Tjurabalan Native Title Lands Aboriginal Corporation v Inventum Resources Pty Ltd
[2018] NNTTA 6
•19 February 2018
NATIONAL NATIVE TITLE TRIBUNAL
Tjurabalan Native Title Lands Aboriginal Corporation v Inventum Resources Pty Ltd and Another [2018] NNTTA 6 (19 February 2018)
Application No: | WO2016/0858 |
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 (WCD2001/001)
(native title party)
- and -
Inventum Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 19 February 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major
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Legislation: | Native Title Act 1993 (Cth) s 237 Mining Act 1978 (WA) s 66 |
Cases: | Cheinmora v Striker Resources NL [1996] FCA 1147; (1996) ALR 21 (‘Cheinmora v Striker Resources’) Ngalpil v Western Australia [2001] FCA 1140 (‘Ngalpil v Western Australia’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representative of the native title party: | Angela Booth, Kimberley Land Council |
| Representative of the grantee party: | Ashley Bennet, Inventum Resources Pty Ltd |
| Representatives of the Government party: | Sarah Power, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E80/5024 to Inventum Resources Pty Ltd (Inventum Resources). The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence 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:
·interfere directly with community or social activities carried on by members of native title claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The licence covers approximately 84 square kilometres north east of Balgo Community. The Tjurabalan Native Title Lands Aboriginal Corporation (Tjurabalan NTLAC) hold exclusive native title rights and interests in the whole of the licence area, on behalf of the Tjurabalan People. The Tjurabalan NTLAC exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies, and argue the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely.
If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Inventum Resources and the State must negotiate in good faith with a view to reaching an agreement with the Tjurabalan NTLAC about the proposed grant of the licence.
I must base my decision on the s 237 criteria. The issues I need to determine in relation to these criteria are:
(a)Is the grant of the licence likely to interfere directly with the Tjurabalan People’s community or social activities?
(b)Is the grant of the licence likely to interfere with areas or sites of particular significance to the Tjurabalan People?
(c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
The Tjurabalan NTLAC do not provide contentions or evidence in relation to s 237(c). As stated in Ward v Western Australia at [26], ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. Therefore, on the limited evidence provided, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned. On the material before me, I focus my inquiry on the questions listed at (a) and (b) above.
Preliminary evidentiary matters
All parties provided submissions in this matter. The Tjurabalan NTLAC attached the affidavit of Ms Margaret Wein and a joint affidavit of Mr David Tchooga and Ms Barbara Sturt. Each of the deponents is a determined native title holder, and I accept they each have the authority to speak for the licence area.
A listing hearing was also held on 16 November 2017 so that parties could make submissions regarding the Tjurabalan NTLAC’s contentions in reply. At the hearing, the State noted its concern that it considered the reply had raised new issues. Parties discussed this view, and the issues, and the State provided some supplementary comments. At the end of the hearing, all parties confirmed they were content for me to proceed to make a decision on the papers.
The Tjurabalan People’s native title rights and interests
I note the Tjurabalan People hold exclusive native title rights and interests over the area of the licence as determined in Ngalpil v Western Australia. That is, they 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.
(a) Is the grant of the licence likely to interfere directly with the Tjurabalan People’s community or social activities?
To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native tile party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
What community or social activities do the Tjurabalan People undertake on the licence?
The Tjurabalan NTLAC’s contentions are brief and focus on the affidavit evidence. They contend members of the Tjurabalan People live in the community of Ringer Soak, which is approximately one to two hours from the licence by vehicle, which allows them to regularly access the licence for hunting, camping and gathering traditional resources. The contentions state the licence is an area of the Tjurabalan People’s country ‘which contains a unique abundance of wildlife’. They highlight the particular landscape of the area, which includes numerous waterholes and a gorge near Slatey Creek, which is ‘known and navigated’ by members of the Tjurabalan People when hunting throughout the dry season. I note Slatey Creek runs through part of the licence from the west.
Ms Wein states there is a lot of wildlife on the licence, including feral cattle, kangaroos, wombats, bandicoots and turkeys. She says, ‘It is a place that the mob from Ringer Soak will go out during the dry season for some hunting’. Ms Wein identifies ‘a short cut road that runs from the Tanami Road to Ringer Soak’, which runs through the licence. She states mainly the boys use the short cut and ‘they’ll pull up along that part of the Gardner Range that is running through the Tenement Area and camp or hunt’.
Mr Tchooga and Ms Sturt state the ‘Ringer Soak mob always head out to the Tenement Area to hunt’. They state the licence area is ‘one of the most important, richest parts of our country’, outlining the wide range of animals that can be found there, and the traditional owners’ knowledge of the water holes and springs in the area. They state they have to drive to the area and can only go in the dry season, and detail how they hunt bullocks in the area and share the kill with family in Ringer Soak. They also indicate intergenerational teaching occurs on the licence, stating, ‘We take the young kids out there ... teaching them … how our country is and how you catch those bullocks, those emus, those turkeys’.
Mr Tchooga and Ms Sturt identify the various vegetation found on the licence, but do not provide a great deal of information about how and when it is collected. The affidavit also refers to ‘significant ochre deposits’ of red, white and yellow ochre from the rocks around the gorge where Slatey Creek runs. They state there is a lot of ochre in the hills in the licence area compared to other parts of the country. Evidence states members of the Tjurabalan People sometimes camp on the licence area, and that there are good swimming spots, and there is a brief reference to burning activities. However, there is little further information about any social or community activities related to the collection of ochre or traditional vegetation, camping, swimming or burning, and so I cannot consider these activities in any further detail.
According to mapping provided by Ms Wein, Mr Tchooga and Ms Sturt, Ringer Soak is an aboriginal community also called Kundat Djaru, which appears to be approximately 60 kilometres to the north west of the licence. It is not clear from the mapping where the Tanami Road or short cut are located. However, all of the deponents acknowledge the distance from Ringer Soak is a one to two hour drive and the other reference points in the affidavit evidence do overlap the licence. For example, Slatey Creek appears to extend at least four kilometres into the licence, stretching some distance further to the west of the licence. Likewise, Gardner Range appears to cover most or all of the licence area, and extend some kilometres to the north west. I am satisfied Tjurabalan’s evidence relates to the licence area and the activities that occur there. The State’s contentions and evidence confirm there are springs, soaks, rock holes and waterholes, as well as non-perennial watercourses, over a significant portion of the licence.
What activities do Inventum Resources intend to undertake on the licence?
Inventum Resources was established in 2015, by two directors who are both geologists and state they hope to explore in the area as ‘a small, start up exploration company with limited assets’. Inventum Resources’ contentions outline that exploration will be progressed by an initial period of desktop studies and non-invasive geological mapping, which would enable identification and generation of targets on the ground. A geochemical survey would then delineate and confine these target areas. The contentions explain the directors will be working full time in other organisations and completing the work during periods of annual leave.
Inventum Resources submit they ‘understand and respect the need for heritage agreements’ and ‘have a strong relationship’ with the Indigenous community where they work. Inventum Resources suggest a Regional Standard Heritage Agreement (RSHA) is their preference for dealing with heritage in respect of this licence. They also state they believe two surveys have been conducted recently over the licence area. However, no party has provided any further information about such surveys, so I do not address this contention further.
Material provided by Inventum Resources to the State indicates they would use four wheel drive vehicles in undertaking activities on the licence, and some exploration drilling at sub-surface level may take place depending on results of the initial low impact activities.
I note Inventum Resources will be able to exercise the full suite of rights available to them upon the grant of the proposed licence, pursuant to s 66 of the Mining Act 1978 (WA).
Is the grant of the licence likely to interfere directly with the Tjurabalan People’s community or social activities?
The Tjurabalan NTLAC’s contentions argue there is a ‘high likelihood’ that the Tjurabalan People’s activities will be disrupted by Inventum Resources’ activities. They submit that use of machinery or vehicles may disrupt the wildlife that access the area, and which are ‘the subject of the precise hunting techniques’ of the Tjurabalan People. The contentions and affidavit evidence also state dust disturbance due to machinery use may affect the Tjurabalan People’s willingness to access the area. Ms Wein states:
If mining mob were heading out [to the licence area] they might run into people who were camping or hunting out there. If the miners kept going out there without getting permission, people from Ringer Soak wouldn’t want to keep going out there.
The Tjurabalan People state that they do not endorse the RSHA, as it does not adequately address their heritage concerns or appropriately cover exploration activities that are characterised as ‘low impact’ conduct. The Tjurabalan reply notes what may be low impact for an explorer may not be considered low impact for the native title holders.
I appreciate that the area of the licence is important for the Tjurabalan People, and accept that activities such as hunting, camping and intergenerational teaching occur on the licence and are a manifestation of claimed native title rights and interests. Evidence establishes the Tjurabalan People go to the licence frequently to hunt during the dry season, and there are associated camping and intergenerational teaching activities. Evidence also establishes the natural landscape of the licence area distinguishes it from other parts of their determined area, particularly around the waterholes, the gorge and Slatey Creek, which attract animals. That the Ringer Soak community specifically drive up to two hours to perform these activities there adds weight to the importance of the area for such community and social activities.
Having established that such activities do take place on the licence, the question I need to determine is whether or not there is likelihood of the level of any interference with community and social activities being substantial rather than trivial (Silver v Northern Territory at [57]). As noted in Silver v Northern Territory, ‘the analysis is contextual, and not considered in isolation. In assessing the risk of interference the Tribunal is entitled to have regard to other factors’ (at [49]). I need to balance the evidence and information provided. It appears there are few constraints already imposed on the community and social activities of the Tjurabalan People by third parties on this licence, given they have determined exclusive native title rights and interests, and the area is vacant crown land, with no pastoral lease overlap. However, the licence is over 84 square kilometres, and it appears that many of the activities which have been referred to are not specifically isolated to one or more areas – that is, if the explorers activities cause dust or disturbance in one area, there is nothing which clearly indicates hunting, camping or intergenerational teaching could not be done in another area of the licence, or that if wildlife was scared away by machinery or dust as alleged, that it would be to such an extent it would cause a substantial disturbance to those activities. Some of the activities have been referenced to their connection with Gardner Range and Slatey Creek, however, these features stretch some kilometres through the licence. It is also unlikely that given the small size of the explorer, it would be exploring more than small areas of the licence at any one time, and so the hunting and other social or community activities could co-exist in the licence without substantial disturbance.
While the social or community activities may be subject to some disturbance if the Tjurabalan People and the explorer coincide somewhere on the licence, even if they were both accessing the area in the dry season, I am not convinced that disturbance would meet the threshold of being substantial interference. It may be that some activities are concentrated around the Gardner Range, various waterholes and/or Slatey Creek, however, there is insufficient information about the frequency or intensity of such activities for me to draw a conclusion that Inventum Resources’ exploration activities would substantially disrupt hunting, camping or intergenerational teaching social or community activities.
With respect to the activities of gathering ochre, swimming, burning, gathering vegetation and bush medicine, there is insufficient detail about how often, or where those activities take place. As such, I cannot conclude that the explorers are likely to offend against the conditions of s 237(a) of the Act.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to the Tjurabalan People?
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]).
I note there are two sites registered on the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS) Register, in the east portion of the licence. These sites are named are Jintiarra (site 12933) and Pirnkiyirljaru (site 12934). Both are described as mythological sites, and it is noted Jintiarra is also related to water sources.
The AHIS Register does not purport to record all Aboriginal sites in Western Australia. That is, a site of particular significance for the purposes of s 237(b) does not need to be recorded on the AHIS Register. Equally, the existence of sites recorded on the AHIS Register does not necessarily mean they are of ‘particular significance’ for the purposes of s 237(b). Regardless of whether or not a site is administratively identified on the AHIS Register, the Tribunal must consider whether there is evidence that establishes the existence of areas or sites of particular significance to a native title party, in accordance with their traditions. I refer to the registered sites here as they provide context for some of the discussion below.
What areas or sites of particular significance do the Tjurabalan People identify on the licence?
The Tjurabalan NTLAC’s contentions assert the Pirnkirrjaru area (also referred to as Pirkiyrljaru), located in the north eastern part of the licence, is of particular significance to the Tjurabalan People. They explain Pirnkirrjaru ‘comprises a series of linked sites which are interconnected by several dreaming stories of great importance to the Tjurabalan people’. Three specific dreaming stories are named in the contentions and affidavit evidence which are linked to the area. The Tjurabalan contentions and evidence identify physical sites linked to these dreaming stories, including:
·Pirnkirrjaru hill, close to the two AHIS sites;
·a rock hole connected to the Pirnkirrjaru hill, adjacent to two other hills (near Gardner Range);
·gender restricted sites which cannot be spoken about openly which appear to include burial sites, sacred paintings and artefacts.
Pirrnkirrjaru hill, rock hole and two hills near Gardner Range
Evidence shows there are rock holes and soaks, some within the licence and some outside of it, which ‘link the Gardner Ranges, Pirnkirrjaru and Badji Hill’. Ms Wein states there are three ‘rockholes, soaks’ in and near the licence, and locates one on the area of the licence, near the two hills that form the Gardner Range. Ms Wein explains these rock holes and hills are connected by important dreamings. She notes these sites are on the licence and close to the AHIS registered sites.
Ms Wein details the significance of the dreamings to the Tjurabalan People, locating one of them, which ‘comes down’ from one of the hills. She also explains the particular significance of another dreaming for one of the families of the Tjurabalan People, stating ‘it is a very sacred dreaming’ for that family. Ms Wein explains that water from one dreaming flows from the spring in the licence area to a big lake in the Northern Territory. She also clarifies that ‘all of those rockholes are linked for all Tjurabalan People’. Mr Tchooga and Ms Sturt also refer in some detail to the relative importance of the Gardner Range and each of the dreamings.
Gender-restricted sites, burial sites, sacred paintings and artefacts
Ms Wein also states there are sacred sites in the licence area where there is an important dreaming for men that she cannot speak about, as only men can go to those places. She outlines the consequence for not being properly welcomed to the area, and states there are sacred paintings in the rock holes, which are men’s painting, which she has not seen but she knows they are walking distance from a significant area.
Mr Tchooga and Ms Sturt refer to ‘very significant sites’ within the licence, including a burial ground and a ceremony site which are men’s sites and which are ‘very important’. They refer to graves of men who had families with some of the local Aboriginal women and which sites should be protected and respected.
Are there sites of particular significance in accordance with the Tjurabalan People’s traditions?
Pirrnkirrjaru hill, rock hole and two hills near Gardner Range
Ms Wein has located the Pirrnkirrjaru hill within the licence area and near to the AHIS registered sites, but not being those registered sites. She states the hill is intimately connected to the dreaming and a rock hole and further explains the mythological story.
Ms Wein explains, ‘If any of those rock holes was to run dry because it got messed with by miners the it would be terrible for Tjurabalan people and our country if the dreaming breaks … people might get sick’. She notes people need to be introduced to country to make sure that does not happen. Mr Tchooga and Ms Sturt also state:
If a mining company came to this country without asking permission from the right people then they could break the … dreaming and bring punishment from ancestors. People could get sick and could lose their connection to the land in the Tenement Area.
They outline the process of introducing people to country and state the licence area is ‘a very strong place for spirit and culture’.
The State argue none of the dreamings and sites referred to are sufficiently detailed to show they are sites of particular significance to the Tjurabalan People.
I note all of the evidence provided by the Tjurabalan People, including both affidavits, are consistent in their reference to the various dreamings and associated sites. As such, I give that material a great deal of weight. I find the area around the Pirrnkirrjaru hill, near the two registered Aboriginal heritage sites, the two hills and rock hole which are connected to that hill and to the dreamings, to be of particular significance to the Tjurabalan People.
Gender-restricted sites, burial sites, sacred paintings and artefacts
On the material before me, I find there is insufficient evidence to establish the location of the burial sites, sacred paintings or any other artefacts, or why such sites are of particular significance to the Tjurabalan People. I do not, therefore, proceed to consider whether interference with these sites is likely.
Is the grant of the licence likely to interfere with areas or sites of particular significance to the Tjurabalan People?
I note the entirety of the licence overlaps vacant crown land, and the Tjurabalan People have been determined to have exclusive native title rights and interests over that land, as outlined at [8] of this decision. Of particular note in relation to s 237(b), is the Tjurabalan People’s right to maintain and protect sites which are of significance to under their traditional laws and customs.
The Tjurabalan NTALC assert, ‘There is a very real risk of disturbance of the country between the paths of [the] interconnected dreaming track if the Grantee Party accesses the Tenement Area without prior consultation with the Native Title Party’. They further specify any ground-disturbing activity in the licence area ‘will physically disturb the human remains of ancestors … and artefacts of great importance to the native title holders’. The Tjurabalan People are clear it is not all parts of the licence which could be interfered with by exploration activities. Rather, there are certain areas of the licence, such as the Pirrnkirrjaru hill and the hills and rock hole near the AHIS registered sites, which are very important compared to other areas, as they are intricately linked to several dreamings which are important to the native title holders’ traditions.
The Tjurabalan NTALC state, ‘The precise path of these Dreamings … can only be identified by member of the Native Title Party’. They also highlight the consequences of any disturbance to the dreaming tracks, stating it ‘may lead to people becoming sick or destroying their connection with a particularly sacred part of their country’.
The State argue there is little evidence to suggest Inventum Resources will interfere with these identified areas. Specifically, they state the explorer is unlikely to cause any rock holes of particular significance to go dry. I do note the State intends to place various endorsements on the licence, which will regulate the use of water. However, none of these endorsements will require consultation with the Tjurabalan people. The State has not proposed to place any conditions on the licence in relation to water, and there is no detail about the level of water use Inventum Resources would be undertaking or addressing of the Tjurabalan People’s concerns about the effect on water levels of any exploration activities.
I have discussed the nature of Inventum Resources’ proposed exploration activities at [15]–[17] above. I note Inventum Resources has stated it intends to enter into a RSHA, and would have obligations under the State’s regulatory regime in respect of sites recorded on the AHIS Register. The evidence has also identified sites which are not on the Register, and there would be obligations under the State’s regulatory regime to those sites. While the registered sites are marked and could be identified by the explorer, keeping interference to a minimum, those sites which are not on the Register are not easily identified by anyone other than the native title holders. In addition, even exploration activities that may be characterised as low impact or non invasive by an explorer or the State, are likely to be considered invasive or disturbing by the Tjurabalan People, based on the evidence provided, and interfere with these sites of particular significance in accordance with the traditions of the Tjurabalan People.
For these reasons, I am satisfied that the grant of the licence is likely to interfere with sites of particular significance to the Tjurabalan People, in accordance with their traditions.
Determination
For the reasons stated above, I find the grant of exploration licence E80/5024 to Inventum Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
19 February 2018
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