Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Ge Resources Pty Ltd
[2019] NNTTA 74
•25 September 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v GE Resources Pty Ltd and Another [2019] NNTTA 74 (25 September 2019)
Application No: | WO2018/1015 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2004/001)
(native title party)
- and -
GE 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: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 25 September 2019 |
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 disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18 Mining Act 1978 (WA) ss 61, 63AA, 66 Native Title Act 1993 (Cth) ss 29, 32, 237 |
Cases: | Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited & Another [2019] NNTTA 72 (Bunuba v Buxton Resources) Delores Cheinmora v Strike Resources NL & Ors; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal #1 v Gianni) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (Tullock v Western Australia) Marputu Aboriginal Corporation RNTBC v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra v Western Australia) Paddy Neowarra & Ors v State of Western Australia & Ors [2004] FCA 1092 (Paddy Neowarra v Western Australia) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v WA Mining Resources Pty Ltd & Another [2015] NNTTA 41 (Tarlka Matuwa Piarku v WA Mining) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives(s) of the native title party: | Samuel Legge, Kimberley Land Council |
| Representative(s) of the grantee party: | Ms Tanya Cole, Australian Mining and Exploration Title Services Pty Ltd |
| Representatives(s) of the Government party: | Caitlin Gilchrist, State Solicitor’s Office |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E80/5235 (the proposed tenement) to GE Resources Pty Ltd (GE Resources). The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant the proposed tenement to GE Resources. The notice indicated the State considers the grant of the proposed tenement is an act attracting the expedited procedure. That is, the State asserts the grant is not likely to:
(a)interfere directly with community or social activities undertaken by the native title holders (section 237(a));
(b)interfere with area or sites of particular significance in accordance with traditions of the native title holders (s237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s237(c)).
The proposed tenement covers 325.99 sq km and is located approximately 233 km west of Wyndham. If granted, the initial term of the proposed tenement will be five years, and it is capable of being renewed (sections 61(1) and (2) of the Mining Act 1978 (WA) (the Mining Act)).
The proposed tenement is located within the area of the Wanjina-Wunggurr Wilinggin determination (WCD2004/001), as determined in Paddy Neowarra v Western Australia. The native title rights and interests of the Wanjina-Wunggurr native title holders are held by the Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WNTAC).
According to Tribunal data, 99.14% of the proposed tenement is subject to non-exclusive native title rights and interests, and less than 0.01% is subject to exclusive native title rights and interests. As per the National Native Title Register extract, where WNTAC holds non-exclusive native title rights and interests, the native title holders have the rights to:
(a)access the determination area and access the painting sites;
(b)hunt, gather, camp and fish;
(c)conduct and take part in ceremonies;
(d)visit places of importance and protect them from physical harm;
(e)manufacture traditional items from the resources of the land; and
(f)pass on and inherit the native title rights.
WNTAC exercised its right to lodge an objection with the National Native Title Tribunal (Tribunal) against the State’s assertion that the expedited procedure applies. WNTAC asserts 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 proposed tenement can be granted without negotiations between the parties. If I find it does not apply, GE Resources and the State must negotiate in good faith with a view to reaching an agreement with WNTAC about the proposed grant of the proposed tenement.
In deciding this matter, I must base my decision on the s 237 criteria and make a predictive assessment of what is likely to occur as a result of the grant. I must decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the proposed tenement, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
For the reasons outlined below, my determination is that the expedited procedure does not apply to the proposed tenement.
Preliminary Matters
Materials before the Tribunal
WNTAC submitted a statement of contentions (WNTAC Contentions) along with the joint affidavit of Mr Matthew Martin and Ms Pansy Nulgit affirmed 1 May 2019 (the Joint Affidavit). Both Mr Martin and Ms Nulgit say they are Ngarinyin traditional owners, they explain their status, and state they have responsibility to ‘look after this country’ (at [3]-[4]). I accept their authority to speak for the area of the proposed tenement. WNTAC also submitted a statement of contentions in reply (WNTAC Reply).
By email, the representative for GE Resources advised that they did not intend ‘filing any documents at this time, but elects to adopt the contentions to be filed by the Government Party’ (email to Tribunal of 6 June 2019). Contained in the documents provided by the State in this matter is a document titled ‘Application for exploration licence section 58(1)(b) Statement Mt Hann North Project, Kimberley Mineral Field, 99 blocks GE Resources Pty Ltd’ (the s 58(1)(b) Statement), which provides some indication of GE Resources’ intended activities.
In addition to the above document, the State also submitted, amongst other things, draft Endorsements and Conditions it intends to impose on the grant of the proposed tenement and a statement of contentions (State’s contentions).
Conduct of the inquiry
WNTAC indicated it considers the grant of the proposed tenement will likely result in interference of the kind described in s 237(a) and (b) of the Act.
WNTAC has not provided contentions or evidence in relation to s 237(c). In accordance with the ‘common sense approach’ described in Ward v Western Australia, I find the grant of the proposed tenement is not likely to involve major disturbance to the land or waters concerned.
Parties confirmed they were content for me to decide this matter ‘on the papers’. Based on the material before me, I am satisfied the matter can be determined on the papers without the need for a hearing.
Section 237(a): Is the grant of the proposed tenement likely to interfere directly with the community or social activities of the native title party?
To find the interference contemplated in section 237(a) is likely, there must be a direct and substantial interference with social or community activities (see Yindjibarndi v FMG at [16]). This requires an evaluative judgement that the future act is likely to be the proximate cause of the interference. Finally, the interference must be substantial and not trivial in its impact on community or social activities (see Smith v Western Australia at [23]).
What community or social activities does the native title party undertake on the proposed tenement?
WNTAC has identified the following community or social activities take place on the proposed tenement area: hunting; collecting food and medicines; teaching to maintain culture; burning; camping; and collecting ochre.
Hunting
Mr Martin and Ms Nulgit describe the range of food sources on the tenement area including emana (bream), garayali (goanna), wulumara (long-neck turtle), jebarra (emu), narli (fresh water prawns) and yaali (kangaroo) (Joint Affidavit at [5]). They say Ngarinyin people go out hunting and gathering bush food and medicine on the tenement all the time: ‘[y]ou would find people on the Tenement area every weekend’, they ‘access the Tenement Area to hunt all year round, ‘a wide variety of maynda (food) is available in the different seasons’ (Joint Affidavit at [7]).
The State accepts WNTAC members hunt in the proposed tenement area relatively frequently, but contend there is insufficient evidence regarding the duration of those activities and how the grant will interfere directly with the carrying out of those activities (Contentions at [29]).
Collecting food and medicines; teaching to maintain culture
Mr Martin and Ms Nulgit say that within the proposed tenement area there are a number of plants and animals that hold particular cultural importance (Joint Affidavit at [5]). These include various food and medicines important to Ngarinyin People’s culture and customary practices. They say Ngarinyin people go out regularly ‘at this time of year’ to the proposed tenement area to collect mangarnda (bush yam), and go out hunting and gathering bush food and medicine on the proposed tenement area ‘all the time’ (Joint Affidavit at [6]-[7]). They say that bush medicine such as guru leaves are used to cure gundurrg (coughs and colds) and to ward off evil spirits. They say it is important to teach this knowledge to the younger generation to maintain culture.
The State accepts that gathering activities occur in the proposed tenement area, relatively frequently, but contend there is insufficient evidence regarding the duration of those activities and how the grant will interfere directly with the carrying out of those activities (Contentions at [35]).
Burning
Mr Martin and Ms Nulgit say Ngarinyin people undertake burning annually on the proposed tenement area – ‘at the right time of year, the right way, is an important was for Ngarinyin people look after country’ (Joint Affidavit at [8]). They say this protects culturally important medicine plants such as guru (Cypress Pine) – which is used to smoke babies and people in ceremonies, and as a mosquito repellent (Joint Affidavit at [8]).
The State accepts that WNTAC members access the proposed tenement area to undertake burning activities, but say that there is insufficient evidence that burning activities will be interfered with by the grant of the proposed tenement (Contentions at 43).
At [4] above I summarise the non-exclusive native title rights and interests held by WNTAC in the proposed tenement area. I note that rights in relation to burning are not specifically identified in the list. The (burning) activities described by WNTAC are expressed in terms of caring for country and the preservation of medicine plants.
As stated in Tullock v Western Australia at [58]:
…the Tribunal’s inquiry is not directed at ascertaining the likely interference with activities per se, but, rather, those activities which are a manifestation of claimed native title rights and interest.
WNTAC has not explained how the burning activities are a manifestation of the determined native title rights and interest. They may be able to, but it is not readily apparent. Accordingly, I am unable to conclude that burning is a community or social activity for the purposes of s 237(a).
Camping
Mr Martin and Ms Nulgit say that ‘you would find people on the tenement area every weekend’ and ‘[i]f the mining company kept going out there without permission, people wouldn’t want to keep going out there to camp, hunt and gather bush foods and medicine’ (Joint Affidavit at [9]). They refer to the Drysdale River and Caroline Range within the tenement area as significant, there are many sacred sites, rock art and burials and that ‘it was a good place for our people to camp, which is probably why there is so much in that area’ (Joint Affidavit at [10]).
The State says that WNTAC has not elaborated on these activities and say that there is insufficient evidence to enable the Tribunal to assess whether, and to what extent, WNTAC members utilise the proposed tenement area for camping (Contentions at [38]-[39]).
Collecting ochre
Mr Martin and Ms Nulgit say that the proposed tenement area has significant ochre deposits (Joint Affidavit at [13]). In particular ‘you get white, red and yellow ochre from the rocks around the Drysdale River’. They say that there is ‘lots of ochre in the hills in the tenement area compared to other parts of the country’ (Joint Affidavit at [13]).
The State accepts WNTAC members access the proposed tenement area to collect ochre – but say there is insufficient evidence of the frequency, duration, and number of participants in these collecting activities, and no evidence of how the grant would interfere with thee collecting activities (Contentions at [46]).
Conclusion
I accept that the activities described in evidence by WNTAC occur on the proposed tenement area. Apart from camping activities, this appears to also be accepted by the State.
The State does not address specifically intergenerational teaching but apart from the statement that ‘it is important to teach this knowledge to the younger generation to maintain culture’, there is no other evidence to support this activity occurring in the proposed tenement area.
In relation to the burning activities, I note my conclusion above at [25].
The regularity or frequency of the occurrence of these activities is expressed in evidence in quite general terms such as: ‘regularly at this time of year’; ‘all the time’; ‘you would find people on the tenement every weekend’; ‘right time of year’; ‘all year round’; ‘different seasons’. Apart from references to Ngarinyin people, there is no evidence of who specifically partakes in the activities and how much of the area is required for the activities.
Regular use of the proposed tenement area supports a finding that interference is more likely – however, in my view greater detail would be necessary for me to conclude that interference is likely. Further, possible interference must be considered in light of GE Resources’ proposed activities, which are discussed below.
What activities does GE Resources intend to undertake on the proposed tenement?
The State accepts that in the absence of evidence as to the activities likely to occur on the proposed tenement, it is open to the Tribunal to find that GE Resources will exercise all the rights conferred by the grant to their full extent (Contentions at [17]).
As stated earlier, the State provided GE Resources s 58(1)(b) Statement. The statement is heavily redacted.
The Statement says that this application ‘over the Mt Hann region north east of Ellendale’ will see exploration ‘targeted primarily on diamond mineralisation … Diamonds will be the principle target commodity’ (p.1). It describes the proposed method of exploration as activities leading to ‘targeting activities’ to warrant field investigation, negotiating land access ‘with affected landholders’, ground geophysical surveys, and, drill testing of targets (pp 1-2). The program steps include exploration drilling (p.2).
Noting the initial term of the proposed tenement is five (5) years, only estimated expenditure for year 1 is provided. The minimum expenditure for year 1 is $100,000 (Statement p.3). No detail regarding years 2-5 is provided.
I accept that is it open to me, and I find, that GE Resources will exercise all the rights conferred by the grant to their full extent (see Silver v Northern Territory). These rights are contained in s 66 of the Mining Act and provide:
66
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject -
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.
Is the grant of the proposed tenement likely to interfere directly with the community or social activities of the native title party?
The Joint Affidavit says that if GE Resources were on the proposed tenement area without permission ‘they might run into people who are camping, hunting or burning out there’ – and as a result they ‘wouldn’t want to keep going out there to camp, hunt and gather bush foods and medicine’ (at [9]). It says that GE Resources ‘might get caught out when Ngarinyin people are doing burning’ – perhaps suggesting that this would affect the conduct of burning activities.
In relation to WNTAC’s evidence that as a result of the presence of GE Resources on the proposed tenement area ‘people wouldn’t want to keep going out there to camp, hunt and gather bush foods and medicine’, there is nothing in the Joint Affidavit that further explains this concern and without such evidence I am unable to find that this matter is likely to have a substantial impact.
The State contends that the community and social activities are inherently capable of coexistence; the evidence demonstrates at most a reluctance to access the proposed tenement when GE Resources might be present; and, although GE Resources and WNTAC ‘may come across one another’ it is not apparent that WNTAC will be prevented or disrupted to any significant extent (Contentions at [47]-[47.4]).
Conclusion
Taking into account the lack of evidence regarding how exploration activities may impact the native title holders’ activities, as well as the above contextual factors, I find that the act is not likely to interfere directly with the carrying on of community and social activities under section 237(a).
Section 237(b): Is the grant of the proposed tenement likely to interfere with areas or sites of particular significance to the native title party?
The considerations for section 237(b) are outlined in Yindjibarndi v FMG (at [17]-[18]). An area of site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (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 (Silver v Northern Territory at [91]). These requirements are preconditions for an inquiry into whether the grant of the proposed tenement is likely to cause interference with areas or sites of particular significance (see Yindjibarndi v FMG at [17], [125]).
What area or sites have been identified in relation to the proposed tenement area?
The proposed tenement area is described in the Joint Affidavit as being “in Winjagin totem country’. It says that part of the Drysdale River and Caroline Range within the proposed tenement area ‘is a very significant place for us’, ‘there are many sacred sites within the Tenement area’ (Joint Affidavit at [9]).
Specifically, WNTAC has identified the following as sites or areas within the proposed tenement area:
a)rock art (paintings and engravings);
b)larlan (dreaming story); and
c)burial sites.
The Joint Affidavit also refers to very significant ochre deposits although apart from the variety of colours and the extent of the deposits (at [13]), there is no evidence of location or importance to support a conclusion that any or all of the ochres sites within the proposed tenement area are sites of particular significance.
Are any of the identified sites or areas of particular significance to the native title holders?
Rock art (painting and engravings)
The Joint Affidavit says (at [15]):
The rock art on the Range is mainly Wanjina rock art. Wanjina is more than just a painting, it is a story. They are creator beings that are linked with dreamtime stories and law. In our culture, it wold not be alright for anyone to just go in and see those Wanjina paintings. I can’t tell you about them all just from the map.
The ‘Range’ appears to be a reference to the Caroline Range area.
Based upon the above evidence, the State has accepted that there are “Wanjina” paintings located on the Caroline Range area within the proposed tenement – but contend that there is insufficient evidence to determine how many “Wanjina” paintings exist, where they are located, and their significance to WNTAC (at [53]).
WNTAC says that the significance of Wanjina paintings is affirmed in the joint affidavit and that the evidence identifies their connection to Ngarinyin law (Reply at [13]).
While it is accepted that there are Wanjina paintings in the Caroline Range area; that there is evidence stating, very broadly, what they depict; and stating the fact they are linked with dreamtime stories and law – I agree with the State that the broad and generalised evidence provided does not assist the Tribunal to determine whether the rock art sites are of particular significance, nor is there sufficient evidence concerning their location (State’s Contentions at [54]).
Larlan about Warr muj muli muli (a sick kangaroo)
Mr Martin and Ms Nulgit say (at [14]):
There is a larlan about Warr muj muli muli (a sick kangaroo). The kangaroo was very sick and he travelled through the Tenement area. That area where he travelled is marked with a circle on the map at Annexure MMPN1. The kangaroo vomited all through that country and that’s how those hills were created there.
The State accepts that the evidence is likely to established that the area marked by a circle on MMPN1 is associated with a larlan (dreaming story) about a sick kangaroo ‘is of special or more than ordinary significance to members of the Native Title Party according to their traditions’ (Contentions at [55]). I note that Warr muj mulimuli was one of the sites visited by the Federal Court in hearing the matter of Neowarra v Western Australia (at [742]).
Although the evidence is limited, I note the acceptance of the State that the area marked on MMPN1 is the area associated with a larlan and is of special or more than ordinary significance to WNTAC, I accept that the area marked is a site of particular significance.
Burial sites
Mr Martin and Ms Nulgit say (at [11]):
The whole Range in the Tenement Area is full of bodies and bones. Ngarinyin people know where those bones are. One example is a child’s burial. The child was wrapped up in paperbark and placed in a cave, it is hidden. Other bones were covered in ochre and placed in caves or surrounded by rocks. The majority of bones were not left sitting out in the open. They were put away in caves so that they could not be disturbed by kartiya, animals and bad weather.
They say that there is a spiritual connection to those bones ‘and we have a responsibility to look after them’ (Joint Affidavit at [16]).
The State says that WNTAC provide no evidence of any burial sites other than a cave containing a child’s bones ‘although the location of this burial site has not been provided’; and ‘that there is insufficient evidence to determine whether there are any burial sites within the proposed tenement area additional to the burial site hidden in a cave, their location, and their significance’ (State’s Contentions at [57]-[58]).
I accept that the burial sites are likely to be culturally significant to WNTAC. In relation to the ‘child’s bones’ site, the evidence is not sufficient for me to determine it a site of particular significance given the limited information regarding its provenance. As for other burial sites referred to in general terms I am not satisfied that sufficient evidence has been provided indicating their “particular significance” as required.
Is the grant of the proposed tenement likely to interfere with the identified sites or areas of particular significance?
When evaluating the degree of interference for the purposes of s 237(b), I must consider the nature of the site, the nature of the potential interference and the laws and traditions of the native title holders (Silver v Northern Territory).
As outlined above, I have determined that WNTAC has established the area marked “MMPN1”, being the area associated with a larlan, is a site of particular significance to the native title holders.
WNTAC says ‘there should be a buffer around these places because they need to be hidden from the public to protect them. No strangers should enter these areas without permission of the traditional owners’ (Joint Affidavit at [12]). WNTAC says if someone went in there without traditional owner consent and knowledge they would be breaking tradition, damaging the sacred area (Joint Affidavit at [14]). It says ‘[i]f a mining company, or a stranger, went on to country without being introduced by a Traditional Owner they could get lost, wander off, get sick, or even die’ (Joint Affidavit at [16]).
Finally, the Joint Affidavit says (at [16]):
People have to be introduced to the Tenement Area before they go there. They would have to be introduced in language or go through a smoking ceremony on the Tenement Area as the Tenement Area is a very strong place for spirit and culture.
The State asserts that the protection afforded by the AHA and the protection afforded by the RSHA condition is sufficient to prevent interference with any area or site of significance (Contentions at [71]; [75]-[77]).
AHA regime
The State refer to a number of previous Tribunal determinations to contend that the Tribunal should conclude that the protective regime under the Aboriginal Heritage Act 1972 (WA) (AHA) is sufficient to ensure that s 237(b) interference is unlikely to occur.[1]
[1] In contentions at [70], the State refers to the matter of Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v WA Mining Resources Pty Ltd [2015] NNTTA 41. While the State has correctly identified that the matter was one of my determination, it has provided a direct quote that does not originate from that determination. I also noted this error in my recent determination of Bunuba v Buxton Resources.
The State submits that the sites identified by WNTAC as being sites of particular significance ‘would fall within the ambit of s 5(a), (b) or (c) of the AHA’ (Contentions at [71]).
In my view, this submission adds nothing to my consideration of whether the act is likely to interfere with the larlan site. As such, I adopt the below finding in Marputu v Gianni at [64]:
In the absence of some explanation as to how the AH Act may protect the sites, I find the State’s assurance to be of little comfort in considering the likelihood of interference with them.
As with the matter of Marputu v Gianni, the sites and concerns of the traditional owners have been particularised and, as such, I adopt President Dowsett’s expectation (at [62]):
…one would expect that the State, or the proposed grantee would identify the way in which the AH Act is said to apply so as to reduce the risk of adverse impacts.
Accordingly, I am unable to conclude that the AHA is adequate in mitigating the risk of interference to the area marked on MMPN1 as the area associated with a larlan.
RSHA condition
The State states that if WNTAC elects to execute an Regional Standard Heritage Agreement (RSHA) they would have the opportunity to clearly identify the area or sites of significance in need of protection which should satisfy the concerns expressed by Mr Martin and Ms Nulgit (Contentions at [75]-[77]). It says this would enable GE Resources to avoid conducting exploration activities in these areas.
As I noted in Wanjina-Wunggurr v Buxton Resources (at [94]):
… As the Tribunal has noted in previous cases, it is generally understood that an RSHA requires the conduct of surveys only where ground disturbing activity occurs (see, for example, Wanjina-Wunggurr v Investmet Limited at [34]). Given that WNTAC has outlined the stone arrangements must not be disturbed and even the taking of items located on the ground leads to ramifications for the native title holders and visitors…, I am not satisfied that the RSHA will adequately address the risk of interference in this matter.
Similarly, in this matter, WNTAC has clearly outlined a protocol for accessing country, potential ramifications for non-compliance for mining companies or strangers. As such, there is nothing before me suggesting I should not adopt the above assessment in this matter.
Further, the relevance of a proposed RSHA condition to the mitigation of risk of interference was considered recently in Njamal #1 v Gianni (at [63]-[67]). Most relevantly:
[65] The State argues, in effect, that the existence of the proposed condition makes interference less likely. The arguments put by the State are the same as those referred to in Marputu v Gianni at [64] and [65].
[66] To rely on the possible entry into a standard agreement that has not been negotiated by the parties to decided that interference under s 237(b) is unlikely, seems to me to require a number of long bows to be drawn.
[67] As President Dowsett stated in Marputu v Gianni at [66]:
Although the terms of any RSHA may reduce the risk of adverse impact, to some extent, they leave open the real possibility, perhaps likelihood that there would be further disputes, in good faith or otherwise, about concepts such as “take into account”, “significantly affect” and “discuss”. As I have previously observed, protection of that general kind may be appropriate where the traditional owners’ concerns are unparticularised, but that is not the present case. In those circumstances, the proposed grantee’s willingness to enter into such an agreement says little about the extent to which the sites will be at risk. The State’s proposed special condition similarly offers little or no protection in this case. In all of these circumstances, I am satisfied that the native title holders’ concerns are reasonable.
Similarly, I am not satisfied that the proposed RSHA condition mitigates the risk in the current matter.
In this matter GE Resources have chosen not to engage in the inquiry. Rather than provide contentions and evidence in support of a determination that the expedited procedure does not apply, they informed the Tribunal that they elect to adopt the contentions of the State, prior to the lodgement of the State’s contentions.
Previous tenements
The State notes that the proposed tenement has previously been the subject of a number of granted exploration licences (Contentions at [67]). As has been stated in other matters, while some activity in a proposed tenement area is likely to have occurred as a result of historical tenements, without evidence of the level or extent of any activities, or of any agreement that may have been in place prior to the commencement of any exploration, I give such contentions little weight.
Conclusion
Of the areas or sites within the proposed tenement area identified by WNTAC, I determined that the area marked on MMPN1 is the area associated with a larlan and is of special or more than ordinary significance to WNTAC.
The Tribunal is entitled to have regard, and give weight, to the State’s site protection regime, including the AHA. As stated above at [67]-[68], the State has failed to identify how the operation of the AHA will impact the risk of interference in this matter.
I find that activities close to the site would constitute interference for the purposes of s 237(b).
Without evidence from GE Resources regarding their full exploration program, I conclude that GE Resources will exercise all the rights conferred by the grant to their full extent. The full exercise of rights presents in my view an unacceptable risk to the site of particular significance.
As such, I find the grant of the proposed tenement poses a risk of interference for the purposes of s 237(b).
Determination
For the reasons state above, I find the grant of exploration licence E80/5235 to GE Resources is not an act attracting the expedited procedure.
Mr JR McNamara
Member
25 September 2019
2
1
0