Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd and Another
[2019] NNTTA 67
•30 August 2019
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd and Another NNTTA [2019] NNTTA 67 (30 August 2019)
Application No: | WO2018/0521 |
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 NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 30 August 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of the 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: | Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Les Tullock on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (Tarlpa v Allarrow) Maitland Parker /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (Parker v Iron Duyfken) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Narrier v 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) |
| Representatives(s) of the native title party: | Michael Allbrook, Central Desert Native Title Services Limited |
| Representative(s) of the grantee party: | Acacia Hosking and Sally Audeyev, King & Wood Mallesons |
| Representatives(s) of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety Caitlin Gilchrist, State Solicitor’s Office |
REASONS FOR DETERMINATION
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E36/926 (the licence) to Giard Pty Ltd (Giard). The notice included a statement that the grant of the licence is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts 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)).
The area of the licence is approximately 212 square kilometres in size, in the Leonora Shire, and is partially within the Tjiwarl determination area (Narrier v Western Australia). The Tjiwarl Aboriginal Corporation RNTBC (Tjiwarl) holds non-exclusive native title rights and interests in relation to 63.03 per cent of the licence area.
Tjiwarl lodged an objection application with the National Native Title Tribunal (the Tribunal) against the State’s assertion that the expedited procedure applies to the grant of the licence. In the contentions and evidence provided, Tjiwarl assert the grant of the licence is likely to interfere with sites of particular significance, pursuant to section 237(b). Tjiwarl has not provided submissions in relation to s 237 (a) or (c), nor do they wish to pursue their objection in relation to those sub-sections. Applying the common sense approach to evidence by administrative tribunals (Ward v Western Australia at [26]), there is no evidence before me that there is likely to be interference of the kind outlined in s 237(a) or (c). The focus of this inquiry is on the evidence provided by all parties in relation to s 237(b).
For the reasons outlined below, my determination is that the expedited procedure does not apply to the proposed licence.
Preliminary Matters
Tjiwarl submitted contentions and the affidavit of Mr Brett Andrew Lewis. Mr Lewis states he is a traditional owner, a native title holder for the area, and Chairman of the Tjiwarl Aboriginal Corporation RNTBC. He outlines that he has authority to speak for the licence. He also runs Bundarra Contracting Pty Ltd, has worked within the mining industry for some time, and he has operated as a pastoralist. I accept Mr Lewis has authority to speak for this area.
Giard provided contentions and the affidavit of Mr Stephen Andrew Parsons. Mr Parsons states he is the Managing Director of Giard. He also outlines his qualifications in geology. Mr Parsons explains Giard is a wholly owned subsidiary of Bellevue Gold Limited (Bellevue) – this is relevant to my considerations later in this decision (see [21]). I accept he has authority to provide information and evidence on behalf of Giard.
The State provided contentions and evidence. Tjiwarl provided contentions in reply. I was satisfied this matter could be determined on the papers without the need for a hearing and parties had no objection to me determining this matter on the papers.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to Tjiwarl on or related to the area of licence?
The test for ‘particular significance’ was examined in Cheinmora v Striker Resources (at 34–35), and was held to mean the area or site must be of ‘special or more than ordinary significance to the native title holders in accordance with their traditions’. It ‘must be known and must be able to be located and the nature of its significance explained to the Tribunal’ (Silver v Northern Territory at [91]). This means there must be sufficient detail and specificity about the site or area considered to be of ‘particular significance’ to meet s 237(b) (see for example Parker v Iron Duyfken at [39]).
Are there sites or areas of particular significance on the licence?
The evidence from Mr Lewis and Tjiwarl focus on two main areas:
(i) from Thunderbox up to Coffey Well (in a north-westerly direction) through which the Mallee Hen jukurrpa (dreaming) travels; and
(ii) a sandhill created by the Mallee Hen jukurrpa.
Tjiwarl evidence is that the Mallee Hen jukurrpa travels on a trajectory which passes through the licence. The sandhill is on the licence and is said to be of particular significance to the Tjiwarl people as it is a manifestation and representation of the jukurrpa (Mr Lewis at 8). Mr Lewis explains that it is not just a sandhill, it is important because it is a part of the Tjiwarl culture and law (at 12). Mr Lewis outlines that Tjiwarl people risk sickness or physical injury in the event that part of the jukurrpa is damaged, and that they are obligated to protect their important places (at 8-9). Sites or areas created by the Mallee Hen are part of the jukurrpa, and senior wati (law men) are to be involved in the traditional decision-making related to the sandhill (at 9-10).
The State do not explicitly outline whether or not they accept there are any sites of particular significance on the licence. Mr Parsons for Giard outlines his view that Tjiwarl’s evidence has not established there is a site of particular significance on the licence. Mr Parsons states while Giard is aware of the location of the sandhill, they dispute it is a site of particular significance. I do not agree the evidence provided by Tjiwarl is too general or limited.
Mr Lewis outlines in some detail the significance of the sandhill and its relationship with the Mallee Hen jukurrpa (for example, at 8). He goes on in the remainder of his affidavit to outline the cultural protocols that are in place in relation to such ‘important places’. I accept what Mr Lewis says about the trajectory and direction through the area covered by the licence of the Mallee Hen jukurrpa and how the sandhill is a manifestation of it. The licence is between Coffey Well and Thunderbox Gold Mine, and the direction of the jukurrpa is consistent with it travelling through the licence. I am satisfied the sandhill has been distinguished in the evidence from other places on and around the licence, and it is a place of particular significance to Tjiwarl in accordance with their traditions (as required by s 237(b) of the Act).
Is interference with the sandhill likely?
Having concluded the sandhill is a site of particular significance under s 237(b), I must turn my mind to whether or not it is likely to be interfered with by Giard’s exploration activities.
Mr Lewis outlines his view of interference with the sandhill, which includes:
There are places in the tenement were [sic] it would not be okay for companies to come and drill, make tracks or take rock samples
…
They might come and knock it [the sandhill] down because they don’t know better (at 11-12).
Mr Lewis explains the difficulty from Tjiwarl’s point of view, when he outlines that:
It’s hard for mining companies to know what’s important. Like this jukurrpa would just look like a sandhill to most geologists but to us it’s more than that. It’s part of our culture, our law (at 12).
The likely scope of exploration works
Under the State’s grant of the licence, Giard would be able to do the following activities, as set out in s 66 of the Mining Act 1978 (WA) (the Mining Act):
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a)to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d)to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 (WA) outline the amount of material permitted to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
In this context, I examined what Mr Parsons states are Giard’s likely exploration activities. In summary, Giard are likely to undertake:
(a)Exploration work to identify and delineate minerals that may be extracted in future (at 9).
(b)Surface mapping, geochemical analysis, ground magnetic survey and field visits, 20 days field work p/a required (at 10).
(c)Sampling of soil and rock outcrop (samples will be less than 2 kilograms) (at 10).
(d)Exploration drilling, testing bedrock beneath surficial cover (at 11).
(e)Drilling involving 2-3 people and a small truck mountable drill rig, with minimal track clearance for access and sump construction for drill water (at 12).
(f)Drilling at the south of the licence where drilling has previously been undertaken (at 14).
The State outline that the contents of Mr Parsons’ affidavit and Giard’s contentions indicate drilling is proposed on the licence, but they do ‘not currently foresee the need [for Giard] to exercise the full suite of rights’ available under the grant (at 14-17). I note that part of Giard’s evidence and contentions suggest drilling will be focused on historic drill sites in the south of the licence – this is away from the sandhill area in the north. In reply, Tjiwarl contend that while Mr Parsons’ affidavit ‘provides some indication of the work that the Grantee Party is likely to undertake … Mr Parsons acknowledges that activities proposed for beyond the initial exploration phase will depend on the “results of the non-ground disturbing activities”…’ (8.1-8.2). Tjiwarl’s contention is supported by the proposed work program provided by Giard to the State, which accompanied their original application for the licence. That program indicates drilling would be focused on historical data prior to the use of geophysical methods, and then further geophysical surveys would be undertaken together with a drilling program. The work program gives an estimate of works in the first 3 years of grant, which includes up to 1000 drill samples. The focus of the work program is to ‘explore the ground under the application’ (at point 2). It is not clear that such exploration will be limited to the historic drill areas in the south of the licence.
Mr Parsons states (at 13):
I do 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.
Tjiwarl contend I should assume that Giard could exercise the full suite of rights available to them under the Mining Act (Reply at 8.1-8.2). 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 1,000 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.
Mr Parsons outlines in his affidavit a brief history of the negotiations between Giard and Tjiwarl (at 15-22). However, my role is not to assess the negotiations, but rather to assess whether or not interference is likely under s 237(b). Mr Parsons also explains, by way of reply to comments in Mr Lewis’ affidavit, circumstances that previously occurred between another subsidiary of Bellevue and Tjiwarl in relation to a s 18 consent application under the Aboriginal Heritage Act 1972 (AHA) (at 26-31). Mr Parsons may offer this explanation in support of Giard’s and Bellevue’s willingness to negotiate with native title holders and to offer their corporate governance credentials. As these circumstances are in relation to another tenement and another explorer, it is not as relevant to my consideration of interference for the purposes of this licence and s 237(b). There is insufficient information to link those circumstances to this matter.
The State’s regulatory regime
The State have indicated they will place a number of endorsements and conditions on the grant of the licence, including the Regional Standard Heritage Agreement (RSHA). I have examined the endorsements and note they go mainly to drawing Giard’s attention to aspects of the State’s regulatory regime, and relate to water on the licence and rehabilitation of the area. The conditions refer to rehabilitation of the area, as well as to storage of waste, approval from other State agencies for certain activities, works near the road and other conditions relating to interacting with pastoralists. There does not appear to be any condition or endorsement relevant to the issues raised by Tjiwarl in relation to interference.
The RSHA has been executed by Giard and sent to Tjiwarl, however, Tjiwarl have indicated they do not endorse the RSHA as it does not provide sufficient protections for sites such as the sandhill. Tjiwarl contend that the RSHA offers minimal protection as, under the RSHA, low level activities are permitted upon grant of the licence. Tjiwarl contend while the RSHA may protect the sandhill and the jukurrpa in regards to ground disturbing activities, the Tjiwarl reply and Mr Lewis’ affidavit outline concerns with non-ground disturbing activities because they consider that even low level activity such as soil sampling and rock chipping will interfere with this site (at 8.4-8.5; Mr Lewis at 11).
The State note the sandhill is in the same approximate location as site 18943 listed on the State’s Aboriginal Heritage Inquiry System (AHIS). The State assert their regulatory regime will provide protections against any interference of the sandhill by Giard’s activities. The State do not provide any explanation as to why interference is unlikely because of these protections, and the Tjiwarl reply submits the State’s assertion should be disregarded (at 8.19-8.22). Rather than disregard the assertion, I note the existence of the AHIS site 18943 – but looking at the parties’ mapping, I am not convinced the sandhill is entirely covered by site 18943. In addition, as noted in Tarlpa v Allarrow (at [54]):
...The regulatory regime does not enable the native title party to exercise those responsibilities to the extent of ensuring that no sites are interfered with as a Ministerial discretion exists, permitting interference to occur in some circumstances.
The nature of the interference to a site contemplated by s 237(b) of the Act may be wider than the interference contemplated by the State’s regulatory regime under the AHA (see for example s 17 and s 18 of the AHA). I conclude that the activities which Giard could do under the State’s regulatory regime in relation to AHIS recorded sites would cause interference for the purposes of s 237(b).
The State assert there are pastoral leases in the area, and there has been previous exploration on the licence, so the activities of Giard will not be interference for the purposes of s 237(b). Giard note drilling has occurred in the south-east portion of the licence. The State provide some expenditure details about previous exploration activity, however, apart from some mapping there are no specific details or information locating the previous exploration/expenditure, nor any information about whether previous exploration occurred under any agreement with the native title holders. In addition, I have outlined in previous decisions that regardless of pastoral leases on a licence, or previous exploration having occurred on a licence, s 237(b) directs me to consider whether the future act in question will likely interfere with sites of particular significance.
Giard’s internal policies
Mr Parsons directs my attention to a map which Giard has provided as an annexure to his affidavit, showing where the sandhill is located within the licence area (SAP9). Mr Parsons also states that:
In respect of the natural surface of the Proposed Protected Areas to a depth of 30m, I undertake to establish internal policies and procedures that instruct representatives of the Grantee Party to notify the NTP of its proposed exploration activities (including non-ground disturbing activities) and to consult with the NTP about how heritage values can be protected or managed alongside exploration activities before they occur (at 33).
The State note Giard has accepted the sandhill as a ‘proposed protected area’ as outlined in the explorer’s contentions and Mr Parsons’ affidavit, and that the explorer undertakes to liaise with Tjiwarl to avoid disturbance with the area. This includes Mr Parsons indicating he will organise relevant policies and procedures with the exploration company to ensure any areas of sensitivity are not interfered with. This suggests to me that the sandhill is a site or area where negotiations are appropriate about how such liaisons, policies and procedures will actually be given effect.
Tjiwarl outline they agree with meaningful consultation taking place, but note there is no mechanism under the expedited procedure to ensure participation and negotiation of an agreement which would mitigate against interference (Reply at 8.13, 8.17 and 8.18).
Conclusion
I am satisfied the evidence before me establishes that the area of the sandhill created by the Mallee Hen jukurrpa is one of particular significance in accordance with Tjiwarl traditions. I am also satisfied it is likely to suffer from interference caused by Giard’s exploration activities so as to offend s 237(b). The evidence and material provided by the parties to this inquiry lead me to conclude that the sandhill is a site or area where negotiations under s 31 of the Act are appropriate.
Determination
My determination is that the grant of exploration licence E36/926 to Giard Pty Ltd is not an act that attracts the expedited procedure.
Helen Shurven
Member
30 August 2019
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