Tjiwarl (Aboriginal Corporation) RNTBC v Mark Selga
[2020] NNTTA 25
•3 March 2020
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC v Mark Selga and Another [2020] NNTTA 25 (3 March 2020)
Application No: | WO2019/1065 |
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 -
Mark Selga
(grantee party)
- and -
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: | 3 March 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether the act is likely to interfere with the native title holders’ community or social activities - whether act is likely to interfere with areas or sites of particular significance – non disclosure directions - the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 151, 155, 237 |
Cases: | Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Narrier v State of Western Australia [2016] FCA 1519 (Narrier v Western Australia) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal 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) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) |
| Representatives of the native title party: | Patrick Smith and Michael Allbrook, Central Desert Native Title Services |
| Representative of the grantee party: | Mark Selga |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This decision is about whether or not the grant of exploration licence E53/2080 (the licence) to Mark Selga 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 305.33 ha and it is located in the Wiluna Shire. 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) over the entirety of the licence area.
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 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 assertions concerning s 237(a) and s 237(b). Based on the material before me, I find that the grant of the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned as outlined in s 237(c) of the Act.
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. If I find it does not apply, Mr Selga 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 not apply to the grant of the licence.
Parties’ submissions
Tjiwarl provided a statement of contentions, together with the affidavit of Mr Allan Ashwin dated 4 December 2019. Tjiwarl requested non-disclosure directions be made in relation to the statement of Mr Ashwin on the basis that it was gender-restricted (to be viewed by men only). Having sought their views, neither the State nor Mr Selga opposed the making of such directions. Given these circumstances, I made non-disclosure directions, pursuant to s 155, in relation to the statement of Mr Ashwin sworn 4 December 2019.
Mr Ashwin describes himself as a Tjiwarl Native Title Holder, a director of Tjiwarl (Aboriginal Corporation) RNTBC and an initiated man. I accept Mr Ashwin’s authority to speak for the licence 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.
Mark Selga provided a statement of contentions.
Tjiwarl also provided a reply to the State’s and Mr Selga’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 with that approach.
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, 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 applications informs me that Mr Selga considers the licence areas to be prospective for hard rock gold deposits. The ‘Exploration Goals’ and ‘Objectives’ are described as follows:
EXPLORATION GOALS
It is intended to explore for and define small to medium sized hard rock gold deposits associated with Archaean aged greenstone rocks within the East Murchison mineral field, Wiluna district.
Specifically it is intended to explore immediately South East of the Wilsons gold deposits. This area has approximately 5 metres of laterite cover and has never been effectively explored for gold deposits. There has been no previous drilling on the application area.
The applicant now intends to conduct auger interface sampling over whole the area, using a power auger and small hard rock auger to penetrate the laterite.
The whole of area will be adequately tested for any small to medium size gold resources.
OBJECTIVES
Hard rock gold exploration will commence with an office based program of data compilation. Immediately after that field programs will consist of mapping and sampling and surface auger geochemical surveys as already described.
The next phase in year 2 and beyond would be AC Drilling of any valid drill targets generated by the geochemical surveys. Any ground disturbing activities will be undertaken with an appropriate approved POW.
The statement goes on to outline a budget for the initial phase which includes compiling and assessing all past mineral exploration data, and surface geochemical sampling, mapping and associated field costs.
Mr Selga says the intended work programme is to initially carry out basic soil sampling with a hand held auger, using existing tracks to enter the licence and then walk with hand-held tools to take soil samples (Contentions at [6]). Depending on the results, there may be further activities including drilling. Mr Selga also says he intends to conduct very short prospecting trips of a few weeks a year (at [7]).
Section 237(a): is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
The focus of s 237(a)is whether or not the proposed grant is likely to result in direct interference with the native title holders’ community or social activity in question (see Silver v Northern Territory at [50]-[62]). In making that decision, I need to consider the nature of the activities, any traditional laws or customs which inform or influence the activities, and whether or not they would be likely to be conducted in a substantially different manner, or not at all, in relation to exploration activities which are proposed to be conducted if the licence was granted.
What community or social activities do Tjiwarl undertake on the licences?
Tjiwarl says the grant of the licence will cause interference with the following community and/or social activities (Contentions at [1.2]):
a)hunting animals, particularly kangaroo and emu;
b)collecting emu eggs; and
c)c) conducting ceremonies and law business.
In evidence Mr Ashwin says he visits the country where the licence is located frequently, he says it is spinifex country and it is a good place to hunt kangaroo and emu. He says that not only were these activities described to the Federal Court of Australia (Court) during the hearing of Narrier v Western Australia, they were displayed and explained to the Court, on country, in the presence of the trial judge, Justice Mortimer (Narrier v Western Australia at [836]). A photograph is attached to his affidavit with a natural landmark referred to in his affidavit seen in the background. I note that the particular landmark is outside and to the south of the licence area.
On that same occasion Mr Ashwin says he described to the Court the collection of emu eggs on spinifex country, usually conducted seasonally and he says why this area is particularly suitable to food preparation (Narrier v Western Australia at [1253] – [1259]). He says this activity is not limited to his family: ‘Lots of other Tjiwarl mob travel through there and do the same thing there … We do that all year round …’ (Affidavit at [12]).
Mr Ashwin also describes the intergeneration teaching of songs and stories that occurs at law time, at ceremony time, to keep culture strong (Narrier v Western Australia at [836]).
Conclusion
I accept that Tjiwarl conduct activities on the licence which are of a community or social kind. The hunting of animals and the collection of emu eggs seems to be productive activities in spinifex country, but do not appear necessarily limited to the licence area. Accordingly, there is the possibility of conducting those activities elsewhere in spinifex country should the activities of Tjiwarl and Mr Selga coincide. Accordingly I do not conclude that these activities will be substantially and directly interfered with by the grant of the licence.
I accept that at law time or ceremonial time intergenerational teaching is an important aspect of traditional law and custom, however it is not apparent from the evidence that this teaching occurs or must occur on the licence area.
I am not satisfied that the grant of the licence would interfere directly with the carrying on of the community and social activities described.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
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). 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.
What areas or sites have been identified as being of particular significance to Tjiwarl?
Much of Mr Ashwin’s evidence concerns a particular male-restricted Tjukurrpa (Dreaming), its story, its direction of travel, its manifestation in and around the licence, its relationship with other Tjukurrpa, and its song. Tjiwarl, in contentions, identify this as the ‘wati kutjarra tjukurrpa (two men dreaming)’ and the relevant manifestation of this tjukurrpa as Mt Townsend (Contentions at [1.3]).
Mr Ashwin explains Tjiwarl People’s responsibility to look after the Tjukurrpa and protect manifestations of it so the story can continue to be sung. He describes the consequences of interference to the Tjiwarl People and to those causing the interference, and the consequences of interference to other parts of the country.
This particular Tjukurrpa is one of the key foundational myths for Western Desert people and its rituals associated with male initiation. The obligations of the Tjiwarl People generally, and Mr Ashwin, as a wati, include protecting of country and ensuring culture remains strong. In that regard it is contended that even non-ground disturbing activities such as culturally unauthorised access to places can have major ramifications for the community and those interfering with such places.
In Narrier v Western Australia, Mortimer J noted the Tjukurrpa as one of the restricted men’s Tjukurrpa as follows:
[569] The Wati Katjurra Tjukurrpa featured significantly in the men’s restricted session. As I have noted elsewhere, most of the claimant witnesses present demonstrated varying degrees of discomfort in speaking about this with a female present. For some, the discomfort was acute and little or nothing was said. For others, there was what appeared to be a conscious but difficult effort to convey enough to satisfy the lawyers, so to speak. The on country evidence about the Wati Katjurra was taken in the south-western part of the claim area, with Mount Townsend and Mount Marion in the background, both of which feature in this Tjukurrpa. There were also a number of locations identified in the restricted evidence in the north-western part of the claim area relating to this Tjukurrpa, which travels out of the claim area to the north, into areas around Wiluna. The evidence was clear it was a Tjukurrpa shared with people from that country. I do not think it is revealing anything restricted to indicate that several of the men described links between this Tjukurrpa and the Seven Sisters Tjukurrpa.
Her honour concluded:
[593] It is clear from the claimant evidence, supported by the opinions of Dr Sackett and Dr Brunton, that knowledge of the Tjukurrpa (its relationship to particular parts of the claim area and how the Tjukurrpa fits into the overall landscape, both inside and moving out of the claim area) provides a principal mechanism of connection to country for the claim group members. Possession of that knowledge, its use and divulgence forms part of the normative rules that unite the claim group members.
One of the places mentioned by Mortimer J, which features in the Tjukurrpa, is located within the licence area, the other is to the south of the licence. As a manifestation of the Tjukurrpa, I conclude that Mt Townsend within the licence is an area or site of particular significance to Tjiwarl native title holders in accordance with s 237(b).
Is the grant of the licence likely to interfere with the sites of particular significance?
Tjiwarl says, referencing Mr Ashwin’s affidavit, ground disturbing activities including ‘low level’ activities undertaken on the licence such as drilling holes and chipping rocks which ‘would be like taking a part of the tjukurrpa’ would constitute interference (Contentions at [9.6]). They say they have obligation to other members of the Western Desert Bloc to protect and maintain the parts of the Tjukurrpa story that manifest within the licence. Mr Ashwin explains the importance of protecting the site relevant to ritual, and that interference will prevent the ritual which has consequences for people in other parts of the country for which Tjiwarl will be punished (Affidavit at [27]). The consequences Mr Ashwin describes include emotional distress, sickness and physical injury.
Mr Selga and the State argue that interference is unlikely due to a range of factors including:
a) the nature of Mr Selga’s proposed exploration activities;
b) Mr Selga’s expressed willingness to take Mr Ashwin to the licence area; to discuss his work programs; to address any issues he may have; and to assure Mr Ashwin that he will avoid areas Mr Ashwin does not want him to access;
c) the land has ‘previously been exposed to significant disturbance’ (Mr Selga Contentions at [8]); and
d) the protection afforded by the Aboriginal Heritage Act 1972 (WA) (AHA), the draft tenement endorsements and conditions, and the regional standard heritage agreement (RSHA) condition.
I accept that Mr Selga might not undertake the full suite of rights permitted under the licence but it does appear that ground disturbing activities including soil sampling, auger drilling might occur in the initial phase. As noted earlier the s 58 Statement says:
‘The applicant now intends to conduct auger interface sampling over whole the area, using a power auger and small hard rock auger to penetrate the laterite. The whole of area will be adequately tested for any small to medium size gold resources.’
In relation to Mr Selga’s willingness to engage Mr Ashwin, as noted in a number of recent determinations, good intentions may change when circumstances change (see Tjiwarl v Gianni at [106]). I would further note that while Mr Ashwin has provided evidence in this inquiry, it is Tjiwarl with whom Mark Selga should be engaging. I note Mr Selga’s statement: ‘I can see no reason why my prospecting would interfere with any Aboriginal Heritage or Cultural traditions and I have no issue with traditional owners using the land as they have in the past’ (Contentions at [5]). In my view negotiation in good faith might assist in an appreciation of those reasons.
As for previous disturbance, there is possibly conflicting information in Mr Selga’s s 58 Statement and contentions. As noted earlier the s 58 Statement says: ‘There has been no previous drilling on the application area’ while in contentions is says ‘[t]he land has previously been exposed to significant disturbance’ (Contentions at [8]). It may be that the disturbance referred to in contentions is of another kind. However, in the absence of evidence I am unable to conclude that previous disturbance resulted in the kind of loss or impact referred to in Mr Ashwin’s affidavit such that repeated interference would be of no consequence.
The draft tenement endorsements and conditions alerting Mr Selga to the operation of the AHA is somewhat supported by his statement noting awareness of his responsibilities under the AHA (Contentions at [5]). He says ‘this is demonstrated by offering Tjiwarl People the Regional Standard Heritage Agreement’ (RSHA). While that seems to conflate two issues, there is no explanation about how the AHA would reduce risk of interference to the areas or sites determined to be of particular significance (see Marputu v Gianni). As for the RSHA, the offer of an RSHA is I understand a precondition to the making of a licence application – it does not require an applicant to engage with the relevant native title party. In relation to the ‘RSHA condition’ as noted in a number of recent matters, reliance on the possible entry into an RSHA that has not been negotiated by the parties and asserting this should have bearing on whether interference under s 237(b) is likely ‘seems … to require a number of long bows to be drawn’ (Nyamal v Gianni at [66]).
In my view these factors, individually or collectively, are not sufficient to render interference unlikely. As such I find the grant of the licence is likely to cause interference within the meaning of s 237(b).
Determination
I determine that the grant of exploration licence E53/2080 to Mark Selga is not an act attracting the expedited procedure.
Mr JR McNamara
Member
3 March 2020
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