Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another

[2016] NNTTA 16

NATIONAL NATIVE TITLE TRIBUNAL

Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another [2016] NNTTA 16 (12 April 2016)

Application No:              WO2015/0023, WO2015/0289, WO2015/0290, WO2015/0291

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Tjurabalan Native Title Lands Aboriginal Corporation RNTBC (native title party)

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Rich Resources Investments Pty Ltd (grantee party)

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The State of Western Australia (Government party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms H Shurven, Member

Place:  Perth
Date:  12 April 2016

Catchwords:  Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – anthropological evidence – existing heritage agreement – terms of agreement confidential – whether Tribunal may have regard to evidence filed in alleged breach of contractual obligation –whether grant of licences is likely to interfere with areas or sites of particular significance to the native title holders – expedited procedure applies

Legislation:  Native Title Act 1993 (Cth), ss 155, 156(2), 174, 237

Mining Act 1978 (WA), s 57(2a)

Mining Regulations 1981 (WA)

Aboriginal Heritage Act 1972 (WA)

Cases:Andrews v Northern Territory (2002) 170 FLR 138; [2002] NNTTA 170 (‘Andrews v Northern Territory’)

Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (‘Campbell v Murchison Metals’)

Barbara Sturt and others on behalf of Jaru v Baibao Resources Pty Ltd and Another [2015] NNTTA 38 (‘Sturt v Baibao Resources’)

Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1 (‘Champion v Western Australia’)

Cheinmora v Striker Resources NL & Ors; Dann v Western Australia (1996) ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker Resources’)

Delores Cheinmora, Vernon Gerrard & Others on behalf of the Balanggarra Native Title Claimants/Western Australia/Geotech International Pty Ltd & Timothy Vincent Tatterson [2011] NNTTA 17 (‘Cheinmora v Geotech International’)

Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (‘Hale v Mings Mining Resources’)

Jango v Northern Territory of Australia [2006] FCA 318 (‘Jango v Northern Territory’)

Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Other [2015] NNTTA 4 (‘Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) v FMG’)

Neowarra v Western Australia [2004] FCA 1092(‘Neowarra v Western Australia’)

Ngalpil v Western Australia [2001] FCA 1140 (‘Ngalpil v Western Australia’)

Ngarrawanji Native Title Claimants and Koongie-Elvire Native Title Claimants v Sammy Resources Pty Ltd and Another [2015] NNTTA 2 (‘Ngarrawanji v Sammy Resources’)

Old Papa’s Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 (‘Old Papa’s Franchise Systems v Camisa Nominees’)

R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 (‘R v Young’)

Sayer v National Mutual Life Association of Australasia Ltd (1994) 34 NSWLR 132 (‘Sayer v National Mutual Life Association’)

Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)

Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v WA Mining Resources Pty Ltd and Another [2015] NNTTA 41 (‘Tarlka Matuwa Piarku (Aboriginal Corporation) v WA Mining Resources’)

Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’)

Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 (‘Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Braeburn Resources’)

Weld Range Metals Ltd v Western Australia (2011) 258 FLR 9; [2011] NNTTA 172 (‘Weld Range Metals Ltd v Western Australia’)

Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)

Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)

Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169; [2009] NNTTA 49 (‘Western Desert Lands Aboriginal Corporation v Western Australia’)

WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘WF v Emergent Resources’)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representatives of the     Ms Julia Taylor, Kimberley Land Council

native title party            Mr Tim Ognenis, Kimberley Land Council

Representative of the     Mr Ken Green, Green Legal
grantee party                  

Representatives of the     Ms Sarah Power, State Solicitor’s Office

Government party          Mr Matthew Smith, Department of Mines and Petroleum

REASONS FOR DETERMINATION

1. This decision considers whether the State Government of Western Australia can validly grant exploration licences E80/4869, E80/4919, E80/4920 and E80/4921 (‘the licences’) to Rich Resources Investments Pty Ltd (‘Rich Resources’), without the normal requirement for negotiations with the native title holders. That question arises because the registered native title body corporate for the area, Tjurabalan Native Title Lands Aboriginal Corporation RNTBC (‘Tjurabalan’), has objected to the National Native Title Tribunal, on behalf of the native title holders, to the State’s assertion that the activities permitted by the licences are such that, under the Native Title Act 1993 (Cth), their grant can be expedited. All references to legislation in this decision are to that Act, unless otherwise noted.

2. As the registered native title holder for the land and waters on which the licences are proposed to be situated, Tjurabalan has the right to object to the State’s assertion that the expedited procedure applies to the grant of the licences. It has exercised that right and I have been appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies.

3. A decision that the expedited procedure applies means the State can grant the licences to Rich Resources without negotiations with Tjurabalan. A decision that the expedited procedure does not apply means that Rich Resources, Tjurabalan and the State must negotiate in good faith with a view to reaching agreement about the grant of the licences. Such negotiations may take place with or without mediation assistance from the Tribunal.

4. The proposed licences are situated in the Tanami Desert near the border of Western Australia and the Northern Territory, approximately 100 kilometres easterly of Balgo Community. The land and waters over which the State proposes to grant the licences form part of a much larger area comprising almost 26,000 square kilometres (approximately 2,600,000 hectares), in which Tjurabalan holds exclusive native title rights and interests on trust for the persons recognised as the common law native title holders by the Federal Court in Ngalpil v Western Australia.

5. My task is to determine whether the licences are acts attracting the expedited procedure by reference to the criteria set out in s 237 of the Act. Specifically, I must determine whether the licences are likely to:

   (a)directly interfere with community or social activities carried on by the native title holders; or

   (b)interfere with areas or sites of particular significance in accordance with the traditions of the native title holders; or

   (c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

6. I must answer these questions by making a predictive assessment of whether the grant of the licences is likely to have those effects. In performing that assessment, I must look at what is likely to occur as a result of the grant and decide whether there is a real chance or risk of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the explorer’s proposed activities and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]). In the present matter, Tjurabalan has not contended the grant of the licence is likely to directly interfere with community or social activities carried on by the native title holders; or involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned. Based on the evidence before me, I find the licence is not likely to offend s 237(a) or s 237(c). As such, the remainder of this decision is focused on s 237(b).

7. A map of the licences and the surrounding areas was prepared by the Tribunal’s Geospatial Services Team and sent to parties for comment, as I wish to rely on that map to assist in my decision making in this matter. No party objected to my use of the map in this way, subject to some minor annotations made to the map by Rich Resources, which were communicated to all parties and which I accept.

8. Tjurabalan contends the grant of the licences is likely to interfere with areas or sites of significance to the native title holders. In support of its contentions, Tjurabalan relies on the signed statement of Nadia Ronay, an anthropologist employed by the Kimberley Land Council, which represents Tjurabalan. In her statement, Ms Ronay outlines her understanding of Tjurabalan law and custom and her discussions with traditional owners regarding Waljirri or dreamings that are said to pass through the area in which the licences are situated.

9. Rich Resources and the State have put in issue the weight that should be given to the statement of Ms Ronay. They argue Ms Ronay’s evidence is not supported by direct evidence from native title holders and say there is uncertainty about her understanding of the areas covered by the licences and that of the traditional owners with whom she spoke. They contend there is insufficient evidence to establish the existence of areas or sites of particular significance to the native title holders, and say interference is unlikely in any event.

10. In support of its contention that the grant of the licences is unlikely to interfere with areas or sites of particular significance, Rich Resources relies on an existing heritage protection agreement it has with the native title holders. Tjurabalan argues the Tribunal should not have regard to that agreement, as its terms are confidential.     

11. I will address the following issues in these reasons:

    (a)What areas are covered and affected by the licences?

    (b)What weight should be accorded to Ms Ronay’s statement?

    (c)Should I have regard to the existing heritage agreement?

    (d)Is the grant of the licences likely to interfere with areas or sites of particular significance to the native title holders?

    (i)What areas or sites are identified by Tjurabalan?

    (ii)Are any of the areas or sites identified of particular significance to the native title holders?

    (iii)Is the history of land use relevant to the question of interference?

    (iv)Is there a real risk of interference with sites or areas of particular significance?

What areas are covered and affected by the licences?

1. According to the Tribunal map, and the Tengraph Quick Appraisals and application documents provided by the parties, the licences cover the areas set out in the table below:

LICENCE	Approximate size	Location	Overlap with Tjurubalan determined area
E80/4869	19,636.21 ha Comprising 61 graticular blocks	Killi Killi 100 km Easterly of Balgo Community	100%
E80/4919	7,083.77 ha Comprising 22 graticular blocks	Tanami 65 km North Easterly of Balgo Community	100%
E80/4920	966.17 ha Comprising 6 graticular blocks	Tanami West 106 km North Easterly of Balgo Community	100%
E80/4921	966.04 ha Comprising 3 graticular blocks	Tanami West 108 km North Easterly of Balgo Community	100%

1. The State’s Tengraph Quick Appraisal for E80/4869 indicates the licence area is currently subject to two exploration licences held by Tanami Exploration NL, namely E80/1483 and E80/3665. The draft Tenement Endorsement and Conditions Extracts provided by the State, which outline the conditions and endorsements the State intends to impose on each of the licences, indicate E80/4869 will be granted subject to an endorsement that the licence does not include the land the subject of E80/1483 or E80/1679 (as E80/1679 is no longer active, I assume the endorsement was intended to refer to E80/3665 which is an active licence). The endorsement provides that, if either of the existing licences expires, is surrendered or forfeited, the land may be included in E80/4869, subject to the relevant provisions of the Mining Regulations 1981 (WA). According to the Tengraph Quick Appraisal, E80/1483 overlaps the licence by 7,200.47 hectares or 36.7 percent, whereas E80/3665 covers 1,287.18 hectares or 6.6 percent of the same area.

2. Rich Resources notes the State’s Tengraph Quick Appraisal for E80/4869 differs from a subsequent version annexed to the affidavit of Peter Ronald Brookes.[1] Specifically, the later version no longer records E80/1679 as overlapping E80/4869 and indicates that E80/1483 only overlaps the area by 135.48 hectares (that is, 0.69 per cent). On this basis, Rich Resources submits that, assuming each document is correct, the area of E80/4869 as described in the initial application will, on grant, only exclude an area of 135.48 hectares co-terminus with E80/1483. In the absence of further comment from the State to the contrary, I accept this is the case.

   [1] Mr Brookes is the exploration manager of Orion Metals Ltd, of which Rich Resources is a wholly owned subsidiary.

3. Rich Resources also notes that the Tengraph Quick Appraisals for E80/4920 and E80/4921 annexed to the affidavit of Mr Brookes give the impression that E80/4921 is entirely overlapped by E80/4920, and that E80/4920 has an area of 1,932.21 hectares. According to Rich Resources, this has occurred because three of the six graticular blocks over which the application for E80/4920 was originally made formed an area discrete from the other three.[2] Accordingly, Rich Resources elected that the application for E80/4920 should only relate to graticular blocks ‘Primary No – 3203; Blocks – x,y,z.’ On this basis, I accept that E80/4920 comprises only three graticular blocks with a total area of 966.17 hectares and does not encroach upon the area of E80/4921. No issue was taken with the size or area of E80/4919.

   [2] Section 57(2a) of the Mining Act 1978 (WA) requires that an exploration licence ‘constitute a single area.’

What weight should be accorded to Ms Ronay’s statement?

1. Ms Ronay is a senior anthropologist at Kimberly Land Council, and holds a Bachelor of Arts (First Class Honours) in Anthropology from the University of Queensland. Following the completion of her studies in 2004, Ms Ronay states she worked as an anthropologist at the Northern Land Council between 2007 and 2012 and, at the time her statement was made, had been employed by the Kimberley Land Council for two and a half years.

2. During that time, Ms Ronay worked with another anthropologist, Dr Anthony Redmond, researching a number of native title claims in the Kimberley region, including the Jaru registered native title claim. Ms Ronay observes the southern edge of the Jaru claim ‘abuts’ the Tjurabalan determination and states that Jaru country, kinship affiliations and dreaming tracks ‘extend into the Tjurabalan claim.’ Ms Ronay states that her research has ‘involved working with Tjurabalan native title holders and developing a knowledge of families and countries in the Tjurabalan claim area.’

3. Part of the research Ms Ronay undertook with Dr Redmond involved the recording of information and the hearing of evidence from ‘claimants for the general area covered by tenements E80/4869, E80/4919, E80/4920 and E80/4921.’ Ms Ronay’s evidence draws upon that material and, in particular, the evidence of Jimmy Tchooga, a Jaru man of Jambin skin, and Maggie Long, a Jaru woman of Nangala skin. Ms Ronay states she also ‘undertook more specific discussions about the tenements’ with Ms Long in August 2015 and with Mr Tchooga in September 2015.

4. The State and Rich Resources challenge Ms Ronay’s evidence on several grounds. First, they contend her evidence is not supported by the direct evidence of any native title holders. In this respect, both Rich Resources and the State rely on the Tribunal’s decision in Campbell v Murchison Metals, in which Member O’Dea commented on conclusions he reached in an earlier decision, WF v Emergent Resources.

5. In Campbell v Murchison Metals, Member O’Dea observed (at [30]) that, in the context of the predictive assessment required in an expedited procedure inquiry, anthropological evidence about the ‘existence, location and significance of Aboriginal sites may not be accorded significant weight in circumstances where the anthropological evidence is not supported by the evidence of traditional owners.’ Although Member O’Dea stated the Tribunal is required to give appropriate weight to anthropological evidence where it is shown to be based on specialised knowledge derived from the anthropologist’s training, study or expertise, he considered ‘the probative value of such evidence may be limited where Aboriginal witnesses or potential witnesses are in a position to give evidence on such matters but fail to do so.’

6. The State notes the Federal Court has found expert anthropological evidence based on field work does have probative value (see, for example, Neowarra v Western Australia at [388]). However, the State also argues that, as a general proposition, expert anthropological evidence should complement or supplement the evidence of traditional owners, rather than be given in lieu of such evidence (citing Jango v Northern Territory at [292]). In this case, Ms Ronay’s statement does not so much seek to supplant the evidence of traditional owners as it purports to outline the evidence conveyed to Ms Ronay during interviews with Mr Tchooga and Ms Long. Rich Resources argues that, to the extent this evidence is relied upon as evidence of the truth of the statements made by Mr Tchooga and Ms Long, it is hearsay.

7. Rich Resources also argues it is not apparent Ms Ronay has the relevant ‘specialised knowledge derived from ... her training, study or experience.’ It submits that little if any of her training, study or experience has anything to do with the traditional laws and customs of the Tjurabalan native title holders, and the focus of her work has been on other native title groups. Similarly, Rich Resources queries the extent of her interaction with and participation in the recording and hearing of evidence from traditional owners. Furthermore, it submits that, because Mr Tchooga and Ms Long are identified as Jaru people rather than Tjurabalan, the proper interpretation of Ms Ronay’s evidence is that both are members of the Jaru native title claim as opposed to being members of the Tjurabalan native title holding group, meaning their evidence would be given little weight even if it were given directly to the Tribunal. The State makes a similar contention.

8. Tjurabalan argues the contention that Mr Tchooga and Ms Long are not qualified witnesses is misconceived. It submits the term ‘Tjurabalan’ is ‘merely ... a way of describing Law’ and the determination area includes Jaru country. Tjurabalan also notes that Rich Resources relies on Mr Brookes’ evidence regarding statements made by Mr Tchooga about the effect of prior exploration activity on adjacent tenements, which suggests that Rich Resources accepts Mr Tchooga’s authority to speak for the area surrounding the licences.

9. The entry on the National Native Title Register for the Tjurabalan People defines the common law holders as ‘those people who hold in common the body of traditional law and custom governing the Determination Area and who: (a) are members of the Walmajarri, Jaru or Nyininy language groups; and (b) have a common and inclusive cultural and geographic association with the Determination Area.’ In Ngalpil v Western Australia, the Court observed (at [19]-[20]) that, to the extent the Tjurabalan People were identified in the proposed consent determination by language groups, the three language groups were Walmajarri, Jaru and Nyininy:

   These are also the three languages referred to by the applicants in their notice to admit facts. None of the respondents disputes that fact and I think that it is appropriate for those three language groups to form part of the description of the Tjurabalan People. As I understand the evidence and the intention of the parties, an individual would not have to belong to all three groups in order to be included as a member of the Tjurabalan People. In fact it may not be possible for a person to do so...

1. The Court also noted (at [18]) the opinion stated in an anthropological report, prepared by Dr Scott Cane and admitted into evidence in those proceedings, that the determination area has ‘... a predominately Tjaru core (across the Tanami desert or Ngaluwan) that is surrounded [by] a ring of shared country.’ I accept, on this basis, that Mr Tchooga and Ms Long have authority to speak on behalf of the common law native title holders for the area.

2. This information also gives context to Ms Ronay’s evidence concerning the research she undertook with Dr Redmond. As this research focussed in part on the relationship between the Jaru native title claim and the Tjurabalan determination area, I am satisfied Ms Ronay has the relevant specialised knowledge derived from her training, study or experience to give evidence about the traditional laws and customs of the common law native title holders. I am not persuaded by the argument, made on behalf of Rich Resources, that Ms Ronay’s evidence suggests her involvement in this research was ‘minimal.’ Indeed, much of her evidence is concerned with reporting information she obtained during interviews with Mr Tchooga and Ms Long. On the other hand, it is not clear why this evidence could not be provided directly. As both Rich Resources and the State maintain, no explanation is given as to why Aboriginal witnesses, and Mr Tchooga and Ms Long in particular, did not give evidence on the matters in question.  

3. In Ngarrawanji v Sammy Resources, I relied on a similar document, also made by Ms Ronay, which recorded evidence she obtained during interviews with members of the Ngarrawanji and Koongie-Elvire native title claims. The circumstances of that matter differ from the present case in two material respects. First, the manner of presenting the evidence of Aboriginal witnesses in that format had not been challenged. Second, the evidence indicated Ms Ronay had conducted the interviews with reference to a map of the tenement area.

4. There is no indication from Ms Ronay’s statement that her interviews with Mr Tchooga and Ms Long were conducted with reference to a map. No map is annexed to her statement. Therefore, there is a significant degree of doubt as to whether Ms Ronay, Mr Tchooga and Ms Long understood, while giving their evidence, exactly where the licences are situated. The Tribunal has previously noted that a failure to include a map identifying the relevant tenements and other places mentioned in the evidence may limit the probative value of the evidence, particularly in the context of the predictive assessment the Tribunal is required to undertake when evaluating the risk of interference. As Member McNamara observed in Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) v FMG (at [61]):

   ... the effect of such an omission on the weight given to the deponent’s evidence will depend on the nature of the evidence provided. For instance ... a reference to a place that cannot be identified by reference to an authoritative source of placenames is likely to have little probative value if it is merely said to be within a particular part of the tenement. On the other hand, the evidence will likely have greater probative value if the place is identified by reference to a place which is known (for example, if the unknown place is said to be a certain distance from the known place). Similarly, if the place is listed on the Register of Aboriginal Sites, it may be open for the Tribunal to conclude that the place referred to by the deponent is the same place listed on the Register. However, if there remains any uncertainty as to the location of the site or the deponent’s knowledge of the location and extent of the future act, a common sense approach would normally require the Tribunal to draw an adverse inference in respect of the party seeking to rely on the evidence.          

5. The omission in this case has particular significance given the level of ambiguity in Ms Ronay’s descriptions of the places identified in her statement. For example, Ms Ronay states she and Dr Redmond recorded evidence from claimants ‘for the general area covered by tenements E80/4869, E80/4919, E80/4920 and E80/4921.’ Later in her statement, Ms Ronay refers to a dreaming called Ngaluwun, which ‘encompasses a site and much larger country which may cover a large proportion of the tenements area’ (emphasis added). She goes on to state that ‘native title holders’ explained to her that Ngaluwun country is located ‘on the western periphery of the tenement E80/4869,’ that the licence ‘falls across in Ngaluwun country’ and that the site itself is ‘within the tenement area.’ It is not clear from these statements to what extent E80/4869 is actually located within the area described as Ngaluwun country or whether the phrase ‘tenement area’ refers to E80/4869 specifically or the general area in which the licences are situated.

6. The other difficulty associated with Ms Ronay’s statement is the lack of information concerning the reference points used to describe the paths taken by certain dreaming tracks. Although some of the places used to describe these tracks (such as Killi Killi Hills)[3] can be located by reference to independent sources of geospatial information, others either cannot be identified or are located considerable distances from the licence areas. Ms Ronay’s description of Mr Tchooga’s evidence about the Malaki Jarra (or ‘two dog’) dreaming illustrates this problem:

   The two dogs Mr Tchooga refers to are called Malaki Jarra, aslo [sic] known as Gunyarr Gudjarra (two dogs). Mt [sic] Tchooga explained to me that, “They go from Ngayma ngayma Red rock,” which means they travelled across the border. “Moon Jagiliny on top, and those two dogs was going, that moon was chasing them and making them crazy”. They went from Red Rock, then to the junction of ngurriny creek (wolf Creek crater)...The moon followed the dogs south.    

   [3] Killi Killi Hills is spelt variously as Kili Kili and Killi Killi. The geographical nomenclature on the Tribunal map (‘Killi Killi’) will be used unless a direct quote requires a different spelling.

7. In the absence of a map showing where these places are located, the Tribunal’s Geospatial Services Team was unable to identify ‘Ngayma ngayma’, ‘Red Rock’ or ‘Ngurriny Creek’ using independent geospatial data. With the exception of the reference to Ngayma ngayma/Red Rock being ‘across the border,’ no other information is provided regarding the location of these sites. The only place the Tribunal was able to identify was ‘Wolfe Creek Crater’, which is located approximately 190 kilometres northwest of E80/4869 and outside the four licence areas, according to the Tribunal map. In this context, Ms Ronay’s reference in a subsequent paragraph to the significance of ‘the above-mentioned place’ is of little assistance. The issue is further complicated by the fact that some evidence is recorded in direct speech, while other parts are paraphrased by Ms Ronay.

8. While I have had regard to the evidence of Ms Ronay and taken it into account for the purposes of these proceedings, in light of the factors discussed above, I have given it less weight than I would have done had the evidence been given directly by Mr Tchooga and Ms Long or had it been accompanied by a map of the area.

Should I have regard to the existing heritage agreement?

1. In support of its contention that the grant of the licences will not involve interference with areas or sites of particular significance to the native title holders, Rich Resources relies on an existing heritage protection agreement entered into by Mount Resources Pty Ltd and the Kimberley Land Council on behalf of the native title holders in 2009. Rich Resources replaced Mount Resources Pty Ltd as a party by way of a deed of variation executed in 2012. Both documents are annexed to the affidavit of Mr Brookes.

2. Rich Resources submits that, while Tjurabalan has the right under the heritage protection agreement to extend the agreement to cover the licences, it has disavowed that right. According to Rich Resources, the inference to be drawn from the disavowal is that Tjurabalan is not concerned the grant of the licences will lead, in the absence of an enforceable heritage agreement, to interference with areas or sites of particular significance to the native title holders. Alternatively, Rich Resources submits I am entitled to recognise the terms of the heritage protection agreement as a ‘minimum standard’ available to Tjurabalan.

3. Tjurabalan contends that, in making my decision, I should not have regard to the heritage agreement or to any contentions made or documents relied on by Rich Resources which relate to the heritage agreement. Tjurabalan submits clause 21.3 of the heritage protection agreement prohibits any party from disclosing to a person who is not a party the terms and conditions of the agreement, or any information disclosed by a party to another party under the agreement. On this basis, Tjurabalan contends I should not, as a matter of public policy, be seen to endorse a potential contravention of a contractual obligation by having regard to the heritage protection agreement.     

4. Rich Resources denies it has breached the heritage protection agreement by providing the information to the Tribunal, as the clause does not apply to information required to be disclosed by law, which, it says, includes a direction of the Tribunal (in this case, the Tribunal’s standard direction that parties provide a copy of each document ‘relevant to the inquiry’). It also argues the clause applies to ‘information in relation to’ the terms and conditions of the agreement and not the terms and conditions themselves, and authorises the disclosure of information ‘to the extent necessary to exercise the Party’s rights under the agreement.’ Irrespective of whether it has breached the clause, Rich Resources submits there is no merit in the contention that the Tribunal must, as a matter of public policy, disregard evidence on the basis that it might be ‘seen to endorse a potential contravention of a contractual obligation.’

5. Nothing in the Act expressly bars a Tribunal member from having regard to confidential information or documents. In fact, the Tribunal has the power to summon a person to appear before it to give evidence and produce such documents as required (see s 156(2)). The refusal or failure to produce a document which a person is required to produce by a summons is an offence under the Act (see s 174). Section 155, which empowers the Tribunal to direct that evidence given before it or the contents of documents produced to it must not be disclosed, or must not be disclosed except in such manner and to such persons as the Tribunal specifies, arguably facilitates the production of confidential documents. Nor is there any rule of evidence or natural justice which operates to prevent an administrative tribunal from receiving and acting upon evidence that is confidential in nature.

6. Although evidence of admissions made in the course of negotiations to settle a dispute are generally privileged, a binding contract brought into existence as a result of ‘without prejudice’ negotiations is not protected by the privilege (see Old Papa’s Franchise Systems v Camisa Nominees at [92]). Certain documents may be privileged on public interest grounds. However, this tends to apply only to information or documents of a governmental nature (see R v Young at [54]-[57]). The mere fact that information has been given in confidence does not justify a claim for public interest immunity (see Sayer v National Mutual Life Association at 144).

7. The Tribunal’s general approach is to admit documentary evidence unless it is patently irrelevant or otherwise inappropriate (see Weld Range Metals Ltd v Western Australia at [11]). The evidence in this case is neither irrelevant nor inappropriate, whether or not the actions of Rich Resources involved the breach of a contractual obligation. Tjurabalan has not identified, and I am not aware of, any authority which supports the proposition that it would not be appropriate, as a matter of public policy, to have regard to evidence on the basis that its disclosure involves an actual or potential breach of contract.

8. Insofar as the heritage protection agreement sheds light on the proponent’s attitude towards heritage protection and constitutes an existing heritage regime which the native title holders could elect to apply to the licences, I accept it is relevant to the issues in this inquiry.  

Is the grant of the licences likely to interfere with areas or sites of particular significance to the native title holders?

What areas or sites are identified by Tjurabalan?

1. If an area or site is claimed to be of particular significance to the native title holders, it must be capable of identification (see Silver v Northern Territory at [91], citing Western Australia v McHenry). In other words, the area or site must be known and able to be located.  

2. Ms Ronay states that Mr Tchooga told her about ‘four Waljirri that pertain to the tenement.’ She describes them in the following terms:

   ·Japurta (small lizard dreaming): This dreaming passes E80/4869 through the western side of the tenements travelling southwards.

   ·Malaki Jarra (two dog dreaming): This dreaming may pass through or close to the northern part of the tenements E80/4869, E80/4920 and E80/4921.

   ·Ngalawun (sugarbag): This dreaming encompasses a site and much larger country which may cover a large proportion of the tenements area.

   ·Ngapa (rain/water): This dreaming passes through the tenements E80/ 4869/ 4920/ 4921 from the north east to the south west, from a place very close to the Kili Kili Hills north of the Tanami Rd called Kajarrang.

3. Ms Ronay also spoke with Ms Long about the Ngapa dreaming and her statement summarises that discussion.

4. According to Ms Ronay, Mr Tchooga described the Japurta dreaming as ‘travelling from a place in the north’:

   [H]e started from Bamarunga, near Gordon Downs station. He stopped at Cayote mine now other side.

5. According to Ms Ronay’s account of the evidence given to her by Mr Tchooga, the lizard ‘continued travelling directly south through the tenement area’ and ‘created a sacred site’ before travelling further south until ‘he went to the last sandhill.’ There, the lizard ‘found a big Lake, a big waterhole, Liga, and he stopped there, last’ and ‘buried himself there.’

6. Rich Resources argues that nothing in Ms Ronay’s statement identifies the location of any area or site within any of the licences associated with the Japurta dreaming. It also notes Ms Ronay’s statement that the ‘correct traditional owners would need to go out and examine exactly where the tenement is and the proposed works to ensure that this dreaming will not be negatively impacted.’ Rich Resources says this statement contradicts her other statements about the location of the dreaming.

7. The State also seeks to cast doubt on Ms Ronay’s description of the path taken by the Japurta dreaming. Specifically, it argues the mine sites associated with the Coyote project lie to the south of E80/4869, whereas the northernmost part of Gordon Downs station is approximately 50 kilometres south of E80/4869. This would mean the Japurta dreaming could not intersect with any of the licences, given E80/4869 is the southernmost tenement. However, the Tribunal map indicates Gordon Downs station is located approximately 160 kilometres north-northeast of E80/4869. This suggests that, assuming the Japurta dreaming travels in a straight line, the dreaming could intersect with one or more of the licences. Nevertheless, given the distance between the two reference points and the lack of detail in Ms Ronay’s evidence regarding the path taken by the dreaming, I am not satisfied the evidence supports a conclusion that the dreaming definitely does intersect with one or more of the licences.

8. In relation to the Malaki Jarra dreaming, Mr Tchooga told Ms Ronay that ‘Two dog went through this side from Ngaluwun, la [to] that new mine now [Coyote Mine], they been make gumbu [defecate]. La that flat. After that gumbu all around it melted, and they found the gold now.’ According to Ms Ronay, Mr Tchooga told her the place where the two dogs ‘make gumbu’ is known as Jinarri, which is described as a hill, and the two dogs travelled south to a place called Maliki Jarra, or Rabbit Flat. Ms Ronay says Mr Tchooga ‘explained to me that, “They go from Ngayma ngayma Red rock,” which means they travelled across the border.’ According to Ms Ronay, the two dogs ‘went from Red Rock, then to the junction of ngurriny creek’ before travelling south.     

9. Rich Resources submits that nothing in Ms Ronay’s evidence regarding the Malaki Jarra dreaming identifies the location of any area or site within any of the licences. The State argues that no attempt is made by Ms Ronay or Tjurabalan to identify the areas mentioned in connection with the dreaming and submits that several places to which Ms Ronay refers are located some distance from the licences. As mentioned above, the Tribunal map indicates that ‘Wolfe Creek Crater’ is approximately 180 kilometres northeast of E80/4869. Similarly, the State says Rabbit Flat is located in the Northern Territory, approximately 160 kilometres from the border with Western Australia. Without reference to a map or any identifiable locations in the vicinity of the licences, I am unable to conclude there are any areas or sites associated with the Malaki Jarra dreaming within the licence areas.    

10. With respect to Ngaluwun, Ms Ronay states that ‘native title holders’ explained to her that ‘Ngaluwun country, which is located on the western periphery of the tenement E80/4869’ is ‘so called for the presence [of] sugarbag (native honey/bees nests), from Waljirri time.’ Ms Ronay states that Mr Tchooga said to her that an ‘old fella’ or dreaming being travelling from the north ‘passed away there’ after eating too much Ngalu or sugarbag. In Ms Ronay’s opinion, the dreaming is ‘a localised story relating to a particular place,’ despite her earlier reference to a presumably larger area known as Ngaluwun country. According to Ms Ronay, Ngaluwun is both a ‘site of particular significance’ located within the licence area and also a broader area which the licence ‘falls across.’

11. Rich Resources submits there is no basis for Ms Ronay’s statement that Ngaluwun country is located on the ‘western periphery’ of E80/4869, as she does not identify who are the ‘native title holders’ who informed her of this. As such, Rich Resources argues it is impossible to form a view as to whether those persons are Tjurabalan native title holders, whether they were authorised to provide information on behalf of the native title holders or whether the information is credible. Rich Resources also argues the statements attributed to Mr Tchooga do not support Ms Ronay’s statements regarding the relationship between E80/4869, Ngaluwun country and the Ngaluwun site, and says it is equivocal whether the reference to ‘tenement area’ includes the areas surrounding the licences, as opposed to simply the area within the licence boundaries. Similarly, the State notes the inconsistency between Ms Ronay’s statement that Ngaluwun country is located on the ‘western periphery’ of E80/4869 and her statement that E80/4869 ‘falls across in Ngaluwun country.’ 

12. I agree there is little basis for Ms Ronay’s statements about the location of areas said to be associated with the Ngaluwun dreaming. The evidence attributed to Mr Tchooga does not appear to support those statements, and Ms Ronay has not identified any other sources for this information, apart from the generic reference to ‘native title holders.’ I also accept there is a lack of clarity around the extent of the area described as Ngaluwun country and a lack of specificity regarding the location of the Ngaluwun site. In light of these observations, I am not satisfied Ms Ronay’s evidence provides sufficient basis for finding that areas or sites of particular significance associated with the Ngaluwun dreaming exist within or proximate to the licence areas.

1. Ms Ronay states that the Ngapa dreaming ‘originates to the east from across from the Northern Territory border.’ She states that, from her discussions with native title holders and her previous work in the Northern Territory, the dreaming splits into ‘several tracks’ that ‘all lead back to Lake Gregory in Western Australia.’ In her opinion, one of these tracks runs from a site in the north known as Paarji to ‘the major named place of Kajarrang, and then across to the Killi Killi hills and Ngaluwun country.’ It then moves south to a place named Mintupingu, from which point it travels north to the Sturt River and Lake Gregory. Ms Ronay states that Ngapa has ‘some restricted places associated with it’ which are ‘outside of the tenement but ... connected just to the south of it at Kili Kili Hills.’

2. According to Ms Ronay, Kajarrang is ‘just to the east of the tenements’ and straddles the border with the Northern Territory, close to Killi Killi Hills. She states that Mr Tchooga told her the Ngapa dreaming camped at Kajarrang. Ms Ronay states that certain locations associated with Ngapa are gender-restricted and dangerous and that Mr Tchooga described such places to her, noting they are located ‘just to the south of the tenements.’ Ms Ronay also quotes Mr Tchooga as describing Killi Killi Hills, which is located to the east of E80/4869, E80/4920 and E80/4921, as a ‘main place’ and a ‘man’s place.’

3. Rich Resources submits that nothing in Ms Ronay’s statement specifically identifies the location of any area or site within any of the licences associated with the Ngapa dreaming. It also notes that Ms Ronay’s statement regarding the Ngapa dreaming makes references to a range of places outside the licences, including: a place in the Northern Territory; Kajarrang, which is acknowledged as being east of the licences; and places ‘south of the tenements.’ The State argues the evidence does not actually indicate whether any of the tracks associated with the Ngapa dreaming intersect with any of the licences.               

4. Of the sites mentioned by Ms Ronay in connection with the Ngapa dreaming, the only sites that could be identified are Lake Gregory, which is located approximately 180 kilometres southwest of the licences, and Killi Killi Hills, which is situated approximately four kilometres to the east of E80/4869 and E80/4921. The evidence does not indicate whether the path taken by the dreaming actually traverses any of the areas covered by the licences. According to Ms Ronay, the dreaming moves south from Killi Killi Hills to Mintupingu, before moving north again towards Lake Gregory. At best, it could be argued this evidence suggests the dreaming possibly encroaches into E80/4869 as it moves south along the eastern boundary of the licence. However, this is merely speculative and does not support a finding that the dreaming actually intersects with E80/4869.

Are any of the areas or sites identified of particular significance to the native title holders?

1. The State argues the evidence regarding the dreamings is not sufficient to establish the existence of any areas or sites of particular significance to the native title holders, as it fails to identify any areas or sites related to the dreamings. Tjurabalan submits a site can be found to be significant notwithstanding the fact it has not been precisely identified, at least where the evidence about the site is otherwise compelling. Tjurabalan relies on the findings of the Tribunal in Campbell v Murchison Metals and Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Braeburn Resources.

2. In Campbell v Murchison Metals, Member O’Dea found (at [64]) that an ochre site vital to the conduct of ceremonial activity was a site of particular significance, despite the fact its exact location could not be determined. That finding was made on the basis that the evidence suggested the ochre site was on the proposed tenement and ‘at or near’ another identified feature. Even so, Member O’Dea did not make the finding ‘without a significant degree of hesitation’ and emphasised the need for the native title party to provide clear evidence of the location and importance of a site in order to establish its particular significance in accordance with traditional law and custom.

3. In Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Braeburn Resources, Member O’Dea found the evidence established the existence of ceremonial grounds, burial sites and cave paintings notwithstanding the lack of specificity or detail regarding the location of those sites. He went on (at [43]) to compare that evidence with statements given by the same deponent in a previous matter, where the Tribunal had not accepted the evidence about the existence of sites:

   In both cases ... Mr Neowarra asserts that the areas are “very important and have great significance” to us. The mere assertion that an area has particular significance carries little weight. In this matter Mr Neowarra has elaborated more comprehensively than he did in the previous matter on the basis which he believes that those areas are, in fact, of particular significance to the native title party.          

4. The evidence in the present matter is concerned with the significance of Waljirri or dreamings in the traditions of the native title holders. According to Ms Ronay, the law and custom which connects the members of the Tjurabalan native title holders came from the Waljirri or Ngarranggarni, which translate as either ‘dreaming beings’ or ‘dreaming time.’ The Waljirri is a ‘period when ancestral beings moved through the area and created country, language, people’. Ms Ronay states native title holders believe Waljirri ‘still exist in the landscape today’ and ‘continue to inform, influence and shape how the world works.’ Ms Ronay also states that Tjurabalan native title holders have an obligation under traditional law and custom to ‘look after country and culturally significant locations on country.’

5. An area or site of particular significance is one of ‘special or more than ordinary’ significance (see Cheinmora v Striker Resources at 34). This is consistent with the view that all of a native title holder’s land is significant to the native title holder, but persons may speak of areas or sites that are of ‘particular significance’ in accordance with their traditions (see Western Desert Lands Aboriginal Corporation v Western Australia at [99], citing Western Australia v Thomas at [173]-[174]). As President Webb QC observed in Yindjibarndi Aboriginal Corporation v FMG Pilbara at [130], a distinction must be drawn between areas and sites which are generally culturally significant, and specific culturally significant areas and sites which are of particular significance to the native title holders.

6. The same analysis applies to dreaming stories. 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.

7. This distinction between areas and sites which are generally significant and those which are particularly significant is also evident in the statement of Ms Ronay. In her discussion about the obligations of Tjurabalan native title holders, Ms Ronay distinguishes between country and culturally significant locations on country. Similarly, Ms Ronay distinguishes between ‘Ngaluwun country’ and the specific site associated with the dreaming. In relation to Ngapa, she states that certain places associated with the dreaming are ‘gender restricted’ and ‘dangerous’ whereas others, by implication, are not.

8. One place that does appear to be ‘gender restricted’ and ‘dangerous’ is Killi Killi Hills. As I have noted, Ms Ronay states Mr Tchooga described this site as a ‘main place’ and a ‘man’s place.’ He also described to her a story involving a snake which is connected with the site and related to protocols for entering the site. In the context of Ms Ronay’s evidence regarding gender restricted and dangerous places associated with the Ngapa dreaming, 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.

9. With the exception of Killi Killi Hills, I am not satisfied the evidence of Ms Ronay establishes the particular significance of the Waljirri or dreamings described by Mr Tchooga and Ms Long. While there may be places associated with these dreaming tracks which could be characterised as areas or sites of particular significance, they have not been identified with sufficient certainty to support such a finding.

Is the history of land use relevant to the issue of interference?

1. Rich Resources contends that Tjurabalan has not addressed why the proposed exploration will interfere with the dreamings when the area has already been the subject of extensive exploration activity. It submits that the area of, and surrounding, the licences has been the subject of extensive exploration and other mining activity, and argues the evidence of historical surface sampling and exploration drilling in the area in general, and on E80/4869 in particular, supports a finding that interference is unlikely to occur.

2. According to the evidence of Mr Brookes, Rich Resources currently holds three exploration licences which are either contiguous with, or within two kilometres of, one or more of the present licences. Each of these tenements falls within the Tjurabalan determination area and one of them, E80/4029, covers an area which includes Killi Killi Hills. In addition to these tenements, Rich Resources has previously held five exploration licences within 25 kilometres of one or more of the proposed licences. These tenements are also located in the native title holders’ determination area.

3. Tjurabalan contends, and the Tribunal has previously accepted, that former tenement grants connected with an area do not necessarily mean that disturbance has occurred. However, Rich Resources argues this is not a matter where the Tribunal is being asked to infer the existence of prior interference from prior grants, but is a matter where there is direct evidence of that interference.

4. In support of this argument, Rich Resources relies on a map prepared on its behalf by Colwin Lloyd of Geobase Australia Pty Ltd. The map, which is annexed to the affidavit of Mr Brookes, is derived from a data set complied by HDR | Salva Resources Pty Ltd as part of an independent assessment and target generation report commission by Orion Metals Ltd in 2013. According to Mr Brookes, the data set includes information collated from, among other sources, the Western Australia Mineral Exploration Index (WAMEX) and the Mines and Mineral Deposits Index (MINEDEX).

5. The map indicates the majority of the area within E80/4869 has been subject to exploratory drilling. It also indicates extensive drilling and surface sampling has been undertaken to the south of E80/4869 and in places to the east of the licence. The map suggests extensive drilling and surface sampling has occurred to the north of E80/4920 and E80/4921, although exploration activity does not seem to have taken place in any of the areas covered by those licences. Drilling and surface sampling also appears to be been carried out within and in the vicinity of E80/4919.

6. In addition to the map, Rich Resources relies on 109 open-file mineral exploration reports obtained from WAMEX, which are listed in the affidavit of Mr Brookes and have been filed electronically with the Tribunal. A sample of these reports gives weight to the impression given by the map: for example, the final report for E80/2390, which covered approximately 83 percent of E80/4869 when it was granted in October 2000, indicates that 346 vacuum drill holes were drilled systematically over the tenement area in June and July 2013.

7. Tjurabalan submits that, if disturbance is found to have occurred, that previous disturbance does not establish the area has been affected to such an extent that further activity would not cause interference with areas or sites of particular significance. In particular, it relies on the decision in Hale v Mings Mining Resources, where I observed (at [85]):

   though it is possible to infer exploration and mining activity has taken place in the past, it does not necessarily follow that areas or sites of particular significance to the native title holders have in fact been disturbed as a result of that activity. Nor can I infer, from the available evidence, that if they have been disturbed, those places have lost their traditional significance or that further disturbance would not constitute interference.

8. It was also argued on behalf of Tjurabalan that, because Rich Resources’ granted tenements are subject to an existing heritage protection agreement, any exploration activities undertaken on these tenements would have occurred following appropriate consultation with the native title holders. There is some force is this submission. However, it needs to be considered in the context of the apprehended interference.

9. It may be the case that exploration and mining activities have taken place yet have not disturbed areas or sites of particular significance to the native title holders. It may also be the case that disturbance has occurred, but not to such a degree that further disturbance would no longer constitute interference within the meaning of the Act. That does not mean I should discount that evidence altogether. Rather, the weight given to evidence of prior exploration and mining activity will usually depend on the nature of the previous activity, the nature of what is proposed and the activities that are likely to cause interference with the identified areas or sites of particular significance according to traditional law and custom.

10. Hence, in Tarlka Matuwa Piarku (Aboriginal Corporation) v WA Mining Resources, the Tribunal found (at [41]):

    It cannot be assumed that the holders of the historical mining tenements have exercised the full suite of rights available to them over the entire area of the licence. It is also important to bear in mind the possibility that at least some exploration activity has been undertaken subject to conditions in heritage protection agreements. Those caveats notwithstanding, it remains the case that other users of the land, whether they have been previous explorers, pastoralists or road users, have had access to areas within [the site]. [The native title party] does not hold exclusive rights and interests in the area. It is reasonable to infer that some of these land users have travelled within [the site] and may have inadvertently come across places to which access is restricted under traditional laws and customs. There is no evidence of any adverse effects arising from the previous use of the area. This is not to downplay the serious cultural and customary concerns that attach to ngulu sites and the dire consequences that are said to occur if the relevant laws and customs are transgressed. However, it does suggest the risk of interference is likely to be remote.

11. This passage illustrates that, in each case, the Tribunal must carefully consider the evidence regarding historical land use against the kinds of activities which are likely to interfere with areas or sites of particular significance to the native title holders and determine whether, in the circumstances, the grant involves a real risk of interference.

Is there a real risk of interference with sites or areas of particular significance?

1. Tjurabalan contends the physical presence of unauthorised persons on country will have an impact on the dreamings described in Ms Ronay’s statement, and this may in turn have direct impacts on the social and community life of members of the Tjurabalan community. It relies in particular on Ms Ronay’s statement that entering Tjurabalan country without seeking permission:

   can, and does, have serious consequences for both the strangers to country who have breached this practice, the traditional owners responsible for the particular dreaming, and the dreaming itself – in terms of the health and vitality of the country.

2. The State argues that, while the Tribunal has recognised entering country without permission can constitute interference in certain circumstances, it has only done so in limited circumstances. In the State’s submission, whether or not something directly interferes with an area or site of particular significance is a matter to be established on the evidence.

3. I am not satisfied, on the basis of the evidence presented in this inquiry, that the unauthorised presence of strangers on Tjurabalan country will necessarily interfere with the dreamings identified by Ms Ronay. The history of exploration and mining activity suggests the area has been accessed extensively by non-native title holders for various mining-related purposes. I acknowledge the existence of protocols requiring those who are not members of the Tjurabalan community to seek permission before entering Tjurabalan country. I also accept that a breach of these protocols may have adverse effects on the community life of the native title holders. However, there is no evidence to suggest the previous use of the area by non-native title holders has interfered with or otherwise had a detrimental effect on the dreamings described in Ms Ronay’s statement. In any event, the evidence does not establish the particular significance of any area or site associated with the dreamings, apart from Killi Killi Hills.

4. The evidence does suggest unauthorised or unaccompanied entry may constitute interference with Killi Killi Hills. So much is clear from the evidence of Ms Ronay, which establishes the site is considered to be a ‘gender restricted’ and ‘dangerous’ place and indicates there are specific protocols or practices which need to be followed when approaching the site. However, the site is outside the licence areas I am considering in this inquiry, and Tjurabalan has not identified any nexus between the activities likely to be carried on under the licences and any apprehended interference with the site. I also note 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.

5. In her statement, Ms Ronay suggests that ‘land disturbing activities’ undertaken in a place associated with the Malaki Jarra dreaming ‘could result in the party getting hurt from that place and the Waljirri that are there, as well as the family for the Maliki Jarra [sic].’ Rich Resources argues this evidence is speculative as to whether ‘land disturbing activities’ will have any effect and there is no suggestion of any interference with the dreaming itself. It also refers to the evidence of Mr Brookes, who states that two traditional owners who accompanied him on a site visit, one of whom was Mr Tchooga, did not express any concern that exploratory drilling conducted on two nearby tenements had interfered with any dreaming. I have not drawn any conclusions from this evidence, given both tenements have been subject to a heritage protection agreement.

6. I accept the possibility that ground disturbing activities could have an adverse effect on areas or sites associated with the dreamings, though none are identified within or relevantly proximate to the licence areas. If Tjurabalan is concerned about the effect such activities might have if carried on in the licence areas, it has the right to extend the existing heritage protection agreement to cover the licences. Rich Resources has also indicated its willingness to enter into a regional standard heritage agreement, and the State intends to impose a condition requiring Rich Resources to execute such an agreement if requested to do so by Tjurabalan.     

1. Tjurabalan argues the Tribunal has previously found that such a condition has ‘no practical effect’ as there is no regional standard heritage agreement for the Kimberley region (see Cheinmora v Geotech International at [37]). However, as I observed in Sturt v Baibao Resources at [44]-[45], the proposed condition enables Tjurabalan to offer a regional standard heritage agreement from another region.

2. I accept that Rich Resources is aware of its obligations under the Aboriginal Heritage Act 1972 (WA). There is nothing to suggest it will act contrary to the relevant law and regulations. I do not consider the regulatory regime is unlikely in the circumstances to provide sufficient protection against interference with areas or sites of significance to the native title holders. Moreover, I accept that the existing heritage protection agreement, or alternatively a regional standard heritage agreement, could serve as a ‘minimum standard’ of protection available to Tjurabalan, which would further reduce the likelihood of interference (cf Champion v Western Australia).

3. For the above reasons, I find there is not likely to be interference with areas or sites of particular significance to the native title holders.

Conclusion

1. Based on the evidence before me, I am not satisfied the grant of the licences is likely to interfere with areas or sites of particular significance in accordance with the traditions of the native title holders. There is no evidence regarding the likely effect of the grants on the community or social activities of the native title holders or whether the licences are likely to involve, or create rights whose exercise are likely involve, major disturbance to the land or waters. Accordingly, I find the grant of the licences is unlikely to involve such interference or disturbance.

Determination

1. The determination of the Tribunal is that the acts, namely the grant of exploration licences E80/4869, E80/4919, E80/4920 and E80/4921 to Rich Resources, are acts attracting the expedited procedure.

Ms H Shurven
Member

12 April 2016