Tjurabalan Native Title Land Aboriginal Corporation RNTBC v Duketon Mining Limited
[2022] NNTTA 17
•28 February 2022
WONATIONAL NATIVE TITLE TRIBUNAL
Tjurabalan Native Title Land Aboriginal Corporation RNTBC v Duketon Mining Limited & Another [2022] NNTTA 17 (28 February 2022)
Application No: | WO2021/0669 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure application
Tjurabalan Native Title Land Aboriginal Corporation RNTBC (WCD2001/001)
(native title party)
- and -
Duketon Mining Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 28 February 2022 |
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 – some evidence provided in previous inquiries – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 146, 151, 237 Mining Act 1978 (WA) ss 57, 58, 66 Mining Regulations 1981 (WA) r 20 |
Cases: | 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, Australian United Gold NL, Mark James Thompson and the State of Western Australia [1996] NNTTA 75 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal # 1 v Gianni) Moses Silver, Ishmael Andrews & Sammy Bulabul v Northern Territory and Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Ngalpil v Western Australia [2001] FCA 1140 Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) Tjurabalan Native Title Land Aboriginal Corporation RNTBC v Duketon Consolidated Pty Ltd & Another [2020] NNTTA 18 (Tjurabalan v Duketon Consolidated) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Iron Bull Bangemall Pty Ltd and Another [2019] NNTTA 21 (Tjurabalan v Iron Bull) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara) |
| Representative of the native title party: | Andrew Topfer, Kimberley Land Council |
| Representative of the grantee party: | Michael Giles, Duketon Mining Limited |
| Representatives of the Government party: | Bethany Conway and Michael McMahon, Department of Mines, Industry Regulation and Safety Anthony Civiello and Genevieve Williams, State Solicitor’s Office |
REASONS FOR DETERMINATION
I have been appointed to decide whether the expedited procedure applies to the grant of proposed exploration licence E80/5493 (proposed licence) to Duketon Mining Limited (Duketon Mining). As outlined in s 237 of the Native Title Act 1993 (Cth) (the Act) the expedited procedure applies to a grant where it is not likely to, in summary:
·interfere directly with community or social activities carried on by members of native title claims or determined areas (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 proposed licence is located wholly within the boundaries of the Tjurabalan People’s determined area of exclusive native title rights and interests (see Ngalpil v Western Australia), and is approximately 196 kilometres south easterly of Halls Creek in Western Australia. The State of Western Australia asserted the expedited procedure should apply to the grant of the proposed licence. The Tjurabalan Native Title Lands Aboriginal Corporation RNTBC (Tjurabalan) holds native title rights and interests on behalf of the Tjurabalan People, and objected to the State’s assertion that the expedited procedure should apply, arguing that interference or disturbance of the type described in s 237 of the Act is likely.
In conducting this inquiry I must look at what is likely to result from the grant of the proposed licence and decide whether there is a real chance or risk of the interference or disturbance outlined in s 237 of the Act and, therefore, whether it is an act that attracts the expedited procedure (Smith v Western Australia at [23]). The legal principles are outlined in Yindjibarndi v FMG at [15] – [21].
Exclusive native title rights and interests recognise that Tjurabalan has 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.
My decision is that the expedited procedure does not apply and so the parties must negotiate in good faith with a view to obtaining the agreement of Tjurabalan to the doing of the act (that is, the grant of the proposed licence).
Preliminary matters
Parties’ submissions
Tjurabalan lodged contentions and various supporting material, including material which had been provided in previous Tribunal inquiries, as summarised below.
· Affidavit of Barbara Sturt (dated 7 May 2021)
Submitted for this inquiry
· Affidavit of Barbara Sturt (dated 24 September 2019)
· Affidavit of Jimmy Tchooga (dated 25 September 2019)
Both submitted for Tjurabalan v Duketon Consolidated deciding an area which overlapped the proposed licence by 95 per cent, and where the Tribunal held the expedited procedure applied
· Affidavit of Jimmy Tchooga (dated 24 May 2018)
Submitted for Tjurabalan v Iron Bull deciding an area which is directly west of the proposed licence, and where the Tribunal held the expedited procedure did not apply – Mr Tchooga’s affidavit was one of several provided for my consideration in that matter
I accept the affidavits from the previous Tribunal inquiries, as is open to me to do under s 146 of the Act, and I accept Ms Sturt and Mr Tchooga have necessary authority to speak for the area on behalf of Tjurabalan. While Mr Tchooga’s 2018 affidavit relates to the area directly west of the proposed licence in this current inquiry, he does reference the Ngapa dreaming and areas relevant to the proposed licence - the descriptions of the dreaming pathways are consistent with that which has been provided by Ms Sturt (in both 2019 and 2021), as the pathways do travel through and around the areas of this proposed licence, and the area to the west of it, as I have outlined in my consideration of s 237(b) below. This provided me with additional confidence to place greater weight on Ms Sturt’s 2021 evidence, and I note Ms Sturt cross references her comments in her 2019 affidavit with her observations and evidence in her 2021 affidavit. The evidence as a whole, considering the 2018, 2019 and the 2021 affidavits, is cohesive as to the descriptions and importance of the dreaming pathways and their associated sites. What is not clear, as outlined below, is the extent to which some of the sites and areas are within the area to be granted.
While I have accepted the evidence from the other inquiries, my main focus is Ms Sturt’s 2021 affidavit as it is material that refers to the area of the proposed licence specifically, and the activities of the explorer. The proposed licence overlaps the tenement considered in Tjurabalan v Duketon Consolidated. As noted in the table above (at [6]), the Tribunal concluded the expedited procedure applied in that matter, however, at that time, the Tribunal did not have the benefit of Ms Sturt’s 2021 affidavit and the evidence therein, nor does it appear Mr Tchooga’s 2018 affidavit formed part of that inquiry.
The State provided an initial set of information which included mapping, a report from the Aboriginal Heritage Inquiry System (AHIS) setting out details and maps of recorded Aboriginal sites, a Tengraph quick appraisal, the licence application along with the accompanying statement required by s 58 of the Mining Act 1978 (WA) (Mining Act, s 58 statement) and the Draft Tenement Endorsement and Conditions extract outlining conditions the State proposes to impose on the licence on grant. The State also provided contentions.
Duketon Mining provided brief contentions, and Tjurabalan provided contentions in reply to the State and Duketon Mining’s materials.
Mapping was prepared by the Tribunal’s geospatial unit and circulated to parties for comment, showing the relevant areas, places and tenements outlined in the evidence. The mapping shows that approximately 3.1 square kilometres in the centre of the proposed licence, and located over Bald Hill, is excluded from the licence. The State notes this exclusion is because a granted mining lease lies over that area. Duketon Mining’s contentions include mapping which suggests the area to the north of this excluded portion of the proposed licence is their area of prime exploration interest.
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the Act, and I was satisfied the matter can be determined without a hearing.
The Licence and the proposed activities of Duketon Mining
The proposed licence is an exploration licence to be granted under s 57 of the Mining Act for a period of 5 years. Section 66 of the Mining Act 1972 (WA) and Regulation 20 of the Mining Regulations 1981 (WA) set out the rights conferred by an exploration licence, in summary:
(a)to enter the land with the personnel and machinery necessary for exploring for minerals;
(b)to explore and carry out operations and works to explore for minerals including digging pits, trenches, holes, sinking bores and tunnels to the extent necessary, subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act;
(c)to excavate, extract or remove earth, soil, stone, fluid or mineral bearing substances not exceeding the prescribed limit of 1000 tonnes unless approved by the Minister and subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act; and,
(d)subject to the Rights in Water and Irrigation Act 1914 (WA), to take and divert water from any natural spring, lake, pool or stream in or flowing through the licence area or from excavations made and sink a well or bore from which to take water for domestic or mineral exploration purposes.
It is reasonable for me to conclude Duketon Mining will exercise their rights to the full upon grant, as there is nothing to the contrary in the materials provided. Duketon Mining’s s 58 statement contains information about the first year of exploration for gold, which would involve data compilation of previous results, field reconnaissance, mapping, soil sampling and assay analysis ‘to determine the next level of further exploration’. Its contentions state ‘it is difficult to fully plan exploration at such an early stage’ but that it ‘will limit the use of vehicles and heavy machinery where possible’ and 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’ (page 1-2).
Section 237(a): is the grant of the licence likely to interfere directly with Tjurabalan’s community or social activities?
What community or social activities do Tjurabalan undertake on the licence?
The evidence is that Tjurabalan conduct the following activities on the licence:
(a)‘the mob from Ringer Soak … take the kids whenever they can’ to conduct intergenerational teaching ‘to show them how to live away from the grog and the gunja’ (Ms Sturt’s 2021 Affidavit at 9; Ms Sturt’s 2019 Affidavit at 10, 12);
(b)‘we only take a bit of feed and we can live off the Tenement Area’ (Ms Sturt’s 2021 Affidavit at 10);
(c)they go hunting ‘every week in the dry season’ because ‘it’s a good place to go hunting’ for kangaroo, echidna, sand goanna, blue tongue lizard, turkey, wild cats, bullock, sand frogs and python (Ms Sturt’s 2019 Affidavit at 6-8, 10-11);
(d)there is ‘lots of bush tucker’ there including pencil yams, bush tomato, bush blackberries, bush potatoes, conkerberry, bush onions and grass seeds which is ground to make damper (Ms Sturt’s 2019 Affidavit at 13);
(e)a particular bush medicine called marnyanee is collected for chest and stomach pain (Ms Sturt’s 2019 Affidavit at 14); and
(f)they collect white and yellow ochre for ceremony ‘in the northern and southern parts of the Tenement Area, [because] we can find more in the Tenement Area than in other parts of the country (Ms Sturt’s 2019 Affidavit at 21).
According to the Tribunal mapping, Ringer Soak community is over 100 kilometres northwest from the licence, over hill country that includes the Gardiner Range. The Gardiner Range itself runs close to and along part of the east boundary of the proposed licence in this inquiry. The evidence is that Tjurabalan people from Ringer Soak access the licence ‘by car on a road that comes off the Tanami road’ during the dry season ‘because the road is too wet and you will get bogged’ in the wet season (Ms Sturt’s 2019 Affidavit at 6). From Tribunal mapping, the Tanami road travels south and east around the hill country. The journey from Ringer Soak to the licence would be in excess of 250 kilometres. Given this distance, I cannot draw an inference that Tjurabalan’s activities are likely to be undertaken with more frequency or intensity on the licence area because of the proximity of Ringer Soak.
Is the grant of the licence likely to interfere directly with Tjurabalan’s community and social activities in a substantial way?
To meet the threshold of interference, the interference ‘must be substantial in its impact upon community or social activities. That is to say trivial impacts … are outside the scope of the kind of interference contemplated by this section’ (Smith v Western Australia at [26]).
The majority of the evidence regarding community and social activities comes from Ms Sturt’s 2019 affidavit submitted for Tjurabalan v Duketon Consolidated (see [6] above). In that matter, the Tribunal member determined (at [34]):
… there is insufficient information [about community and social activities] 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… As such, I find that the grant of the licence is not likely to cause the interference outlined in s 237(a).
Tjurabalan contend Ms Sturt’s 2021 affidavit contains ‘new evidence’ which ‘clarifies the high probability that the grant … will interfere directly with the carrying on of the community and social activities’ (at 11-12). However, the only additional information provided in the 2021 affidavit is that the Tjurabalan people who undertake the activities are from Ringer Soak, that they ‘live off the area’ when they visit the licence and that intergenerational teaching on country provides an alternative from some of the social problems (Ms Sturt’s 2021 Affidavit at 9-10).
The State contend exploration activity is low-scale and infrequent and the licence carries no right to control access. They also assert that even if the parties should intersect on a given day, this does not mean there is a likelihood of interference as contemplated by s 237(a) (at 29).
Each matter turns on its own facts, however, even taking together the evidence provided in this inquiry and from Tjurabalan v Duketon Consolidated, it is not open to me to conclude the community and social activities which have been briefly described, including ochre collection, are specific to the licence in such a way that the location, intensity and frequency of them will be substantially interfered with by Duketon Mining’s activities.
Section 237(b): is the grant of the licence likely to interfere directly with areas or sites of particular significance to Tjurabalan?
Given the complexity of the evidence in this inquiry, including the four affidavits, two previous inquiries over tenements which did, and did not, overlap the proposed licence, and which had outcomes where the expedited procedure did apply, and did not apply, I have taken my consideration of s 237(b) step by step. Firstly, I examine whether it is established there are any sites or areas on or near the proposed licence. Then I consider whether any of these sites or areas are of particular significance. Finally, for those I conclude are of particular significance, I consider whether or not it is likely they will be interfered with by the likely exploration activities.
Are there any sites or areas on or near the licence?
The Wana (rainbow serpent) dreaming is said to run through the proposed licence (coming from the Gardiner Range), resting in the northern part of the proposed licence at a spring and resting at a rockhole ‘north of the old mine that is in the middle of the Tenement Area, and east towards the Gardiner Ranges’ (Ms Sturt’s 2021 affidavit at 12). Ms Sturt says ‘Everyone needs to be really careful at this place. If you don't introduce yourself the right way, you will be punished by the rainbow serpent spirit’ (Ms Sturt’s 2021 affidavit at 7 and 12 and her 2019 affidavit at 9 and 15). Ms Sturt speaks about a ‘spring in one hill’ (at 15 of the 2019 affidavit), and Mr Tchooga speaks about a rockhole on Bald Hill (at 13-14 of the 2018 affidavit).
·I am satisfied the Wana dreaming track runs through the proposed licence including on or near to Bald Hill, and that it is likely the spring and the rockhole associated with the Wana dreaming are on the proposed licence – however, given:
othe lack of specificity about where the spring and rockhole are relative to old mines, of which there are several according to mapping provided by parties;
osome of the old mines are in the area to be excluded from the grant; and
oreferences to the area being in proximity to Bald Hill (which will not be included in the grant).
I cannot be certain the spring and rockhole associated with the Wana dreaming will fall within the area of the grant of this future act. For me to conclude a place is a site of particular significance for s 237(b), the place must be identified as being on or near to the area to be granted.
‘stones shaped like eggs … you will find them in the Tenement Area on the Gardiner Ranges side of the tenement’ connected with the Wana dreaming, and the consequences of interfering with the eggs are explained ‘as a matter of life and death’ (Ms Sturt’s 2021 affidavit at 13 and her 2019 affidavit at 16).
·Given Ms Sturt’s 2021 affidavit, which goes into more detail about those aspects of the Wana and the stones than was provided for Tjurabalan v Duketon Consolidated, I am satisfied the Wana dreaming track runs through the proposed licence, and the stone eggs associated with that dreaming track are in the proposed licence, to the east of the Gardiner Range and in the northern portion of the proposed licence. There is more specificity about the eggs than the spring and rockhole outlined at [23] above, and so I am satisfied the eggs do cover a portion of the north east of the proposed licence, which is not within the area to be excluded from grant. As such, I go on to consider whether or not the stone shaped eggs form an area of particular significance.
The Ngapa (water) dreaming ‘is a very special dreaming. 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’ (Ms Sturt’s 2019 affidavit at 17). There is water within the proposed licence which is associated with that dreaming (Ms Sturt’s 2021 affidavit at 7 and her 2019 affidavit at 17-18; also in Mr Tchooga’s 2018 affidavit at 11-12, 14 and his 2019 affidavit at 7).
·I am satisfied the Ngapa dreaming does travel across the proposed licence, given the evidence provided. The State’s materials indicate there are two watercourses on the proposed licence, and I am satisfied the evidence establishes there are areas of water on the licence associated with the Ngapa dreaming. As such, I go on to consider whether or not the water associated with the Ngapa dreaming forms an area of particular significance.
The Warlu (fire) dreaming ‘goes through Bald Hill’ and that is the ‘place for Warlu fire dreaming’ (Mr Tchooga’s 2018 affidavit at 16-17). Ms Sturt (in her 2019 affidavit at 20) refers to a special men’s place and defers to men to provide further evidence about that site. Mr Tchooga does provide such evidence (in his 2018 affidavit at 19), saying men’s sites are ‘just in a bit from Bald Hill’. He goes on to say, ‘I cannot show you exactly but they are in the Tenement Area in that southern part. They are men's sites’.
·I am satisfied that the Warlu dreaming does pass through this proposed licence and that Bald Hill is the focal point for the Warlu dreaming with respect to the proposed licence. Given the area of Bald Hill will not form part of the grant of the proposed licence, I do not go on to consider whether it is a site of particular significance.
·I accept men’s sites have been identified, however, it is reasonable for me to conclude that the men’s sites are not on the proposed licence, given they have been placed in the southern part of the tenement to the west of the proposed licence (for which Mr Tchooga gave the 2018 affidavit). As such, I do not go on to consider whether they are sites of particular significance for the purposes of this inquiry.
Reference is also made to ochre deposits, burial sites, the Ngarlu (honey) and Japurta (lizard) dreamings and other special places connected to ‘special stories’ (Ms Sturt’s 2021 affidavit at 15 and her 2019 affidavit at 21-24; Mr Tchooga’s 2018 affidavit at 18 and his 2019 affidavit at 9-12).
·These areas are only referred to in the broadest of terms, and I cannot be certain they are on or near the proposed licence Even were I to be so satisfied, there is little information for me to conclude any of these sites or areas are of particular significance.
Are any of these sites or areas of particular significance according to Tjurabalan’s traditions?
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 Wana Dreaming and associated sites
In Tjurabalan v Duketon Consolidated, the Tribunal was concerned about the evidence regarding the Wana dreaming and the associated stone eggs meeting the threshold of ‘particular significance’. Considering Ms Sturt’s 2021 evidence, and the evidence as a totality about the special nature of the Wana dreaming and the role of the stones in respect of that dreaming, I am satisfied the stone eggs, being an embodiment of the Wana dreaming, are of particular significance (see for example Ms Sturt’s 2021 affidavit at 12).
The Ngapa Dreaming and associated sites
In Tjurabalan v Iron Bull I concluded (at [44]) the Ngapa dreaming pathway was of particular significance to the native title party. In Tjurabalan v Iron Bull, the trajectory of the pathway was clear in relation to sites specified such that they could be located on the relevant tenement to the west of the proposed licence (which then enabled me to draw conclusions about interference). In the present inquiry, I am satisfied the living waters in the proposed licence are part of that story which is of particular significance for the native title party traditions (Ms Sturt’s 2019 affidavit at 17). This has been a difficult conclusion to draw, given some of the evidence was broadly cast, however, I am satisfied there is just sufficient evidence, considering all of the affidavit material which relate to the area of the proposed licence that the waterways in the proposed licence are connected to the Ngapa dreaming, and I am also satisfied that dreaming is a powerful story of particular significance.
Conclusion regarding particular significance
Having considered the evidence regarding location of the sites, and the particular significance of sites on the area subject to the grant of the proposed licence, I consider the stone eggs associated with the Wana dreaming and the Ngapa dreaming associated with the water on the proposed licence are sites or areas of particular significance. As such, I now go on to consider whether or not those sites or areas are likely to suffer from interference from exploration activities occurring following the grant of the proposed licence.
There is likely to be interference to the Wana dreaming and the stone eggs which embody the dreaming, and the Ngapa dreaming and waterways associated with it on the proposed licence
In FMG v Yindjibarndi (at [76]), the Federal Court made it clear how the word ‘interference’ in s 237(b) of the NTA should be interpreted:
There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
I draw my conclusions regarding the stone eggs associated with the Wana dreaming, and water associated with the Ngapa dreaming, in the context of the exclusive native title rights and interests held by the native title party, and the broad and general information provided by Duketon Mining (as outlined earlier in this decision), that they are exploring for gold, and it would likely be across the whole of the proposed licence. The explorer’s s 58 Statement outlines that ‘heritage surveys will be undertaken if required’ (emphasis added), but no information is provided about the nature and extent of such surveys, or any consultation process with Tjurabalan to determine whether these would be required.
The explorer’s contentions (at 3) outline that the proposed licence area has been subject to previous exploration by other explorers. However, this does not mean that sites or areas of particular significance have lost their significance to a native title party, or that further exploration would not interfere with such sites or areas. This is a particular way of thinking which does not take into account the ongoing spiritual traditions of a native title party, or the nature of interference as envisioned by s 237(b) (as outlined by McKerracher J in FMG v Yindjibarndi).
Duketon Mining contentions (at 10-11) outline they will notify Tjurabalan when they will be on ground, but no further information is provided about the notification process, or which activities such would be related to. Duketon Mining contentions (at 14) state ‘The grantee party will avoid any sites or areas of significance to the native title if they are willing to provide notice and provide an accurate location of such sites’. However, once again this mechanism is very broadly described and it is not clear what process would be used for such site avoidance.
Duketon Mining state it will:
· notify Tjurabalan of the dates for any on-ground activities;
· ‘take care when conducting on-ground exploration with respect to the native title party’s requests’;
· ‘avoid any sites or areas of significance … if they are willing to provide notice and provide an accurate location’;
· offer and attempt to complete heritage surveys before commencing any ground disturbance activities’; and
· ‘enter into a regional standard heritage agreement (RSHA)’ (page 1-2).
The State contend these intentions mean that there is unlikely to be interference with sites of particular significance (at 13-14, 29.5, 40, 79-81). However, these intentions are not enforceable (see Nyamal # 1 v Gianni at [61]; Tjiwarl v Gianni at [106]). The State contentions also outline they intend to impose a number of endorsements and conditions on the proposed licence, including rehabilitation requirements, and requirements on the explorer to seek permissions from various State departments before undertaking certain activities. However, these go to the remediation of physical disturbance to the land, rather than preventing or mitigating interference under a native title party’s traditions as contemplated by s 237(b). In addition, none of these endorsements or conditions deal with any need for consultation with Tjurabalan in relation to the use of water, although the explorer is directed to obtain the relevant permits and authorities from the relevant State departments in relation to water on the proposed licence. It is open to me to conclude the explorer intends to interact with water during its exploration activities, given a number of the endorsements and conditions envision that.
Even should the explorer offer an RSHA to Tjurabalan, such agreements do not require consultation with a native title party on stages of exploration that Tjurabalan would see as interference under their traditions, in relation to the Wana dreaming and the stone eggs that embody the dreaming, and the waterways associated with the Ngapa dreaming. For example, Tjurabalan outline the appropriate protocols that are required under their traditions when interacting with these areas of particular significance, and that the area containing stone eggs can suffer from interference with activities such as touching them, and the consequences are getting sick and death (as outlined by Ms Sturt’s 2021 affidavit at 13).
Duketon Mining’s evidence shows they will conduct exploration activities early on in their program such as sampling, or driving over parts of the proposed licence. Their contentions indicate they consider this to be non-ground disturbing. However, given the evidence provided by Tjurabalan about the sensitivity of the Wana dreaming track and the stone eggs associated with it, I conclude such exploration activity would cause interference for the purposes of s 237(b).
Ms Sturt expands upon the dangers of interacting with the stone eggs under Tjurabalan traditions, and in conjunction with the information in Ms Sturt’s 2019 affidavit (at 15), there is sufficient information to conclude this is likely to be interference as contemplated by s 237(b). Given the nature of the stones (being scattered on the eastern portion of the licence at the base of the Gardiner Ranges in the proposed licence), interference with the egg stones is likely by exploration activities, without guidance from Tjurabalan as to how to identify them.
Conclusion
Given the particular significance of the stone eggs associated with the Wana dreaming, and the Ngapa dreaming and associated water, the exploration activities likely to be conducted by Duketon Mining Limited following the grant of the proposed licence will interfere with areas or sites of particular significance in accordance with traditions of the native title holders.
Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Tjurabalan did not make any contentions or provide evidence in relation to s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licences is likely to involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(c) is unlikely.
Determination
I find the grant of proposed exploration licence E80/5493 to Duketon Mining Limited is not an act attracting the expedited procedure.
Helen Shurven
Member
28 February 2022
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