Tjiwarl (Aboriginal Corporation) RNTBC v Western Explorers Pty Ltd
[2020] NNTTA 3
•15 January 2020
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC v Western Explorers Pty Ltd and Another [2020] NNTTA 3 (15 January 2020)
Application No: | WO2019/0038 |
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 -
Western Explorers 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: | 15 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 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: | Mining Act 1978 (WA) ss 18, 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) Keith Narrier and others on behalf of Tjiwarl v Dubois Group Pty Ltd and Another [2015] NNTTA 27 (Tjiwarl v Dubois) 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) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (Walalakoo v Boadicea Resources) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Investmet Limited and Others and Another [2018] NNTTA 47 (Wanjina-Wunggurr v Investmet Limited) 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: | Mr Hong Saw, Western Explorers Pty Ltd |
| Representatives of the Government party: | Ms Jennifer Perera, State Solicitor’s Office Mr Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This decision is about whether or not the grant of exploration licence E36/918 (the licence) to Western Explorers Pty Ltd (Western Explorers) attracts the expedited procedure. The State of Western Australia (the State) gave notice under s29 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 (s237(a));
(b)interfere with areas or sites of particular significance in accordance with the native title holders' traditions (s237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s237(c)).
The licence is over an area of 3652 ha and is in the locality of Bijery Mumal Hill in the Leonora Shire 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 s237(a), s237(b) and s237(c) is likely, however, in this inquiry Tjiwarl dispute only the assertion concerning s237(b) is pursued. 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 Tjiwarl, 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, Western Explorers and the State must negotiate with Tjiwarl about the grant. For the reasons outlined below my determination is that the expedited procedure does apply to the grant of the licence.
Parties’ submissions
Tjiwarl provided contentions and the affidavit of Mr Kado Rentan Allison Muir affirmed 14 October 2019. Mr Muir says he is a Tjiwarl native title holder, a wati, an initiated man, and has cultural authority to speak for the licence area. I accept Mr Muir 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.
Western Explorers provided contentions and a map produced by the Department of Mines, Industry Regulation and Safety. The contentions inform me that Western Explorers is owned by sole director, Mr Leonard Shaw, an experienced prospector based in Coolgardie.
Tjiwarl also provided a reply to the State’s and Western Explorers’ material.
Having considered all of the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s151 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 s57 of the Mining Act. Under s61 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 the commodities being targeted are gold and base metals; and Western Explorers intend to ‘complete a program of prospecting, reconnaissance and mapping to canvas larger areas of the area applied for’. A table describes the ‘Year 1 Stage 1’ budget and planned work. The planned work includes reconnaissance trips, geochemical assaying and sampling, and land access. The statement says that ‘additional period and stages will be reviewed upon completion of Stage 1’ noting ‘that additional programmes for years 2 and onwards can be provided upon request’. Under the heading ‘Environmental Management’ it says that ‘in the event that access is required for drill rigs or larger vehicles, track construction will be minimised and cut only in accordance with (e)ffected land users’.
In contentions Western Explorers say that sole director Leonard Shaw will be self-funding exploration ‘and conducts virtually all on-ground expenditure under his own time and power’ – and, ‘as a result, (Western Explorers) will only complete low-impact prospecting activities under his own power’. Contentions also state that Western Explorers:
‘has no intention to exercise the full suite of rights in the event the licence was to be granted and would welcome a restriction on the exploration prospecting activities only’;
‘will only complete prospecting activities involving hand tools without completing heritage surveys, unless specifically authorized by the NTP’;
‘will not create roads, tracks or camps without the express written permission of the NTP’.
In reply contentions Tjiwarl at [7.6] say that the nature of the proposed activities is inherently uncertain particularly as the Western Explorers’ contentions were not supported by any affidavit evidence. Tjiwarl contends that the Tribunal should adopt the approach taken in Tjiwarl v Dubois and assume that the full suite of rights could be exercised over any part of the tenement, especially once the preliminary exploration activities are concluded.
I accept that it is open to Western Explorers to undertake the full suite of rights, but given the way the exploration program has been described I consider that unlikely. It is likely in my view that there will be some ground disturbing activities, but at the lower end of the spectrum, and certainly not a program which would see all s66 rights in all areas of the licence conducted.
The quick appraisal informs me that that 9.54% of the licence is subject to three live tenements held by BHP Yakabindie Nickel Pty Ltd - M36/285 (4.27%), M36/286 (5.14%), and L36/94 (0.13%). A map of ‘Live Mining Tenure’ locates the tenements in the north and central west areas of the licence. Annexure 1 to the State’s contentions identifies the area available for grant. Land that is subject to granted mining tenure, apart from a miscellaneous licence, cannot be included in an exploration licence (s18, sub ss 57(2c), (2d), (2e) and (2h) Mining Act). Accordingly, the areas of M36/285 and M36/286 will be excluded from the licence.
The quick appraisal also inform me that 9.54% (an area of 348.24ha) of the licence area is subject to an Indigenous Land Use Agreement - identified as the Tjiwarl and Nickel West Comprehensive Agreement with BHP Billiton Nickel West Pty Ltd.
The State contentions also inform me that 30.14% of the licence area is subject to a Class A Reserve for Conservation of Flora and Fauna (R 30897). The map provided by the State which highlights the Cadastre and Topographic features highlight R 30897 and locate the area which overlaps the licence in the north east of the licence. I am not informed that the existence of R 30897 results in any limitation on the grant of the licence. I note that the grant of R 30897 had the effect of extinguishing native title in that area as determined in Narrier v Western Australia.
It is the area specified in the s29 notice which determines the scope of the expedited procedure inquiry (Wanjina-Wunggurr v Investmet Limited). I will consider material relevant to the whole of the licence area in determining whether the expedited procedure applies.
The AHIS search results inform me that there are: six registered Aboriginal sites; seven other heritage places; and eighteen ‘Heritage Surveys’ containing twenty ‘Survey Areas’ in the licence area.
The AHIS maps attached to the search results locate the registered Aboriginal sites in the north-west and the south west; the other heritage places in the north; and the survey areas in the west of the licence area.
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?
In his affidavit Mr Muir describes the following areas or sites of particular significance:
a)Kunia and Tjinkuna Tjukurrpa [Snake and Dragonfly Dreaming] at Kutungari Creek and the area surrounding Bigery Mumal Hill [known as Nantanantakukurarra] – part of a complex dreaming track which manifests in a limited number of places in the desert;
b)Naluti Tjukurrpa [Stick Nest Rat Dreaming] at Dingo Pool [Walkara]; and
c)Women’s area in the vicinity of South Bore – ‘There are breakaways in that area, around South Bore that includes women’s sites’.
Mr Muir prefaces his telling of the stories and description of the areas or sites with an explanation which is useful to quote:
[4] Tjukurrpa is the term used to describe the body of beliefs and it includes the stories of creation, the evidence of that creation in the land, and the actions and activities of the dreamtime beings. Sometimes they are referred to as the ‘tjukurrpa people’. The tjukurrpa links the past, the present and the future. Present day practices are still informed by tjukurr. Everything, the way you cook food, name your children, look after country, is all based on the tjukurrpa.
[5] The dreaming stories have been there all the time. The land was created by the tjukurrpa in the dreaming. By having knowledge of the tjukurrpa and understanding the tjukurrpa a person who has taught these things can recognise the tjukurrpa in the landscape and understand the interactions of the tjukurrpa across the land.
Neither the State nor Western Explorers contend that the sites and areas identified are not of significance but say there is a lack of ‘specificity’ (which I understand to mean detail) in relation to them and because some are primarily outside the licence area (State contentions [34], Western Explorers contentions [12]). The State also says in contentions [35] that there is a general absence of evidence as to how the significance of the nominated sites are to be understood in the context of s237(b) citing Yindjibarndi v FMG at [30].
Kunia and Tjinkuna Tjukurrpa [Snake and Dragonfly Dreaming]
Mr Muir says ‘the main story for the east side of Tjiwarl country is about the Tjinkuna [Dragonfly man] and Kunia [the carpet snakes]. He says there are several highly significant places in Tjiwarl country connected to the story and that there are variations of the story told, one involving Nyaluti, the Stick Nest Rat Man – although the variations don’t appear to be in relation to the places. One of the most prominent features is Lake Miranda ‘which is created by one of the snakes eating rancid emu fat and getting sick’. Lake Miranda is not within the licence area.
Mr Muir says at [9] that there is a creek flowing through the licence ‘heading south from the Wanjarri Nature Reserve’ known to Tjiwarl as ‘Kutungari’ which he says is part of the kunia tjukurrpa ‘who create that creek while they wait for the sick one at Lake Miranda’.
Attached to Mr Muir’s affidavit is a map marked ‘KM1’. Bigery Mumal Hill is identified close to but outside the licence area to the west. Mr Muir says the hill and the area surrounding it is part of the kunia tjukurrpa and is known in the community as ‘Nantanantakukurarra’ – created by tjinkuna ‘as he quietly stalked the kunia north’. He says that under Tjiwarl law and custom ‘we believe the hill, including the land that extends into the Tenement, is part of that tjukurrpa and is sacred in that respect’.
In reply [6.8] Tjiwarl say that Kutungari Creek is a site and/or area of significance located within the licence area and its location is sufficiently identified. In relation to Bigery Mumal Hill (Nantanantakukurarra) Tjiwarl say (Reply [6.9]) the notion of boundaries of the area surrounding Bigery Mumal Hill being difficult to delineate goes to the cultural complexity of the site and the fact that parts of the surrounding area are within and outside the licence area does not prevent it being interfered with within the meaning of s237(b).
Naluti Tjukurrpa [Stick Nest Rat Dreaming] at Dingo Pool [Walkara]
Mr Muir says at [11]-[13] that the licence also contains manifestations of the Naluti Tkukurrpa. He says at [11]:
Tjinkuna follows the snakes and he is there hanging around the south side of Wanjarri [Nature Reserve] where Dingo Pool is, which we call Walkara. There is a place called Illgerine Rocks which is where Tjinkuna comes into contact with the Stick Nest Rat People, the Nyaluti people.
Mr Muir goes on to describe the two variations of the story. At [13] he says the western section of the licence includes the Dingo Pool country (Walkarra) ‘and is the place where the Stick Nest Rat tjukurrpa story takes place’.
The map ‘KM1’ annexed to Mr Muir’s affidavit locates a place identified as Dingo Pool (on Dingo Creek) outside and south of the Nature Reserve, and roughly parallel with and to the east of the southern boundary of the licence area. The scale on the map suggests that Dingo Pool as marked might be approximately 2km to the east of the boundary of the licence area.
The State also provided a document listing Registered Heritage Sites within a ‘25km buffer around E36/918’. Dingo Pool is identified by identification number 2721 with ‘site type’ described as ‘Artefacts/Scatter, Mythological, Rock-shelter, Camp, Water Source’. The AHIS ‘Map of Registered Aboriginal Sites’ locates site 2721 (Dingo Pool) to the east of the licence area in the same place as seen on ‘KM1’.
In contentions Tjiwarl says at [5.22(c)] that Walkara is outside the licence area ‘but has imbued the surrounding area with sacred meaning in accordance with the laws and customs of the native title holders’.
The State says in contentions [34(b)] that the ‘Naluti Tjukurrpa manifestations are expressed as primarily outside of the Proposed Tenement at Walkara (Dingo Pool) but there is little to no express evidence as to how this relates to or would impact upon the Proposed Tenement’.
In reply Tjiwarl says (at [6.15]) that the Muir affidavit demonstrates a connection between the site of particular significance outside the tenement (Walkara) and a site of particular significance inside, and the link between the two attributed to the tjukurrpa. They say (at [6.16]) that specific sites have been identified ‘and not merely dreaming tracks in general terms’. At [6.17] they say that ‘the identified sites, namely the Dingo Pool Country, and Illgerine Rocks are sites of particular significance to the native title holders in accordance with their traditional laws and customs’. The location Illgerine Rocks does not appear on the schedule of Heritage Survey Results, Registered Sites, or Lodged Heritage Sites within a ‘25km buffer around E36/918’, however ‘Illergine B’ appears on the Cadastre and Topographic Features’ map provided by the State. Based on the scale on that map Illergine B would appear to be approximately 15km east of the licence.
Women’s area in the vicinity of South Bore
In his affidavit at [14] Mr Muir says there is a very sacred area in the licence ‘in the vicinity of the area marked as “South Bore”. There are breakaways in that area, around South Bore that includes women’s sites’. And at [15]:
I am not able to say anything more about that area in this affidavit because it is not something that wati can discuss. There is a possibility that I could get sick just talking about that area and it would be dangerous for men to go there without it first being cleared by women who keep the law there. If someone went to the wrong place in that area then the country would make them go silly or even make them sick.
The State say (Contentions [34(c)]) the section of the map labelled by Mr Muir is a significant portion of the whole of the licence area. In reply Tjiwarl say that the size of a site or area of particular significance is not relevant to the question of likely interference for the purposes of s237.
It was open to Tjiwarl to request non-disclosure directions under s155 if that would have allowed more detailed evidence to be provided in the inquiry. However, such directions might not relieve Tjiwarl of its cultural obligations it that regard.
Are the areas or sites identified of particular significance to Tjiwarl?
Kunia and Tjinkuna Tjukurrpa [Snake and Dragonfly Dreaming]
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]).
It would appear that the physical sites associated with the Kunia and Tjinkuna Tjukurrpa are known and can be located. Kutungari Creek, although not identified on any of the maps in evidence, runs south from Wanjarri Nature Reserve. The nature reserve overlaps 30.14% of the licence area as noted earlier. It is accepted that Bigery Mumal Hill (Nantanantakukurarra) as identified on ‘KM1’ is to the west of the licence area – however Tjiwarl contends the site or area of significance extends to the surrounding area although no dimension is given to that area except where Mr Muir says ‘we believe the hill, including the land that extends into the Tenement, is part of that tjukurrpa and is sacred in that respect’.
The Two Carpet Snakes and the Dragonfly Tjukurrpa featured in evidence in the litigated determination of native title: Narrier v Western Australia at [546]-[554]. This is perhaps an indication of the importance of the dreaming story to Tjiwarl. The evidence before the Court which is referred to in the decision does not include the landforms referred to in the evidence before me although the decision does not record the complete evidence presented to the court.
I accept the significance of the Kunia and Tjinkuna Tjukurrpa to Tjiwarl and its presence in relation to the land and waters of the Tjiwarl people. It appears to be agreed or conceded that Kutungari Creek may be in the licence area, and accepted that Bigery Mumal Hill is not. I accept that a place such as Bigery Mumal Hill as a feature of Tjukurrpa might include the surrounding area. In my view however insufficient evidence has been provided to explain what that area is, its extent, and the basis upon which a finding of ‘particular significance’ should extend to the surrounding area referred to. In my view there is insufficient evidence in relation to Kutungari Creek to be satisfied of its location and of its significance to the Tjukurrpa to determine it is an area or site of particular significance for the purposes of s237(b).
Naluti Tjukurrpa [Stick Nest Rat Dreaming] at Dingo Pool [Walkara]
I accept the significance of the Naluti Tjukurrpa [Stick Nest Rat Dreaming] to Tjiwarl and its presence in relation to the land and waters of the Tjiwarl people. I accept the evidence of Mr Muir concerning the manifestations of the Naluti Tkukurrpa at Dingo Pool (Walkarra) referred to in the evidence of Mr Muir as referred to above. The map ‘DM1’ locates Dingo Pool (on Dingo Creek) outside and south of the nature Reserve, and roughly parallel with and to the east of the southern boundary of the licence area - approximately 2km to the east of the boundary of the licence area. I accept Dingo Pool is a Registered Heritage Site. The location of Dingo Pool as being outside the licence area is accepted by the parties.
I note the Tjiwarl contention that the area surrounding Dingo Pool (Walkara) is imbued with sacred meaning in accordance with the laws and customs of the native title holders – and the link between Dingo Pool (Walkara) and the licence area is attributed to the Tjukurrpa. The relationship with Illgerine Rocks however is not satisfactorily explained, noting its apparent distance from the licence area.
In my view insufficient evidence has been provided in relation to the area surrounding Dingo Pool to explain its extent, and the basis upon which a finding of ‘particular significance’ should extend to the surrounding area specified. In my view there is insufficient evidence in relation to Illgerine Rocks to be satisfied of its location and of its significance to the Tjukurrpa to determine it is an area or site of particular significance for the purposes of s237(b).
Women’s area in the vicinity of South Bore
The words ‘South Bore’ appear on the map ‘DM1’ within the area of R 30897 within the north east area of the licence. The Cadastre and Topographic Features map provided by the State indicate a location ‘South B (PD)’ in that same area.
The evidence of Mr Muir is brief and limited by the fact that this is a women’s site and is not something wati can discuss. It may be that non-disclosure directions would not have enabled Mr Muir to provide any more detail, however, such directions might have enabled another witness to provide some information in relation to the site. In the absence of such evidence I am unable to conclude that it is an area or site of particular significance in accordance with s 237(b).
Determination
I determine that the grant of exploration licence E36/918 to Western Explorers Pty Ltd is an act attracting the expedited procedure.
Mr JR McNamara
Member
15 January 2020
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