Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Iron Bull Bangemall Pty Ltd
[2019] NNTTA 21
•30 April 2019
NATIONAL NATIVE TITLE TRIBUNAL
Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Iron Bull Bangemall Pty Ltd and Another [2019] NNTTA 21 (30 April 2019)
Application No: | WO2017/0760, WO2017/0761, WO2017/0762 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection applications
Tjurabalan Native Title Lands Aboriginal Corporation RNTBC (WCD2001/001)
(native title party)
- and -
Iron Bull Bangemall Pty Ltd (grantee party)
- and -
State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 30 April 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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 |
Legislation: | Aboriginal Heritage Act 1972 (WA) |
Cases: | Atkins & Ors on behalf of Gingirana v Drillabit Pty Ltd & Anor [2016] NNTTA 17 (Atkins v Anor) 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) 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 May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 113 (Rosas v Northern Territory) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Tjurabalan Native Title Lands Aboriginal Corporation v Inventum Resources Pty Ltd and Another [2018] NNTTA 6 (Tjurabalan v Inventum Resources) Valerie Tambling, Tony Kenyon Luwanbi & Gabriel Hazelbane Gulngarring/NT Gold Pty Ltd & David J Langley/Northern Territory [2002] NNTTA 209 (Tambling v Northern Territory) Walalakoo Aboriginal Corporation & Anor v Boadicea Resources Ltd & Anor [2016] NNTTA 29 (Walalakoo v Boadicea Resources Ltd) 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: | Mr Alex Romano and Ms Ania Maszkowski, Kimberley Land Council |
| Representative of the grantee party: | Mr Ken Green, Green Legal |
| Representatives of the Government party: | Mr Jeff O’Halloran and Mr Matthew Pudovskis, State Solicitor’s Office Ms Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
I have been appointed to decide whether the expedited procedure applies to the grant of proposed exploration licences E80/5101, E80/5102 and E80/5103 (the licences) to Iron Bull Bangemall Pty Ltd (Iron Bull). As outlined in s 237 of the Native Title Act 1993 (Cth) (the Act) the expedited procedure applies where the grant of a licence is not likely to:
·interfere directly with community or social activities carried on by members of native title claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
Each licence is located wholly within the boundaries of the Tjurabalan People’s determined area of native title (WCD2001/0001), as follows:
Licence No. Tribunal No. Size (km²) Location E80/5101 WO2017/0760 348.9908 123km north east of Balgo Community E80/5102 WO2017/0761 528.5455 75km north east of Balgo Community E80/5103 WO2017/0762 571.1311 104km north east of Balgo Community
The Tjurabalan Native Title Lands Aboriginal Corporation RNTBC (Tjurabalan) holds native title rights and interests on behalf of the Tjurabalan People. Tjurabalan exercised its right to lodge an objection with the National Native Title Tribunal against the State’s assertion the expedited procedure applies to the grant of each licence. Tjurabalan argue the expedited procedure should not apply, as interference or disturbance of the type described in s 237 of the Act is likely.
I note each of the licences is entirely over vacant crown land, approximately 10 kilometres west of the Western Australia/Northern Territory border. Tjurabalan holds exclusive native title rights and interests over the area of the licences as determined in Ngalpil v Western Australia. That is, they hold 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.
As outlined in this decision, there were some contentious issues raised in terms of the evidence. I outline my findings on those points, including the adequacy of the evidence and the weight to be given to it. However, those findings are made in the context of giving a great deal of weight to the fact these licences are on areas of land which have a determined native title claim, and that determination has given the native title holders exclusive possession. I note Tjurabalan lodged an objection which applied to proposed licence E80/5100, however, that objection was withdrawn by Tjurabalan early in the inquiry process due to their assessment of a lack of evidence in relation to that proposed licence. As such, this decision relates only to objections lodged in relation to E80/5101, E80/5102 and E80/5103.
This has been an unusually lengthy and complex matter. This decision has summarised and condensed much of the contentious oral and written material, however, I provide sufficient background and information in order to explain my reasons. My decision is that the expedited procedure does not apply to any of the three licences. As a result, the parties must negotiate in good faith with a view to obtaining the agreement of Tjurabalan: to the doing of each of the acts (that is, the grant of each licence); or to the doing of the acts subject to conditions (s 31 of the Act).
Preliminary matters
Parties’ submissions
Tjurabalan lodged contentions and various supporting material, which are summarised in the table below for clarity:
| E80/5101 | Affidavit of Mr David Tchooga Jnr (D.T. affidavit) | Affidavit of Ms Barbara Sturt and Mr Bobby Seela (B.S. affidavit) |
| E80/5102 | Affidavits of Mr Jimmy Tchooga (J.T.1 affidavit) (J.T.3 affidavit) | |
| E80/5103 | Affidavits of Mr Jimmy Tchooga (J.T.2 affidavit) (J.T.3 affidavit) | Affidavit of Ms Margaret Wein (M.W. affidavit) |
I accept each of the above deponents are determined native title holders and have authority to speak for the relevant respective areas covered by the licences.
Tjurabalan also provided contentions in reply, accompanied by the affidavit of Mr Alexander Romano; and the affidavit of Mr Douglas D’Antoine. Each of these affidavit’s referred to all of the licences in this inquiry. Mr Romano and Mr D’Antoine are both legal practitioners employed by Kimberly Land Council who represent the Tjurabalan. Mr Romano and Mr D’Antoine provided information about their role in the preparation of the affidavit material. They also confirmed the deponents in these inquiries viewed maps of the relevant areas and provided evidence in relation to those areas. For example, the deponents used AO (large) sized maps, and were also shown A3 sized maps, and these maps were scaled down for inclusion in the affidavits. I accept the native title holders understood the areas which were the subject of this inquiry, and provided evidence in relation to those areas. I expand on this further as needed throughout this decision.
Iron Bull lodged a statement of contentions accompanied by the following:
·Statutory declaration of Mr Paul Julian L’Herpiniere (L’Herpiniere declaration); and
·Affidavit of James Henry Brett Wallbank (Wallbank affidavit).
The State lodged: a statement of contentions; mapping; Tengraph Quick Appraisal forms; search results and mapping from the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS search results); and a list of proposed endorsements and conditions intended to be imposed on the grant of the licences. These endorsements and conditions, as well as legislation such as the relevant provisions of the Aboriginal Heritage Act 1972 (WA) (AHA), for example, constitute the State’s regulatory regime. The State refers to this regime as offering sufficient protections in terms of the requirements of s 237 of the Act, particularly in relation to s 237(b).
Validity of objections
Iron Bull contended the objections lodged by Tjurabalan should not have been accepted and ‘should be dismissed as they do not purport to be by a ‘native title party’…nor are they so made’. Iron Bull argues the objections are not valid as the objector is listed on the Form 4 as ‘Tjurabalan Native Title Lands Aboriginal Corporation’ – that is, the name does not include RNTBC in its name, which the grantee says is required by both the Act[1] and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). The objections list the Federal Court file number associated with the Tjurabalan determination, and in my view, the objections have been lodged by the relevant registered native title body corporate and were accepted correctly.
Request to view material submitted for another expedited procedure determination
[1] See sections 32(3), 29(2) and 253 of the Act.
Before lodging its contentions and evidence, Iron Bull requested access to evidence submitted by Tjurabalan in a previous expedited procedure inquiry (Tjurabalan v Inventum Resources). In that inquiry, I determined the expedited procedure did not apply to the grant of the licence. Iron Bull’s request was made on the basis the licence in the previously determined matter is situated adjacent to E80/5101 and it appeared to Iron Bull some of the subject matter from the earlier inquiry could be relevant in this matter.
Tjurabalan opposed the request, arguing, in summary, that: there are no common issues between the matters; there is no general right for a party to access evidence provided in another matter; and, it would be culturally inappropriate. Iron Bull provided a response to the points raised by Tjurabalan, pointing to: the Tribunal’s statutory obligation to hold hearings in public; the principles of ‘open justice’; and, asserting the evidence in the previous inquiry is directly relevant to the current matters.
The Tribunal has a unique way of operating (s 109 of the Act). It is not bound by the rules of evidence, yet it may be guided by such, and it operates in an informal manner. I found consideration of the Federal Court Rules 2011 (Cth) was helpful in relation to assessing Iron Bull’s request. For Federal Court matters, any document in a proceeding falling outside the categories set out in r 2.32(2) is, essentially, a ‘restricted’ document (for example, to media and other non-parties). The Tribunal may also have regard to cultural and customary concerns of Aboriginal and Torres Strait Islander people (s 109(2)) – this applies to the provision of evidence and the associated significance and sensitivities it has for Aboriginal people. Even though evidence in Tjurabalan v Inventum Resources did not have non-disclosure directions imposed, this does not necessarily mean that evidence lacks significance or sensitivities for a native title party.
The principles of open justice must be considered in the context of public hearings and evidence given in that context, as opposed to other forms of evidence provided for the benefit of parties (such as witness statements and submissions in a Tribunal inquiry). This is reflected in the Federal Court Rules.
After considering the comments from parties, I determined the expedited procedure objection application (Form 4) and the final determination in Tjurabalan v Inventum Resources were unrestricted documents, and could be provided to Iron Bull. I concluded the evidence filed by Tjurabalan in that previous inquiry constituted restricted documents and I would not release it to a non-party, particularly in view of Tjurabalan’s opposition to the request.
Request to view original paper copies of affidavits submitted by Tjurabalan
Iron Bull requested to view original paper copies of the J.T.1, J.T.2 and J.T.3 affidavits filed by Tjurabalan. Iron Bull stated the basis for the request included discrepancies between colours and sizes of annexed maps, and ‘fine annotations’ to a map annexed to the J.T.3 affidavit ‘which are particularly difficult to view’. After considering parties’ comments, I requested Tjurabalan provide the original paper versions of the affidavits to the Tribunal so they could be inspected, at the Tribunal premises, by the other parties, should they wish to do so. This decision was made on the basis that the request to view the original paper affidavits had been made by the representative of a party to the matters who had already viewed electronic copies of the documents, and that it would not be unreasonably burdensome on Tjurabalan. That material, including the original affidavits (in AO size), was provided to the Tribunal through registered post, and Iron Bull’s representative inspected the affidavits and annexures at the Tribunal’s Perth office.
Request for hearing
Iron Bull argued: the matter should be determined by way of a hearing; at a hearing cross-examination of witnesses should be permitted; and, Iron Bull should be permitted to respond to the further affidavit material accompanying Tjurabalan’s contentions in reply.
I convened a listing hearing at which parties were invited to provide submissions or information orally on these points, and on any other points which remained in issue. Iron Bull raised a number of concerns regarding Tjurabalan’s contentions in reply and particularly the affidavit evidence in J.T.1 and J.T.3. These matters were discussed at length by parties (details of the oral submissions on these matters are provided later in this determination, as relevant, when considering the s 237 criteria). Iron Bull argued the inconsistencies and uncertainties found within Tjurabalan’s evidence raised the question of whether the matter can be adequately determined in the absence of parties, without a hearing. Iron Bull noted if I was satisfied the matters could be determined in the absence of parties, then Tjurabalan’s affidavit evidence should be given nominal weight.
At the conclusion of the listing hearing I advised parties, having considered the written and oral submissions, I was satisfied the issues could be determined on the papers without the need for a hearing. In relation to the adequacy of Tjurabalan’s evidence and the weight it should be afforded, I advised parties this would be something I would turn my mind to in determining the inquiry. I did not see a need to put parties through the time and resource implications of a hearing in order to resolve the evidentiary issues which had been raised. As per s 151 of the Act, I must only hold a hearing if it appears to me that the issues cannot be adequately determined in the absence of the parties. This was not such a case.
Is the grant of the licences likely to interfere directly and substantially 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 Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native tile 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]).
In reaching its decision the Tribunal must also have regard to any other factors that might constrain the native title party’s community or social activities (see Smith v Western Australia at [27]). The term ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence must be provided to identify the individuals as a community (see Silver v Northern Territory at [59]). The term ‘social activities’ can encompass activities carried out by an individual or small group in certain circumstances, such as where the activities have a wider social dimension (See Silver v Northern Territory at [60]).
What community or social activities do Tjurabalan undertake on the licence?
I considered all of the evidence and material provided in relation to s 237(a), which was substantial in content and detail. The following table gives an idea of the main points of each of the parties’ contentions and evidence addressing whether or not Tjurabalan meet the requirements under s 237(a) on each of the proposed licences:
| Native Title Party (‘Tjurabalan’) | Grantee Party (‘Iron Bull’) | Government |
| E80/5101 | ||
| Tjurabalan’s contentions refer to all three licences, the evidence relied on for this criteria relates primarily to E80/5101. Tjurabalan’s contentions state members of Tjurabalan access the licence areas regularly during the dry season from the nearby communities of Ringer Soak[2] and Balgo[3] and that, in particular, E80/5101 is an ‘area of unique natural abundance’. The D.T. affidavit states he, and others from Ringer Soak, access E80/5101 ‘every year, maybe twice a year if I can’. The D.T. affidavit describes accessing the area in order to hunt, fish, collect bush tucker, and teach and practice ceremony. The D.T. affidavit states the lunja tree can be found in the licence area and is good wood for burning and cooking bush tucker. The D.T. affidavit states ‘We set bushfires to clear the country. We clean out the living water places and dig a hole to make a drinking spot.’ Similarly, the B.S. affidavit states the area of E80/5101 is used for collecting bush tucker, hunting and intergenerational teaching. It states Ms Sturt last visited the area in 2016 with a number of family members. | Iron Bull contends that the grant of E80/5101 is not likely to interfere with the carrying on of community and social activities of Tjurabalan. In support of that contention, Iron Bull refers to [8]-[12] and [18] of the D.T affidavit and [9], [12] and [13] of the B.S. affidavit. Mr David Tchooga says he and other men from Ringer Soak would go to the licence area one or twice a year.[4] However, Iron Bull argues that his evidence is ‘ambiguous’. Iron Bull argue that there is almost no likelihood that the grant of E80/5101 will interfere with the carrying on of community or social activities of Tjurabalan in relation to the land and waters of the proposed licence area. Iron Bull argue Tjurabalan can easily avoid the license area when hunting as the areas is approximately 34,871.69 hectares in size and that the work in which Iron Bull wish to undertake on E80/5101 are of a limited nature. Iron Bull believe that the proposed grant of E80/5101 satisfies the requirements of s 237(a). | The State argue that Tjurabalan provide insufficient evidence of a general nature in relation to whether certain activity takes place or not highlighting that specific evidence is required about location, intensity and frequency of the activity, and how the grant of the licence would interfere with that activity.[5] The State are not satisfied that Tjurabalan meet the requirements under s 237(a) in that they lack detail of how they carry out community or social activities on the proposed licence area, this includes the number of people involved, how frequently they occur or how the activities of Iron Bull will interfere with the carrying out of these activities. The State also argue that Tjurabalan refer to the B.S. affidavit and D.T. affidavit as evidence in support of these activities[6] and they only relate to E80/5101. |
| E80/5102 | ||
| The J.T. affidavits refer to collecting ‘special lukararra seeds’ within the areas of E80/5102 and E80/5103 in order to make damper. For example, Mr Tchooga states[7]: We get those seeds out in the bush there and use the grind stones there on top of those hills to make damper. The women they gather the seeds from all around the Tenement Area and take them to where those stones are to grind them and use them for damper. They are important stones for us, for our culture, nobody should just be grabbing those stones. The J.T.1 affidavit says the stones for grinding are collected from the licence area, especially near the soaks. Furthermore, Tjurabalan say that the Wurnyarra dreaming track transverses E80/5102.[8] | Iron Bull contend the J.T.1 affidavit does not refer to any relevant community or social activities. Iron Bull say there is insufficient evidence for the Tribunal to make any finding that their proposed activities are likely to cause a direct or substantial interference[9] with any community and social activities of Tjurabalan. Iron Bull maintain their position that the Tribunal should find that the proposed grant of E80/5102 satisfies the requirement of s 237(a). | The B.S. affidavit refers to hunting within the area of E80/5102 for bush turkey, emu and kangaroo,[10] however does not provide any further detail about the location in which these activities take place or their frequency. There are very broad and general references in the J.T. affidavits about going to areas within E80/5102 to collect ‘special lukararra seeds’, however there is not enough of sufficient detail as to how often the area is visited and the people involved. |
| E80/5103 | ||
| In relation to E80/5103, the M.W. affidavit states the area is used for camping and hunting, in particular bilby. | Iron Bull argues that Tjurabalan’s contentions do not expressly refer to any evidence that indicates their community or social activities will be affected from the grant of s 237(a). | The State argues that other than a brief reference in the M.W. affidavit with regard to ‘hunting, camping and travelling’, there is no further detail or evidence that satisfies s 237(a) to the extent that the activities would be interfered with by the grant of the proposed licence. |
[2] In Tjurabalan v Inventum Resources I noted that Ringer Soak was approximately 1-2 hour’s drive from the licence area
[3] The State’s s 29 notices indicate the licences are between approximately 75 to 123 kilometres from Balgo
[4] D.T. affidavit at [8]
[5] Walalakoo Aboriginal Corporation & Anor v Boadicea Resources Ltd & Anor [2016] NNTTA 29 [15], [22]
[6] Native title party Contentions [6]-[8].
[7] J.T.1 affidavit at [10]
[8] J.T.1 affidavit at [12]-[13]
[9] Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16].
[10] B.S. affidavit at [9].
The State contends that, overall, there is nothing in the Tjurabalan evidence which particularises the location of traditional ceremony and intergenerational teaching activities and further, there is no detail as to the frequency, duration, intensity or number of people involved in Tjurabalan community and social activities.[11] Contrary to the State’s contentions, Tjurabalan argue their evidence as a whole suitably identifies the location, frequency, duration, intensity and people involved in these community and social activities as well as demonstrating how the grant of the licences will interfere with these activities. Tjurabalan indicate that once the proposed licences are granted, they will be significantly restricted from carrying out their community and social activities as a result of Iron Bull’s proposed activities.
[11] See the State’s contentions at [53]-[60]
What activities does Iron Bull intend to undertake on the licence?
Iron Bull’s contentions focus on the Wallbank affidavit, and its annexures, as evidence of Iron Bull’s intentions in regards to the licences. Mr Wallbank is the sole director of Iron Bull. The Wallbank affidavit states significant prior ground based exploration has been conducted over the area of the licences between 1961 and 2015. The Wallbank affidavit estimates exploration activities during this time included more than 5000 drill holes and 6000 ground samples. The Wallbank affidavit states Iron Bull intends to undertake more detailed and much deeper drilling and sampling in those areas where: prior exploration activities have been undertaken; and, the results of that prior exploration activity indicates gold mineralisation may be present.
The Wallbank affidavit refers to mapping annexed to the L’Herpiniere declaration. It states Iron Bull intends to limit its exploration to those target areas marked on this mapping. The affidavit states Iron Bull does not intend undertaking exploration activities in areas where significant ground disturbing exploration has not already occurred. It also states that, due to previous exploration work, numerous roads and tracks exist that provide access to the target areas. Iron Bull intends on limiting access and movement within the licences to those existing roads and tracks. I note the State’s materials indicate tracks and/or roads do exist on each of the licences.
I note many of the grants of the tenements which allowed such previous exploration were made prior to the Act coming into effect. There is no information which suggests whether or not the existing drill holes or ground sample areas were done on grants made prior to the Act, and/or under any agreement between the Tjurabalan People and the previous licence holders.
Attached to the Wallbank affidavit is also a Deed Poll, where Iron Bull makes a number of covenants in favour of Tjurabalan, in relation to these licences. These covenants include: giving notice of proposed works; not conducting exploration or productive mining over the licences without first conducting (subject to conditions) an Aboriginal site survey; and only restricting access to the licences for safety or security reasons.
The Tjurabalan reply addresses the Deed Poll, indicating in their view it does nothing to reduce the likelihood of community and social activities being interfered with – for example, they point to the clause regarding restricting access for safety or security reasons, note it was not drafted in consultation with the Tjurabalan People, and that it could significantly restrict the community’s access to the area.
If interference is likely to occur with Tjurabalan community or social activities, would it be direct and substantial?
Tjurabalan contends that its objection to the grant of exploration licences E80/5101-5103 should be upheld. Tjurabalan contends the exploration activities associated with the grant of the relevant licences will directly interfere with Tjurabalan community and social activities as the proposed exploration activities will interfere with the hunting, fishing, teaching and resource collection undertaken by determined native title holders within the licence areas.
E80/5101
Tjurabalan evidence indicates that E80/5101 is an area of unique natural abundance where members of Tjurabalan live within driving distance to the communities of Ringer Soak and Balgo. They access the licence regularly to hunt for kangaroo and goanna,[12] fish in Slatey Creek,[13] collect bush tucker,[14] as well as teach and practice ceremony within the licence area.[15] This is particularly evident in the D.T. and B.S. affidavits emphasising these activities take place several times a year with members of the community[16]. The area around Slatey Creek appears to be an important area[17] and to be the focus of much of the social and community activity of the native title holders, in relation to this licence.
[12] D.T. affidavit at [8], [10]
[13] D.T. affidavit at [10], [11]
[14] B.S. affidavit at [9], D.T. affidavit at [12]
[15] D.T. affidavit at [9], B.S. affidavit at [12], [13]
[16] D.T. affidavit at [9]
[17] More detail is provided on this in the consideration of s 237(b) in terms of sites of particular significance
The evidence for E80/5101 in terms of social and community activities is more detailed than that provided in Tjurabalan v Inventum Resources (where I found the threshold was not met for interference to be likely under s 237(a) of the Act).
Tjurabalan contend that community activities will be disrupted should the licences be granted. Tjurabalan submit that access to the licence areas by members of Iron Bull without Tjurabalan consent or any prior notification will likely disrupt Tjurabalan cultural practices such as traditional ceremony and intergenerational teaching which occurs regularly.[18]
[18] B.S. affidavit at [12]; D.T. affidavit at [9] and [8]
Iron Bull argue, for example, that Tjurabalan can easily avoid E80/5101when hunting as the area is approximately 34,871.69 hectares in size and the work in which Iron Bull wish to undertake on E80/5101 is of a limited nature. However, this is not the appropriate test. The test is whether or not the explorer’s activities will be likely to cause substantial and direct interference with the social and community activities of the native title holders. I note that Iron Bull state they will focus on areas which have previously been disturbed by exploration activity, and have indicated some target areas within that ambit. This does not necessarily mean their proposed activities will not interfere with the native title holder’s community and social activities under the grant of this licence. In addition, the proposed work area for Iron Bull appears to run very close to, or intersect with, part of Slatey Creek. As much of the focus of the Tjurabalan People’s community and social activities on this licence appears to concentrate around Slatey Creek, this increases the likelihood of both parties intersecting.
My findings are given the evidence provided, particularly regarding activities on and around Slatey Creek, that if the explorer were to exercise their rights under the grant of E80/5101, there is likely to be direct and substantial interference of Tjurabalan’s exercise of their community and social activities, according to their traditions. I have also given weight to the exclusive nature of the Tjurabalan native title rights and interests.
E80/5102 and E80/5103
While I accept there are social and community activities which are conducted by Tjurabalan on these licences, there is insufficient information for me to conclude there is likely to be direct and substantial interference of those activities from Iron Bull’s exploration activities.
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 (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]). Tjurabalan must establish there are sites of particular significance in the area or vicinity of the proposed licences, and that those sites are of more than ordinary significance to Tjurabalan in accordance with their traditions (see Tambling & Ors v Northern Territory at [39]).
The Tribunal has made several findings about the nature of evidence relating to s 237(b), including:
(a)Very broad or imprecise references to sites or areas cannot be relied on (see Walalakoo v Boadicea Resources Ltd at [30], [33], [35]-[36], [39], [43]-[44]);
(b)It is important the evidence provides an explanation of the site’s significance in the context of a native title party’s traditions (see Walalakoo v Boadicea Resources Ltd at [36]);
(c)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 (see Walalakoo v Boadicea Resources Ltd at [39]).
I considered all of the evidence and material provided in relation to s 237(b), which was substantial in content and detail. An impression of the parties’ contentions and evidence is summarised in the table below, to assist understand my reasoning in assessing this criteria:
| Native Title Party (‘Tjurabalan’) | Grantee Party (‘Iron Bull’) | Government |
| E80/5101 | ||
| Tjurabalan contend that any unauthorised access and physical disturbance to the licence area due to activities carried out by Iron Bull would be major disturbance that could lead to significant spiritual consequences for the Tjurabalan. They argue such disturbance would be allowable under the terms of the grant of the licence. Tjurabalan contend the evidence suggests that within E80/5101, the Kampinji area and its surrounds (including Slatey Creek and the Lewis Range[19]) is an area of particular significance to Tjurabalan. The Kampinji area is identified by members of Tjurabalan as being an area of particular significance. The area is sensitive under traditional lore and custom. It is transversed by the Rainbow Serpent[20] and is the site of Ngapa and Luwun dreamings.[21] It contains burial sites,[22] massacre sites,[23] and gender restricted sites[24] which cannot be accessed without the permission of Tjurabalan without causing disturbance under traditional lore and custom. At [14] of the D.T. affidavit, Mr David Tchooga states: I flew over this country with my mother, Barbara Sturt in 2016. We flew over the country of the Tenement Area in a helicopter. I know where all the sites are because I could see them from the air. | Ms Sturt and Mr Seela gave evidence concerning the Wurnayarra at [16] of the B.S. affidavit in respect of E80/5101. Iron Bull contend that the Wurnayarra is not particular to E80/5101, it being the case that Slatey Creek lies only partly within E80/5101. Furthermore, it is unclear from the D.T. affidavit or the B.S. affidavit whether the ‘Rainbow Serpent’ exists in other creeks or waters or indeed other places. Mr Jimmy Tchooga says at [13]-[14] of the J.T.2 affidavit that the Wurnayarra is also a rock hole on top of Bald Hill, neither the B.S. affidavit or the D.T. affidavit addresses what might constitute an interference with Slatey Creek. In the B.S. affidavit reference is made to four rock holes, however, there is no specific reference to them being located within E80/5101. With regard to Ngapa dreaming at [16] of the B.S. affidavit, it is explained that Ngapa places are water places. The deponents explain how they are water places and that they are ‘all over the Tenement Area’ [25] and ‘throughout the 600 square km area named Kampinji.[26] In regards to the burial sites located within E80/5101 Mr David Tchooga confirmed that the burial sites are easily visible and Iron Bull contend they will not be affected by exploration activities[27] Iron Bull contends that there is no suggestion that Luwan (kingfisher dreaming) is within E80/5101. | The State contends there is insufficient evidence to explain the particular significance of the dreaming that crosses E80/5101, nor is there any explanation as to how these sites are distinguishable from other parts of the dreaming. In relation to Ngapa dreaming, other than some general references to the dreaming crossing E80/5101 (B.S. affidavit at [15]-[16], [19]), there is no further evidence about its precise location or whether the dreaming track is a site of particular significance for the purposes of s 237(b). The State contend that although the evidence regarding the Luwun dreaming is more clear regarding its location there is insufficient evidence to explain the particular significance of the sections of the dreaming that crosses E80/5101. The State contends that Tjurabalan has not located any massacre sites with sufficient specificity to allow the Tribunal to make a determination regarding the existence of these sites within E80/5101. The State contends that there is no evidence of any grind stone or lukararra seed deposits in E80/5101. |
| E80/5102 | ||
| Tjurabalan contend there are several dreaming tracks which transverse the licence area including Ngapa,[28] Luwan,[29] Warlu,[30] Wurnyarra[31]or Tjukurrya and Pirnkirrjaru.[32] These dreaming stories are linked to physical sites which are located on the licence area. The areas can only be identified by members of Tjurabalan as they are the only people who are able to identify all of the relevant physical parts of the country. Tjurabalan contend there is a very real risk of disturbance of the country if the area traversed by the dreamings is accessed without prior consultation of Tjurabalan. Tjurabalan also contend that there is a gender-restricted song line,[33] rock art[34] and significant grind stone and lukararra seed deposits[35] that hold particular significance to the Tjurabalan. | Tjurabalan contend that the Wurnyarra dreaming (rainbow serpent dreaming) track traverses the E80/5102.[36] Tjurabalan contends that the precise path of the dreaming through the licence Area can only be identified by members of Tjurabalan.[37] Iron Bull refer to the J.T.1 affidavit at [6] where Mr Jimmy Tchooga refers to Killi Killi Hills and Number Three Bore, each of which is located at least 10 kms outside of E80/5102. Mr Jimmy Tchooga confirms that he has not visited these sites since he was a child, he is now 68 years.[38] Iron Bull contends that the vagueness of the evidence renders it of little assistance to the Tribunal. | The State contends there is no evidence as to the precise location of the grind stone or lukararra seed deposits within this licence area The State accepts there may be grind stone or lukararra seed deposits within E80/5102; however, due to there being insufficient evidence that identifies the location of these deposits, or that any of those sites are of particular significance, the State does not believe that s 237(b) is satisfied. |
| E80/5103 | ||
| Tjurabalan contend that there are gender restricted sites,[39] sacred lore ground,[40] artefact scatters,[41] rock art, and lukararra seed deposits[42] on E80/5103 and that these sites cannot be accessed without the permission of the Tjurabalan. If these sites are accessed without permission of Tjurabalan it will cause disturbance under traditional lore and custom. The physical sites are of great importance to Tjurabalan. Tjurabalan contend the grant of E80/5103 will interfere with sites of particular significance and refer to various dreaming tracks.[43]. | Iron Bull contend that neither the M.W. affidavit or the J.T.2 affidavit attest to any specific or identifiable geographic manifestations within E80/5103. Iron Bull contend that whilst a portion of Gardner Range lies within E8/5103, it appears a minor portion. In relation to any of the Tjurabalan dreaming tracks, Iron Bull contend that given the vagueness of the evidence as to the manifestation of any dreaming tracks within E80/5103, the Tribunal should not find those tracks are areas of significance as contemplated by s 237(b). Iron Bull contend that the references made to any gender restricted sites within E80/5103 lack sufficient details for the Tribunal to be able to find they are of significance. In relation to any gender specific sites such as law grounds on E80/5103, Iron Bull contend that it is not apparent that there are any law grounds on the proposed licence.[44] Iron Bull contend there is nothing that indicates or attributes to any artefact scatter on E80/5103. In the circumstances, Iron Bull argues there is nothing to suggest that there are any sites of particular significance located on E80/5103 and the proposed grant satisfies the requirements of s 237(b). | The State contends there is no evidence as to the precise location of the grind stone or lukararra seed deposits within licence area E80/5103. The State contends there is insufficient evidence regarding the gender-restricted sites as Tjurabalan failed to be clear about what type of site is being referred to. The Tribunal has previously noted that it is ‘always preferable for parties to provide detailed evidence to support their contentions’. Section 155 of the Act would allow Tjurabalan to provide evidence of a sensitive nature, not to be disclosed except in such a manner and to such persons as specified under s 155 non-disclosure orders (see Atkins v Anor). No attempt has been made to provide the necessary evidence with the assistance of non-disclosure orders in this matter. The State only intend to deal with sites that are identified in the Tjurabalan contentions as being areas or sites of particular significance. The State hold this view in relation to the gender-restricted sites, song lines and sacred law grounds. |
[20] B.S. affidavit at [16]-[18]
[21] B.S. affidavit at [15]-[18]; D.T. affidavit at [13], [16], [17]
[22] B.S. affidavit at [11]; D.T. affidavit at [15]
[23] D.T affidavit at [16]; B.S. affidavit at [14]
[24] D.T affidavit at [18]; B.S. affidavit at [12]-[13]
[25] B.S. affidavit at [16]
[26] B.S. affidavit at [16]
[27] Iron Bull contentions at 9.21-9.22
[28] M.W. affidavit at [9]; J.T.2 affidavit at [11], [12], [21]
[29] M.W. affidavit at [10]-[12]
[30] J.T.2 affidavit at [16]-[17]
[31] J.T.1 affidavit at [6], [12]-[13]; J.T.2 affidavit at [10], [14]
[32] M.W. affidavit at [8]-[10], [12]-[13], [16]
[33] J.T.1 affidavit at [6]
[34] J.T.1 affidavit at [8]
[35] J.T.1 affidavit at [10]-[11]
[36] Native title party contentions at [9b]
[37] Native title party contentions at [9b]
[38] J.T.1
[39] M.W. affidavit at [14]; J.T.2 affidavit at [19]-[21]
[40] J.T.2 affidavit [18]-[21]
[41] J.T.2 affidavit at [13], [15]
[42] J.T.2 affidavit at [8]-[9]
[43] Native title party contentions at [9]; M.W. affidavit at [8]-[10] and [16], J.T.2 affidavit at [10]-[12], [14], [16]-[17] and [21]
[44] Iron Bull reply on the J.T.2 affidavit at [13] and [15].
What areas or sites do Tjurabalan identify on the licence?
Tjurabalan contends ‘there are several sites of particular significance to the native title holders within the [proposed licences]’.[45] Tjurabalan have identified the following sites which they say are of particular significance:[46]
[45] Native title party contentions [10]
[46] Native title party contentions [9], [11]
(a)the Kampinji area and its surrounds (including Slatey Creek and the Lewis Range) (E80/5101 - E80/5103);
(b)dreaming tracks and physical sites associated with them, including Ngapa, Luwun, Warlu, Wurnyarra and Pirnkirrjaru (E80/5101-E80/5103);
(c)burial sites (E80/5101 & E80/5103[47]);
(d)massacre site near Slatey Creek (E80/5101);
(e)gender-restricted sites (E80/5101 - E80/5103[48]);
(f)artefacts scatters (E80/5103);
(g)rock art (E80/5102 & E80/5103);
(h)grind stones (E80/5102 & E80/5103); and
(i)lukararra seed deposits (E80/5102 & E80/5103)
[47] For E80/5103 it is said to be near Bald Hill which is not on the licence
[48] For E80/5103 it is said to be near Bald Hill which is not on the licence
Are these areas or sites of particular significance in accordance with Tjurabalan’s traditions?
Tjurabalan contends the evidence establishes the sites listed above at [42] are sites of particular significance and that the grant of the proposed licences are likely to interfere with these areas and sites.
Iron Bull were critical of parts of the evidence provided in this inquiry (see [18]-[21] and [47(d)] of this decision, for example). I accept that some of the written material was difficult to reconcile with annotations on mapping attached to the affidavits. However, this was a discrete and focused part of the evidence and in my view, did not taint the great majority of the evidence provided by the deponents. What it does highlight is the often difficult task of putting into words the importance or significance of aspects of a native title holders land and traditions.
I accept the following are sites of particular significance according to the native title holders traditions:
(a)the Kampinji area and its surrounds (including Slatey Creek and the Lewis Range); (E80/5101 - E80/5103);
(b)dreaming tracks and physical sites, associated with them, including Ngapa, Luwun, Warlu, Wurnyarra and Pirnkirrjaru; E80/5101 - E80/5103);
(c)burial sites (E80/5101 & E80/5102);
(d)massacre site near Slatey Creek (E80/5101);
(e)gender-restricted sites/lore ground (E80/5101 & E80/5103); and
(f)rock art (E80/5102 & E80/5103).
In relation to the artefacts scatters, the grind stones and the lukararra seed deposits, I appreciate they are intimately linked to social and community activities conducted by the Tjurabalan, but do not find they are of themselves of particular significance for the purposes of s 237(b).
Is the grant of the licence likely to interfere with areas or sites of particular significance to Tjurabalan?
Tjurabalan expressed it will cause disturbance under traditional law and custom if sites of particular significance are accessed without their involvement and consultation. Tjurabalan contend there is a high likelihood that exploration activity within the licence areas will physically disturb sacred resource deposits and physical sites of great importance to the Tjurabalan People.
Tjurabalan contend the presence of non-native title holders such as members of Iron Bull is likely to constitute interference with sites and areas that are of particular significance. In particular, they say:
(a) there are special procedures which need to be followed before entering the vicinity of or using the living water of various soaks and Slatey Creek, and not to do so would lead to several harmful consequences. The consequences range from sickness, death to the intruding party or damaging floods;[49]
(b) viewing or being in even distant proximity to gender-restricted rock art without following the proper processes would constitute an interference under the traditional law and culture of the Tjurabalan people;[50]
(c) accessing the vicinity of rock holes/soaks linked to the Luwan or Pirnkirrjaru dreaming could disrupt the dreaming, cause sickness to members of the Tjurabalan and/or cause significant drought;[51] and
(d) accessing the vicinity of living water/soaks linked to the Wurnayarra dreaming could cause drought or sickness to intruders.[52]
[49] D.T. affidavit at [17]-[22]; B.S. affidavit at [16]-[20]
[50] M.,W. affidavit at [13]; J.T.2 affidavit at [20]-[21]
[51] M.W. affidavit at [10]-[11]
[52] J.T.1 affidavit at [12]-[13] - Iron Bull was critical of this evidence in relation to the importance of water, however, the M.W. affidavit is sufficient in my view to confirm there are soaks located on E80/5103 and they are of particular significance as they are linked to dreamings which run through the licence (at [9]-[10]).
Tjurabalan further contend that due to the interconnected nature of the dreaming’s identified in the evidence, it is appropriate for the Tribunal to have regard to interference with sites or areas of significance that may fall outside the boundaries of the licence areas. They say that interference is likely under the traditional laws and customs of the Tjurabalan, with sites outside of the licence areas. They also say this is demonstrated throughout the evidence provided for each of the licence areas. For example, they argue interference with water sites in E80/5103 would impact on the Pirnkirrjaru dreaming. Part of this dreaming falls inside and part falls outside of E80/5103. That dreaming and associated geographical features has previously been found to be of particular significance to Tjurabalan (see Tjurabalan v Inventum Resources at [34]-[37]).
The State argue they intend to impose their Regional Standard Heritage Agreement (RSHA) as a condition on each grant, and this will provide the type of protection which the native title holders seek, namely, heritage surveys prior to exploration. However, the RSHA is only triggered by various ground disturbing activities, and the native title holders have made it clear that non-ground disturbing activities will be sufficient to cause interference with their traditions. The State contentions (at [123]-[138]) also provide an outline of the protections they say would come from the application of the AHA and the RSHA. However, they are broadly cast and I do not find them persuasive, given the information and evidence provided by Tjurabalan.
I outline below my considerations and conclusions about which sites and areas of particular significance I consider are likely to be subject to interference for the purposes of s 237(b).
The dreamings and associated geographical features
In relation to the Ngapa, it is said to go from Bald Hill through E80/5103 and continue up through E80/5101. The Luwun is said to go through Gardner Range which partially overlaps E80/5101, and then travel through E80/5103. In relation to Pirnkirrjaru, the M.W. evidence clearly places part of this dreaming across E80/5103, and explains how delicate the interaction with features of the licence is with this dreaming, including its relationship with water sources on the licence. I accept all of this evidence and that exploration activities could interfere with each of those dreamings and the physical features associated with them on E80/5101 and E80/5103, such as water sources.
With Warlu, the evidence is less clear as to: the direction the dreaming heads from Bald Hill; whether it intersects with E80/5103; its interaction with the other dreamings. As such I cannot conclude there would be interference from Iron Bull’s exploration activities to that dreaming or geographical features associated with it on E80/5103. Wurnyarra appears to travel parallel to E80/5103 and travel south to the Killi Killi hills, which are outside the licence. Based on the evidence, I cannot conclude the exploration activities on E80/5103 would interfere with that dreaming. I accept each of the dreamings are to some extent interconnected, but how any exploration activities on E80/5103 would interfere with features off that licence related to Warlu and Wurnyarra is not clear.
Burial sites
I am not satisfied the burial sites which are said to be near E80/5101 will be interfered with by exploration activities, as the evidence is equivocal as to whether they are on that licence. In relation to the burial sites related to E80/5102, they are clearly placed on that licence by the evidence and I accept exploration activities could inadvertently interfere with them.
Massacre site
Iron Bull states the B.S. deponents may be confused as to the site of the massacre and that they may be referring to the Sturt Creek massacre which occurred in an area outside E80/5101. Iron Bull provide a 213 page archaeological report on the Sturt Creek massacre in support of their contentions. I find the B.S. affidavit is very clear on the massacre site (at [14]):
A lot of massacres took place in that Slatey Creek area where the Tenement area is. We can’t tell you that story, it’s too sad. It will bring the spirits back to life if we tell the story. Mining mob going there could wake the dead spirits up, they resting in peace, shouldn’t be disturbed (emphasis added).
The Tjurabalan reply states (at [54]) that Iron Bull’s submission ‘that the deponents have confused massacre sites at Slatey Creek with a massacre at Sturt Creek station is offensive to the members of the NTP [native title party] who provided this evidence’. I am satisfied there is a massacre site near Slatey Creek on E80/5101 and that exploration activities could interfere with that site.
Gender-restricted sites/rock art
There are sensitivities around the discussion of gender-restricted sites throughout all of the affidavit materials. There is reference to the area of these licences, and surrounds, being the location for many sensitive ceremonial and gender specific occasions. The sensitive area associated with E80/5103 is said to be near Bald Hill which is not on the licence. There is insufficient information which would enable me to conclude that exploration activities on E80/5103 would interfere with that area.
In relation to E80/5101 and E80/5102, taking the information provided in the four relevant affidavits provided by native title holders, I am satisfied that the Tjurabalan People have practiced ceremony in these areas for many years and there exist sites such as gender specific rock art and ceremonial sites which are gender sensitive, and which would be likely to suffer from interference by exploration activities of Iron Bull.
Conclusion
As I noted in Tjurabalan v Inventum Resources (at [39]) ‘…the entirety of the licence overlaps vacant crown land, and the Tjurabalan People have been determined to have exclusive native title rights and interests over that land… Of particular note in relation to s 237(b), is the Tjurabalan People’s right to maintain and protect sites which are of significance to under their traditional laws and customs’. I apply that reasoning to my thinking about s 237(b) interference in this current inquiry.
As noted earlier in this decision, Iron Bull has been clear about its exploration activities, and has provided mapping of their intended target areas on each licence. Their contentions and evidence largely focussed on arguments that the sites which the native title holders said were of particular significance either did not exist, or did not exist on the relevant licences, or the native title holders were mistaken as to their significance or their location. Having found that sites of particular significance do exist in relation to the traditions of these native title holders, and having examined Iron Bull’s proposed exploration program and the underlying tenure of the licence areas, I conclude those exploration activities are likely to interfere with the sites of particular significance (as outlined at [51]-[56]). I do not believe the proposed Deed Poll, or the States regulatory regime, including the RSHA, are sufficient to mitigate the likelihood of the interference such that it would not offend s 237(b) of the Act.
I am satisfied that the sites of particular significance I have accepted as being likely to be interfered with are so interconnected, and of such significance to the native title holders, that what Iron Bull may regard as a low level or inconsequential level of interference, would be likely to be a high level of interference from the point of view of the Tjurabalan People. As McKerracher J outlined in FMG Pilbara v Yindjibarndi (at [75]):
…the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions.
(c) 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 licences E80/5101, E80/5102 and E80/5103 to Iron Bull Bangemall Pty Ltd are not acts attracting the expedited procedure.
Helen Shurven
Member
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