Tjiwarl (Aboriginal Corporation) RNTBC v SA Exploration Pty Ltd
[2018] NNTTA 36
•20 June 2018
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC v SA Exploration Pty Ltd and Another [2018] NNTTA 36 (20 June 2018)
Application No: | WO2017/0707 |
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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SA Exploration Pty Ltd
(grantee party)
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State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 20 June 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – excision of portion of licence on grant - whether act likely to interfere directly with the carrying on of 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 an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 109, 151, 237 Mining Act 1978 (WA) s 66 |
Cases: | Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (‘Little v Lake Moore Gypsum’) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) Isaac Hale & Ors on behalf of Bunuba #2 v State of Western Australia [2015] FCA 560 (‘Hale v Western Australia’) Keith Narrier & Ors v State of Western Australia [2016] FCA 1519 (‘Narrier v Western Australia’) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representatives of the native title party: | Mr Gavin Dunn, Mr Michael Allbrook and Mr David Reger, Central Desert Native Title Services Limited |
| Representative of the grantee party: | Mr Eamon Cornelius, Western Tenement Services |
| Representatives of the Government party: | Mr Francis Cardell-Oliver, State Solicitor’s Office Mr Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E53/1926 (the licence) to SA Exploration Pty Ltd (SA Exploration). The State of Western Australia (the State) considers the grant of the licence is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The then President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The Tjiwarl (Aboriginal Corporation) RNTBC (Tjiwarl) hold native title rights and interests in the whole of the licence area, on behalf of members of the Tjiwarl and Tjiwarl #2 native title claims (the native title holders) as determined in Narrier v Western Australia. Tjiwarl exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies to the grant of this licence, and argue the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely. SA Exploration and the State argue the expedited procedure should apply.
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, SA Exploration and the State must negotiate in good faith with a view to reaching an agreement with Tjiwarl about the proposed grant of the licence. This has been a difficult inquiry to decide – some of the evidence was broad, and other evidence was contentious between parties. For the reasons outlined below, my determination is that the expedited procedure does apply.
The licence as notified covers approximately 6.11 square kilometres in the Shire of Wiluna. By letter dated 15 May 2017, SA Exploration requested the excision of one of the two graticular sections of the licence. Accordingly, that area will be excluded from the licence upon grant, and the licence would then be approximately 2.45 square kilometres in size (more on this at [14] below).
The Federal Court canvassed the effect of excision in expedited procedure matters in Hale v Western Australia. Relevantly, the Court determined:
Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body (at [113])
The area for excision contains the location of an area identified as Boo Boo Well. Much turns on the evidence related to the location and size of Boo Boo Well. There are various statements and counter statements made by parties as to the location and size of Boo Boo Well, and whether or not it is the same area as a place called Kayili Puu Puu. Evidence for Tijwarl was provided by Mr Muir and Ms Narrier, who are traditional owners for the area of E53/1296 and have authority to speak for that country. The crucial parts of Mr Muir’s evidence on this point are as follows:
·There is a place located in the licence called Boo Boo Well and which is noted on a map provided, ‘but it is a place known to me as Kayili Puu Puu which is a spring located north of MKO [Mt Keith Operations]’ (at (4))
·‘The spring there, that we call Kayili Puu Puu, is part of the Papa Tjukurrpa [Dingo Dreaming]’ (at 6)
·‘Kayili Puu Puu is an important site because it is made by the dreamtime and has special significance to the wati who have ritual authority to look after it and maintain its cultural integrity’ (at 8)
·‘If the spring at Kayili Puu Puu got knocked over it would make me feel sorry and sick for country. It would damage the integrity of the site in the Tenement and we don't want companies there because it makes us worried that they will damage the site’ (at 10)
·‘…If an exploration company wants to visit the Tenement and wants to go to certain parts of Kayili Puu Puu then they will need to know where to go, and undertake suitable heritage clearances with the wati to show them where it is okay for them to go’ (at 11)
Mr Muir also states he would go to Kayili Puu Puu about twice a month to get water and meat (at 14).
While some of the wording is a little ambiguous, taken as a whole, and in view of the contentions supporting the evidence, these statements lead me to conclude that Boo Boo Well is separate from Kayili Puu Puu. I conclude Kayili Puu Puu is a spring around which Tjiwarl obtain water and hunt for meat. I also conclude that the Kayili Puu Puu spring area is closely tied to a male only dreaming, which the Tijwarl men must care for. It is not clear from any of the evidence how close the spring is to the well. Ms Narrier’s evidence confirms there is an important place ‘at Boo Boo Well’, and that it is an important men’s tjukurrpa (at 4-5). This and other evidence suggests the spring and well are near to each other, although it is not clear how near.
In their reply, Tjiwarl confirm the location known as Boo Boo Well is not the spring that Mr Muir has identified. They contend there is a significant difference between a ‘well’ constructed for pastoral purposes, and the spring which is associated with the tjukurrpa and is the manifestation of the site in question. Tjiwarl assert Mr Muir describes the location of Kayili Puu Puu as being of great importance: ‘If an exploration company wants to visit the Tenement and wants to go to certain parts of Kayili Puu Puu, then they will need to know where to go, and undertake suitable heritage clearances with the wati to show them where it is ok for them to go.’ Tjiwarl submit the excision of Boo Boo Well refers only to the well, constructed for pastoral purposes, and will not reduce the risk of interference with community and social activities associated with Kayili Puu Puu. Given it is clear that Boo Boo Well is on the portion of the licence to be excised, and given the statements that Kayili Puu Puu is proximate to, or ‘at’ Boo Boo Well, it is open to me to conclude, in the absence of evidence to the contrary, that Kayili Puu Puu is also likely to be in the portion of the licence to be excised.
Even were it to be argued that Kayili Puu Puu was not within the portion of the licence to be excised, and that its proximity to Boo Boo Well placed it within the area of the licence to be granted (which is not established on the evidence), then my arguments and conclusions at [21]-[24] apply. I deal with the issue of interference within those paragraphs and further below.
Preliminary evidentiary matters
Having considered the material before me and following a listing hearing where issues related to the location of various areas on and near the licence were ventilated, I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151 of the Act, without the need for further oral hearing. All parties indicated they were content to proceed on the papers.
The native title party material
Tjiwarl submitted a statement of contentions, attaching the affidavits of Mr Kado Muir and Ms Jennifer Narrier. Tjiwarl also submitted: contentions in reply to submissions made by SA Exploration and the State; and the agreed statement of facts and issues on behalf of all parties, which included agreed procedural facts, agreed facts that arise from the evidence, material facts that are not agreed, overall issues and particular agreed issues.
In response to a map the State provided showing the location of all recorded watercourses on the licence, Tjiwarl submitted a map depicting similar information, as well as a satellite image of the area in question. This map was provided to assist the Tribunal and parties in their discussions at the listing hearing.
The grantee party material
SA Exploration provided a statement of contentions together with the request they lodged with the State requesting to excise one of the two graticular blocks applied for. The contentions advise that in addition to the excision, the block now capable of being granted is not a full block in area, as it is also subject to excisions of existing granted tenure, one of those tenements being a granted mining lease. I note from mapping and material provided by parties that M53/411 is the live tenement, granted in 1994 to a company (not the grantee in this matter). M54/411 overlaps the licence to be granted in this matter by 9.8 per cent (to the north west of the licence).
The State’s material
The State’s Register of Aboriginal Sites shows no registered sites or other heritage places in the whole of the licence area, including the area to be excised. It is well established that a site or area may be of particular significance without being recorded on the Register (see Little v Lake Moore Gypsum at [67]). The licence area is wholly covered by Pastoral Lease N049530 (Albion Downs), and has been the subject of a number of previously granted tenements. The initial term of grant for the licence subject to this inquiry, E53/1296, is five years, which is renewable.
Agreed Facts
I must base my decision on the s 237 criteria. The parties agreed on a number of facts and procedural issues which include:
·Kado Muir and Jennifer Narrier are persons who hold native title in the area of the proposed exploration licence.
·Kado Muir and other Tjiwarl native title holders exercise their native title rights in the vicinity of the site known to Mr Muir as Kayili Puu Puu by accessing the area to hunt animals and take water.
·The area surrounding Kayili Puu Puu is a good hunting ground because it has a permanent source of water, which sets it apart from other parts of the Tjiwarl determination area.
It is agreed that the site known to Mr Muir as Kayili Puu Puu is of particular significance to him and other Tjiwal native title holders because it is a manifestation of a gender restricted dreaming story. While he has given some details of that story, I do not repeat them here due to their sensitive nature.
Parties also agreed there were a number of contentious issues relating to the s 237 criteria, which are outlined in italics below, together with my conclusions on each:
· The location and extent of the site known to Mr Muir as Kayili Puu Puu and its relationship (if any) to the place called Boo Boo Well.
I have addressed this at [8]-[9] above and concluded that Kayili Puu Puu is a spring, separate to Boo Boo Well. I was not able to conclude the location, size or extent of Kayili Puu Puu on the available evidence, apart from to say it is near Boo Boo Well. Given the statements in the evidence, it appears the proximity is ‘near’ or ‘at’. From mapping, I can conclude that Boo Boo Well is on the part of the licence to be excised on grant. Boo Boo Well is approximately 800 metres to one kilometre east of the area to be granted.
· That SA Exploration has provided evidence it will undertake a limited exploration program in the area of the proposed exploration licence such that its activities can be predicted for the purposes of s 237(a) or (b) of the Act.
I could not say the activities of SA Exploration can be predicted or that it will undertake a limited exploration program, based on the available evidence. The company could exercise the full suite of rights open to them which are set out in s 66 of the Mining Act 1978 (WA). This includes removing up to 1000 tonnes of material from the licence area.
SA Exploration state the initial work proposed to be undertaken on the licence will consist of a review of the historical exploration in the licence area, to recover and re-process any geophysical surveys that may have been undertaken on the licence area, and perform an electro-magnetic survey on the surface to collect data. If the survey generates exploration targets, SA Exploration propose a drill-hole program and, if required, to undertake heritage surveys prior to commencement of drilling. If the drill hole program is successful, they state diamond drilling would be undertaken.
The State proposes to grant the licence subject to the excision, and subject to nine endorsements and six conditions. The State also proposes to include a condition requiring SA Exploration to execute a Regional Standard Heritage Agreement (RSHA), should one be requested by Tjiwarl, and should relevant timeframes be met for that request. I note SA Exploration have indicated a willingness to enter into a RSHA, however, the terms of that go more to disturbance of sites and areas of significance, rather than to interference of community or social activities of a native title party. The State note the area of the proposed grant has been subject to prior mineral exploration and licences, and portions of the licence are subject to current mining activity, as noted above for example in relation to M54/411. This is confirmed by the State’s tengraph materials.
· That the exploration activities of SA Exploration in the area of the proposed exploration licence will a) interfere with the ability of the Tjiwarl native title holders to hunt animals in the area or take waters from the spring known as Kayili Puu Puu; and b) interfere with the site of Kayili Puu Puu.
I deal with this issue of interference at paragraph [21]-[24] below.
· That previous mining tenure in the area of the proposed licence is relevant to the inquiry under s 237 at the Act.
I note the majority of previous mining and exploration activity is related to grants made prior to the Native Title Act coming into effect. I note the previous and current tenure on and near the licence in this inquiry, and comment on its relevance as appropriate throughout this decision.
· That Mr Muir and other Tjiwarl native title holders frequently visit the area of the proposed exploration licence to undertake community or social activities. Tjiwarl’s contentions state the licence area is proximate to the towns of Wiluna and Leonora where members of the native title party reside. They say the predecessors of the native title holders lived in the immediate proximity of the licence at Albion Downs Station. I note that Wiluna is approximately 65 kilometres north of the licence and Leonora is approximately 220 kilometres south of the licence.
Tjiwarl state they access and take resources in the licence area including water and bush tucker. They say the licence area contains a ‘spring’ which is relied upon by the community to attract animals they use as a food source, including kangaroo, goanna and emu, which they hunt for sustenance. Mr Muir states ‘there is permanent water there in the Tenement which is what make springs like that one a good hunting ground, different from other parts of my country’ (at 15).
In relation to the ‘spring’ Tjiwarl say (at 5.14) ‘the spring at Boo Boo Well (Kayili Puu Puu) is one of only a few in the Tjiwarl determination area’, and contend any interference will have a significant impact on the ability of Tjiwarl to undertake community and social activities. They state managing these water sources is important to make sure they are looking after the animals and keeping a habitat for them so they can be hunted for food. Mr Muir says mining activities and building tracks or camps near the spring will ‘disturb the animals and frighten them away’. He states Tjiwarl may also avoid hunting in the licence area if there was a camp of miners nearby as they usually hunt with guns and do not want to hurt anyone.
In addressing s 237 of the Act, I must make a predictive assessment. I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]–[9]).
(a) Is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
Will the excision of the location known as Boo Boo Well from the licence reduce the risk of interference to the community and social activities of the Tjiwarl native title holders within the area of the licence?
I have concluded that the answer to this issue is yes.
The State contend Tjiwarl’s evidence of hunting activity and water use is limited to the area to be excised. They assert there is no real chance the exploration activities of SA Exploration in the proposed licence area, as it would stand on grant, would interfere with the hunting or water gathering activities of Tjiwarl.
The State accept there is a hunting ground in the vicinity of Boo Boo Well/Kayili Puu Puu and that good water and bush meat are available there. They also accept that Mr Muir and other native title holder’s hunt in the hunting ground when travelling near the area of the licence, and that the presence of a permanent spring which attracts animals makes it an important hunting ground for Tjiwarl. The State, in their contentions and in the agreed facts, outline that Mr Muir makes it clear that animals are found in the vicinity of Boo Boo Well/Kayili Puu Puu, and that is where the hunting takes place. They say if the hunting activity is concentrated around Boo Boo Well within the excluded area, even though hunting may on occasion cross into the remaining area of the proposed licence, any activity on the proposed licence is relatively insignificant in terms of frequency and the geographical extent of the overlap with the non-excised portion. The State contend the area to be granted does not cover the area of the spring, and there is no real risk of SA Exploration conducting its work programme in such a manner as to interfere with Tjiwarl’s use of the hunting ground at Boo Boo Well/Kayili Puu Puu.
I have concluded that Boo Boo Well is near the spring Kayili Puu Puu. I have also concluded that Boo Boo Well is within the area to be excised. I conclude that Tjiwarl community and social activities take place on or near Boo Boo Well and the spring. The live mining tenement M53/411, which overlaps the north-west portion of the licence to be granted, has been operating since 1994. It is a mining operation and so it is likely the activities will be greater than for an exploration licence. Even under those conditions, the evidence indicates that the spring still exists and hunting is still able to be done. The activities of that miner in M53/411 over many years does not appear to have scared off animals, or interfered with Tjiwarl social or community activities. This is adjacent to the same approximate location as SA Exploration will be conducting their exploration activities. On that basis then, given that the well and spring are focal points for activities connected with this dreaming, in the absence of any information in terms of distances or anything more specific regarding interference, I conclude it is unlikely the activities of SA Exploration would interfere with the social or community activities of Tjiwarl.
(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 (see Cheinmora v Striker Resources at [34–35]). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
The evidence must identify an area or site exists on the licence; explain its significance and distinguish it from other areas within the licence; and show it is of more than ordinary significance to the native title holders in accordance with their traditions. These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17], [125]). Taking into account parties agreed facts, I am satisfied that a spring known as Kayili Puu Puu is of particular significance to Tjiwal native title holders because it is a manifestation of a gender restricted dreaming story.
As noted earlier in this decision, I can conclude Kayili Puu Puu is a spring near Boo Boo Well. I do not conclude Boo Boo Well itself is a site of particular significance, as it appears the well was constructed for pastoral purposes, and is not so tied to the tjukurrpa dreaming story as is Kayili Puu Puu. Any significance of Boo Boo Well appears to come from its proximity to Kayili Puu Puu, which proximity is uncertain based on the available evidence.
Tjiwarl state they have a cultural responsibility for the tjukurrpa story that forms Kayili Puu Puu, and identify it as forming part of the tjukurr story for their country. They say the native title holders are responsible for looking after the area in accordance with their traditional law and customs. Mr Muir says (at 8) ‘Kayili Puu Puu is an important site because it is made by the dreamtime and has special significance to the wati who have ritual authority to look after it and maintain its cultural integrity’. Tjiwarl state the Papa Tjukurrpa is responsible for creating and transforming the landscape ‘in ways not immediately apparent to people without the requisite cultural knowledge’. They say the native title holders risk sickness or physical injury in the event the part of the tjukurrpa story and the area or sites of particular significance located within the licence is damaged. Ms Narrier refers to this in her affidavit, but only in relation to Boo Boo Well which is now located outside the area of the licence available for grant. Tjiwarl note they have obligations to other members of the Western Desert Cultural Bloc to protect and maintain parts of the Papa Tjukurrpa story that manifest within the licence area.
Tjiwarl state aspects of the Papa Tjukurrpa which manifest within the licence area are considered ngurlungka (secret, sacred) and are of particular importance to initiated men. They say these sites cannot be accessed by women or uninitiated men and inappropriate access would be in breach of traditional laws and constitute interference for the purposes of s 237(b). Mr Muir states men’s and women’s places located in the licence area are part of Tjiwarl’s laws and customs and is tied into law business. He says (at [11]) ‘If an exploration company…wants to go to certain parts of Kayili Puu Puu then they will need to know where to go, and undertake suitable heritage clearances with the wati to show them where it is okay for them to go.’ He states entering the ‘wrong’ places on the licence area without knowing it and causing damage has serious consequences.
The State contend the sites and areas in the licence that cannot be accessed by women or uninitiated men are not supported by the evidence. They state no evidence has been adduced which demonstrates the activities of SA Exploration will directly and physically affect sites of particular significance. The State contend since the only physical activity proposed by the grantee party is drilling, it is impossible to see how that activity could have any physical effect ‘on a spring located, at its closest, approximately 880m from the boundary of the proposed tenement.’ Regarding the tjukurrpa, the State submit the only specific sites associated with this are all located outside of the licence area to be granted.
The same conclusions I drew at [24] applies to the well and spring and surrounds. While I accept Kayili Puu Puu is an area or site of particular significance, and even allowing for Boo Boo Well to derive significance from its proximity to Kayili Puu Puu, I do not believe it is likely that the exploration activities on the area to be granted, where SA Exploration will be conducting their activities, are likely to interfere with Kayili Puu Puu, or with Boo Boo Well.
(c) Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Section 237(c) was one of the grounds raised in Tjiwarl’s initial objection, and Tjiwarl subsequently indicated they did not wish to pursue this ground. As such, their evidence and submissions do not specifically address the issue of major disturbance.
I do not consider there to be any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
My determination is that the grant of E53/1296 to SA Exploration Pty Ltd is an act that attracts the expedited procedure.
Helen Shurven
Member
20 June 2018
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