Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd

Case •

[2020] NNTTA 2

•

10 January 2020

NATIONAL NATIVE TITLE TRIBUNAL

Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd and Another [2020] NNTTA 2 (10 January 2020)

Application No:

WO2018/1044

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 -

Giard 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:

10 January 2020

Catchwords:

Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or area of particular significance – non disclosure directions - the act is an act attracting the expedited procedure

Legislation:

Mining Act 1978 (WA) ss 57, 58, 61, 66

Native Title Act 1993 (Cth) ss 29, 151, 162(2), 237

Cases:

Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources)

Keith Narrier & Others on behalf of Tjiwarl v Montezuma Mining Company and Another [2016] NNTTA 58 (Tjiwarl v Montezuma Mining)

Keith Narrier and Others on behalf of Tjiwarl v WA Mining Resources Pty Ltd and Another [2014] NNTTA 112 (Tjiwarl v WA Mining Resources)

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 WA Mining Resources Pty Ltd Another [2015] NNTTA 41

Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd and Another [2019] NNTTA 67 (Tjiwarl v Giard)

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Limited [2019] NNTTA 51 (Wanjina-Wunggurr v Buxton Resources )
Representatives of the native title party: Gavin Dunn and Michael Allbrook, Central Desert Native Title Services
Representative of the grantee party: Acacia Hosking, King & Wood Mallesons
Representatives of the Government party: Michael McMahon, Department of Mines, Industry Regulation and Safety
Domhnall McCloskey, State Solicitor’s Office

REASONS FOR DETERMINATION

  1. This decision is about whether or not the grant of exploration licence E36/937 (the licence) to Giard Pty Ltd (Giard) 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. All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth), unless stated otherwise. 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);

    (c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c).

  2. The licence is over an area of 7283.67ha in the Shire of Leonora where the Tjiwarl (Aboriginal Corporation) RNTBC (Tjiwarl) hold non-exclusive native title rights and interests on behalf of the Tjiwarl native title holders (as determined in Narrier v Western Australia). 

  3. 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. The objection application was brought on the basis that interference contemplated in s 237(a), s 237 (b) and s 237 (c) is likely, however, in this inquiry Tjiwarl dispute 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 Tjiwarl, or involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.

  4. 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, Giard and the State must negotiate with Tjiwarl about the grant. For the reasons outlined below my determination is that the expedited procedure does apply to the grant of the licence.

Parties’ submissions

  1. Tjiwarl provided contentions and the affidavit of Mr Graeme George Narrier sworn 11 September 2019. Mr Narrier says he is a Tjiwarl native title holder and that he has cultural authority to speak for the licence area and other places connected to the law. I accept Mr Narrier has authority to speak for this area. Because of the highly sensitive and gender restricted nature of the evidence in Mr Narrier’s affidavit, I made non-disclosure directions on 25 September 2019 limiting disclosure of the contents of the affidavit to a limited number of male persons. The directions do not prevent the Tribunal from stating in this determination any findings of fact upon which this decision is based and 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).

  2. 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) including location maps of Registered Aboriginal Sites, the statement under s 58 of the Mining Act 1978 (WA) (Mining Act), and a draft Tenement Endorsement and Conditions extract.

  3. Giard provided contentions and the affidavit of Graeme John Harman – Head of Government and Community Relations for Bellevue Gold Limited (Bellevue). Mr Harman says Bellevue is an ASX listed public company and Giard is an exploration company wholly owned by Bellevue. Mr Harman describes his lengthy experience in the resources industry and in stakeholder engagement, but has held his position with Bellevue only since July 2019. The licence was applied for on 16 April 2018, the s 29 notification date was 17 August 2018, and the objection was lodged 17 December 2018. Nevertheless I accept that Mr Harman is authorised by Giard to make the affidavit on their behalf.

  4. Tjiwarl also provided a reply to the State’s and Giard’s material.

  5. 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 scope of the inquiry

  1. The Application for Mining Tenement informs me that: it was lodged on 16 April 2018; it is for exploration licence E36/937; the applicant is Giard; and it is over an area of ‘24 BL’. The Quick Appraisal describes the area as 7283.67 ha. That document also lists a number of ‘Tenements Affected’, ‘Dead Tenements Affected’, ‘Land Affected’, and ‘Native Title Areas Affected’.

  2. Of particular note in the Quick Appraisal is the fact that there are 18 current Mining Act tenements which encroach to varying degrees on the licence area, including tenement E36/920 over 1489.92 ha of the application area which, according to a search of the Tribunal’s NTV+ database, was granted to Giard on 5 June 2019.

  3. The State provided the following information in their contentions concerning what they describe as ‘area applied for v area available for grant’:

    Exploration licences must be applied for in respect of whole “blocks”:sub-ss 58(1)(a) and
    58(2) of the Mining Act and reg 64(1a) of the Mining Regulations 1981 (WA).
    Accordingly, applications for exploration licences may overlap other mining tenements
    on occasion.2

    However, exploration licences cannot be granted in respect of land that is subject to a

    granted mining tenement, apart from a miscellaneous licence. This follows from s 18 of[1]

    2 This is an exception to the general prohibition on applications for mining tenements being made in respect of Crown

    the Mining Act (which describes Crown land "open for mining"), and sub-ss 57(2c), (2d),
    (2e) and (2h) which prescribe the power of the Minister administering that Act to grant
    an exploration licence where the application (by necessity) includes land which is the
    subject of a current tenement other than a miscellaneous licence. Such land is "land
    unavailable for exploration."3

    Hence, even though an application for an exploration licence and the related notice under
    s 29 of the NTA may refer to an area which includes granted mining tenements, the
    applicant for the exploration licence cannot, as a matter of law, acquire or exercise any
    rights in respect of the overlapped parts, at any time during the life of the exploration
    licence, whether or not those other tenements lapse.4

  4. Maps are provided at Annexure A to the State contentions and Annexure GJH5 to the affidavit of Mr Harman which depict the ‘land available for exploration’.

  5. Despite this, it seems that the State conducted its own searches of the Aboriginal Heritage Inquiry System on the ‘24 block’ basis, that is ‘area applied for’ rather than the ‘land available for exploration’. 

  6. The s 29 notice dated 10 August 2018 provided to the Tribunal and signed by the Executive Director, Resource Tenure Division, Department of Mines, Industry Regulation and Safety, states only the tenement application number, the relevant native title party, and the Native Title representative Body.

  7. The State at contentions [6] conclude that an application for an exploration licence which overlaps granted tenements: ‘must lead to the conclusion that such a tenement can have no effect on any areas or sites of particular significance to the NTP within the meaning of s 237(b) which are outside of the area available for grant, apart from any effects which extend boundary [sic] of that area’. At contentions [8] the State says: ‘It follows that these contentions are focussed on the area available for grant while NTP’s Contentions and evidence appear to be directed towards the whole of the area applied for’.

  8. In Wanjina-Wunggurr v Buxton Resources, in the context of sites of particular significance in an area where native title had been extinguished, but within the tenement application area, I said:

    [79]     In relation to this issue, I adopt the analysis outlined in Wanjina-Wunggurr v Investmet Limited at [10]:

    What Hale v Western Australia has confirmed is that the scope of the Tribunal’s inquiry is the area specified in the s 29 notice… It is not the case that the native title party only has standing to lodge an objection, and the Tribunal only has jurisdiction to make a determination, merely in relation to the percentage of the area specified in the s 29 notice where native title has been determined to exist. Section 32(4) of the Act relevantly state the ‘Tribunal must determine whether the act is an act attracting the expedited procedure, by reference to the definition in s 237.

  9. The s 29 notice in this matter referred to the application area, not only the area available for exploration. The scope of the Tribunal’s inquiry is the area specified in the s 29 notice. I will consider evidence regarding areas or sites of particular significance in relation to the land or waters in the tenement application area.

The licence and proposed exploration activities

  1. The licence is an exploration licence proposed to be granted under s57 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.

  2. The statement under s 58 of the Mining Act which accompanied the licence application informs me that: the ‘company’s goal is to explore, discover and develop gold and base metal deposits’; the area covered by the application is 24 blocks; ‘exploration will initially focus on mapping the regolith and investigating historical data prior to air core or RAB drill testing beneath the cover’; and ‘positive results will lead to ground based geophysical surveys and possibly reverse circulation and/or diamond drill testing’. A three year exploration program is outlined with budget allocated to air core drilling in years two and three.

  3. Mr Harman in his evidence says based on information he received from Giard’s Exploration Manager and Geologist Marcus Harden, ‘non-ground disturbing exploration activities’ would involve approximately 20 days of field work per annum and involve ‘limited sampling of soil and rock outcrop may be undertaken’ - samples being less than 2kg, ‘and will not involve any clearance or substantial disturbance’.  It is not stated whether there would be one or more field work teams operating at one time. He says that depending on the results of those activities, ground disturbing activities would be undertaken including ‘exploration drilling to test for prospective bedrock in areas of surficial cover and indications of gold and/or base metal dispersion’ – positive results ‘will lead to ground based geophysical surveys and possibly air core or reverse circulation drilling in confined areas’ involving a drill crew of 2-3 persons using a ‘truck mountable drill rig and may require minimal track clearance for access’. Mr Harman says that he has been informed by Mr Harden that ‘he does not currently foresee the need to dig any pits, trenches or other excavations on the Application area, nor the need to exercise the full rights available to the Grantee Party to extract up to 1,000 tonnes of earth or other substance from the Application area’.

  4. Very similar evidence was recently considered by Member Shurven in another inquiry involving the same parties (Tjiwarl v Giard).  At [20] Member Shurven said:

    … I accept it is open to Giard to undertake the full suite of rights, but also accept it is unlikely they will extract the full 1000 tonnes of earth permitted, given the way the exploration program has been described. Nevertheless, even if I do accept Giard would not undertake the full suite of exploration activities available to them, it is clear from the evidence that soil and rock sampling will be part of the exploration activity, and that drilling will form part of exploration activity, at least in the initial phase. 

  5. I have reached the same conclusion.

Predictive assessment

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?

  1. 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?

  1. The AHIS search results inform me that there are seven registered Aboriginal sites and 14 other heritage places in the licence area.  None of the registered sites nor other heritage areas are listed as being subject to gender restriction.  Tjiwarl do not contend that the site referred to by Mr Narrier in his evidence is one of the sites or places listed in the AHIS search results.  There are no contentions made or evidence provided in relation to any of the sites or places on AHIS to enable me to conclude that any of them is an area or site of particular significance to Tjiwarl in accordance with their traditions. 

  2. In contentions Tjiwarl represent the evidence of Mr Narrier as describing ‘an area of particular significance … where secret/sacred objects are stored’.  This they say ‘is an area and/or site of particular significance’ to Tjiwarl.

  3. The evidence of Mr Narrier concerns the stored objects:

    ·their physical description, their attributes, their origins, their history, and their use (in ceremony);

    ·his (Mr Narrier’s) obligation to protect ‘them important places’, and ‘… my country, and the important sites to the wati’; and

    ·the consequences ‘if anything happens to (the objects)’, if they are seen or touched, if they are exposed to the elements - to Mr Narrier personally, and what the country will do ‘if you don’t protect it’ to wati, and to country.

  4. Perhaps due to its ’ngurlungka [secret, sacred] man’s business’ Mr Narrier, does not provide a detailed physical description of the place where the object are stored, nor does Mr Narrier provide detailed location information.  

  5. In relation to location, Mr Narrier says it is ‘In that Tenement, somewhere between …’ two locations which, according to Giard, are 7.5 km apart.  I respect the responsibility and obligation Mr Narrier holds in relation to the objects however, the location information is in my view too imprecise to enable a finding of particular significance. 

  6. In Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v WA Mining Resources Pty Ltd Another [2015] NNTTA 41, I addressed native title party’s contentions regarding sacred objects stored within and adjacent to the proposed license area in that matter at [27]-[28]:

    [27] I accept that the present inquiry is concerned with the likelihood of interference with areas or sites rather than objects per se. In FMG Pilbara v Cheedy at [74], the Tribunal accepted that places where a certain kind of stone could be found were areas of particular significance to the native title holders. However, that decision concerned objects found in situ, whereas the objects to which Mr Morgan and Mr Paterson refer do not appear to be associated with any particular area or site. In this regard, the better view of the evidence is that significance attaches to the objects themselves rather than the places where they are currently being stored.

    [28] The presence of ceremonial objects may be relevant to whether a proposal is likely to interfere with the community or social activities of the native title holders: see WF v Kingx at [57]-[58]. There is evidence that some of the objects referred to by Mr Morgan and Mr Paterson are used during law time, which suggests they have ceremonial value. As it is unclear what role these particular objects have in the ceremonial activities of the common law holders, it is difficult to conclude that there will be direct interference with these activities if the objects are damaged, destroyed or removed. I also note that protection under the Aboriginal Heritage Act 1972 (WA) extends to objects which are or have been of ‘sacred, ritual or ceremonial significance’ to persons of Aboriginal descent: s 6(1).

  7. In Tjiwarl v Montezuma Mining, Member Shurven in considering a Wana site at [23] referred to her earlier decision in Tjiwarl v WA Mining Resources where she found the wana site was not a site of particular significance in its own right, but was rather evidence in support of the contentions that another place connected to a dreaming was an increase site still in use for increase ceremonies and rituals.  Member Shurven found that in Tjiwarl v Montezuma the evidence did not establish the wana site a site of particular significance.

  8. In this matter the evidence does not support a conclusion that the area or site where the objects are stored is itself an area or site of particular significance.  There is no evidence linking the secret/sacred objects to the conduct of ceremony at or near the location where the objects are stored.  It may be the case that the presence of those objects might hold importance in relation to Tjiwarl community or social activities however, there is insufficient evidence for me to make findings in that regard.

  1. On the evidence before me, I conclude that the grant of the licence is unlikely to cause interference within the scope of s 237(b).

Determination

  1. I determine that the grant of exploration licence E36/937 to Giard Pty Ltd is an act attracting the expedited procedure.

Mr JR McNamara
Member
10 January 2020



land that is the subject of a mining tenement under s 18 of the Mining Act
3 See Mincor Zinc Pty Ltd v Tennant Creek Gold (NT) Pty Ltd [2008] WAMW 10 at [56]-[59]; Richard Evans on
behalf of the Koara People/Western Australia/Mount Margaret Nickel Pty Ltd [2001] NNTTA 141 at [4]
4 For the holder of the exploration licence to be able to exercise any rights in respect of the overlapped parts would
require that he or she obtain a new tenement in respect of those areas, and go through a new future procedure under

the NTA.

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