Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v PVW Resources Nl
[2019] NNTTA 106
•22 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v PVW Resources NL and Another [2019] NNTTA 106 (22 November 2019)
Application No:
WO2018/1007, WO2018/1008
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 Lands Aboriginal Corporation RNTBC (WCD2001/001)
(native title party)
- and -
PVW Resources NL
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARe ACTs ATTRACTING THE EXPEDITED PROCEDURE
Tribunal:
Mr JR McNamara, Member
Place:
Brisbane
Date:
22 November 2019
Catchwords:
Native title – future acts – 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 area of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the acts are acts attracting the expedited procedure
Legislation:
Native Title Act 1993 (Cth) ss 151, 237
Cases:
Andy Andrews & Ors v Northern Territory [2002] NNTTA 170; (2002) 170 FLR 138 (Andrews v Northern Territory)
Atkins and Others on behalf of Gingirana v Drillabit Pty Ltd and Another[2016] NNTTA 17 (Atkins v Drillabit Pty Ltd)
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 Pilbara 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 NL [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[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 Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni)
Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v PVW Resources NL and Another[2019] NNTTA 105 (Tjurabalan v PVW Resources)
Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another[2016] NNTTA 16 (Tjurabalan v Rich Resources)
Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another[2016] NNTTA 29 (Walalakoo v Boadicea Resources)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v FMG)
Representative of the native title party:
Claire Saffery, Kimberley Land Council
Representative of the grantee party:
Jacob Loveland, All Mining Legal Pty Ltd
Representative of the Government party:
Rachel Eaton, State Solicitor’s Office
REASONS FOR DETERMINATION
[1] I have been appointed to decide whether the expedited procedure applies to the grant of proposed exploration licences E80/5249 and E80/5250 (the proposed tenements) to PVW Resources NL (PVW Resources). The State of Western Australia (the State) considers the grant of each proposed tenement is an act attracting the expedited procedure.
[2] By including the expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licences are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to, in summary:
(a) interfere directly with the community or social activities of the holders of native title in relation to the area (s 237(a));
(b) interfere with areas or sites of particular significance, in accordance with those holders’ traditions, (s 237(b)); or
(c) involve, or create rights whose exercise is likely to involve, major disturbance to any part of the area (s 237(c)).
[3] The proposed tenements are located wholly within the boundaries of the Tjurabalan People’s determined area of native title (WCD2001/001), as follows:
Tenement No.
Tribunal No.
Size (ha)
Location
E80/5249
WO2018/1007
18365.86
210km south east of Halls Creek
E80/5250
WO2018/1008
20941.25
190km south east of Halls Creek
[4] I note the proposed tenements are entirely over vacant crown land, and are in close proximity to the Western Australia/Northern Territory border.
[5] The Tjurabalan Native Title Lands Aboriginal Corporation RNTBC (Tjurabalan) holds exclusive native title rights and interests over the area of the proposed tenements for the Tjurabalan People, as determined in Ngalpil v Western Australia. That is, 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.
[6] Tjurabalan lodged objections with the National Native Title Tribunal (the Tribunal) against the State’s assertion the expedited procedure applies to the grant of the proposed tenements. Tjurabalan argues the expedited procedure should not apply, as interference or disturbance of the type described in s 237 of the Act is likely. 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 each 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 proposed tenements, the nature of the proposed grants and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
[7] If I find the expedited procedure applies, a proposed tenement can be granted without parties being required to negotiate with each other. If I find it does not apply, PVW Resources 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 the proposed tenements.
[8] I recently made a determination in an inquiry relating to four objection applications involving the same parties in the same locality, and related to the same project, the Tanami West Project. That determination is Tjurabalan v PVW Resources. I decided to deliver separate determinations for these two matters as they were lodged separately to the other four objections, there is additional evidence provided in the current matters and, due to the fact that the parties’ contentions are not identical. There will inevitably be some similarity in the information, form and presentation between the matters.
Parties’ submissions
[9] All parties provided submissions in this matter. Tjurabalan provided contentions and affidavits of: Mr Jimmy Tchooga affirmed 30 May 2019; Mr Patrick Smith affirmed 20 August 2019; and Mr Lloyd Lightening affirmed 21 August 2019.
[10] Mr Tchooga says that he is a Tjurabalan determined native title holder and traditional owner for this area through his father. Mr Smith says he has cultural responsibility and is a guardian for the area of the tenement application areas. Mr Lightening says he is a determined native title holder and knows the proposed tenement areas well from his father and his grandfather. I accept the cultural authority of Mr Tchooga, Mr Smith and Mr Lightening to speak for the area of the proposed tenements.
[11] I note that Mr Tchooga’s affidavit was also lodged in the previous inquiry of Tjurabalan v PVW Resources. Mr Tchooga’s affidavit addresses matters relevant to those tenements as well as the present proposed tenements E80/5249 and E80/5250.
[12] Although initially raised as a ground for the objection, Tjurabalan says that it does not make any contentions in relation to s 237(c) (Contentions [4]). I therefore apply the common sense approach as outlined in Ward v Western Australia (at [26]). I find there is no evidence to support a conclusion that the grant of the proposed tenements is likely to involve, or create rights whose exercise will likely involve, major disturbance (s 237(c)).
[13] The State provided: contentions; information about the land tenure; the results of searches undertaken of the Department of Planning, Lands and Heritage’s Aboriginal Heritage Inquiry System; a copy of the initial tenement application and a ‘Statement to Accompany Exploration Licence Application including Proposed Mineral Exploration Work Program’ for each proposed tenemnt; and proposed endorsements and conditions to be applied on grant.
[14] Also provided by the State is a map titled ‘Native Title & Aboriginal Interests’ showing each proposed tenement area with a circle around the area to indicate a ‘25km Buffer’ (although the basis for referring to it as a ‘buffer’ is not apparent); the boundary of the proposed tenement area wholly within the area of the Tjurabalan native title determination; its location in relation to other landmarks such as roads, tracks, Bald Hill, and, Watts Rise; and, its location in relation to a Part III Aboriginal Land Trust reserve. Finally, the State provided a ‘Live Mining Tenure’ and a ‘Dead Mining Tenure’ map showing the boundaries of a range of current and former mining tenements in the vicinity of E80/5249 and E80/5250.
Considering the matter ‘on the papers’ – no need for an oral hearing
[15] 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 of the Act, without the need for an oral hearing. All parties indicated they were content for me to proceed on the papers.
The proposed tenements
[16] The Tribunal produced and circulated a map (Annexure 1) showing the boundaries of the two proposed tenements the subject of this inquiry in red, and the boundaries of the four tenements the subject of Tjurabalan v PVW Resources in blue, also noting the location of certain places, and indicating distances from some localities referred to in the material.
[17] As can be seen from the map at Annexure 1, the proposed tenement areas are in close proximity to each other, although not contiguous. The ‘Proposed Mineral Exploration Work Program’ for each of the proposed tenements that ‘the tenement will form part of the Company’s existing Tanami West Project’. The four tenements the subject of Tjurabalan v PVW Resources were also said to constitute the ‘Tanami West Project’.
[18] In addition to Tjurabalan v PVW Resources, there have been a number of other expedited procedure inquiries conducted in relation to other tenement applications contiguous with the proposed tenements the subject of this inquiry, although in none of those matters is PVW Resources the grantee party.
Is the grant of the proposed tenements likely to interfere directly and substantially with Tjurabalan’s community or social activities?
[19] 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 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]).
[20] The Tjurabalan contentions are brief and rely on the affidavit of Jimmy Tchooga (the Tchooga affidavit), the affidavit of Patrick Smith (the Smith affidavit), and, the affidavit of Lloyd Lightening (the Lightening affidavit). The contentions state that the native title holders access the proposed tenements for certain activities and therefore without proper notification to the Tjurabalan there is a high likelihood of disruption to these practices.
[21] The evidence of Mr Tchooga describes his personal use and access of the proposed tenement areas; his use and access of the areas with his son, his grandson, and, ‘some of the other young boys’; his teaching of his grandchildren about country ‘when we go to that area’; and, his knowledge of sites, Dreamings, stories and places that were taught to him by his father ‘and all those old people’.
[22] Mr Smith refers to the proposed tenement areas of which he says he is a guardian; he teaches young people; and he knows the stories, the Dreaming, the corroboree for the Dreaming, the songs and dance for the Dreaming, and, the special men’s sites linked to the Dreaming; he knows the way to welcome people to the areas and the consequences for failure to observe access protocols.
[23] Mr Lightening says he knows the proposed tenement areas very well. He describes hunting and camping, and teaching of young people, on the proposed tenement areas frequented by his uncle, aunty and cousins. He describes the foods they hunt, the plants and fruit they collect for sustenance and for medicinal purposes, the treatment they provide, and the cooking methods applied. Mr Lightening also describes the Dreaming, the special men’s site on E80/5249, the protocols for access by strangers, and the dangers associated with particular areas.
[24] PVW Resources broadly asserts that Tjurabalan has not described with specificity the location or duration of the activities so far as they occur in the proposed tenement application, and, while noting that Tjurabalan people go to the areas at least twice a year during the dry season, it says the contentions and evidence do not establish how PVW Resources exploration activities will interfere with Tjurabalan’s community and social activities.
[25] Similarly, the State contends that Tjurabalan has not provided evidence of where the Tjurabalan People conduct the community or social activities, the frequency and how many persons engage in these activities.
What community or social activities do Tjurabalan undertake on the proposed tenement areas?
[26] It is convenient for my consideration of the contentions and evidence to adopt the community and social activity headings used by the State in contentions. That is:
• Hunting;
• Camping;
• Gathering and cooking bush tucker;
• Gathering and using bush medicine; and,
• Conducting intergenerational teaching.
[27] One additional subject for my consideration of community and social activities is the practise of law and culture.
Hunting
[28] Mr Tchooga says that he and his family use the road that runs up from the Tanami Road through proposed tenements E80/5250 and E80/5187, and accesses those areas as well as E80/5188 to hunt kangaroo and turkey (Affidavit at [25]). Specifically he says: ‘My son and I go hunting out there. I teach my son Jimmy Junior about hunting and stores (sic) for that country when we go there.’
[29] Mr Lightening says ([5]):
I know lots of Tjurabalan people who go hunting and camping on that area covered by the tenemens E80/5250 and E80/5249. My uncle and aunty always go out there with my cousins. They go there at least twice a year when the school holidays are on to camp, and hunt and to teach young people.
[30] Mr Lightening also says that his uncle, aunty, and cousins access the area by driving from the road that goes off the Tanami Highway and ‘goes all the way through E80/5250’. He also says there is a back road from that road all the way to Killi Killi Hills and up to E80/5249: ‘People only go out there in the dry season because they can’t go there in the wet season because there’s too much water on the roads’ (Affidavit [6]).
[31] More specifically, Mr Lightening says ([7]):
When they go there they hunt for food, like lizards, snakes, turkeys, withy grub (ludju) and sand frog. The sand frog is special for that country because you can’t find it in other places. The proper name for the sand frog Gulumadda. We catch that sand frog by digging it up from the ground. They are deep in the ground and you have to know where to look for that frog by finding the track they leave when they dig into the ground. My uncle and aunty show the young people how to find that special frog and how to cook it up on the fire.
[32] The State says that Tjurabalan has not provided evidence of where and frequently hunting occurs and how many persons are engaged in the activity (Contentions [38]).
Camping
[33] Mr Lightening says ([5]):
I know lots of Tjurabalan people who go hunting and camping on that area covered by tenements E80/5250 and E80/5247. My uncle and aunty always go out there with my cousins. They go there at least twice a year when the school holidays are on to camp, and hunt and to teach young people.
[34] As noted above they ‘go out there in the dry season’ because there is too much water on the road in the wet.
[35] The State says that despite statements referred to immediately above, the frequency with which Tjurabalan people go camping on the proposed tenement areas ‘is somewhat unclear’ as is the specific areas on the proposed tenements where camping occurs (Contentions [30]).
Gathering and cooking bush tucker
[36] The State summarises Mr Lightening’s evidence noting Tjurabalan collect bush tomato, bush banana (Goolaby), bush potato (Burra) and Ramba Ramba from the proposed tenement areas (Contentions [33]).
[37] Mr Lightening gives detailed evidence of the taste, preparation, and method of cooking the various foods which occurs ‘when they visit that country where the Tenement Areas are’, they ‘show the young people how to find these foods and cook them properly’ (Affidavit [8]).
[38] The State says Tjurabalan does not specify the areas of the proposed tenements in which bush tucker is collected, nor evidence of the frequency of, and number of participants involved in this activity (Contentions [35]).
Gathering and using bush medicine
[39] As noted in the State’s contentions, the Lightening affidavit states that Tjurabalan ‘find bush medicines’ in the area of the proposed tenements. Mr Lightening says ([9]):
They find a special plant out there that is lie a short shrub with purple flowers. We use this tree by putting it in hot water and then it helps for colds or if you have a sore throat. That special tree is all around the Tenement Areas. My uncle and aunty collect that special tree for medicine each time they go out there.
[40] Mr Lightening also describes a special grass ‘out there on the Tenement Areas for medicine’ (Affidavit [10]) – he says ‘We first dry I out and then we boil the flowers up and use it on sores on the skin … and good for colds too I you boil it up and drink it like tea’.
[41] The State says that there is no evidence as to the specific location, intensity, frequency or number of people involved in this activity (Contentions [41]).
Intergenerational teaching
[42] Relevant to both intergenerational teaching and the practice of law and culture, the evidence of Mr Tchooga is to the effect that he received instruction about places, practices, dreamings and stories on the proposed tenements by his father and the old people, and that as he is ‘the old law man for Balgo now’ he teaches his son, grandchildren and ‘some other young boys about that area’.
[43] Mr Tchooga says that his father ‘owned the Dreaming stories for this country and he taught them to me because it’s my country too’ (Affidavit [4]). He says ‘the old people took me out on this country where the Tenement Areas are when I was a young boy, they showed me the sites’, ‘they took me around that area and all around the Killi Killi Hills’ (Affidavit [7]). He says the Killi Killi Hills are in the area covered by proposed tenement E80/5190 and very close to E80/5189 and E80/5249. E80/5249, the subject of this inquiry, is located to the north of E80/5189 and E80/5190.
[44] Mr Tchooga says he teaches his son stories for the Killi Killi Hills area and has been there with his son ‘lots of times’ (Affidavit [8]). He says he teaches ‘the younger generations about that country’ at Killi Killi Hills ‘when I take them there’ (Affidavit [19]). He says ‘I teach my son, Jimmy Tchooga Junior, and my grandson and some of the other young boys about that area’.
[45] Mr Lightening says he knows the story for the Ngapa Dreaming because it has been passed on to him by his uncle, by his father, and by his grandfather. He says ‘I tell the young people about the Ngapa Dreaming so they can look after that country and they will tell their young people about that dreaming for that country (Affidavit [13]). Further, he says:
• that he knows about the proposed tenement areas ‘from my father, Rhonda Lightening and from his father, Charlie Kardar/Lightening’ (Affidavit [4]);
• that his uncle and aunty go out to the area ‘covered by tenements E80/5250 and E80/5249’ with his cousins to camp, and hunt ‘and to teach young people’ (Affidavit [5]);
• that when they go there they ‘show the young people how to find that special frog and how to cook it up on the fire’ (Affidavit [7]);
• they show the young people ‘how to find these foods and cook them properly’ (Affidavit [8]); and
• they teach their kids and other young people about that country and tell them the stories and the songs for that country, the bush food and about hunting and cooking, and about bush medicines (Affidavit [11]).
[46] Mr Smith, referring to proposed tenement areas E80/5249 and E80/5250, says:
• he is ‘a guardian for that area and I teach young people about this area’ (Affidavit [3]);
• he used to work around the Tenement Areas with his father and that he knows the stories for this area from his father in law, Charlie Lightening;
• he tells his sons and grandsons the story for the Ngapa Dreaming and that ‘they will tell their sons and grandsons the special story for that Ngapa dreaming’ (Affidavit [4]); and
• that the young people know that dance (corroboree) and those songs ‘because I showed them’ (Affidavit [8]).
[47] The State seemingly accepts that teaching happens in the area of the proposed tenements, but it says that Tjurabalan has not sufficiently particularised the location and frequency of these activities, nor provided evidence as to the number of participants involved in teaching activities (Contentions [46]).
Practising law and culture
[48] There is a strong focus in Mr Tchooga’s evidence on the Killi Killi Hills area, in particular in the vicinity of E80/5190. Mr Tchooga describes sites in the Killi Killi Hills area and cultural practices carried out to avoid adverse consequences, such as talking to the spirits. Where Mr Tchooga refers to the Tenement Areas he is referring to both the tenements the subject of Tjurabalan v PVW Resources as well as the proposed tenements E80/5249 and E80/5250, the subject of this inquiry. Mr Tchooga’s says:
(a) ‘I paint that country and dance and sing songs for the Dreaming stories there that my father taught me. That country is where the Tenement Areas are’ (Affidavit [5]);
(b) ‘I know the songs for the Tenement Areas. They are songs and I keep them in my head, they are men’s business. I cannot talk much about them’ (Affidavit [6]);
(c) ‘My father told me about ceremonies that would happen in that area. That the old people would do’ (Affidavit [10]). The ‘area’ is the area referred to in [9] where the Ngapa Dreaming ‘goes through the Tenement Areas right down to Killi Killi community’; and
(d) ‘There is an important men’s site there near Killi Killi Hills that is in the areas (sic) of Tenement E80/5190. Initiations happened there for young men. That law ground is a very special place. The old people would camp there and do ceremony and sing the songs and dance for that country’ (Affidavit [15]).
What activities does PVW Resources intend to undertake on the proposed tenements?
[49] Included in the material provided by the State in compliance with Direction 1, is a document headed ‘Statement to Accompany Exploration Licence Application including Proposed Mineral Exploration Work Program, Technical Resources and Financial Resources’. Information relevant to exploration methods proposed for each of the proposed tenements appears to be identical.
[50] The Statement says that (each) proposed tenement will form part of the Company’s existing Tanami West Project. Each statement says:
Work on the tenement/s will be targeting hydrothermal-structurally-controlled gold mineralisation. The tenement is located along favourable regional and local scale structures, and in close proximity to known historical gold mineralisation.
[51] In contrast to the Statement’s provided in Tjurabalan v PVW Resources, only information concerning ‘Year 1’ is provided in this inquiry. For Year 1 ‘a field mapping, rockchip and soil geochemistry campaign would be planned over all the terrain amenable to conventional soil sampling. Airborne radiometric and magnetic surveys are also planned to be conducted over the ground. Further detailed POW’s are contingent on the results from Year 1’. The goal and objectives of exploration activities is unsurprisingly said ‘to discover economic mineralisation for the company’.
[52] The PVW Resources’ contentions shed no further light on likely exploration activities to be conducted on the proposed tenement areas, beyond the minimal information concerning Year 1 activities.
If interference is likely to occur with Tjurabalan community or social activities, would it be direct and substantial?
[53] Tjurabalan contends (Contentions [9]):
…that access to the proposed tenement areas by PVW Resources without proper notification to, and consultation with, the Tjurabalan is highly likely to disrupt the practices of hunting, camping, gathering bush tucker and bush medicines, intergenerational teaching and the practice of law and culture, which regularly occur in the Tenement Areas.
[54] The State contends that direct interference with the community and social activities carried out in the proposed tenement areas is highly unlikely (Contentions [47]).
[55] PVW Resources contends that the Tjurabalan contentions and evidence do not describe, with specificity, the location or duration of the activities on the proposed tenement areas, and do not establish how PVW Resources activities will interfere with Tjurabalan’s community and social activities (Contentions [21]).
[56] PVW Resources says it will not exclude any community or social activities Tjurabalan intends to carry out on the proposed tenement areas unless an area is unsafe for the conduct of such activities. It says that if Tjurabalan wishes to access an area for these purposes ‘and it is temporarily deemed unsafe due to any exploration activities’, PVW Resources ‘will consult with the Native Title Party in order to seek an arrangement agreeable to both parties’ (Contentions [23]-[24]). Further, PVW Resources says it will notify Tjurabalan ‘prior to any exploration activity that is likely to restrict the gathering of bush tucker, medicines and hunting of game and will consult with the Native Title Party on ways of minimising any disturbance’. In relation to the PVW Resources’ intentions, I note and adopt the following analysis from Tjiwarl v Gianni:
[67] …statements of intention may, in changed commercial circumstances, become burdensome. Further, there is the risk that, subject to any discretion vested in the State, the proposed tenement may pass to another holder who is not even morally bound by the proposed grantee’s statements of intention.
[57] In this matter I accept that some community and social activities are likely to occur on both E80/5249 ad E80/5250. I accept that the tenement areas are visited by Tjurabalan family groups who engage in hunting, camping and the gathering of bush foods and bush medicines, and in the course of those activities intergenerational teaching occurs. I accept that intergenerational teaching includes instruction regarding the practice of law and culture. The evidence does not disclose whether the game, the bush medicine, or the bush tucker is only available in the proposed tenement areas. The evidence does not disclose whether those activities are carried out throughout the Tjurabalan determined native title lands or are localised, or whether they are exercised to a greater degree in the proposed tenement areas, and, if so, why that is the case (see, for example, Atkins v Drillabit Pty Ltd).
[58] I agree with the State’s position that the evidence regarding the frequency of each activity is has not been sufficiently described. The evidence does not disclose whether access to the proposed tenement areas might occur (at least) biannually but activities, for example gathering of bush tucker and bush medicines, in those areas might occur less frequently – perhaps, for example, because of a rotational approach to hunting and gathering activities. The evidence informs me that the activities occur on the proposed tenement areas, but in the absence of context I am unable to be satisfied that their occurrence is likely to be directly and significantly impacted by the conduct of PVW Resources exploration activities.
[59] Based on the evidence, all these ‘on tenement’ activities are more likely to occur in the dry season because of the logistical difficulties in accessing the area. It might be assumed that those same logistical difficulties would also be experienced by PVW Resources in the conduct of its exploration activities. While this increases the potential for Tjurabalan people and PVW Resources employees and contractors to encounter each other, and as a result cause a potential for interference with the carrying on of those activities, for the reasons described above I am not satisfied that direct and substantial interference is likely.
Is the grant of the proposed tenements likely to interfere with areas or sites of particular significance to Tjurabalan?
[60] 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]).
[61] 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 at [36] and [39]); and
(b) A general statement that a place is important is not sufficient; information is required to conclude that the place stands out from other places to the extent that it is of particular significance (see Walalakoo v Boadicea Resources at [39]).
What areas or sites are identified by Tjurabalan?
[62] Tjurabalan says that the evidence highlights a number of features which give the proposed tenement areas its significant and sensitive character under traditional law and custom (Contentions [11]). It is convenient for my consideration of the contentions and evidence to broadly adopt the ‘area or sites’ headings used by the State in its contentions as follows:
• Ngapa Dreaming and associated sites;
• Snake Dreaming and associated sites;
• Gender-restricted sites;
• Rock art; and
• Burial sites
Ngapa Dreaming and associated sites
[63] Tjurabalan says that the proposed tenement areas are traversed by the Ngapa (water) Dreaming and the Snake Dreaming which are important Dreamings ‘that traverse the Tenement Areas and includes a series of linked physical sites identified in the evidence … as including various soaks, water holes and rock holes’ (Contentions [11]).
[64] The Ngapa dreaming is described by Mr Smith as ‘very important for Tjurabalan people’ and is connected to a corroboree, and a song and dance still performed today (Affidavit [6]). Mr Smith says ‘I know the stories and it is very important to us’ (Affidavit [6]). Further, Mr Smith says ([6]):
The Ngapa dreaming is a very important dreaming. It is a dreaming from a long time ago from the old people. I know this dreaming and I tell my sons and my grandsons about the Ngapa dreaming when they finish law. The Ngapa dreaming is about country and it is for all the living water in this country. The Ngapa dreaming is linked to all the water in the Tenement Areas and the areas to south and around Killi Killi Hills.
[65] Mr Tchooga says: ‘My father owned the Dreaming stories for this country and he taught them to me because it’s my country too’ (Affidavit [4]). Mr Tchooga says ([9]):
There is an important water Dreaming that goes all through the Tenement Areas, it’s called the Ngapa Dreaming and it goes through the Tenement Areas right down to Killi Killi community. There are soaks and water holes all through the Tenement Areas that are there from that Ngapa Dreaming.
[66] In relation to the path of the Ngapa Dreaming, Mr Smith says the Dreaming (at [5]):
came from across the border and went through all the Tenement Areas. 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.
[67] On the southern boundary of proposed tenement E80/5249 is a place identified as Watts Rise. In evidence Mr Tchooga says that there are sacred sites at Watts Rise that are connected to the Ngapa Dreaming. He says there are special rock holes at Watts Rise, and there is a spirit in the water there, a rainbow serpent. Mr Tchooga says ‘Those are special Dreaming places that need to be protected’ (Affidavit at [22]). He says he has a responsibility to look after those special rock holes and soaks on this country’; ‘the soaks the snake left are sacred places and should not be messed with’ (Affidavit [22]-[23]). Mr Tchooga says he was told the story about Watts Rise by his father and ‘all those old people’ ([23]).
[68] Mr Tchooga says ([24]):
At the water holes, I have to speak to country in language and you have to wash yourself so that you don’t get sick. The right people for country need to be there to introduce you and protect you if it’s not your country. If people went there wrong way it would mess with that Dreaming, the snake might go away and send those rock holes dry. If you mess with that Dreaming by digging near those soaks, it would be very bad, everything around that country could go dry.
[69] Also said to be associated with the Ngapa Dreaming is Bald Hill, to the north of proposed tenement E80/5249. Mr Tchooga says that there is also ‘a snake in that rock hole on top of Bald Hill’. He says his father ‘had that snake tjukurpa, Dreaming story, and he passed it on to me’ (Affidavit [28]). It would seem that this Dreaming story and place is not the snake Dreaming involving the brother and sister snakes from the Dreamtime referred to in paragraph [11] of Mr Tchooga’s affidavit.
[70] In relation to sites, Mr Smith says ([9]):
There are special men’s sites linked to the Ngapa dreaming in the Tenement Areas that only men can talk about. I can’t talk about those places they are sacred. I can’t tell you about those sacred areas from looking at the map. I need to go to the Tenement Areas with the right men to show you where the sacred men’s places are that you can’t go’.
[71] Mr Smith says he knows the corroboree for that Ngapa Dreaming and that ([8]):
…we still do that corroboree at special times every year – at law time. There is a song and dance for that dreaming. We sing those songs and dance that dance at law time for the young people. The young people know that dance and those songs because I showed them… I am a guardian for that corroboree.
[72] Mr Smith goes on to describe how people are welcomed to place with smoking and with songs and the consequences for being on areas ‘without the right people’ which include sickness, madness, and ‘the water might dry out’ (Affidavit [10]).
[73] The State refers to the need for specific evidence about the nature of sites to conclude that a site is of particular significance. The State accepts that the Ngapa Dreaming and associated areas are significant to the Tjurabalan People but that the Ngapa Dreaming and associated sites ‘are not described with sufficient particularity to enable them to be located’ (Contentions [57]). The State says that while the Ngapa Dreaming has been described as very important, Tjurabalan has not provided sufficient evidence about the particular significance of the Dreaming ‘and the parts of it which pass through or near the area of the proposed tenements’ (Contentions [58]).
[74] PVW Resources says that Mr Tchooga does not identify the specific locations of sites or areas and only makes general references to the proposed tenements and topographical features and does not establish why these sites are of particular significance. It says that Mr Smith does not identify the location of the Ngapa Dreaming; the location of the special male restricted sites linked to the Dreaming; and does not explain why the rock holes and water holes are special or more than of ordinary significance. In relation to the Lightening evidence, PVW Resources says two gender-restricted sites are described but their location is not identified with specificity, and he does not explain why the sites are of more than ordinary significance (Contentions [33]-[37]).
Snake Dreaming and associated sites
[75] Mr Tchooga in a general sense describes the path of a snake Dreaming that goes through Tenements E80/5249 (the subject of this inquiry), E80/5189 and E80/5190, and Killi Killi Hills. He goes on to say that ‘Numbajin and Jambiyin were the brother and sister snakes from the Dreamtime that travelled through the Tenement Areas. They stopped at a rock hole in the Lewis Range, south of the Tenement Areas’ (Affidavit [11]).
[76] As noted at [69] above, the Dreaming story referred to in Mr Tchooga’s affidavit (at [28]) concerning the rock hole on top of Bald Hill would not appear to be the snake Dreaming involving the brother and sister snakes from the Dreamtime referred to in paragraph [11] of Mr Tchooga’s affidavit.
[77] The other Dreaming associated with Bald Hill is the Warlu fire dreaming referred to by Mr Tchooga in his affidavit (at [31]). He says this Warlu:
is the fire for all our country, he been travel from the Tanami, he travel long time and he stopped there at Bald Hill. It is sacred site there where Warlu been and he stopped all around there near that Bald Hill and went into that area where Tenement E80/5249 is and he travelled all around there. It is a sacred site, nobody should go there but us.
[78] The State contends that Tjurabalan has not provided sufficient particulars to establish the snake Dreaming a site of particular significance; has not identified its precise location; and, has not explained the significance of the site to the Tjurabalan people (Contentions [60]-[62]).
[79] PVW Resources says that the Tjurabalan evidence as a whole does not provide evidence with sufficient detail or specificity to establish the particular significance of the sites or areas (Contentions [38]). PVW Resources notes that State mapping indicates that Bald Hill is north-west of E80/5249 and the evidence does not establish that sites described are actually located within the area of the tenement applications.
Gender-restricted sites
[80] Mr Tchooga provided evidence that there is an important men’s site there near Killi Killi Hills that is in the areas of Tenement E90/5190 (Affidavit [15]). He said, initiations happened there for the young men. He says ‘No one should go there, it’s a special place’. In considering this evidence in Tjurabalan v PVW Resources, I was satisfied that the men’s site in the Killi Killi Hills is a site of particular significance. Further, I said that as Member Shurven found in Tjurabalan v Rich Resources, the evidence supports the conclusion that the Killi Killi Hills, specifically the men’s site, is a site to which certain gender-based and other proscriptions apply under traditional law and custom. Its location is within proposed tenement area E80/5190, not within the proposed tenement areas the subject of this inquiry.
[81] Mr Lightening says that there is a special men’s site that goes into E80/5249. He says ([14]):
It is a sacred place and I can’t talk about it here. Only the right men can go to that place and talk about it. Strangers shouldn’t go to that special place – they might get hurt and we might get hurt.
[82] Mr Lightening also says that there is a special women’s place in the area covered by E80/5249. Again he says he can’t talk about that place and he can’t go to that place. He says ‘you have to talk to the right women for that place’ (Affidavit [15]). Similarly, Mr Tchooga says ([23]):
There are sacred sites going from there [Watts Rise] all through the Tenement Areas, men’s sites and girls’ places too. I can’t tell you about the girl’s places but the right people should go out there to show where those special places area.
[83] Mr Smith says that there are special men’s sites linked to the Ngapa Dreaming in the proposed tenement area that only men can talk about. He says ([9]):
I can’t talk about those places they are sacred. I can’t tell you about those sacred areas from looking at the map. I need to go to the Tenement Areas with the right men to show you where the sacred men’s places are that you can’t go.
[84] The State says that Tjurabalan has not provided sufficient particulars, including location, to establish a site of particular significance for the purposes of s 237(b) (Contentions [64]). The State says that it was open to Tjurabalan to request non-disclosure directions in circumstances where a deponent is reluctant to protect information or to reveal the location of a sensitive site. PVW Resources says that Tjurabalan does not provide sufficient information concerning location, nor explain why the sites related to the Ngapa Dreaming or the restricted evidence sites are of more than ordinary significance.
Rock art site
[85] Mr Tchooga says that there are rock art sites at Bald Hill; he says ‘That is a special place too, just like the rock art at Killi Killi. No one should disturb it’ (Affidavit [21]).
[86] The State contends that Tjurabalan has not provided sufficient evidence to establish a site of particular significance to the Tjurabalan for the purposes of s 237(b), that it is unclear where ‘in the western side of E80/5249 the rock art is located’, and, the significance of the site to Tjurabalan has not been explained (Contentions [68]-[71]). These contentions are broadly supported by PVW Resources.
Burial sites
[87] Mr Tchooga says that there are places at Killi Killi Hills where the old people are buried’ (Affidavit [18]). He says ‘On that flat country at Killi Killi there are many burial places. This is where Tenement E80/5190 is. I look after those burial sites’. In Tjurabalan v PVW Resources, I accepted that the burial sites were sites of particular significance to the Tjurabalan for the purposes of s 237(b).
[88] In relation to these proposed tenements, Mr Tchooga also says that there are burial sites ‘just near Bald Hill, within the hills in that part of Tenement E80/5249’ (Affidavit [33]).
[89] The State says that, in this inquiry, Tjurabalan has not provided sufficient particulars to establish a site of particular significance, has not provided the precise location of the site, and has not explained the significance of the site to them for the purposes of s 237(b) (Contentions [73]-[75]) – again a contention with which PVW Resources agrees.
Are these areas or sites of particular significance in accordance with Tjurabalan’s traditions?
[90] Tjurabalan contends the evidence establishes the sites referred to above are sites of particular significance and that the grant of the proposed tenements are likely to interfere with these areas and sites.
[91] In Tjurabalan v PVW Resources, I made certain findings based on the evidence presented which included the same affidavit of Mr Tchooga presented in the current inquiry. Of relevance to the current inquiry are findings that the Ngapa Dreaming and physical sites associated with it were of cultural significance to the Tjurabalan. I found however, that apart from the special rock hole in the Killi Killi Hills (on proposed tenement area E80/5190), 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).
[94] In relation to the sacred sites at Watts Rise, Mr Tchooga says there are special rock holes connected to the Ngapa Dreaming. He says there is a spirit in the water there, a rainbow serpent. He says he has a responsibility to look after those special rock holes and soaks. While he does place the site at a location which is marked on the map (Attachment 1), he connects the site to the Ngapa Dreaming, and he briefly describes the story for the site, the evidence lacks detail of the particular significance of the site – detail that might explain why it is special and what sets it apart from other rock holes and soaks. The reference to the rainbow serpent is informative but not sufficient in my view to support a conclusion that it is a site of particular significance for the purposes of s 237(b).
[95] In relation to sites Mr Smith refers to as ‘special men’s sites linked to the Ngapa dreaming’ it is unclear to me whether these are the same sites referred to by Mr Tchooga, or additional sites. Mr Smith said he ‘can’t talk about those places they are sacred’; he ‘can’t tell you about those sacred areas from looking at the map’, and, he needed ‘to go to the Tenement Areas with the right men to show you where the sacred men’s places are that you can’t go’. As noted by the State, it was open to Tjurabalan to request the making of non-disclosure directions if that would have relieved the Tjurabalan concerns – although it may not. However, in the absence of more specific information concerning the site’s location and meaning I am unable to conclude that the special men’s sites are sites of particular significance to the Tjurabalan for the purposes of s237(b).
[96] In relation to the snake Dreaming, as noted earlier Mr Tchooga describes in a very general sense the path of a snake Dreaming that goes through Tenements E80/5249, E80/5189 and E80/5190 and Killi Killi Hills and ‘all the way down south of that area’.
[97] As noted in Tjurabalan v PVW Resources, the Tribunal observed in 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.
[98] I am not satisfied the evidence of Mr Tchooga establishes the particular significance of the snake Dreaming. I form the same conclusion in relation to the Warlu fire dreaming.
[99] In relation to the burial sites, Mr Tchooga also says that there are burial sites ‘just near Bald Hill, within the hills in that part of Tenement E80/5249’ (Affidavit [33]). As noted earlier, on the map Annexure 1 Bald Hill is located to the north of E80/5249. I am not satisfied that the location of the burial sites has been sufficiently described for me to accept that they are in fact within proposed tenement area E80/5249 and for the purposes of this inquiry I am not satisfied that they are sufficiently connected to proposed tenement area to determine that they are sites of particular significance for the purposes of s 237(b).
[100] Concerning the rock art site at Killi Killi Hills, in Tjurabalan v PVW Resources, I found that Tjurabalan had not provided sufficient evidence to establish it was a site was of particular significance for the purposes of s 237(b). In this inquiry Mr Tchooga says that there are rock art sites at Bald Hill but no more detailed explanation is provided of the sites. Again, Tjurabalan has not provided sufficient evidence regarding the degree of significance of the site, its location within the proposed tenement area, and why it is of particular significance. Accordingly the rock art sites at Bald Hill are not of particular significance for the purposes of s 237(b).
Conclusion
[101] In summary my findings are that there are no sites of particular significance for the purposes of s 237(b) in the proposed tenement areas.
Determination
[102] I find the grant of proposed exploration licences E80/5249 and E80/5250 to PVW Resources NL are acts attracting the expedited procedure.
Mr JR McNamara
Member
22 November 2019
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