Tjurabalan Native Title Land Aboriginal Corporation RNTBC v Duketon Consolidated Pty Ltd
[2020] NNTTA 18
•20 February 2020
NATIONAL NATIVE TITLE TRIBUNAL
Tjurabalan Native Title Land Aboriginal Corporation RNTBC v Duketon Consolidated Pty Ltd & Another [2020] NNTTA 18 (20 February 2020)
Application No: | WO2019/0803 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Tjurabalan Native Title Land Aboriginal Corporation RNTBC (WCD2001/001)
(native title party)
- and -
Duketon Consolidated 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: | 20 February 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of the community or social activities – whether act is likely to interfere with areas or sites of particular significance – 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, 146, 151, 237 |
Cases: | Andy Andrews & Ors/Exploration & Resources Development Pty Ltd/Northern Territory [2002] NNTTA 170 (Andrews v Northern Territory) Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 113 (Rosas v Northern Territory) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Palmer Gordon Ngalpil & Ors v Western Australia [2001] FCA 1140 (Ngalpil v Western Australia) Tjiwarl (Aboriginal Corporation) RNTBC v Giard Pty Ltd and Another [2019] NNTTA 67 (Tjiwarl v Giard) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Iron Bull Bangemall Pty Ltd and Another [2019] NNTTA 21 (Tjurabalan v Iron Bull) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v PVW Resources NL and Another [2019] NNTTA 105 (Tjurabalan v PVW Resources (No. 1)) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v PVW Resources NL and Another [2019] NNTTA 106 (Tjurabalan v PVW Resources (No. 2)) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Yurriyangem Taam v Baibao Resources Pty Ltd and Another [2015] NNTTA 47 (Yurriyangem Taam v Baibao Resources) |
| Representative of the native title party: | Claire Saffery, Kimberley Land Council |
| Representative of the grantee party: | Michael Giles, Montezuma Mining Company Ltd |
| Representatives of the Government party: | Reywin Rico, State Solicitor’s Office Bethany Conway, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
This decision is about whether or not the grant of exploration licence E80/5337 (the licence) to Duketon Consolidated Pty Ltd (Duketon) attracts the expedited procedure. The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (Act) 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 12250.08 ha and it is located in the Halls Creek Shire. Tjurabalan Native Title Land Aboriginal Corporation RNTBC (Tjurabalan) holds exclusive native title rights and interests on behalf of the Tjurabalan People over the entire licence area. As determined in Ngalpil v Western Australia, the Tjurabalan People have the right to possess, occupy, use and enjoy the land and waters of the area to the exclusion of all others, including:
a)the right to live on the Determination Area;
b)the right to make decisions about the use and enjoyment of the Determination Area;
c)the right to hunt and gather, and to take water and other traditionally accessed resources (including ochre) for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual and communal needs;
d)the right to control access to, and activities conducted by others on, the land and waters of the Determination Area;
e)the right to maintain and protect sites which are of significance to the common law holders under their traditional laws and customs; and
f)the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the Determination Area.
Tjurabalan lodged an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion the expedited procedure applies to the grant of the licence. Tjurabalan argues the expedited procedure does not apply, as interference or disturbance of the type described in s 237 of the Act is likely. The State and Duketon argue the expedited procedure should apply.
In determining whether the expedited procedure applies or not, I must make a predictive assessment (see FMG v Yindjibarndi at [39]). I must look at what is likely to occur as a result of the grant and decide whether there is real chance or risk of interference. I must have regard to the rights conferred by the grant of the licence, the nature of the proposed grant and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
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, Duketon and the State must negotiate in good faith with a view to reaching agreement with Tjurabalan about the grant. For the reasons outlined below, my determination is that the expedited procedure does apply to the grant of E80/5337.
Parties’ submissions
All parties provided submissions in this matter. Tjurabalan provided contentions and the affidavits of Ms Barbara Sturt affirmed 24 September 2019; the affidavit of Mr Jimmy Tchooga affirmed 25 September 2019; and the affidavit of Mr Bobby Seela affirmed 7 November 2019. The three deponents say they are Tjurabalan native title holders. In addition, Ms Sturt outlines her connection and responsibility to the country where the licence is proposed. Mr Tchooga says his father owned the dreaming stories for the country where the licence is proposed. Mr Seela explains his connection to the country where the licence is proposed through the dreaming passed down from his father. I accept the authority of Ms Sturt, Mr Tchooga and Mr Seela to speak for the area of the licence.
Although s 237(c) was initially raised as a ground for its objection, Tjurabalan says that it does not make any contentions in relation to that subsection (Contentions at [4]). I therefore apply the common sense approach outlined in Ward v Western Australia (at [26]) and find there is no evidence to support a conclusion that the grant of the proposed licence is likely to involve, or create rights whose exercise will likely involve, major disturbance (s 237(c)).
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.
Duketon provided a Statement of Contentions.
Tjurabalan also provided a reply to the State’s and Duketon’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 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 area applied for is ‘at Bald Hill located in the Kimberley Mineral Field consisting of 38 blocks’. The statement (only) refers to a program for the first year as follows:
An early phase exploration program will be conducted on the licence to target gold & nickel. The initial stages of exploration will consist of literature research of past exploration activities, review of photographs and images and field investigations. Once targets have been identified, a gridding and soil sampling program will be undertaken over sections of the licence.
The total planned expenditure in year 1 includes $8000 for geological field investigations and mapping, gridding and surveying; and $26000 for a soil sampling program.
Duketon’s contentions say that in the first year ‘on ground exploration will be limited to a 1-2 week ground mapping and ground truthing exercise’. It says that ground disturbance during this period will be non-existent or very minimal, however in the years to follow ‘on ground activities may be conducted which may involve some ground disturbance’ which may include 1-2 drilling programs per year, each for a period of 2-3 weeks. It says that drilling activities would be planned ‘on old drill lines (where possible)’ and ‘it would be expected that all efforts are taken to minimise any ground disturbance’ (Contentions at [2]).
I accept that it is open to Duketon to undertake the full suite of rights, but given the way the exploration program has been described I consider that unlikely (see Tjiwarl v Giard at [20]). In this case it appears to me that there will be some ground disturbing activities including soil sampling in the initial phase, and a program of drilling in the longer term, as described by Duketon.
The quick appraisal informs me that there are two ‘live tenements’ which underlie areas of the licence, L80/45 over 1.22% of the licence area and M80/563 over 5.34% of the licence area. Land that is subject to granted mining tenure, apart from a miscellaneous licence, cannot be included in an exploration licence (s 18, s 57(2c)-(2e) and s 57(2h) of the Mining Act). Accordingly, it would appear that the area of M80/563 would be excluded from the licence.
The AHIS search results inform me that there are no registered Aboriginal sites or ‘Other Heritage Places’ in the licence area.
Section 237(a): Is the grant of the licence likely to interfere directly with Tjurabalan’s community or social activities?
To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi v FMG at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (see, for example, Rosas v Northern Territory at [71]).
What community or social activities do Tjurabalan People undertake on the licence?
Tjurabalan relies on the affidavit of Ms Sturt regarding community and social activities. Those activities can be categorised as: hunting; collecting and preparing bush food and medicine; intergenerational teaching; and gathering of ochre.
Hunting
Ms Sturt says Tjurabalan People go hunting in the licence area all the time and that (Affidavit at [6]-[7]):
There are lots of animals in the Tenement Area, the bundarrananna (kangaroo), echidna, sand goanna, blue tongue lizard, turkey, wunayayu (emu) and wild cats. It’s a good place to go hunting. Tjurabalan people go hunting there every week in the dry season, whenever they have time.
Ms Sturt says she was taught about hunting by her grandparents – how, north of the licence, her grandfather would spear emu around a rock hole and cook it; how the licence area is jilji (sand hill) country and they dig for ngilabunda (sand frog) and cook them; and how they catch and cook the mondunn (black head python) (at [8]-[11]).
The contentions state that access to the licence by Duketon without proper notification to the Tjurabalan People is highly likely to disrupt these practices.
Collecting and preparing bush food and medicine
Ms Sturt says lots of bush food is collected from the licence area, specifically (at [13]):
We get punga (pencil yam), Jarlpard (bush tomato). We also get bush blackberries, kulupi (bush banana), kulunana (conkerberry), bura (bush potato), lugarada (grass seeds) and Jurnda (bush onion). We ground that grass seed and turn it into flour and then we make damper. There is lots of bush tucker we get from the Tenement Area. We also get wild honey from the trees there and we sometimes wat it with damper. We also get rock fig. We cook bush tucker up on country, at the Tenement Area, and we also save some to cook it up for the family who can’t come there with us.
And (at [14]):
We also get bush medicine at the Tenement Area. There is a purple flower called marnyanee that grows on that Tenement Area. We use this for medicine to help with coughing and when people are dehydrated or have pain in the stomach. We heat the stem of the flower on the fire and then press it against the chest or the stomach to help with pain.
Intergenerational teaching
Ms Sturt explains it is her responsibility to ‘tell the young people, the next generation, about how to care for this country and look after it’ (Affidavit at [4]). She says she was taught about and observed traditional hunting ‘on this country’ (at [9]); how ‘we show the young people how to find that sand frog and cook him up’ (at [10]); that ‘we take the young kids out to the Tenement Area and teach them how to hunt for all these things and cook them up’ (at [12]); how ‘we teach them about the stories for the country while we are there’, teach young kids how to make boomerang and spear ‘when we are on the Tenement Area’ and show them how the old people used to hunt (at [14]).
After explaining aspects of the Wana (the rainbow serpent) dreaming and the Ngapa (water) dreaming at [17], Ms Sturt says (at [19]):
I told my children and my grandchildren about the Ngapa dreaming and the rainbow serpent and serpent eggs. These stories are passed down to me by the old people and now I pass them down to the younger people.
Mr Seela says his father taught him about the Kingfisher Dreaming, a special men’s place ‘in the Tenement Area’ which is very sacred to him, his family and other Tjurabalan People (Affidavit at [6]-[7]). He says he has taught his son, who carries his grandfather’s bush name Wilamarnu, about the Kingfisher Dreaming.
Mr Tchooga says his father ‘owned the dreaming stories for this country and he taught them to (me) because it is my country too’ (Affidavit at [4]). He described the dreaming story about the lizard, Japurta, and says there is a songline for Japurta that runs from north to south ‘right through the Tenement Area’ (at [9]). He says the story comes from his father’s father, that there is a dance for that dreaming, and that his father taught him that dance.
Gathering of ochre
Although not mentioned as a separate community or social activity in Tjurabalan contentions (as noted by the State), Ms Sturt says (Affidavit at [21]):
There are ochre deposits on the Tenement Area that are special to Tjurabalan people. We get red, white and yellow ochre from the rocks on the ground there and make it into a paste by mixing it with water. We use it for special ceremonies. There are big deposits of ochre there in the northern and southern parts of the Tenement Area, we can find lots more in the Tenement area than in other parts of our country.
The State’s contentions
The State contends Tjurabalan has not provided sufficient evidence that the (above) community and social activities are conducted on the area of the licence for the purposes of s 237(a). Specifically, the State says the evidence lacks details of the number of participants, frequency and duration of each of the activities; and has not specified the extent to which each of the activities occurs within the licence or whether they are exercised to a greater degree in the licence area. The State says that, with the exception of the activity of hunting emu (said to occur in the north of the licence around a rockhole), details as to the precise location within the licence where the activities take place has not been provided (Contentions at [36]).
Duketon says simply that it believes the grant of the licence is highly unlikely to interfere with the carrying on of Tjurabalan’s community and social activities.
In response, Tjurabalan argues the evidence, as a whole, sufficiently particularises the location, frequency, duration of, and number of participants involved in Tjurabalan’s community and social activities. I do not agree.
While some evidence has been provided to establish that the above activities occur on the licence, there is insufficient information to enable me to assess if the grant of the licence is likely to interfere with them. I agree with the State’s submission that the evidence regarding the activities is lacking detail about the number of participants, frequency and duration (see Yurriyangem Taam v Baibao Resources). As such, I find that the grant of the licence is not likely to cause the interference outlined in s 237(a).
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to Tjurabalan?
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 (see 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 Tjurabalan?
Tjurabalan says there are a number of features which give the licence its significant and sensitive character under traditional law and custom including the following dreamings and songlines (Contentions at [14]):
·Ngapa (water) Dreaming;
·Wana (rainbow serpent) Dreaming;
·Warlu (fire) Dreaming;
·Japurta (Lizard) Dreaming;
·Ngarlu (honey) Dreaming; and
·Kingfisher Dreaming.
Tjurabalan says these dreamings traverse the licence and include a series of linked sites including springs, egg-shaped stones, soaks, water holes and rock holes. Specifically, it says a series of particularly significant sites are those connected to the interrelated Ngapa and Wana Dreamings (at [15]):
·A spring created by the rainbow serpent resting in a hill located in the northern part of the licence;
·Egg-shaped stones connected to the Wana Dreaming, being the eggs of the rainbow serpent; and
·Other rock holes and soaks throughout the licence connected to the Ngapa and Wana Dreamings.
Mr Seela says there is a special men’s place in the licence area associated with the Kingfisher dreaming (Affidavit at [6]). He says it is very sacred to him, his family and other Tjurabalan People.
For the purposes of this determination it is convenient to adopt the State’s groupings of the sites and areas.
Spring associated with the Wana Dreaming and rock holes, springs and soaks associated with Ngapa Dreaming
Ms Sturt says that the licence area is a resting place for Wana (Affidavit at [15]):
… He came from north of Gardiner Ranges and travelled all through the Tenement Area. He rested right there in the northern part of the Tenement Area and made a spring in one hill and then he travelled east across the border.
Ms Sturt says the Ngapa dreaming is a very special dreaming, the places where the Ngapa travelled on the licence are very important, and there are many rock holes and soaks on the licence that are connected to the Ngapa dreaming. She says (Affidavit at [17]):
It came from across the border in the Northern Territory and went all through the Gardiner Ranges and all through the Tenement Area and then travelled towards the west. The Ngapa dreaming made all the living water in the Tenement Area. There are lots of special places in the Tenement Area from the Ngapa dreaming. There are rock holes, springs and soaks. I can’t show you all those places from looking at a map, I need to go there and show you.
Regarding the Ngapa Dreaming and Wana Dreaming, Mr Tchooga says (Affidavit at [7]):
There is a water dreaming, Ngapa, in the Tenement Area. It comes through Moody Bore and it cuts through the Tenement Area, going south down to the Killi Killi community, south of the Tanami Road. There is another water dreaming track that runs east to west through the north of the Tenement Area, towards Billiluna community. There is a rainbow serpent who travels along those water dreaming tracks.
The State says that although Tjurabalan has described the significance of the dreamings generally and briefly explained the story in respect of each, their particular significance has not been established and the evidence lacks ‘the requisite degree of specificity’ to enable the impacted areas of the licence to be identified (Contentions at [56]). The State cites my determination Tjurabalan v PVW Resources (No. 2), specifically paragraphs [91]-[93]:
[91] In Tjurabalan v PVW Resources [No. 1] … the location and pathway the dreaming traversed had not been sufficiently described for me to be satisfied that the Ngapa Dreaming was an area or site is of particular significance. In my view more specific information was necessary including its direction and course before a finding of particular significance in accordance with s 237(b) might be made.
[92] In the current inquiry there is more evidence concerning the direction of the Ngapa dreaming from Mr Smith. He says the Dreaming ‘came from across the border and went through all the Tenement Areas’ (in this case E80/5249 and E80/5250). He says ‘it came from across the border in the Northern Territory to Western Australia and went through the Tenement Areas – both of those places where the mining company wants to look, then it went down south and to the west and overflowed into Killi Killi Hills’ (Affidavit [5]). Similarly, Mr Lightening identifies that the dreaming goes ‘all through the Tenement Area and overflows at Killi Killi Hills’ (Affidavit [13]).
[93] While this evidence sheds a little more light of the path of the Dreaming, the evidence might have been enhanced, recognising the Dreaming’s ‘fluidity’, by drawing its path on one of the maps attached to the affidavits and marking the relevant sites connected by the Dreaming. I do not have sufficient evidence concerning the location of the Ngapa Dreaming to conclude the Dreaming to be a site of particular significance for the purposes of s237(b).
In response, Tjurabalan refers to Tjurabalan v Iron Bull, which concerned three proposed tenement applications, and the Tribunal found the Ngapa dreaming to be a dreaming of particular significance to Tjurabalan. In that matter, it says ‘the Ngapa, it is said to go from Bald Hill through E80/5103 and continue up through E80/5101’ (at [51]).
Duketon makes no submissions specific to the existence, location, or significance of the spring associated with the Wana Dreaming and rock holes, springs and soaks associated with Ngapa Dreaming.
Men’s site associated with Kingfisher dreaming
As noted at [38] above, Mr Seela says there is a special men’s place in the licence area associated with the Kingfisher dreaming (Affidavit at [6]). He says it is very sacred to him, his family and other Tjurabalan People.
Mr Seela says the Kingfisher Dreaming starts at Twin Hills about 5 miles north of Bald Hill, which he notes is not marked on the map attached to his affidavit (Affidavit at [8]-[9]). It would appear that Mr Seela had an opportunity to mark the location of Twin Hills on the map forming Annexure 1 of his affidavit but has not. Based on the written description provided, it appears that Twin Hills is not located in the licence area.
Mr Seela says the Kingfisher Dreaming ‘goes north of the Tenement at Twin Hills and stops at Balgo’ (Affidavit at [10]). It appears that Balgo is a considerable distance to the south west of the licence.
The State says that, in the absence of more specific information concerning the site’s location and meaning, it cannot be concluded that the site is located within the licence, or the men’s sites are of particular significance for the purposes of s 237(b).
Warlu (fire), Japurta (lizard) and Ngarlu (honey) dreamings
As noted at [36] above, Tjurabalan says the evidence highlights there are a number of features which give the licence its significant and sensitive character under traditional law and custom including these dreamings and songlines.
Mr Tchooga says the Warlu (fire) Dreaming goes through the south of the licence, running east to west, coming from the Northern Territory; the Japurta (lizard) songline runs from north to south through the licence and there is a dance ‘for that dreaming that I know’; and the Ngarlu (honey) Dreaming is ‘all through that country and on the Tenement’ – a dreaming about the bees that make the bush honey (Affidavit at [8]-[10]).
Again the State contends that, in the absence of more specific information concerning the site’s location and meaning, it is not open to conclude that the areas or sites are located in the licence and that they are of particular significance for the purposes of s 237(b).
Stones shaped like eggs associated with Wana dreaming
Ms Sturt says that there are stones shaped like eggs in the licence area (Affidavit at [16]). She says:
These egg stones are connected to the Wana (the rainbow serpent) dreaming. These are eggs of the serpent. No one should disturb those eggs, they will come alive and eat you. It is dangerous for visitors to that place to touch those eggs. It is a matter of life and death.
The State says that Tjurabalan has not provided any evidence regarding the specific location of the stones site within the licence area (Contentions at [63]).
Are the areas or sites identified of particular significance to Tjurabalan?
Spring associated with the Wana Dreaming and rock holes, springs and soaks associated with Ngapa Dreaming
An often referred to Tribunal decision regarding dreamings is Andrews v Northern Territory at [124]:
… while Dreaming Tracks are significant, not all Dreamings are of equal importance, and not all places along a Track are of equal significance, at least to particular native title holders. In each and every case a person speaking on behalf of native title holders should explain why a particular Dreaming site is of particular importance. The Tribunal will readily accept that evidence by a person having traditional authority of a place as a Dreaming site is a matter of great relevance to a section 237(b) assessment. However the identification of a place as a Dreaming site does not automatically result in a finding of significance. The particular sacredness of the site in the scheme of things needs to be explained before a finding of significance can be made.
I accept that the Wana and Ngapa Dreamings are of significance to Tjurabalan. However, I agree with the State that Tjurabalan has not provided sufficient evidence about the area of the proposed licence subject to the Dreamings to enable them to be located with the requisite degree of specificity. The State and Tjurabalan has each referred to previous Tribunal determinations made in relation to the Ngapa Dreaming. Whilst it is open to me to adopt the findings in a previous decision (pursuant to s 146(b) of the Act), reviewing those previous matters (relating to both neighbouring and not contiguous tenements) and has only further highlighted the uncertainty regarding the paths of the dreamings. As I mentioned in Tjurabalan v PVW Resources (No. 2), ‘the evidence might have been enhanced… by drawing its path on one of the maps attached to the affidavits’ (at [93]).
Further, I accept the State’s submission that the evidence does not sufficiently explain the particular significance of those areas. There is no evidence concerning the manifestations of the dreamings to inform me if they are simply locations, if they are integral to the dreaming, and if so, how they are integral to the dreaming. It is not for me to speculate about the significance of a site, it is incumbent on the relevant native title party to bring to an inquiry pertinent information that will provide a platform or a sensible evaluation of whether a named site in fact is of particular significance within the meaning of that term in s 237(b) (Andrews v Northern Territory at [131]).
Accordingly, on the material before me I am unable to conclude that the spring associated with the Wana Dreaming and the rock holes, springs and soaks associated with Ngapa Dreaming are areas or sites of particular significance for the purposed of s 237(b).
Men’s site associated with Kingfisher dreaming
I agree with the contentions made by the State that in the absence of more specific information concerning the site’s location and meaning, I am unable to conclude that the site is within the licence or that it is of particular significance for the purposes of s 237(b).
Warlu (fire), Japurta (lizard) and Ngarlu (honey) dreamings
As contended by the State, I find there is insufficient evidence to conclude that the areas or sites are located in the licence and that the dreamings and songlines referred to are areas or sites of particular significance for the purposes of s 237(b).
Stones shaped like eggs associated with Wana Dreaming
I accept the evidence of Ms Sturt that there are stones shaped like eggs in the licence area. However, the evidence lacks detail regarding the nature of the area or site and the specific location. For example, whilst it is stated that the stones are connected to the Wana Dreaming, there is little explanation of how they are connected. As noted above at [35], to establish that a site or area is of particular significance, its location must be known and the nature of its significance explained (Silver v Northern Territory at [91]). As this has not occurred in this matter, I am unable to conclude that the stones are of particular significance to the Tjurabalan for the purposes of s 237(b).
Conclusion
As noted at [34] I concluded that insufficient evidence had been provided to support a finding that the grant is likely to interfere directly with the social and community activities conducted by Tjurabalan on the licence area for the purposes of s 237(a).
Further, I have concluded the material does not establish there are sites or areas of particular significance as required by s 237(b). I will not therefore assess whether interference by exploration activities is likely.
Determination
I determine that the grant of exploration licence E80/5337 to Duketon Consolidated Pty Ltd is an act that attracts the expedited procedure.
Mr JR McNamara
Member
20 February 2020
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