Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v PVW Resources NL and Another
[2019] NNTTA 105
•21 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v PVW Resources NL and Another [2019] NNTTA 105 (21 November 2019)
Application No: | WO2018/0662, WO2018/0663, WO2018/0664, WO2018/0665 |
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
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 21 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 act is/is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) ss 5, 17 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) 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) Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited & Another [2019] NNTTA 72 (Bunuba Dawangarri v Buxton Resources) 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) Kalman Murphy & Ors on behalf of Waturta v Ausgold Exploration Pty Ltd & Another [2019] NNTTA 89 (Murphy v Ausgold Exploration) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Allen v Gianni) 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) Smith on behalf of the Gnaala Karla Booja v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another [2016] NNTTA 16 (Tjurabalan v Rich Resources) Vandeleur Superannuation Pty Ltd and Another v Gwen Peck & Ors on behalf of the Gnulli People [2019] NNTTA 73 (Vandeleur Superannuation v Peck) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (Walalakoo v Boadicea Resources) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v GE Resources Pty Ltd and Another [2019] NNTTA 74 (Wanjina-Wunggurr v GE 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: | Thea Chee, State Solicitor’s Office |
REASONS FOR DETERMINATION
I have been appointed to decide whether the expedited procedure applies to the grant of proposed exploration licences E80/5187, E80/5188, E80/5189 and E80/5190 (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. By including the expedited procedure statement in its notice of each proposed grant, the State asserts the activities permitted under the proposed tenements 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)).
Each proposed tenement is 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 E80/5187 WO2018/0662 8372.08 220km south east of Halls Creek E80/5188 WO2018/0663 322.06 210km south east of Halls Creek E80/5189 WO2018/0664 1610.45 210km south east of Halls Creek E80/5190 WO2018/0665 2575.67 220km south east of Halls Creek
I note each of the proposed tenements is entirely over vacant crown land and is in close proximity to the Western Australia/Northern Territory border.
The Tjurabalan Native Title Lands Aboriginal Corporation RNTBC (Tjurabalan) holds exclusive native title rights and interests on behalf of 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.
Tjurabalan lodged objections with the National Native Title Tribunal (the Tribunal) against the State’s assertion the expedited procedure applies to the grant of each proposed tenement. Tjurabalan argues the expedited procedure should not apply, as interference or disturbance of the type described in s 237 of the Act is likely. The State and PVW Resources argue the expedited procedure should apply. In determining whether the expedited procedure applies or not, I must make a predictive assessment (see FMG v Yindjibarndi at [39]). I must look at what is likely to occur as a result of 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]).
If I find the expedited procedure applies, a 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 proposed tenements E80/5187, E80/5188 and E80/5189 and that the expedited procedure does not apply to the grant of proposed tenement E80/5190.
Parties’ submissions
All parties provided submissions in this matter. Tjurabalan provided contentions and the affirmed affidavit of Mr Jimmy Tchooga. Mr Tchooga says that he is a Tjurabalan determined native title holder and I accept he has cultural authority to speak for the area of the proposed tenements. There is a map annexed to Mr Tchooga’s affidavit.
Although subsection 237(c) was raised as a ground in its initial objection applications, Tjurabalan says that it does not make any contentions in relation to that subsection (Contentions [4]). I therefore apply the common sense approach to evidence 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)).
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; the initial tenement application and a ‘Statement to Accompany Exploration Licence Application including Proposed Mineral Exploration Work Program’ for each of the proposed tenements; and proposed endorsements and conditions to be applied upon grant of each tenement.
Considering the matter ‘on the papers’ – no need for an oral hearing
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
The Tribunal produced and circulated a map (Annexure 1) showing the location of the four proposed tenement areas, noting the location of certain places, and indicating distances from some localities referred to in the material.
As can be seen from the map at Annexure 1, the proposed tenement areas are in close proximity to each other (although apart from E80/5187 and E80/5188, they are not contiguous). This supports the statement found in the ‘Proposed Mineral Exploration Work Program’ for each of the proposed tenements that ‘the tenement will form part of the Company’s [PVW Resource’s] existing Tanami West Project’. The other existing tenements or current tenement applications that constitute the ‘Tanami West Project’ are not described. However, tenement application E80/5249 and E80/5250 are the subject of expedited procedure objection inquiry WO2018/1007 and WO2018/1008 respectively, and the material provided in those matters discloses that those tenements also form part of the ‘Tanami West Project’.
While part of the same project, I will be determining WO2018/1007 and WO2018/1008 separately as they were lodged as separate objection applications on a later date (therefore proceeding on a differing inquiry timetable) and, most critically, additional evidence and different contentions were provided on those matters. Despite this, Annexure 1 depicts all six proposed tenements (and associated objections).
There has been a number of other expedited procedure inquiries conducted in relation to other proposed 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?
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]).
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]).
The Tjurabalan contentions are brief and rely on the affidavit of Mr Tchooga. 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. The evidence of Mr Tchooga describes his own 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’. As was relevantly summarised in Tjiwarl v Gianni:
[41] …Clearly enough, the relevant activities must be those of a recognizable group. However it is not necessary that all members of the group, always or ever, participate in such activities. Whether particular activities are activities of the relevant group is a question of fact.
What community or social activities do Tjurabalan people undertake on the proposed tenements?
I note that the Tjurabalan contentions and evidence do not identify specifically community and social activities carried on the area of proposed tenement E80/5189 which it contends are at risk of interference. This is also noted in PVW Resources contentions at [18].
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.
Hunting
Mr Tchooga says that he and his family use the road that runs up from the Tanami Road through proposed tenements E80/5250[1] 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.’
Intergenerational teaching
[1]E80/5250 is the subject of Tribunal matter WO2018/1008. See paragraphs [12]-[13] for further information.
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 ‘Tenement Areas’ by his father and the old people (Tenement Areas are defined at [2] as being all of the proposed tenements). He states that as he is ‘the old law man for Balgo now’, he teaches his son, grandchildren and ‘some other young boys about that area’.
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[2].
[2] E80/5249 is the subject of Tribunal matter WO2018/1007. See paragraphs [12]-[13] for further information.
Mr Tchooga says he teaches his son stories for the Killi Killi Hills area in proposed tenement area E80/5190, close to E80/5189 and E80/5249[3], 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’.
[3] See paragraphs [12]-[13] for further information.
There is a strong focus in Mr Tchooga’s evidence on the Killi Killi Hills area, in particular in the vicinity of E80/5190. This is also confirmed in contentions where it is said that ‘native title holders regularly access tenement E80/5190 to practice law and culture and to carry out intergenerational teaching’ (Contentions [8]). Mr Tchooga describes sites in the Killi Killi Hills area (which are further discussed later in these reasons) and cultural practices carried out to avoid adverse consequences, such as talking to the spirits. Presumably these practices were also taught to him and is part of his teaching to ‘younger generations’.
Practising law and culture
Following on from the observations immediately above, Tjarabalan contentions (at [8]) reference Mr Tchooga’s evidence including:
(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’ (at [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’ (at [6]);
(c)‘My father told me about ceremonies that would happen in that area. That the old people would do’ (at [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’. I note from Annexure 1 that the Killi Killi community is marked as being 37 kilometres to the south of the proposed tenements.
(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’ (at [15]).
The State’s contentions
The State contends that, with respect to the ‘alleged community and social activities’, Tjurabalan ‘has not provided any details as to the frequency and duration of each of the activities, or the number of participants involved in each of the activities’ (Contentions [38]). Further, the State says that with the exception of the activities of intergenerational teaching and practising ceremonies, Tjurabalan ‘has not provided any details as to the location of the alleged community and social activities’ which occurs within the area of the proposed tenements (Contentions [39]).
I am not sure what conclusion to draw from the use of the adjective ‘alleged’ in reference to the community and social activities described by Mr Tchooga. The way paragraph [39] is drafted it may be that the State accepts that ‘activities of intergenerational teaching and practising ceremonies’ are ‘community and social activities’ but do not make that concession in relation to other activities described. The footnote to [39] does not assist.
Overall, however, the State says that Tjurabalan ‘has not provided sufficient evidence to demonstrate that community and social activities are conducted on the area of the Proposed Tenements’.
After referring to certain principles considered relevant to the consideration of section 237(a), PVW Resources says simply that the evidence is insufficient to find that the grant of the proposed tenements would directly interfere with Tjurabalan’s community and social activities.
In reply, Tjurabalan argues the evidence sufficiently particularises the location, frequency, and duration of these community and social activities as well as demonstrating how the grant of the proposed tenements will directly interfere with these activities – in particular with respect to E80/5190.
What activities does PVW Resources intend to undertake on the proposed tenements?
Included in the material provided by the State in response to Direction 1, for each of the proposed tenement applications 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 tenements appears to be identical.
The Statement says that (each) proposed tenement will form part of the PVW Resources’ 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.
In year 1, a literature review and data collection program is described which is to be followed by field mapping, rockchip and soil geochemistry ‘would be planned over all terrain amenable to conventional soil sampling’. In year 2 the Statement says the company will implement a drill campaign ‘to test geophysical/structural targets and soil/rock-chip geochemistry anomalies detailed in Year 1’. Beyond year 2, all that is said is that ‘Further detailed POW’s are contingent on the results from years 1 & 2’. The goal and objectives of exploration activities is unsurprisingly said ‘to discover economic mineralisation for the company’.
If interference is likely to occur with Tjurabalan community or social activities, would it be direct and substantial?
Tjurabalan contends that there is a high probability that the grant of proposed tenements E80/5187, E80/5188 and E80/5190 will directly interfere with the carrying on of its community and social activities. As noted above at [18], its contentions and evidence do not specifically identify that the grant of E80/5189 will so interfere. However, Mr Tchooga does broadly refer to activities on the ‘Tenement Areas’ (which appears to include E80/5189).
In relation to proposed tenements E80/5187 and E80/5188 the community and social activities asserted by reference to Mr Tchooga’s affidavit are hunting and the carrying out of intergenerational teaching. In relation to proposed tenement E80/5190 the activities Tjurabalan says will be directly interfered with is the regular access to practice law and culture and the carrying out of intergenerational teaching.
Tjurabalan says that access to tenements E80/5187, E80/5188 and E80/5190 by PVW Resources ‘without proper notification to the NTP is therefore highly likely to disrupt the practices of hunting, intergenerational teaching and the practice of law and culture, which occur on these areas regularly’ (Contentions [9]).
The PVW Resources contentions shed no further light on its likely exploration activities. 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’ undertaken, 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.
In relation to E80/5190, PVW Resources says in contentions that the statements by Mr Tchooga regarding intergenerational teaching at Killi Killi Hills is general and unspecified and does not specify where in the Killi Killi Hills ‘this occurs or the frequency with which it occurs’. PVW Resources says that two live tenements overlap the area of Killi Killi Hills E80/4921 and E80/4029. In relation to E80/4291, it says the Tribunal found the expedited procedure applied (WO2015/0291). This matter is discussed further at [60]-[61].
In this matter, while I accept that some community and social activities is likely to occur on all proposed tenements, it is the activities described in relation to the area in and around the Killi Killi Hills which are at greatest risk of interference from the activities of PVW Resources. PVW Resources have not indicated any intention to avoid the Killi Killi Hills areas during their exploration program – nor provide any certainty of consultation before embarking on activities in that area of E80/5190. The general and vague statements that it will not exclude any community or social activities Tjurabalan intend to carry out on the proposed tenement areas unless an area is unsafe for the conduct of such activities, and will consult in order to seek an agreeable arrangement when Tjurabalan wish to access an unsafe area, seemingly relate to the ‘physical’ activities (hunting etc), rather than the more passive teaching and learning activities.
For these reasons in my view if PVW Resources were to exercise their rights under the grant of E80/5190, there is likely to be direct and substantial interference with 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.
While I accept there are social and community activities which are conducted by Tjurabalan on proposed tenement areas E80/5187, E80/5188 and E80/5189, there is insufficient information for me to conclude there is likely to be direct and substantial interference of those activities from PVW Resources exploration activities.
Is the grant of the proposed tenements 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]).
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 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 at [39]).
What areas or sites are identified by Tjurabalan?
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. Again, the Tjurabalan contentions are brief and rely on the affidavit of Mr Tchooga. 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.
Dreamings
Tjurabalan says that the proposed tenement areas are traversed by the Ngapa dreaming, ‘which is an important water dreaming that moves across the Tenement Areas and includes a series of linked physical sites identified in the evidence … as various soaks, water holes and rock holes’ (Contentions [11(a)]).
In his affidavit, 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]).
At [9] Mr Tchooga says:
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.
On the Tribunal map (Annexure 1), the Killi Killi community is indicated to be 37 kilometres to the south of the proposed tenements.
Mr Tchooga says that the Ngapa Dreaming is connected to the ‘special rock hole’ which is ‘at Killi Killi Hills where there is a camp the old people used’ (Affidavit [12]-[13]). He says the camp is on top of the hill, ‘on a flat area right in Tenement E80/5190’ and that ‘the old people used to get water from the rock hole there’. He says there is permanent water there.
Mr Tchooga in a very general sense describes the path of a snake Dreaming that goes through Tenements E80/5249[4], E80/5189 and E80/5190 and Killi Killi Hills and all the way down south of that area’. These tenements are seen on the Tribunal map (Annexure 1) as the proposed eastern tenement areas running north to south. 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’.
[4] See paragraphs [12]-[13] for further information.
The State refers the need for specific evidence about the nature of sites to conclude that a site is of particular significance – and, in this case, the particular significance of the Dreaming sites stems from their association with dreaming stories. Accordingly, it is necessary that the significance of those stories be explained in sufficient detail (State Contentions [47]-[50]). The State says Tjurabalan has described the significance of each Dreaming generally and the story briefly, but has not provided sufficient evidence about the areas of the proposed tenements which are subject to the Dreamings to enable them to be located with a sufficient degree of specificity. A similar contention is made by PVW Resources (Contentions [33]).
Special rock hole
Regarding the rock hole in the Killi Killi Hills ([47] above) Mr Tchooga says (at [12]-[13]):
…That’s a special place that rock hole. No one should dig around there. My father told me not to disturb that place.
…That rock hole is one of the main places for that Ngapa Dreaming. It is living water and all the living water in the Tenement Areas is very important and linked to that rock hole at Killi Killi Hilss and to the Ngapa Dreaming.
I note that the State accepts that the rock hole located at Killi Killi Hills as described by Mr Tchooga as one of the main places for the Ngapa Dreaming, is a site of particular significance within the meaning of s237(b) of the Act (Contentions [52]). PVW Resources does not make this concession, rather saying that there is no evidence as to whether the site is of particular importance to Tjurabalan.
Artefact scatters and grinding stones
Mr Tchooga says that there are special artefacts at the camp ‘that the old people used’ at Killi Killi Hills ‘on top of the hill, on a flat area in Tenement E80/5190’ (Affidavit [13]-[14]). He says there are grinding stones up there:
The old people used to grind seeds up there with those grinding stones. They are important stones for us, for our culture, nobody should just be grabbing those stones.
He adds:
You get those stones on the flat rock in our country in Tenement E80/5190. You get those stones near the soaks as well especially. Kartiya can’t be messing with those stones, we need those stones and they are all through the area covered by Tenement E80/5190.
The State contends that the evidence is not sufficient to locate the area or site to the necessary degree, and that insufficient evidence is provided to explain why the area or site is of particular significance to Tjurabalan beyond the assertion that ‘the stones are important for our culture’ (Tchooga affidavit [14]). PVW Resources says that only broad and imprecise references are made to sites located on proposed tenement E80/5190 (Contentions [33]).
Men’s site
Mr Tchooga says ‘there is an important men’s site there near Killi Killi Hills that is in the areas of Tenement E90/5190’ (Affidavit [15]). ‘Initiations happened there for the young men’ (Mr Tchooga was himself initiated in Ringer Soak [8]). ‘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’. Mr Tchooga says he was told of the men’s site by his father and he has ‘to protect that place’ (Affidavit [16]). He says that he follows anyone who is going there ‘so I can protect them’, he says if he finds anyone there ‘I growl them not to go there’. He says ‘No one should go there, it’s a special place’. He says he and his family will not camp there because it is special, that there are spirits that could harm people, ‘they will humbug you all night of you go there’.
When he goes to the men’s site at Killi Killi Hills, Mr Tchooga says he talks to the spirits ‘and that way the spirits won’t do anything in the night, you can have a good sleep’ (Affidavit [17]). He says his father told him of a spirit ‘an invisible man there. He will make you go mad.’ Finally he says that ‘it is important that the mining company don’t go into the Killi Killi Hills area and disturb that spirit. If anyone wants to go near Killi Killi Hills, they need to come and see me first’.
The State accepts that the men’s site is significant to Tjurabalan, however, it contends that Tjurabalan has not provided evidence regarding the location of men’s sites, aside from the general reference to the sites being near Killi Killi Hills (contentions [57]). PVW Resources says that Tjurabalan has not provided detail regarding the site’s particular significance or precise location (Contentions [35]).
PVW Resources also says at contentions [35] that:
There are other two tenements that are granted over Killi Killi Hills: E80/4921 and E80/4029. E80/4921 was subject to objection WO2015/0291 where the NNTT’s inquiry found that the expedited procedure applied. Both E80/4921 and E80/4029 were subject to active exploration expenditure in 2018/19.
E80/4921 was indeed the subject of Tribunal inquiry WO2015/0291. In that determination, Tjurabalan v Rich Resources, Member Shurven said:
[64] I accept the evidence establishes Killi Killi Hills is a site to which certain gender-based and other proscriptions apply under traditional law and custom. I accept it is a site of particular significance in accordance with the traditions of the native title holders.
…
[80] … the evidence does suggest unauthorised or unaccompanied entry may constitute interference with Killi Killi Hills … However, the site is outside the licence areas I am considering in this inquiry ….
Further, Member Shurven (again at [80]) noted that Killi Killi Hills:
is located in an area which is already subject to an existing exploration licence and is also subject to a heritage regime agreed between the parties.
It would appear therefore that had the site been within the proposed licence area under consideration the finding may have in fact been that the expedited procedure does not apply. It would seem that the ‘existing exploration licence’ referred to by Member Shurven was granted without an objection being made because the grantee party and the Tjurabalan had entered into a heritage agreement which presumably arose from a negotiation between the parties.
Burial sites
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’. It would seem that the ‘flat country’ mentioned is the same location as the ‘flat area’ where the old people camped at Killi Killi Hills as referred to in [12] of his affidavit.
The State accepts that the burial sites at Killi Killi Hills are sites of particular significance to Tjurabalan for the purposes of s 237(b) (Contentions [59]).
While speaking generally concerning the men’s site, burial places, and rock art within the Killi Killi Hills, PVW Resources says the particular significance or precise location is not explained or described (Contentions [35]).
Rock art site
Mr Tchooga says that there is a rock art site at Killi Killi. He says it is a special place, ‘that the old people did’, that no one should disturb that area, and that people should not go to the Killi Killi area (Affidavit [20]). Other rock art sites are said to be at Bald Hill, some distance north of the proposed tenement application areas.
There is no more detailed explanation of the nature of the rock art.
The State contends that Tjurabalan has not provided sufficient evidence regarding the degree of the significance of the site, and why it is of particular significance (Contentions [61]) – a contention broadly supported by PVW Resources.
Are these areas or sites of particular significance in accordance with Tjurabalan’s traditions?
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.
I accept the Ngapa Dreaming and physical sites associated with it is of cultural significance to the Tjurabalan – however, apart from the special rock hole in the Killi Killi Hills, the location and pathway the dreaming traverses has not been sufficiently described in order for me to be satisfied that the Ngapa Dreaming is an area or site is of particular significance. In reply, Tjurabalan says that the Ngapa Dreaming is fluid in nature and traverses all four proposed tenements because ‘it travelled through that country’ (Reply [8]). They say the dreaming itself is not static, although it stopped at certain sites. I accept that explanation but observe that although the dreaming might be ‘fluid’ more specific information ought to be able to be provided regarding its direction and course.
In my view, by its nature the special rock hole, a permanent water source or ‘living water’ and of critical importance to the Ngapa Dreaming, is a site of particular significance to Tjurabalan, it is sufficiently described both in nature and general location within proposed tenement area E80/5190.
I am also satisfied that the men’s site in the Killi Killi Hills is a site of particular significance. Like 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.
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[5], E80/5189 and E80/5190 and Killi Killi Hills and all the way down south of that area’. He says 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’.
[5] See paragraphs [12]-[13] for further information.
As 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.
I am not satisfied the evidence of Mr Tchooga establishes the particular significance of the snake Dreaming. While the Killi Killi Hills is associated with the snake Dreaming, my findings at [71]-[72] based on the evidence concerning the Ngapa Dreaming.
In relation to the burial sites, the evidence of Mr Tchooga refers generally to the location of burial sites. His evidence that he looks after burial sites in the ‘flat area’ where the old people camped at Killi Killi Hills area (within proposed tenement area E80/5190) is sufficiently specific in terms of location. The State accept that the burial sites are sites of particular significance to the Tjurabalan. I accept that the burial sites as described in evidence are sites of particular significance to the Tjurabalan for the purposes of s237(b).
Concerning the rock art site at Killi Killi Hills I accept the contention made by the State (broadly supported by PVW Resources) that Tjurabalan has not provided sufficient evidence regarding the degree of the significance of the site, and why it is of particular significance – and as such, is not in my view a site of particular significance for the purposes of s 237(b).
In relation to the artefacts scatters, the grind stones and stone scatters, I accept they are intimately linked to social and community activities conducted by the Tjurabalan, but do not find they are, of themselves, of particular significance to the Tjurabalan for the purposes of s 237(b).
In summary my findings are that the following areas or sites in proposed tenement area E80/5190 (only) are areas or sites of particular significance for the purposes of s 237(b): the special rock hole in the Killi Killi Hills associated with the Ngapa Dreaming; the men’s site in the Killi Killi Hills; and, the burial sites in the flat area of the Killi Killi Hills.
Is there a real risk of interference with sites or areas of particular significance?
Tjurabalan in contentions says that the evidence establishes ‘this is a sensitive area under traditional law and custom’ and any access that occurs without permission of Tjurabalan is likely to disturb sites and areas of great significance under their traditional law and custom. It says that without appropriate consultation there is a high likelihood that ground disturbing activity within the tenement areas will disturb sites of great importance to the Tjurabalan.
Mr Tchooga says that no one should dig around the special rock hole (Affidavit [16]). He was told by his father ‘not to disturb that place’ and that the Ngapa Dreaming is attached to that place; he says that there are spirits at the men’s site that could harm people; one spirit, an invisible man, ‘will make you go mad’. In relation to the burials at [18] he says:
If the mining company went there and those bones got disturbed, it would not be good. The spirits might get anyone who disturbed those burial sites, and make them sick’. He says at [20] no one should disturb the rock art site at Killi Killi, ‘People should not go to Killi Killi area.
In relation to waterholes Mr Tchooga says at [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 hurt the Dreaming, the snake might go away and send those rock holes dry.
Generally, Mr Tchooga says ‘You need a traditional owner with you if you go to those places, to make sure that you don’t disturb those places and the spirits there’ (Affidavit [26]). Finally, Mr Tchooga says that:
[34] The mining company should do a heritage survey with the right people for that country. They should talk to me and my son and take us there first, because we know the country really well.
…
[36] The mining company need to get permission to go out on our country. They should talk to us and the other Traditional Owners for that country before going out there, and they should take us with them to show them important sites and introduce them to country. If they don’t it could be dangerous for them.
The State contends that Tjurabalan has not has not provided specific evidence on how the exercise of PVW Resources’ rights would interfere with specific areas or sites of particular significance, aside from an assertion that people ‘should not disturb’ those sites and, in respect of burial sites, spirits may ‘make them sick’ (Contentions [64]).
The State says that in the absence of evidence as to how there is a real chance or risk of interference to the sites or how interference by PVW Resources may occur, the Tribunal is unable to find that the grant of the proposed tenements is likely to result in interference by way of damage or disturbance with those sites or areas (Contentions [65]). PVW Resources says that the Tjurabalan contentions and evidence do not establish the grant of the proposed tenements will interfere with areas or sites of particular significance (Contentions [8], [48]).
PVW Resources says it will comply with the law, in particular the ‘Aboriginal Heritage Act 1971 [sic]’. It says it is ‘committed to protecting Aboriginal heritage’ and will ‘observe the endorsements and comply with the conditions to which the grant of the Applications is subject’ (Contentions [49], [51]).
PVW Resources says that it ‘is familiar with and understand its obligations to comply with the requirements set out in the Aboriginal Heritage Act 1971 (WA) [sic] prior to conducting any exploration activities within the vicinity of an Aboriginal heritage site’ (Contentions [37]-[38]). Further, ‘the Grantee party will report any potential Aboriginal heritage site identified during the course of its activities in compliance with the AHA’.
As I recently noted in Vandeleur Superannuation v Peck, the commitment to report Aboriginal heritage sites is dependent on PVW Resources’ subjective view of what constitutes any ‘potential Aboriginal heritage site’. What the contentions do not say is the qualifications and/or experience and expertise of PVW Resources, its employees and contractors, have in identifying ‘any potential Aboriginal heritage site’.
PVW Resources refers to an obligation ‘to comply… with the requirements of the AHA… prior to conducting exploration… in the vicinity of an Aboriginal heritage site’, however, what specific obligation is being referred to is unclear.
The State provides an outline of the protections they say would come from the application of the Aboriginal Heritage Act 1972 (WA) (AHA) (Contentions [66]-[71). Further, the State contends that the sites identified in this matter ‘may fall within the definition of “Aboriginal site” pursuant to s 5(a) or (b) of the AHA’ (Contentions [68]). As I recently expressed in Wanjina-Wunggurr v GE Resources, this statement adds nothing to my consideration of whether the act is likely to interfere with sites of significance. Further, I adopt and repeat my analysis in Bunuba Dawangarri v Buxton Resources At [72]:
Further, the use of the phrase ‘protection afforded by the AHA’ is apt to mislead. An offence provision (such as s 17), which applies once damage is done is not in my view a protection. Damage may not occur knowingly. It will often be the case that an explorer is unfamiliar with the nature of Aboriginal sites and without some other mechanism to minimise the risk may unwittingly cause harm. When the risk is mitigated, for example following the conduct of a heritage survey, the s 18 process does provide for a further assessment of the site and results in a recommendation to the Minister. Again, in my view this is not necessarily a ‘protection’ (in the context of protection against harm), but presents the possibility perhaps of avoidance.
Accordingly, I am unable to conclude that the AHA is adequate in mitigating the risk of interference to the sites I find to be of particular significance (see [71]-[72]).
The State also says it intends to impose a Regional Standard Heritage Agreement (RSHA) condition as a condition on each grant (Contentions [16]). Neither Tjurabalan nor PVW Resources make specific reference to the RSHA condition. The recent decisions of Allen v Gianni and Murphy v Ausgold Exploration have highlighted the difficulties with the RSHA condition proposed by the State.
In the present matter, the RSHA condition proposed is in a similar form to that outlined in Murphy v Ausgold Exploration at [48]. Noting that Tjurabalan falls within the Kimberley Land Council’s and Central Desert Native Title Service’s regions, I adopt the analysis outlined in [50]-[51] of Murphy v Ausgold Exploration and similarly find that the proposed RSHA condition does not reduce the risk of interference.
Conclusion
As noted earlier all the proposed tenement areas are over vacant crown land, and the Tjurabalan People have been determined to have exclusive native title rights and interests over that land – including the Tjurabalan People’s right to maintain and protect sites which are of significance to under their traditional laws and customs.
In this matter PVW Resources has provided no contentions nor evidence regarding their intended activities on the proposed application areas. Having found that sites of particular significance do exist in the area of proposed tenement E80/5190, and having examined PVW Resources ‘Proposed Mineral Exploration Work Program’, I conclude those exploration activities are likely to interfere with the sites of particular significance (as outlined at [71]-[72]). I do not consider the States regulatory regime, including the RSHA, is sufficient to mitigate the likelihood of the interference contemplated by s 237(b) of the Act.
In relation to the sites of particular significance on E80/5190, I am satisfied that what PVW Resources might regard as a low level or inconsequential level of interference, would likely 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.
Determination
I find the grant of exploration licences E80/5187, E80/5188 and E80/5189 to PVW Resources are acts attracting the expedited procedure.
I find the grant of exploration licence E80/5190 to PVW Resources is not an act attracting the expedited procedure.
Mr JR McNamara
Member
21 November 2019
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