular significance - the act is an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) ss 18, 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 151, 155, 237 |
Cases: | Andrews v Northern Territory [2002] NNTTA 170 (Andrews v Northern Territory) 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) Hale on behalf of Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale 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) Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd and Another [2019] NNTTA 67 (Tjiwarl v Giard) Tjiwarl (Aboriginal Corporation) RNTBC & Green Empire Resources Pty Ltd and Another [2019] NNTTA 80 (Tjiwarl v Green Empire Resources) Tjiwarl (Aboriginal Corporation) RNTBC v SA Exploration Pty Ltd and Another [2018] NNTTA 36 (Tjiwarl v SA Exploration) Tjiwarl (Aboriginal Corporation) RNTBC v Western Explorers Pty Ltd and Another [2020] NNTTA 3 (Tjiwarl v Western Explorers) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29(Walalakoo v Boadicea Resources) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Investmet Limited and Others and Another [2018] NNTTA 47 (Wanjina-Wunggurr v Investmet) WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (Wiluna v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara) |
| Representatives of the native title party: | Gavin Dunn and Michael Allbrook, Central Desert Native Title Services |
| Representative of the grantee party: | Michael Giles, Montezuma Mining Company Ltd |
| 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 licence E53/1953 (the licence) to Duketon Consolidated Pty Ltd (Duketon) attracts the expedited procedure. The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) which included a statement that it considers the grant to be an act attracting the expedited procedure. By including the statement, the State asserts that the grant is not likely to, in summary:
(a)interfere directly with the native title holders’ community or social activities (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with the native title holders’ traditions (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The area of licence is 18332.86 ha and it is located in the Wiluna Shire. Of the licence area, 10226.65 ha (55.78%) is on land and waters where the Tjiwarl (Aboriginal Corporation) RNTBC (Tjiwarl) holds non-exclusive native title rights and interests on behalf of the Tjiwarl native title holders (as determined in Narrier v Western Australia). 8106.21 ha (44.22%) is on land and waters where the Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (TMPAC) holds non-exclusive native title in trust for the Wiluna People (as determined in Wiluna v Western Australia).
Tjiwarl lodged an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion that the expedited procedure applies to the grant of the licence. No objection was lodged by TMPAC. The Tjiwarl objection application was brought on the basis that interference contemplated in s 237(a), s 237(b) and s 237(c) is likely, however, Tjiwarl pursues only the assertion concerning s 237(b). Based on the material before me I find that the grant of the licence is not likely to interfere with social or community activities of the native title holders, or involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
In determining whether the expedited procedure applies or not, I must make a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Duketon and the State must negotiate with Tjiwarl in relation to the grant. For the reasons outlined below my determination is that the expedited procedure does apply to the grant of the licence.
Parties’ submissions
Tjiwarl provided contentions and the affidavit of Mr Kado Rentan Allison Muir affirmed 15 October 2019. Mr Muir says he is a Tjiwarl native title holder, a member of the Tjiwarl (Aboriginal Corporation) RNTBC, a wati, an initiated man, and that he has cultural authority to speak for the licence area. I accept Mr Muir has authority to speak for this area.
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.
The State’s material informs me that the licence was applied for on 13 June 2017 and the s 29 notification date was 6 July 2018. The Tjiwarl objection was accepted on 12 November 2018.
Duketon provided a Statement of Contentions, signed by Liam Cornelius ‘for and on behalf of’ Duketon, only.
Tjiwarl also provided a reply to the State’s and Duketon’s 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 to proceed on the papers.
The licence and proposed exploration activities
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61 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 application informs me that the area applied for is in the East Murchison Mineral Field and consists of 60 blocks. The statement (only) refers to a program for the first year as follows:
An early phase exploration program will be conducted on the licence to target gold & nickel. The initial stages of exploration will consist of literature research of past exploration activities, review of photographs and images and field investigations. Once targets have been identified, a gridding and soil sampling program will be undertaken over sections of the licence.
The total planned expenditure in year 1 includes $6000 for geological field investigations and mapping, gridding and surveying; and $50000 for a soil sampling program.
The Duketon contentions say that in the first year ‘on ground exploration will be limited to a 2-3 week ground mapping and ground truthing exercise’. They say that ground disturbance during this period will be non-existent or very minimal, however in the years to follow ‘on ground activities may be conducted which may involve some ground disturbance’ which may include 1-2 drilling programs, each for a period of 3-4 weeks. They say that 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.
I accept that it is open to Duketon to undertake the full suite of rights, but given the way the exploration program has been described I consider that unlikely (Tjiwarl v Giard) per Member Shurven 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 Duketon.
The quick appraisal informs me that there are numerous ‘live tenements’ which underlie areas of the licence. A map provided with the State contentions ‘shows a comparison of the area applied for … and the area available for grant’. Land that is subject to granted mining tenure, apart from a miscellaneous licence, cannot be included in an exploration licence (s 18, sub ss 57(2c), (2d), (2e) and (2h) Mining Act). Accordingly, the areas identified in the quick appraisal as live tenements will be excluded from the licence.
The AHIS search results inform me that there is one registered Aboriginal site, thirteen ‘Other Heritage Places’, and ten ‘Heritage Survey Areas’ in the licence area.
The AHIS maps attached to the search results and the State contentions locate the registered Aboriginal site in the north-east of the licence area within the Wiluna determination area, and other heritage places in the southern part of the licence. Of the thirteen other heritage areas the State say in contentions that only one is in an area available for grant, while eleven are either wholly or predominately within a ‘live tenement’ area, and one is within the Wiluna determination area.
As outlined in Hale v Western Australia and discussed in numerous matters recently (Tjiwarl v Giard; Tjiwarl v Western Explorers; Wanjina-Wunggurr v Investmet) the scope of the Tribunal’s inquiry is the area specified in the s 29 notice. I will therefore consider evidence regarding areas or sites of particular significance in relation to the land or waters in the licence application area. Evidence concerning the location of areas or sites in areas which will be excluded from grant might be relevant to the likelihood of interference.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
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. 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).
What areas or sites have been identified as being of particular significance to Tjiwarl?
Mr Muir says at [21] that there are a number of significant sites located in the south-eastern portion of the licence (significant archaeological sites); he describes the Seven Sisters Dreaming (Tjukurrpa); and he describes the Dingo Dreaming (Papa Tjukurrpa) and the physical manifestation and sites associated with the Dreamings as areas or sites of particular significance to the Tjiwarl.
Mr Muir prefaces his telling of the stories and description of the areas or sites with the following explanation:
[4] Tjukurrpa is the term used to describe the body of beliefs and it includes the stories of creation, the evidence of that creation in the land, and the actions and activities of the dreamtime beings. Sometimes they are referred to as the ‘tjukurrpa people’. The tjukurrpa links the past, the present and the future. Present day practices are still informed by tjukurr. Everything, the way you cook food, name your children, look after country, is all based on the tjukurrpa.
[5] The dreaming stories have been there all the time. The land was created by the tjukurrpa in the dreaming. By having knowledge of the tjukurrpa and understanding the tjukurrpa a person who has taught these things can recognise the tjukurrpa in the landscape and understand the interactions of the tjukurrpa across the land.
Seven Sisters Dreaming (Tjukurrpa)
Mr Muir says in his affidavit at [6] the Seven Sisters Dreaming (Tjukurrpa) passes through the licence:
The Dreaming comes from Nuendah to the west of the Tenement and passes through it in a south-east direction, travelling all the way to just above the location known as Two Tanks Well. The Dreaming passes through the southern part of the Tenement and there are sites located there that are associated with this Dreaming.
He says that the Dreaming manifests in the licence is ‘in the form of breakaways to the east and other hills within the Tenement that are also associated with this Tjukurrpa’.
The map ‘KM1’ attached to Mr Muir’s affidavit shows Nuendah and Two Tanks Well. The State in contentions says at [35.1] that ‘(T)his area overlaps with an area of the proposed tenement over which there is significant overlap with live mining leases’ and that ‘(T)he specific location of breakaways and hills associated with this Dreaming are not specified with specific particularity … to determine they are on land available for grant’.
At [7] Mr Muir says the area in the south of the licence is associated with the Seven Sisters Dreaming because that is where the Seven Sisters travelled on their way to the feast ‘with the other Dreamtime characters’. He says that that part of the story relates to the Dragonfly Man (Tjinkuna) and another story that took place in an area south of the licence.
Mr Muir describes a place to the south of the licence as seen on MP1 near Logan Springs and Albion Downs, near Palm Springs (which may be the place marked Palm Well on MP1) and near an unmarked place Tjiwarl call ‘Pii’ where the Dragonfly Man (Tjinkuna) speared and killed the carpet snake. This, according to Mr Muir, is where the ‘Dreamtime characters’ came expecting a feast and where the Dragonfly Man was killed and put on the fire. At [10] Mr Muir says both the Seven Sisters and the Dragonfly Man stories are important Dreamtime stories. Although outside the licence area, the relevance of this area or site (the area around Pii) is its connection to the Seven Sisters Dreaming which passes through and which Tjiwarl says is manifested in the licence area.
The State, in contentions [35], accepts that the manifestations of the Seven Sisters Dreaming (and Dingo Dreaming) has mythological, cultural and spiritual significance to Tjiwarl but says that the evidence does not establish the location of these sites and areas with sufficient particularity to determine they are within the licence area and within the area available for grant. As noted at [19] above the scope of the Tribunal’s inquiry is the area specified in the s 29 notice, not limited to the area available for grant.
In reply, Tjiwarl says at [6.6] that while the Seven Sisters Dreaming sites are described broadly, ‘they are sufficiently identified as being located within the Tenement’ and that the State ‘has failed to understand the cultural limits on the level of detail that Mr Muir can reasonably disclose about the particular location of the site given the cultural sensitivities around this information as a significant site to women’.
It would appear from KM1 that the Seven Sisters Dreaming would traverse eastern areas in the south of the licence.
Mr Muir explains Tjiwarl responsibilities and obligations regarding areas or sites of particular significance and the consequences of interference with or damage to those areas or sites.
Duketon makes no submissions specific to the existence, location, or significance of the Seven Sisters Dreaming.
Dingo Dreaming – Papa Tjukurrpa
Mr Muir says the Papa Tjukurrpa (Dingo Dreaming) also passes through the licence.
He says in his affidavit at [13] that ‘(T)his part of the story commences at a place named on the map as Boo Boo Well, which I know to be called Kayili Puu Puu’ which is a spring adjacent to the licence. Boo Boo Well is marked on KM1 and is a short distance outside the licence. It is not disputed that Kayili Puu Puu is outside the licence area.
According to Mr Muir the Papa Tjukurrpa goes into the Tjiwarl determination area and into the licence from a site called Yirrawalla in the hills south of Wiluna, on the Lake Way pastoral lease. He says at [14] ‘The spring, is linked to the parts of the story directly north of Tjiwarl country at Yirrawalla’. I understand the ‘spring’ to mean Kayili Puu Puu. At [15] he says the story then travels south from Kayili Puu Puu into the tenement: ‘The creek line heading south from the spring intersecting the tenement is all part of the Dingo Dreaming, and that creek system is made by the Tjukurrpa. Under our laws and customs, that creek is the Tjukurrpa and we have a responsibility to look after it’.
The State says that ‘it remains unclear to what extent the relevant creek line intersects with the proposed tenement’ and whether it is related to any of the AHIS ‘Other Heritage Places’. In reply, Tjiwarl says that the evidence demonstrates a connection between the site of particular significance at Kayili Puu Puu which is outside the licence and ‘the site of particular significance inside the Tenement which manifests as creek lines’ – the link between the two being attributable to the Tjukurrpa and on that basis interference with a site or particular significance inside the licence will constitute interference with other parts of the Tjukurrpa story, even when located outside the licence.
Tjiwarl does not allege that any of the AHIS ‘Other Heritage Places’ are connected to the Dingo Dreaming noting that several are in the south-eastern part of the licence.
Duketon says that Mr Muir does not clearly state where the spring called Kayili Puu Puu is, but concludes that it is near Boo Boo Well, noting that the licence does not cover Boo Boo Well.
Significant archaeological sites
In his affidavit Mr Muir says at [21] that there are a number of significant sites located in the south-eastern portion of the licence and that ‘(T)hese are significant sites to the Tjiwarl native title holders because there are rock shelters there which contain archaeological artefacts’.
As noted at [17] above the AHIS search results inform me that that there is one registered Aboriginal site and thirteen ‘Other Heritage Places’ in the licence area. In the Tjiwarl objection application (Form 4), it is noted that the AHIS register includes ‘three (3) registered sites’ with site identification numbers 22685, 22326 and 22683. Those sites are not registered sites but are included on the ‘Other Heritage Places’ list. These particular sites are not referred to specifically in Tjiwarl’s contentions and evidence however, in contentions [5.22(d)] Tjiwarl notes that sites of particular significance likely to suffer interference of the kind contemplated by s 237(b) include a number of archaeological sites, some (but not all) of which are registered.
I accept that an area or site may be of particular significance without being recorded on the AHIS and that the Aboriginal Heritage Register is not conclusive.
The registered site identified on AHIS simply as Lake Way is in the far north east of the licence.
In his affidavit at [21] Mr Muir says that there are a number of significant sites located in the south-eastern portion of the licence including sites that have been registered and those that have not. He says: ‘There are significant sites to the Tjiwarl native title holders because there are rock shelters there which contain archaeological artefacts’.
As noted at [18] above of the thirteen ‘other heritage places’ on AHIS the State says in contentions that only one is in an area available for grant, while eleven are either wholly or predominately within a ‘live tenement’ area, and one is within the Wiluna determination area. The AHIS description of places by type is not particularly instructive.
Are the areas or sites identified of particular significance to Tjiwarl?
Seven Sisters Dreaming (Tjukurrpa)
An often referred to Tribunal decision regarding Dreamings is Andrews v Northern Territory at [124]:
… while Dreaming Tracks are significant, not all Dreamings are of equal importance, and not all places along a Track are of equal significance, at least to particular native title holders. In each and every case a person speaking on behalf of native title holders should explain why a particular Dreaming site is of particular importance. The Tribunal will readily accept that evidence by a person having traditional authority of a place as a Dreaming site is a matter of great relevance to a section 237(b) assessment. However the identification of a place as a Dreaming site does not automatically result in a finding of significance. The particular sacredness of the site in the scheme of things needs to be explained before a finding of significance can be made.
I accept that the Seven Sisters Dreaming is of significance to Tjiwarl. Further, I agree with the State (contentions [35]) and accept that manifestations of the Seven Sisters Dreaming (and Dingo Dreaming) has mythological, cultural and spiritual significance to Tjiwarl. However, while there is reference to manifestations of the Dreaming (breakaways and hills) in the licence, there is no evidence concerning the manifestations to inform me if they are simply locations, if they are integral to the Dreaming, and if so, how they are integral to the Dreaming. It is not for me to speculate about the significance of a site, it is incumbent on the relevant native title party to bring to an inquiry pertinent information that will provide a platform or a sensible evaluation of whether a named site in fact is of particular significance within the meaning of that term in s 237(b) (Andrews v Northern Territory at [131]).
Accordingly, on the material before me I am unable to conclude that the Seven Sisters Dreaming (Tjukurrpa) and its manifestations in the licence areas are an area or site of particular significance for the purposed of s 237(b).
Dingo Dreaming – Papa Tjukurrpa
As noted at [36] above Tjiwarl says that the evidence demonstrates a connection between the site of particular significance at Kayili Puu Puu which is outside the licence and ‘the site of particular significance inside the Tenement which manifests as creek lines’ – the link between the two being attributable to the Tjukurrpa and on that basis interference with a site of particular significance inside the licence will constitute interference with other parts of the Tjukurrpa story.
I note that in Tjiwarl v SA Exploration, Member Shurven concluded that Boo Boo Well is separate Kayili Puu Puu and that, in that matter, the evidence suggested that the spring and well were near to each other, and both were in the relevant licence area. Member Shurven accepted that Kayili Puu Puu is an area or site of particular significance but did not believe that the exploration activities on the area to be granted were likely to interfere with Kayili Puu Puu (at [31]).
There are two creek lines within the licence to the south of Boo Boo Well which can be seen on KM1. The representation is faint. One creek line seems to emanate from the site marked Boo Boo Well heading south and sweeps ‘dog ear’ in a south westerly direction a short distance across the top corner of a south eastern block. Some distance below another creek line seems to enter the licence from the west although it appears to emanate from a different well (that is, not Boo Boo Well). No effort has been made to mark the particular creek/s on KM1 which are said to be the manifestation of the Papa Tjukurrpa.
I am aware that the Tribunal has accepted evidence in another matter (Tjiwarl v Green Empire Resources at [26]) regarding the creation of a creek by the Tjukurrpa to support an assertion of (areas or sites of) particular significance. This was because, in that matter, it was explained how the creek was created by the Tjukurrpa and the relationship between the two sites, and the importance of the Tjukurrpa to the creation of the site.
I must determine the issues in this matter based on the evidence before me. Each matter must be considered on its own facts (Cherel v Faustus Nominees at [81]-[91]). In this matter the assertion (only) that the creek is a manifestation of the Tjukurrpa in my view is insufficient to enable me to conclude that it is an area or site of particular significance for the purposes of s 237(b).
Significant archaeological sites
A general statement that a place is important is not sufficient to conclude that it is a site of particular significance; information is required to conclude that the place stands out from other places to the extent that it is of particular significance to a native title party (Walalakoo v Boadicea Resources at [39]).
It is well established that if an area or site is of particular significance, it must be known and must be able to be located and the nature of its significance explained to the Tribunal (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17]-[18). In reply Tjiwarl says at [7.12] that the evidence of Mr Muir should not be taken to represent a complete account of all sites within the licence as the nature of sites is complex and communal in nature ‘with no one individual possessing a full account for the location of those sites on their own’ and the evidence of Mr Muir is limited to what he is able to say ‘given the cultural sensitivities around some of this information, some of which can only be shared with initiated men, and some only with women’. It is of course open to a party in the course of an inquiry to request the making of non-disclosure directions under s 155 NTA if that would satisfy cultural concerns.
On the material provided in the inquiry I am not satisfied that there are significant archaeological sites which would qualify as sites of particular significance for the purposes of s 237(b).
Conclusion
I have concluded the material does not establish sites or areas of particular significance as required by s 237(b). I will not therefore assess whether interference by exploration activities is likely.
Determination
I determine that the grant of exploration licence E53/1953 to Duketon Consolidated Pty Ltd is an act that attracts the expedited procedure.
Mr JR McNamara
Member
5 February 2020
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