Tjiwarl (Aboriginal Corporation) RNTBC v Terra Aurum Minerals Pty Ltd
[2020] NNTTA 27
•5 March 2020
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC & Another v Terra Aurum Minerals Pty Ltd & Another [2020] NNTTA 27 (5 March 2020)
Application No: | WO2019/1089, WO2019/1090 |
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)
- and –
Kultju (Aboriginal Corporation) RNTBC (WCD2019/012)
(native title parties)
- and –
Terra Aurum Minerals Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 5 March 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – the act is an act attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 151, 237 |
Cases: | Delores Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Narrier v State of Western Australia [2016] FCA 1519 (Narrier v Western Australia) Sceghi on behalf of the Kultju Native Title Claim Group v State of Australia [2019] FCA 1756 (Sceghi v Western Australia) Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd and Another [2019] NNTTA 67 (Tjiwarl v Giard) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (Walalakoo v Boadicea Resources) |
| Representatives of the native title parties: | Michael Allbrook and Felicity Noonan, Central Desert Native Title Services Ltd |
| Representative of the grantee party: | Garry Plowright |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
This decision is about whether or not the grant exploration licence E53/2058 (the licence) to Terra Aurum Minerals Pty Ltd (Terra Aurum) 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 approximately 17,386 ha and it is located in the Wiluna Shire. Tjiwarl (Aboriginal Corporation) RNTBC (Tjiwarl) holds non-exclusive native title rights and interests over 34.5 per cent of the licence area, as determined in Narrier v Western Australia. Kultju (Aboriginal Corporation) RNTBC (Kultju) holds non-exclusive native title rights and interests over 62.98 per cent of the licence area, as determined in Sceghi v Western Australia.
Tjiwarl and Kultju lodged objection applications 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 applications were brought on the basis that interference contemplated in s 237(a), s 237(b) and s 237(c) is likely, however, Tjiwarl and Kultju pursue the assertion concerning s 237(b) only. As such, I find the grant of the licence is not likely to interfere directly with the native title holders’ community or social activities (s 237(a)) or involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned (s 237(c)).
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, Terra Aurum and the State must negotiate with the native title parties in relation to the grant. For the reasons outlined below, my determination is that the expedited procedure does apply to the grant of the licence.
Parties’ submissions
Kultju provided a statement of contentions, as well as an affidavit of Keith Sceghi affirmed 15 January 2020. Mr Sceghi describes himself as a Kultju native title holder, an elder for the Kultju native title holders and as having the cultural authority for the licence area (Affidavit at [1]). I accept his authority to speak for that area.
Tjiwarl provided a brief statement of contentions advising it had ‘the benefit of reading the submissions’ provided by Kultju (Contentions at [2]). Further, Tjiwarl explained the relationship with Kultju and that it ‘supports the submissions’ provided by Kultju. As such, Tjiwarl sought to rely on Kultju’s materials and did not provide substantive contentions or evidence itself.
The State provided contentions, tenure information including a series of maps, the results of searches of the Department of Planning, Lands and Heritage’s 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.
Terra Aurum provided a statement of contentions.
Kultju also provided a reply to the State’s and Terra Aurum’s materials. Tjiwarl advised it sought to rely on Kultju’s reply.
Having considered all of the materials 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 application, indicates the target minerals for the licence are gold, nickel and cobalt. Year 1 of proposed program of works includes a literature review, acquisition and interpretation of remote sensing and GIS data, rock chip and soil geochemical sampling and assaying, and drill target generation and target ranking. Further it says:
During the second year the Applicant intends to implement a drill campaign (RAB or RC) to test geophysical and or structural targets together with soil/rock-chip geochemical anomalies identified in Year 1.
Terra Aurum says that in the initial stages the work will be staged starting with aeromagnetic surveys, ground reconnaissance from the imagery and interpretation, sampling and mapping (Contentions at [3]). Further, Terra Aurum says (at [4]):
During this time of non-ground disturbing activity, Terra Aurum Minerals Pty Ltd propose to at all times keep both groups informed and updated with activities, and to undertake on-ground Heritage Surveys should the requirement for ground disturbing activities arise.
I accept that it is open to Terra Aurum to undertake the full suite of rights, but given the way the exploration program has been described I consider that unlikely (Tjiwarl v Giard at [20]). In this case it appears there will be some ground disturbing activities including rock chip and soil sampling in the initial phase, and the potential for ground disturbing activity in the longer term.
The AHIS search results inform me there is one registered Aboriginal site and three ‘Other Heritage Places’ in the licence area. The registered site is identified as Mindi Hill. The AHIS map attached to the search results locate the site straddling the eastern boundary of the licence. Of the three other heritage places, one appears to be located in the vicinity of Peters Well. It is named Warlwuru Gunna and is described as a mythological site with no gender restrictions.
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 area or sites of particular significance.
What areas or sites have been identified as being of particular significance to the native title holders?
The areas or sites which Kultju contends are of particular significance are:
a) manifestations of the Warlawuru Tjukurrpa (eagle dreaming) including an ‘eagle claw mark’ formed by the tjukurrpa; and
b) Mindi Hill.
Manifestations of the Warlawuru Tjukurrpa (eagle dreaming) including an ‘eagle claw mark’ formed by the tjukurrpa
Mr Sceghi says the Warlawuru Tjukurrpa passes through the licence; starting at Mindi Hill and Peters Well then it passes through a number of sites seemingly heading south or south east to a number of named places (Affidavit at [6]). As per the map annexed to Mr Sceghi’s affidavit, Peters Well is on the eastern boundary of the licence and Mindi Hill is east of the licence. The tjukurrpa is said to connect these places. Further, Kultju explains the tjukurrpa is part of ‘a complex dreaming track which manifests in a limited number of places in the desert’ (Contentions at [6.23(a)].
Mr Sceghi says (Affidavit at [7]):
There are two special sites associated with this story located nearby the Tenement. The first site is near Peters Well, we call this place Mindi Hill (broken shell). Mindi Hill is just east of the Tenement. The second site is Mundu, this is also east of the Tenement. These two sites are connected to the songline that passes through the Tenement.
He further explains the story of the tjukurrpa saying that the eagle’s nest is falling down and the eagle travelled through Barwidgee and then north through Wonganoo and Wongawol stations (Affidavit at [8]). Barwidgee can be seen to the north of the licence, and Wanganoo to its east.
He says:
[8] … There are special sites in the Tenement, including one where according to the tjukurrpa there is an eagle claw mark that has been made. You can see that mark in the country today, near Peters Well, it is in the Tenement. I know it very well because it’s an important place you see and is something that is made by the tjukurrpa.
[9] There is also a soak and some rockholes in the Tenement near the claw mark, which we use to this day to get some water when we are out visiting our country and checking up on that eagle claw mark in the Tenement. It’s important to be able to access that water and we make sure that those rockholes are clean and the water is kept fresh and cool.
Mr Sceghi explains that he, as an elder, has the responsibility to care for the sites connected to the Warlawuru Tjukurrpa. He says: ‘[i]t is important these sites are preserved for the younger generations too’ (Affidavit at [13]). Mr Sceghi says other people in the desert know about the tjukurrpa and they are watching to make sure ‘we don’t give it away’ and they will ‘growl at us if we don’t protect it’ (Affidavit at [14]).
The consequences of not taking care of the sites is also explained by Mr Sceghi (at [15]):
If I don’t care for these sites properly, I could get sick. If other people go to places where they should not go, or go without getting the right permissions, there could be trouble for them and for me. Those people who disturb the tjukurrpa might get unwell as a result because the tjukurrpa will make them sick, like through black magic. I’ve seen that before, that is strong.
Responding to the above evidence, the State notes that, other than Peters Well, the places mentioned as being part of tjukurrpa are located ‘to the east or south east’ of the licence. Further, the State contends the description of the path of the tjukurrpa is ‘too general’ (Contentions at [12]). Finally, the State contends that Kultju has not ‘explained how the Eagle Dreaming as a whole, as distinct from the claw mark and soaks associated with it, can be said to be of particular significance’ (Contentions at [14]).
The Tribunal has established certain principles regarding the nature of evidence relating to s 237(b), including broad or imprecise references to sites or areas cannot be relied on (see Walalakoo v Boadicea Resources at [36] and [39]); and a general statement that a place is important is not sufficient to conclude that it is 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 (see Walalakoo v Boadicea Resources at [39]).
I accept the Warlawuru Tjukurrpa (Eagle Dreaming) and physical sites associated with it is of cultural significance to the Kultju. Kultju do not contend that the dreaming itself is an area or site of particular significance, but assert certain manifestations including a soak, rockhole and claw mark are an area or site/s of particular significance.
The evidence refers to a soak and rockhole in the licence and that they are manifestations of the dreaming, that they were made by the tjukurrpa, but there is insufficient evidence to explain that assertion in order to conclude that they are of special or more than ordinary significance. There is also insufficient evidence to locate these area or sites.
In relation to the claw mark, Kultju’s materials suggest that this is a site which stands out in a way that its special or particular significance is apparent. However, the evidence in my view is too general to allow me to draw a conclusion of particular significance for the purposes of s 237(b). Apart from a statement that the claw mark was made by the tjukurrpa, and no doubt it has certain unique characteristics, there is no real explanation of its special or more than ordinary significance in accordance with Kultju’s traditions. Apart from its physical appearance the nature of its significance has not been explained.
In my view Kultja has not provided sufficient evidence regarding the degree of the significance of the site, and why it is of particular significance – and as such, is not in my view a site of particular significance for the purposes of s 237(b).
Mindi Hill
Mr Sceghi says there is a men’s site near Mindi Hill. He is unable to ‘talk too much about the site because I am not a wati [initiated man] and I don’t want to get into trouble for talking about things only initiated men are meant to know’ (Affidavit at [10]) . He says that if a woman went to that site at Mindi Hill ‘there would be trouble, the wati would punish the people responsible for the country would make you unwell’ (at [11]).
Mindi Hill is variously described as being ‘nearby’, ‘just east’ and ‘adjoining’ the licence (Affidavit at [7]; Contentions at [6.24]).
In response to the above information, the State notes that other than the location of Mindi Hill and the fact that it is a men’s site, ‘[n]o further information about the site is given’ (Contentions at [17]). Given this, the State asserts the materials do not establish that Mindi Hill is a site of particular significance (Contentions at [18]).
I have some difficulty reconciling the evidence with the AHIS map which locates registered site ‘Mindi Hill’ as straddling the eastern boundary of the licence. The site does not appear to include Peters Well. The AHIS description of the site is ‘Artefacts/Scatter, Ceremonial, Man-Made Structure, Mythological, Water Source’.
In the absence of evidence I simply do not know if the area marked on the AHIS map represents or includes some or all of the areas or sites referred to in evidence such as a soak, rockhole, the claw mark and/or the men’s site. Despite Mindi Hill (as located on the AHIS map) being a registered site, I agree with the State’s view and find I have no basis upon which to make a conclusion it is of particular significance to Kultju within the meaning of s 237(b).
While I have made that finding, I note the site being registered has put Terra Aurum on notice that activities conducted in that area, particularly ground disturbing activities, could affect the site and that protection and avoidance measures ought to be adopted.
Accordingly I am unable to conclude that Mindi Hill (as described in the evidence) is an area or site of particular significance for the purposes of s 237(b) in this inquiry.
Conclusion
As I have found neither of the identified sites are of particular significance in accordance with s 237(b), I will not proceed to examine the materials regarding interference.
Determination
I determine that the grant of exploration licence E53/2058 to Terra Aurum Minerals Pty Ltd is an act attracting the expedited procedure.
Mr JR McNamara
Member
5 March 2020
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