Tjiwarl (Aboriginal Corporation) RNTBC v Green Empire Resources Pty Ltd - [2020] NNTTA 1

NATIONAL NATIVE TITLE TRIBUNAL

Tjiwarl (Aboriginal Corporation) RNTBC v Green Empire Resources Pty Ltd and Another [2020] NNTTA 1 (9 January 2020)

Application No:

WO2018/0836

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Tjiwarl (Aboriginal Corporation) RNTBC (WCD2017/001)

(native title party)

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Green Empire Resources Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	9 January 2020

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 community or social activities – whether act likely to interfere with sites or area 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 Act1972 (WA) s 17 Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 151, 237
Cases:	Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited & Another [2019] NNTTA 72 (Bunuba Dawangarri v Buxton Resources) 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) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal v Gianni) Marputu Aboriginal Corporation RNTBC (INC 8085) 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) Shirley Drill & Ors on behalf of the Purnululu Native Title Claim Group and Maggie John & Ors on behalf of the Malarngowem Native Title Claim Group v Buxton Resources Pty Ltd & Another [2019] NNTTA 76 (Drill v Buxton Resources) Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd and Another [2019] NNTTA 67 (Tjiwarl v Giard Pty) Tjiwarl (Aboriginal Corporation) RNTBC & Green Empire Resources Pty Ltd and Another [2019] NNTTA 80 (Tjiwarl v Green Empire Resources) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (Walalakoo v Boadicea Resources) WF (Deceased) and Others on behalf of Wiluna v Tropical Resources Pty Ltd and Another [2014] NNTTA 104 (WF v Tropical Resources) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representative of the native title party:	Mr Michael Allbrook, Central Desert Native Title Services

Representative of the grantee party:

Ms Sally Audeyev, King & Wood Mallesons

Representative of the Government party:

Mr Jeff O’Halloran, State Solicitor’s Office

REASONS FOR DETERMINATION

This decision is about whether or not the grant of exploration licence E36/939 (the licence) to Green Empire Resources Pty Ltd (Green Empire) 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 licence is over an area of 43 blocks (13081.85 ha according to the quick appraisal) and is located within the East Murchison Mineral Field approximately 40 km north of Leinster 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).
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 pursue 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, Green Empire and the State must negotiate 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 licence.

Parties’ submissions

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.
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.
A map provided by the State locates E36/939 in relation to four pending applications. I note that the applicant for each of those pending applications is Green Resources and that each application is wholly over Tjiwarl determined native title land. I further note that each of those applications was the subject of an expedited procedure inquiry which resulted in the determination of the Tribunal in each case that the expedited procedure did not apply. The determinations of the Tribunal were in respect of application numbers WO2018/0512 (tenement E36/906), WO2018/0513 (tenement E36/907), WO2018/0514 (tenement E36/908), and WO2018/0515 (E36/505). The determinations were delivered on 3 October 2019 and are reported: Tjiwarl v Green Empire Resources.
Green Empire 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 Green Empire 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 24 April 2018, the s 29 notification date was 22 June 2018, and the objection was accepted on 2 November 2018. Nevertheless I accept that Mr Harman is authorised by Green Empire to make the affidavit on their behalf.
Tjiwarl also provided a reply to the State’s and Green Empire’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: ‘This application is one of four that forms Green Empire Resources Pty Ltd new Project’; the ‘company’s goal is to explore, discover and develop brines, gold and base metal deposits’; and the area covered by the application is 43 blocks. The statement says that ‘the concept is to target paleochannels that may host K rich brines’ noting that currently Australia imports all its potash for fertilizer. In addition to brine the statement says significant gold deposits have been identified in the area raising the opportunity to explore for these commodities. A three year exploration program is outlined with budget allocated to ‘Heritage Surveys’ in years 1 and 2, and air core drilling in years one, two and three.
Mr Harman, in his evidence, says based on information he received from Green Empire’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 could include activities such as exploration drilling in areas indicative of mineralisation … ‘in the areas the subject of the Application and target paleochannels’. He says that limited exploration drilling may be undertaken by air core or reverse circulation 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 use the existing track next to Volpress Well, 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’.
I note the determination of Member Shurven in another matter (Tjiwarl v Giard Pty) where 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.
Like Giard, Green Empire is an exploration company wholly owned by Bellevue and the evidence concerning the nature and extent of proposed exploration activities is identical. Accordingly, I have reached the same conclusion with respect to Green Empire.

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?

The AHIS search results inform me that there are no registered Aboriginal sites or other heritage places recorded in the licence area.
In contentions (and clarified in their reply) Tjiwarl represent the evidence of Mr Narrier as describing sites of particular significance as:
·Volpress Well (including the rockhole which is a women’s site and within the licence area);
·the claypan and the Wati Nyri Tjukurrpa (the claypan located outside the licence area but linked to Volpress Well by the Wati Nyri Tjukurrpa); and
·manifestations of the Tjial Kutjarra Tjukurrpa (Two Snakes Dreaming) (within the licence area).

Volpress Well

Mr Narrier gives evidence about Volpress Well in terms of an area or place which encompasses the ‘important’ mulga trees, a camping area, a place where Tjiwarl made boomerangs, a rockhole, a women’s site, a place created by the tjukurrpa, a place where the tjukurrpa is strong, and a place linked to other places by Dreamings,. He described his relationship with Volpress Well in the context of his status as a Tjiwarl native title holder, a senior wati, a man who has been through the law, and an initiated man with cultural authority for this area.
The evidence indicates that the well itself was established by pastoralists: ‘Maybe they saw that there was that rockhole there, saw there was fresh water and the pastoral man put the well near there too’ (Narrier affidavit [14]).
I consider that the reference to Volpress Well is a reference to the location of the rockhole and the vicinity of the rockhole including the well, the mulga trees and camping area. Mr Narrier at [12] describes his visitations at Volpress Well ‘with the old people’, how he was shown how to make boomerangs from the Mulga trees and at [13] that while working on the pastoral stations the old people would maintain ‘those places’, ‘protect that tjukurrpa there too’ and says ‘I got to do it too’.
Mr Narrier explains Tjiwarl responsibilities and obligations regarding sites of particular significance and the consequences of interference with or damage to those sites.
The location of Volpress Well is not disputed. Green Empire in contentions [31] say they accept that Volpress Well is able to be located as it is identified as a topographical feature in the Tengraph Plan.
Green Empire however says, and the State agrees, that Tjiwarl have not explained the nature of the ‘special or more than ordinary’ significance of Volpress Well.

The Claypan and the Wati Nyri Tjukurrpa

Mr Narrier says in his affidavit at [16]:
To the east of this Tenement is an old claypan there at Yakabindie. That’s the old wati [Wati Nyri Tjukurrpa] who is sitting three watching the Seven Sisters as they sit at Volpress Well. You can’t see him at Volpress Well, at the Seven Sisters rockhole, but he’s an important part of the story and we know he’s watching that place too.
Green Empire asserts (Contentions [42]) that the evidence establishes that the claypan is outside the boundary of the licence application, and at [44] say that Tjiwarl have failed to provide evidence about how the claypan would be affected by activities permitted by the licence. Green Empire notes the evidence concerning the association between the ‘Seven Sisters rockhole’ and the Wati Nyri Tjukurrpa who watches over the rockhole but say that ‘that evidence is general and not sufficient to establish sites or areas of particular significance’ (Contentions [46]) – and accordingly a finding of particular significance on relation to the Wati Nyri Tjukurrpa is not available on the evidence’ (Contentions [48]).

Tjial Kutjarra Tjukurrpa (Two Snakes Dreaming)

In his affidavit at [17] Mr Narrier says:
The tjila kutjarra tjukurrpa [Two Snakes Dreaming] has been through this way too. It comes from Lake Miranda in the east and comes up at Curley’s Bore before heading to Volpress, at the rockhole there. Then it heads back to Yakabindie Claypan and Jones Creek before that song continues on.
In contentions Tjiwarl refers to this as ‘manifestations of the Tjial Kutjarra Tjukurrpa [Two Snakes Dreaming] which is a story of significance to the Tjiwarl native title holders and is part of a complex Dreaming track which manifests in a limited number of places in the desert’ (Contentions 5.22(d)).
Green Empire says (Contentions [51]) that although a brief description of the Two Snakes Dreaming is provided, its particular importance and location in respect of the licence is not explained, and at [53] the mere fact that the path of the tjukurrpa may generally cross the licence ‘does not make the broad area covered by the (licence) as are or site of particular significance’.

Are the areas or sites identified of particular significance to Tjiwarl?

Volpress Well

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]).
In my view the evidence concerning rockhole at Volpress Well cannot be considered in isolation from the evidence below concerning the Wati Nyri Tjukurrpa, however other evidence concerning the area of Volpress Well including the mulga trees and camping area can be. The evidence concerning the Wati Nyri Tjukurrpa provides context to the assertions of the association with and significance of the rockhole to women.
Green Empire argues (Contentions [33]) that the circumstances are analogous to those considered in Drill v Buxton Resources where at [54] it was determined that the brief description provided in evidence did not explain the sites particular importance and consequently it was concluded that the site was not one of particular significance.
There are a number of features that give Volpress Well its significance under traditional law and custom. The site was clearly important as a source of fresh water; it is a place which supported the mulga trees which were used for making boomerangs, and intergenerational teaching in that regard; it was a place which is and was maintained by ‘the old people’(Narrier affidavit [12]-[13]); it is a place which constitutes an important part of the Wati Nyri Tjukurrpa story (discussed further below); it is a place created by the tjukurrpa where the tjukurrpa is strong; it is a place to which certain gender-based and other proscriptions apply under traditional law and custom (Narrier affidavit [18]-[22]).
While the evidence is economical it is sufficient in my view to conclude that the area of Volpress Well including the rockhole, mulga trees and camping area is a site of particular significance for the purposes of s237(b).

The Claypan and the Wati Nyri Tjukurrpa

It is not disputed that the Yakabindie Claypan is outside the licence area. The evidence of Mr Narrier at [41] concerning the connection between the claypan and the rockhole at Volpress Well is set out at [25] above.
Green Empire contends at [42]-[44], citing Yindjibarndi v FMG at [17(b), (d)], that s 237(b) generally requires the area or site to be able to be located within the proposed licence in order for it to be directly affected by the grant but recognises that it is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration. However, it says Tjiwarl has failed to provide evidence about how the claypan would be affected by the activities permitted under the licence.

In contentions in Reply at [6.11] Tjiwarl refers to the recent determination Tjiwarl v Green Empire Resources where Member Shurven found ‘that while the evidence in that case in support of the assertion that Yakabindie Claypan and Jones Creek were areas and/or sites of particular significance was brief, it was sufficient. This was because it explained how the creek (in that matter) was created by the Tjukurrpa, the relationship between the two sites and the relative location of the claypan’. Tjiwarl contends (Reply [6.12]) that the evidence demonstrates a connection between the site of particular significance at the Claypan and the site of particular significance at Volpress Well and established the link between the two as being attributable to the Tjukurrpa’.
The Yakabindie Claypan was a site visited by the Federal Court in the contested Tjiwarl native title determination, and as noted above featured in Tjiwarl v Green Empire Resources. Member Shurven at [26] found both the Claypan and Jones Creek to be sites of particular significance:
I accept both these places are sites of particular significance for the purposes of s237(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 …. .
In this matter neither Green Empire nor the State make any reference to that inquiry and the relevance, if any, of the findings made and the evidence considered. It is apparent that on the evidence before Member Shurven she concluded that the Claypan was a site of particular significance – and that the importance of the tjukurrpa was given significant weight.
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]).
I accept the evidence supports the connection of the Wati Nyri Tjukurrpa at the Claypan to the rockhole at Volpress Well. I accept that based on the evidence before her Member Shurven found the Yakabindie Claypan to be a site of particular significance. In my view, the evidence in this matter supports a conclusion that the rockhole at Volpress Well to be a site of particular significance for the purposes of s 237(b) both in its own right (as described above at [34]), and due to its connection with the Wati Nyri Tjukurrpa.

Tjial Kutjarra Tjukurrpa (Two Snakes Dreaming)

The description of the Tjila Kutjarra Tjukurrpa [Two Snakes Dreaming] at [27] above, and the explanation in contentions referred to at [28] above, in my view, lend further support to the significance of the rockhole at Volpress Well.
In reply at [6.13], Tjiwarl ‘concedes that it refers to the Two Snakes Dreaming more generally’ and goes on to say: ‘However, this points to the complexity of the site of particular significance which is not easily summarised in a manner that is not consistent with traditional law and custom’. They say that this does not take away from the fact that specific sites have also been identified, and not merely dreaming tracks in general terms, and: ‘If anything, the reference to the Two Snakes Dreaming supports the Native Title Party’s position that the expedited procedure does not apply as it points to a complex cultural landscape which is not immediately apparent to those who are not native title holders’.
As stated above I am of the view that the Tjila Kutjarra Tjukurrpa lends support to the particular significance of the rockhole at Volpress Well, however I am not satisfied the evidence of Mr Narrier established the particular significance of the Tjila Kutjarra Tjukurrpa [Two Snakes Dreaming].

Is the grant of the licence likely to interfere with the area of Volpress Well including the rockhole, mulga trees and camping area?

I outline Green Empire’s proposed exploration activities at [11]-[15] above.
In contentions at [78] Green Empire says that there is no real risk of interference ‘with the rockhole at Volpress Well’ or any other area or site within the licence on the basis of:
(a)Its awareness of ‘the importance of the rockhole at Volpress Well to the NTP’;
(b)The personal undertaking of Mr Harman (Harman [13]) ‘that the Grantee Party will avoid the rockhole at Volpress Well and will not carry out any works at the rockhole (including non-ground disturbing works) unless the NTP first provides its consent’;
(c)Its awareness of its obligations under the AHA and its intention to comply with the AHA;
(d)Its familiarity and intention to abide by the Aboriginal Heritage Due Diligence Guidelines;
(e)Its willingness to provide an opportunity for a Tjiwarl representative to accompany ‘Bellevue or its subsidiaries’ representatives on the companies’ first visit to undertake exploration in any area the subject of the license, to point out cultural restraints to be taken into account during exploration (Harman [28(a)]);
(f)Its intention to ‘follow heritage survey procedures prior to ground disturbing exploration activities occurring (where surveys have not already been undertaken)’ (Harman [28(b)]);
(g)Its intention to provide ‘an opportunity for the NTP to identify areas of heritage value’ (Harman [28(c)]); and
(h)Its intention to seek to consult about how those heritage values may be protected or managed alongside exploration activities.
Although not addressed in contentions, Mr Harman also says at [31] that Green Empire ‘is also willing to accept a condition, if imposed by the State on the grant of the Application, that it must not access or carry out any works (including non-ground disturbing works) at the rockhole at Volpress Well’. The State makes no reference to any intention to impose such a condition.
In reply [7.26]-[7.30] Tjiwarl says the undertaking not to carry out works at the rockhole without consent is unenforceable; they reject the policy to allow a Tjiwarl representative to accompany a first visit would mitigate risk of interference and oversimplifies Tjiwarl’s cultural obligations and the complexity of sites; and they say a commitment to consult is unenforceable.
I acknowledge the personal undertaking of Mr Harman but recognise that personal undertakings and internal policies and procedures are not contractually enforceable. I note and adopt the following analysis from Tjiwarl v Gianni:
[67] …statements of intention may, in changed commercial circumstances, become burdensome. Further, there is the risk that, subject to any discretion vested in the State, the proposed tenement may pass to another holder who is not even morally bound by the proposed grantee’s statements of intention.

Protections from the Regional Standard Heritage Agreement

In his affidavit Mr Harman says at [25] that: ‘after the Application was made, Mr Stephen Parsons, Director of the Grantee Party executed a Regional Standard Heritage Agreement in respect of the Application (RSHA)’. Mr Harman goes on to describe broadly the obligations the RSHA would impose and annexed a copy of that document which was executed on or about 2 May 2018 at ‘GJH5’.
As noted on the DMIRS website the ‘offer’ of an RSHA is in fact a licence application requirement
“The State Government has a policy whereby applicants for exploration licences and prospecting licences will have to sign and offer a Regional Standard Heritage Agreement (RSHA) or prove they have an existing Alternative Heritage Agreement in place. This must happen before the applications will be submitted to the NTA Expedited Procedure (Kimberley Region excluded).”
The statutory declaration of Tanya McColgan (annexure GJH6 to the Harman Affidavit) notes that the offer to enter into the RSHA ‘by executing the RSHA and sending it by registered post to the native title representative body Ms McColgan believes ‘satisfied the State Government Policy conditions (by correctly completing the relevant RSHA in accordance with the RSHA checklist prepared by the Native Title Representative Body) for the inclusion of the statement, in the s29 Native Title Act 1994 Notice …’.
The document which was sent to Tjiwarl suffers from a number of deficiencies, for example: it identifies the native title party as the former Tjiwarl and Tjiwarl #2 claim group, when both the determination and the Corporation had been registered 12 months earlier; the document refers to the Grantee Party as ‘the Miner’ when the subject matter concerns exploration which might confuse; the document refers to ‘the claim’ when native title has been determined; the document refers to the Department of Mines and Petroleum when that agency was superseded by the Department of Mines, Industry Regulation and Safety in 2017; at Clause 2.1 it says that the native title party ‘will withdraw’ once the Miner ‘has executed this agreement’ (which makes little sense where an executed document is being presented for consideration); there is confusion about ‘license applied for’ and ‘license area’; Clause 7.10 indicates CPI adjustment for traditional owner daily fees (only) on each anniversary of the Commencement Date and ‘each two years from 1 January 2004 …’ – which renders the calculation of fees unnecessarily complex and the document is purported to be signed on behalf of Giard Pty Ltd when ‘the Miner’ is Green Empire Pty Ltd.
It is of course a matter for the State whether it is satisfied the document in the form provided to Tjiwarl meets the expectations of the policy, however the form in which the offer was presented, in my view, is not appropriate for immediate execution by Tjiwarl.
The State in contentions says at [11] that (in addition to certain endorsements and conditions) it will also place what is generally referred to as the RSHA condition on grant of the licence in these terms:
“In respect of the area covered by the licence the licensee, if so requested in writing by the Tjiwarl Aboriginal Corporation RNTBC the registered native title body corporate in respect of the Tjiwarl and Tjiwarl #2 determination area (the “native title party”), such request being sent by pre-paid post to reach the licensee’s or agent’s address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the native title party any Regional Standard Heritage Agreement (“RSHA”) nominated by the native title party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading ‘Regional Standard Heritage Agreement’.”
Tjiwarl in contentions in reply at [7.43] submit that the RSHA ‘is an outdated an(d) overall inadequate document, which fails to afford the level of protection required to avoid interference of the kind contemplated by s237(b)’.
The Tjiwarl and Tjiwarl #2 determinations of native title were entered on the National Native Title Register on 27 April 2017. The Tjiwarl (Aboriginal Corporation) RNTBC was registered with the Office of the Registrar of Indigenous Corporations on 8 May 2017.
In relation to the ‘RSHA condition’, Green Empire says in contentions [87] that although Tjiwarl does not endorse its use, the Tribunal is entitled to take the availability of the RSHA to Tjiwarl ‘as minimum standard which will always be available’ to them and can be taken into account as one of the relevant factors in determining whether interference with sites of particular significance in likely.
In Nyamal v Gianni, Member Cooley said at [66] that ‘to rely on the possible entry into a standard agreement that has not been negotiated by the parties to decide that interference under s 237(b) is unlikely, seems to me to require a number of long bows to be drawn’. And, at [67] referred to Dowsett P in Marputu v Gianni at [66] as follows:
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”, “significant 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.
I am not satisfied that the proposed condition mitigates the risk of interference in this case.

Protection under the Aboriginal Heritage Act 1972 (WA) (AHA)

In contentions [62] Green Empire says that ‘Even if the rockhole at Volpress Well is found to be of “particular significance” … the AHA offers effective protection so that there is no real chance of interference with that site.
My finding above is not limited to the rockhole at Volpress Well, it extends to include the camping area and the Mulga trees to be an area or site of particular significance.
Green Empire says at [73] that the Tribunal ‘has generally found the site protection regime established under the AHA is adequate to ensure that interference is not likely to occur, notwithstanding the existence of a discretion on the part of the Registrar of Aboriginal Sites and the Minister to make decisions about land use’ citing WF v Tropical Resources.
In Marputu v Gianni, Dowsett P said at [44]:
It is possible that protection under the AH Act may not extend to areas or sites to which s 237(b) applies. It is also possible that s 237(b) may not apply to sites protected under the AH Act. Once this difference in focus is recognized, it becomes difficult to identify the extent to which the AH Act might protect sites of particular significance to traditional owners. In order to do so, it would be necessary that I identify a particular site, identify the various ways in which there might be an adverse impact of the kind contemplated by s 237(b), and then consider the extent to which the AH Act might reduce the likelihood that there will be such impact. No party has made any attempt to demonstrate how the AH Act might operate in the present case.
Further, at [62] he said:
As to the AH Act, its operation is no doubt relevant to the extent of any risk. When a traditional owner fails to identify, with sufficient precision, sites said to be of particular significance, the Tribunal might well infer that the Act may offer a sufficient degree of protection against any adverse impact such as that contemplated by s 237(b). Where, as here, the sites and concerns are particularized, one would expect that the State, or the proposed grantee would identify the way in which the AH Act is said to apply so as to reduce the risk of adverse impacts. There has been no real attempt to do so.
Green Empire (contentions [69]) says that: “section 17 of the AHA ‘does not merely protect Aboriginal sites from ‘destruction or damage’ … but also makes it an offence to ‘in any way alter any Aboriginal site’ or to deal with [an Aboriginal site] in a manner not sanctioned by relevant custom’”.
As I said in Bunuba Dawangarri v Buxton Resources at [72]:
[Further,] the use of the phrase ‘protection afforded by the AHA’ is apt to mislead. An offence provision (such as s 17), which applies once damage is done is not in my view a protection. Damage might not occur knowingly. It will often be the case that an explorer is unfamiliar with the native of Aboriginal sites and without some other mechanism to minimise the risk may unwittingly cause harm. When the risk is mitigated, for example following the conduct of a heritage survey, the s 18 process does provide for a further assessment of the site and results in a recommendation to the minister. Again, in my view this is not necessarily a ‘protection’ (in the context of protection against harm), but presents the possibility perhaps of avoidance.
Green Empire acknowledges that a regulatory regime may not be sufficient to prevent all contraventions (Contentions [74]). However, in regard to the rockhole at Volpress Well, Green Empire says that they have been placed on notice of the importance of the rockhole and make certain undertakings. As is clear from this determination the area I have determined to be of particular significance is not limited to the rockhole.
The statements of intention made by Green Empire include the personal undertaking of Mr Harman to ‘avoid the rockhole’ at Volpress Well and not carry out any works (including non-ground disturbing works) unless the NTP first provides its consent; and the intentions of Green Empire to exercise caution ‘in the vicinity of the rockhole at Volpress Well’, and, the making ‘reasonable’ enquiries before undertaking activities in the area. Mr Harman also stated that Green Empire would accept a condition imposed on the grant excluding access and works at the rockhole at Volpress Well.
I have no doubt that the statements of intention are made in good faith. As noted by Dowsett P in Tjiwarl v Gianni at [67]: ‘… statements of intention may, in changed commercial circumstances, become burdensome. Further, there is the risk that, subject to any discretion vested in the State, the proposed tenement may pass to another holder who is not even morally bound by the proposed grantee’s statements of intention’.
I am unable to conclude that the AHA is adequate in mitigating the risk of interference to the area around Volpress Well including the rockhole, the Mulga trees and the camping area. The difficulties with the proposed RSHA condition have been highlighted and in my view does not reduce the risk of interference.

Relevance of prior interference

Green Empire in contentions [88]-[101] refers to previous exploration grants and recorded expenditure over part of the licence area and say that the Tribunal may take into account direct evidence of prior interference in its consideration of likely interference. It says at contentions [97] that there is no evidence to suggest that this past activity has resulted in interference with an area of particular significance.
Mr Harman says (Affidavit [20]) he is aware from publicly available information held by the State that soil samples and drilling ‘in the Application area’ have previously been undertaken. Annexed to Mr Harman’s affidavit is a map ‘GJH3’ which ‘he caused to be prepared based on Western Australian Mineral Exploration Index (WAMEX) report data, which identifies where soil samples and drill holes have previously been located in and around the Application area, including a historical soil sample taken in the vicinity of Volpress Well’.
It appears to me based on the scale found on that map that the historical soil sample referred to was recorded approximately 1.75 km from the site marked ‘Volpress Well’.
I am unable to infer from the evidence provided that there has been previous physical interference with the area of Volpress Well (as determined to be an area or site of particular significance) such that the grant of the licence is unlikely to cause interference within the meaning of s 237(b).

Conclusion

I have determined that the area of Volpress Well (including the rockhole, the Mulga trees and the camping area) is an area or site of particular significance in accordance with s 237(b). The evidence concerning the Wati Nyri Tjukurrpa provided context to the association with and significance of the rockhole at Volpress Well to women. While I note the various intentions expressed regarding Volpress Well and engagement with Tjiwarl, the evidence and contentions of Green Empire adopt a quite narrow view of the area or site such that I am not satisfied the various measures described will be effective to mitigate the likelihood of interference.

Determination

I determine that the grant of exploration licence E36/939 to Green Empire Resources Pty Ltd is not an act attracting the expedited procedure.
Mr JR McNamara
Member
9 January 2020