Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v ACN 159 782 537 Pty Ltd
[2017] NNTTA 10
•21 March 2017
NATIONAL NATIVE TITLE TRIBUNAL
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v ACN 159 782 537 Pty Ltd and Another [2017] NNTTA 10 (21 March 2017)
Application No: | WO2016/0038 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC (WCD2005/002 & WCD2008/001)
(native title party)
- and -
ACN 159 782 537 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: | 21 March 2017 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere substantially with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure not attracted |
| Legislation: | Aboriginal Heritage Act 1972 (WA) ss 5, 16, 17, 18 Native Title Act 1993 (Cth) ss 29, 31, 32, 237 Mining Act 1978 (WA) |
Cases: | FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’) Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji [2011] NNTTA 172 (‘Weld Range Metals v Wajarri Yamatji’) 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: | Mr Alex Knight, Manager Land and Culture, Ngaanyatjarra Council |
| Representative of the grantee party: | Ms Yvette Collins, Senior Tenement Consultant, Hetherington Exploration & Mining Title Services (WA) Pty Ltd |
| Representatives of the Government party: | Ms Lauren Pike, Native Title Officer, Department of Mines and Petroleum Ms Sarah Power, Legal Practitioner, State Solicitor's Office |
REASONS FOR DETERMINATION
This decision is about whether or not the expedited procedure applies to the grant of exploration licence E38/3065 (the licence) to ACN 159 782 537 Pty Ltd (ACN). The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure, and included a statement to that effect in the public notice which advertises the grant process. By including the expedited procedure statement in their notice, 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). That is, the grant is not likely to: interfere directly with community or social activities carried on by members of native title claims or determined areas (s 237(a)); interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)). These are the criteria on which I must base my decision as to whether or not the expedited procedure applies. All references to statutory provisions are to the Native Title Act 1993 (Cth) unless otherwise stated.
Ngaanyatjarra Council (Aboriginal Corporation), on behalf of Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC, which holds native title on trust for the common law native title holders identified in Federal Court determinations Ngaanyatjarra Lands (Part A) (WCD2005/002) and Ngaanyatjarra Lands (Part B) (WCD2008/001) (collectively referred to in affidavit evidence as the Ngaanyatjarra people), lodged an objection with the National Native Title Tribunal to the inclusion of the expedited procedure statement. The native title determined areas of Ngaanyatjarra Lands (Part A) overlap the licence by approximately 84.77 per cent (with all but 0.44 per cent being held on an exclusive basis), and Ngaanyatjarra Lands (Part B) overlaps by 15.23 per cent, entirely on an exclusive basis. In objecting to the expedited procedure statement, Ngaanyatjarra argues that interference or disturbance with one or more of the s 237 elements is likely.
I was appointed by the President of the Tribunal, Raelene Webb QC, to conduct the inquiry to determine whether or not the expedited procedure applies. A decision that the expedited procedure applies means negotiation under s 31 is not required: the State can grant the licence, and ACN can proceed with their activities, without negotiating with the determined native title holders. A decision that the expedited procedure does not apply means all parties must negotiate in good faith with a view to reaching agreement with the native title holders about the grant of the licence (see s 31(1)(b)).
The State and Ngaanyatjarra have submitted contentions and evidence to the Tribunal in this matter. Ngaanyatjarra provided the affidavits of Dulcie Watson, Thomas Murray, Frances Bryony Nicholson and Bridget Walker in support of its contentions. ACN confirmed it would be relying on the State’s submissions.
Ngaanyatjarra has pursued its objection to the application of the expedited procedure on the basis of ss 237(a) and 237(b). It does not pursue its objection in relation to s 237(c), and based on the limited evidence available from all parties on s 237(c), I conclude there is unlikely to be major disturbance with the relevant lands or waters, should the licence be granted to ACN. As such, the focus of this decision is on ss 237 (a) and s 237(b).
On the basis of the materials provided by parties, I address the following issues in this decision in respect of s 237(a) and s 237(b), to determine whether or not the expedited procedure should apply to the grant of the licence:
(a)Is the grant likely to substantially and directly interfere with the carrying on of the Ngaanyatjarra people’s community or social activities?
i)Are any activities of a social or community nature arising from the native title rights and interests of members of the Ngaanyatjarra people conducted on or near the licence by those members?
ii)If so, will the social or community actvities be substantially interfered with by exploration acivities of ACN?
(b)Is the grant likely to interfere with sites or areas of particular significance to the Ngaanyatjarra people?
i)Are there sites or areas on the licence which have been sufficiently explained and described to conclude they are of particular significance in accordance with the Ngaanyatjarra people’s traditions?
ii)Is it likely a site or area of particular significance will be interfered with by the exploration acivities of ACN?
My conclusion in relation to s 237(a) is that it is likely such community and social activities do take place on or near the licence, but not to the extent they will be substantially interfered with by ACN activities.
My conclusion in relation to s 237(b) is that Lake Throssel is a site of particular significance to members of the Ngaanyatjarra people. I find the Lake is of such significance, due to its relationship to a dreaming track, and the social or community activities which are conducted on and near the licence, that there is a real chance or risk that even non ground disturbing activities such as driving on the licence are likely to interfere with the site. On that basis, I find the expedited procedure should not apply.
I provide more detailed reasons for my conclusions below.
Preliminary matters
Ngaanyatjarra native title rights and interests
Decisions I make in relation to the limbs of s 237, and the application of the expedited procedure, must be done so in the context of the native title rights and interests which relate to the relevant licence. The native title rights and interests in relation to Ngaanyatjarra Lands (Part A) (WCD2005/002) and Ngaanyatjarra Lands (Part B) (WCD2008/001) are:
3.Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests held in relation to Reserve 24980 (Warburton Range Stock Route) [being an area where there has been partial extinguishment of native title] are:
(a)the right to enter and remain;
(b)the right to take fauna and flora;
(c)the right to take water for personal, domestic, or non-commercial communal purposes;
(d)the right to take other natural resources such as ochre, stones, soils, wood and resin; and
(e)the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the native title holders.
4.Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in each other part of the Determination Area [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] are:
(a)except in relation to flowing and subterranean water - the right of possession, occupation, use and enjoyment to the exclusion of all others; and
(b)the right to take flowing and subterranean water for personal, domestic, or non-commercial communal purposes.
5.The native title rights and interests described in paragraphs 3 and 4(b) do not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others.
The native title rights and interests in relation to Ngaanyatjarra Lands (Part B) (WCD2008/001) additionally specify:
6.The native title rights and interests described in paragraph 4(a) confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others.
Underlying tenure
According to the Department of Mines and Petroleum (DMP) Quick Appraisal provided by the State, the following areas exist on the licence:
·Yeo Lake/Lake Throssel, overlapping 91.4 percent of the licence;
·Vacant Crown Land, overlapping 99.6 per cent;
·Proposed conservation park, overlapping 100 per cent;
·Warburton Range Stock route, passes through at 0.4 per cent.
According to the DMP Quick Appraisal, there appears to have been minimal previous exploration or mining activity over the area, with one tenement granted in 1998 and forfeited in 1991, and one granted in 2006 and surrendered in 2010, overlapping at 30.9 and 17.9 per cent respectively. The services affected include: one track, Lake Throssel (a non-permanent lake), 125 other non-permanent lakes and 16 minor non-permanent watercourses.
The State has provided an extract from the Department of Aboriginal Affairs (DAA) inquiry system, noting there is one registered Aboriginal site with the licence, which is Lake Throssel (site ID 2115) which overlaps the licence in the mid-western border. There is also a much larger geographical feature called ‘Lake Throssel,’ of which the licence covers a substantial portion. To avoid any confusion, reference to Lake Throssel throughout this decision will be to the geographical feature, rather than the DAA site, unless otherwise noted.
Evidentiary matters
Non-disclosure directions
Ngaanyatjarra requested gender specific non-disclosure directions be placed over some of the evidence about the dreaming track or Tjukurrpa which is said to be associated with the licence area, and relates to cultural knowledge practices concerning death and grief, and which is of great importance to all members of the community, and of particular importance to women. Parties agreed to those directions and they were issued on a non-contentious basis. The non-disclosure directions covered:
·parts of the affidavits of Dulcie Watson, Thomas Murray and Frances Bryony Nicholson;
·a field research report by Jan Turner dated 1989 (‘the Jan Turner report’);
·a map with site locations and areas of significance; and
·a report on conserving the dreaming track (‘dreaming track report’).
I note the two reports appear not to be available to the general public. As such, even though the dreaming track is named and much detail has been provided about it, I refer to it only as the dreaming track, and make limited reference to other sensitive information. That is, I reference that information only to the extent necessary so that my reasoning can be clear.
Affidavit of Francis Bryony Nicholson
Ms Nicolson states she is the senior anthropologist for the Ngaanyatjarra Council and has been an anthropologist on staff for eight years. She holds a Bachelor of Arts, Anthropology (Honours) from the University of Sydney. She has worked in remote communities with Western Desert Aboriginal people since 2006, and currently lives in a community in the Ngaanyatjarra lands. Ms Nicholson goes on to outline her experience and understanding of the ways in which the Ngaanyatjarra people are associated with and maintain a connection to country, and their interactions with the exploration industry. None of this is contentious and I accept Ms Nicholson’s evidence.
Affidavit of Bridget Walker
Ms Walker states she is a ‘Working on Country/Indigenous Protected Area Coordinator’ employed by Ngaanyatjarra Council, and that she supervises the Warburton Working on Country/Indigenous Protected Area Ranger teams (one men’s team and one women’s team). She has a Bachelor of Arts (Honours), majoring in Archaeology and Palaeoanthropology, and a graduate certificate in Archaeology. She has ten years’ experience in cultural heritage management, and has worked in various jurisdictions around Australia. I accept Ms Walker’s evidence.
Affidavit of Mr Thomas Murray
Mr Murray is a senior Ngaanyatjarra law man and he has made the affidavit to ‘ask that the expedited procedure is not used on tenement 38/4605.’ He states he is a traditional owner and he knows the Tjukurrpa or Dreaming and he holds a lot of law stories. Mr Murray states that Ngaanyatjarra is his first language, and that Mr Fox (a senior traditional owner of the Lake Throssel area) and Ms Nicholson helped with interpretation and drafting of the affidavit. I accept Mr Murray has authority to speak on behalf of the community in relation to this area.
Affidavit of Ms Dulcie Dungayi Watson
Ms Watson states she is a senior woman in the Ngaanyatjarra lands, and she has knowledge about culture and dreaming. Ms Watson states ‘I understand ACN 159 782 537 have chosen a way which means they do not have to talk to the traditional owners or do any heritage clearance.’ In actual fact, it is the State government which applies the expedited procedure statement to the issuing of a licence grant and not the grantee party. I accept Ms Watson has authority to speak on behalf of the community in relation to this area.
Evidence as to the effect of the application of the expedited procedure and the task of the Tribunal
Ms Nicholson outlines in her affidavit how the negotiation process and the signing of an agreement builds trust between the explorer and the Ngaanyatjarra people, and that this process ‘provides a level of comfort that [their] responsibility [to look after the country] can be discharged in relation to other Traditional Owners and family members.’ Ms Nicholson states that if the expedited procedure is applied to this licence it will lead to concerns regarding the traditional owners’ ability to look after country.
Ms Nicholson further states she has observed how low impact activities, such as driving, camping and prospecting, undertaken without the participation and consent of traditional owners has ‘led to considerable fear and suspicion of the associated Traditional Owners and the community.’
I note these points seem to go to the effect of a decision that the expedited procedure applies to the grant of the licence. However, the Tribunal’s only task under the Native Title Act 1993 (Cth) in an expedited procedure inquiry, is to consider whether the limbs of s 237 are satisfied. While I acknowledge Ms Nicholson’s evidence as to the Ngaanyatjarra people’s concerns over activities conducted without consultation, evidence of this nature does not greatly assist my inquiry into the s 237 criteria. I also note negotiation between parties is not part of the expedited procedure process. The State has the right to apply an expedited procedure statement to the grant of a licence, and the Tribunal’s only task is to accept an objection to the application of the statement (if the objection fulfils various criteria, as it has in this case) and then conduct the inquiry, considering whether the s 237 criteria are satisfied.
(a) Is the grant likely to substantially and directly interfere with the carrying on of the Ngaanyatjarra people’s community or social activities?
Are any activities of a social or community nature arising from the native title rights and interests of members of the Ngaanyatjarra people conducted on or near the licence by those members?
Ngaanyatjarra contentions state the grant of the licence would cause direct physical and spiritual interference with the Ngaanyatjarra people’s community life, which includes the use of the area to obtain sustenance and for ceremonial purposes. The contentions also submit the land concerned contains sites of cultural significance, including camping grounds and other areas. Given the nature of the social and community activities identified, I note the evidence provided by Ngaanyatjarra in relation to s 237(a) is significantly intertwined with the evidence pertaining to sites of particular significance under s 237(b).
I turn intiailly to the evidence Ms Nicholson gives in relation to the limbs of s 237. As noted above, there are many confidential aspects of Ms Nicholson’s affidavit. As such, I summarise her evidence in broad terms to protect that confidentiality, but to the extent that my decision can be understood, as follows:
·‘The area around and including Lake Throssel and tenement 38/3065’ relates to a dreaming story/Tjukurrpa.
·The Tjukurrpa extends between two named areas which is a distance of some 300 kilometres.
·The dreaming story is outlined in some detail and specifically relates to the creation of salt lakes along the dreaming track, such as Lake Throssel. The story is extremely sensitive and has deep layers of significance. These are also referenced in the Jan Turner report.
·The Jan Turner report, annexed to Ms Nicholson’s affidavit, was written in December 1989 and outlines much information about dreaming tracks, areas and sites of particular significance, and social or community activities performed near and around those sites, which includes areas on or near Lake Throssel. Because of the age of the report and the fact that it dealt with tenements in existence at that time, and there is no map indicating the precise area covered by the ethnographic field research, it is difficult to conclude how much of this evidence relates specifically to the licence in this current inquiry. However, where the field research report refers to Lake Throssel and surrounds, I find there is no doubt the area is of great significance to the Ngaanyatjarra people and that it forms part of a matrix of sites and areas which are important to the Ngaanyatjarra people. It is referred to as the ‘Lake Throssel Complex.’
·The Lake Throssel area is an area of particular importance to the dreaming story.
·‘Aspects of this story relate to knowledge and practices … that are undertaken and practiced by Ngaanyatjarra people today.’
·Lake Throssel is covered by a significant portion of the licence.
·Lake Throssel is ‘the last in the chain of salt lakes relating to the [dreaming] story.’ Because this is where the story finishes, it has ‘a particularly strong association ... This potency imbues this country with a particular significance for Traditional Owners.’
·Performance of the song associated with this story in this area ‘is a “really strict one” and the failure to participate probably would result in corrective discipline.’ This song is still sung today.
·There are two other Tjukurrpa stories associated with the area. There is another which belongs to senior men, which has a ‘highly sacred status,’ which travels around Lake Throssel and goes north, and is considered ‘to be of the highest order and holds a regional significance for senior men.’
·Even between Ngaanyatjarra rangers, traditional owners and knowledge holders, there has been conflict about what aspects of the dreaming story could be told due to its association with a secret sacred men’s Tjukurrpa.
Ms Nicholson annexes the dreaming track report to her affidavit. That report outlines a project undertaken in 2009–2010, which supported the ‘identification, conservation and promotion of Indigenous heritage values of significant sites to Aboriginal and Torres Strait Islander people.’ It included ‘field trips, documentations, mapping, maintaining and developing a management plan for the [dreaming] track.’ The report confirms the dreaming track length and features, and references specifically a number of ephemeral lakes and lagoons, including Lake Throssel.
The report specifically refers to the Lake Throssel area and a native title holder who is affiliated to that country, and this report goes into great detail about a particular animal and its significance in the dreaming track and the creation of the salt lakes, including Lake Throssel. It confirms ‘the main Dreaming story’ is associated with the site just to the south of Lake Throssel (which I will refer to as ‘M’). It confirms that some of the mourning rituals associated with the dreaming track are still practiced today. It also references another site (which I will refer to as ‘W’), which is to the north of the licence but on the edge of Lake Throssel.
There is a map in the report which shows the track, as well as the GPS points which were used in the mapping of the track. The track heads south from the site ‘W’ which is slightly north of Lake Throssel and the licence, down to the site ‘M’ which is south of Lake Throssel. When looking at this map, together with the DMP Tengraph map, it is evident that Lake Throsell covers a large portion of the licence, and that the dreaming track is very close to, or travels through the north eastern portion, of Lake Throssel. The dreaming track report notes the track ‘passes through a series of ephemeral lakes and lagoons’ and names Lake Throssel as one such lake.
Ms Walker outlines a desert discovery project in relation to the dreaming story and a trip called the Carnegie Expedition, which she undertook in April 2016 and which involved traditional owners. Part of the purpose of the expedition was to travel the Tjukurrpa and reaffirm the traditional owners’ knowledge of the country and story. Ms Walker also outlines another trip undertaken in 2016, again focusing on the Tjukurrpa which included traditional owners and Ngaanyatjarra Council staff and that included visits to Lake Throssel, to ‘M’ to the south of Lake Throssel and to ’W’ to the north. During the trip, the traditional owners told cultural stories and practice.
Mr Murray confirms he knows the area of Lake Throssel, and the licence and the area has the Tjukurrpa. He also confirms the pathway of the dreaming and the significance of Lake Throssel in association with the dreaming. He refers to the difficulties if a miner goes onto the lake or interferes with the rock hole to the south of the licence (‘M’). He also refers to an area in the general vicinity of licence 38/4065 where there are ‘Tjukurrpa crossing over, all tangled up.’ It appears Mr Murray’s main concern is with exploration on or near Lake Throssel.
Ms Watson specifically refers to Lake Throssel, to ‘M’ to the south of licence and to ‘W’ to the north of the licence. It is clear that those associated with the creation of the dreaming track walked around the area, including on Lake Throssel.
The State argues Ngaanyatjarra has not focused on physical social or community activities carried on in the vicinity of the licence, and notes that the Tribunal must focus on the likelihood of direct interference with the physical conduct of the activity in question if the future act is performed. The State argues the native title party does not have a right to veto action on the licence and that it has not provided sufficient evidence in relation to social or community activities that are conducted on the licence.
I accept that the Ngaanyatjarra people have provided sufficient evidence and information to satisfy me that social and community activities, predominantly related to the use of the area for ceremonial purposes in relation to the dreaming, occur on and around Lake Throssel. The question of interference is addressed below.
Will the social or community actvities be substantially interfered with by the exploration acivities of ACN?
The State suggests the activities of ACN will be low scale and infrequent and unlikely to have any real disruptive affect upon the Ngaanyatjarra people obtaining sustenance from the area or carrying out their social or community activities on the area, given that their ceremonies and use of the dreaming track are conducted over a wider area. The State also contends that previous activity on the licence is likely to have caused disturbance.
The Ngaanyatjarra reply argues that previous exploration activity on the licence does not necessarily lead to a conclusion that disturbance has occurred as a result. It says a community of native title holders conducts activities in the licence area in accordance with their rights and interests, and that more information is available about the community of native title holders in ‘the connection material report.’ This appears to be a report by anthropologist David Brooks called ‘An Anthropological Overview, Past and Present’ in the Federal Court matter of WAG6004/04. This report or parts of it were not presented in this inquiry and so I say nothing further about that material.
Ngaanyatjarra has provided a great deal of information about the dreaming track in broad terms, and in support of the contention that the track, and places such as Lake Throssel, are the focus of various social or community activities of the Ngaanyatjarra people. However, little information has been provided specifically about the social or community activities conducted on the licence, including information about the type, frequency and duration of such activities on the licence.
In the absence of such evidence from Ngaanyatjarra, I conclude there is unlikely to be direct interference with such activities from the grant of the licence.
(b) Is the grant likely to interfere with sites or areas of particular significance to the Ngaanyatjarra people?
Are there sites or areas on the licence which have been sufficiently explained and described to conclude they are of particular significance in accordance with the Ngaanyatjarra people’s traditions?
The State refers to the decision Yindjibarndi Aboriginal Corporation v FMG Pilbara and submits the elements of s 237(b) are that:
·the area or site must be of special or more than ordinary significance to the native title holders in accordance with their traditions;
·the area or site must be known or able to be located and its significance explained;
·the interference may involve actual physical intervention, and even slight interference may be unacceptable;
·the area or site must be generally located within the proposed licence; and
·there must be a real chance or risk of interference with the area or site.
I accept each of these points apart from the requirement for physical intervention, as this was subject to McKerracher J’s comments in FMG Pilbara v Yindjibarndi Aboriginal Corporation, where he did not necessarily agree that physical interference was an element of s 237(b) (unlike s 237(a) where it is clear that the section relates to physical activities).
The State argue the evidence provided by Ngaanyatjarra refers to ‘many areas or sites alleged to be of particular significance.’ The State argues ‘it does not appear that those areas or sites are located within the proposed tenement.’ In relation to the State’s comment, my interpretation of the Ngaanyatjarra people’s evidence is that they do not refer indiscriminately to sites alleging they are of particular significance, but refer to places and sites associated with the dreaming track, and that some of those are of particular significance and are associated with various points along the dreaming track. This includes Lake Throssel and points which are on and very near the licence, and which are between the ‘W’ and ‘M’ sites (to the north and south of the licence respectively).
The dreaming track report describes other sites along and associated with the dreaming track ‘that did not seem to be of high significance.’ I believe this is important as the Ngaanyatjarra people are not asserting that all areas associated with the dreaming track are of particular significance. Rather, they distinguish between areas which are of particular significance, such as Lake Throssel, and others which play a supporting role in the matrix of the dreaming track and surrounds.
I have outlined much of the evidence in relation to the importance of Lake Throssel in the consideration of s 237(a), as the social or community activities identified by Ngaanyatjarra are intertwined with Lake Throssel as a place of particular significance along the dreaming track. While I found the evidence was not sufficient to lead to a conclusion that interference under s 237(a) was likely, I find it is overwhelmingly conclusive that Lake Throssel is a site of particular significance.
The question then is whether the explorer’s activities would interfere with Lake Throssel as a site of particular significance.
Is it likely a site or area of particular significance will be interfered with by the exploration acivities of ACN?
Ngaanyatjarra contentions state the Aboriginal Heritage Act 1972 (WA) (AHA) provides inadequate protection for Aboriginal areas or sites, and the consultation procedures available under that Act are inadequate.
The State notes that in addition to the endorsements and conditions proposed to be placed on the grant, it intends to place a Regional Standard Heritage Agreement (RSHA) condition on the grant, as follows:
In respect of the area covered by the licence, the licensee, if so requested in writing by the Ngaanyatjarra Aboriginal Corporation the prescribe body corporate under determinations WCD 2005/002 and WCD 2008/001, such request being sent by pre-paid post to reach the licensee’s address not more than ninety days after the grant of the licence shall within thirty days of the request execute in favour of the Ngaanyatjarra Aboriginal Corporation the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups (eg. The Goldfields/ South West/ Ngaanyatjarra/ Pilbara/ Yamatji Land and Sea Council) and offered by the Native Title Party or their representative.
Ngaanyatjarra contentions highlight that the RSHA does not give protection for all exploration activities. They argue the area is of such significance that even non-ground disturbing work may cause interference which would be ‘distressing to the community, and culturally inappropriate to a degree that would constitute interference for the purposes of s 237(a).’ The notion that even low impact exploration activity would cause distress to the community or result in a breach of cultural protocol is highly relevant to the issue of whether that activity is likely to interfere with an area of particular significance. Mr Murray and Ms Watson outline in their affidavit evidence that Lake Throssel is an area which is of great importance for the men and women of the native title party and that people who are unauthorised going on the lake is problematic. As noted at [23] above, evidence in relation to s 237(a) is significantly intertwined with the evidence pertaining to sites of particular significance under s 237(b).
The Ngaanyatjarra reply explains that the native title party understands there is no veto to ACN’s activities, but suggests the evidence, interests and proposals of the Ngaanyatjarra People should be given significant weight, and refer to Weld Range Metals v Western Australia (at [310]). This decision dealt with s 39 of the Act, however, while the interests and proposals of the native title party are not a mandatory consideration for the purposes of s 237, they are relevant to the extent they illustrate the significance of the site in accordance with the traditions of the native title holders.
The reply also argues Lake Throssel is a site of particular significance and its association with the dreaming track heightens the obligations and responsibilities of the traditional owners. Information is provided about why Lake Throssel is a site of particular significance, and its association with the dreaming track and the importance of the lake bed such that merely accessing the lake bed ‘without proper negotiation with the native title holders is to ignore, or disrespect the cultural values or practices associated with the [dreaming] story and the obligations and responsibilities of Traditional Owners.’ It also suggests that driving across the lake to access exploration targets within the licence area is likely to cause interference with the site of particular significance and that it is such an activity that is unlikely to require the conduct of a heritage survey under the terms of an RSHA. This is amply supported by the evidence, which highlights the concerns held by the native title holders about accessing or driving across the lake bed and the effect this will have on the Tjukurrpa/dreaming story.
Given that ACN have not provided any information or evidence about their intended exploration should the licence be granted, I have assumed they will undertake the full scope of activity to which it is entitled as set out in s 66 of the Mining Act:
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 limited, 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 though 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 in the land.
The Mining Regulations 1981 outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
The Ngaanyatjarra reply argues ‘the lake bed itself was formed by the actions of the [animal] in the dreaming’, and explains the story and how it gives the lake its particular significance. The reply explains that driving into the licence area means driving onto the lake bed itself (due to the extent of the overlap between Lake Throssel and the licence). They also explain that this would interfere with the Tjukurrpa/dreaming story, as would activities such as soil sampling. Due to sensitives in relation to that information, I do not repeat it here. By pursuing the full suite of rights afforded to them under the licence, ACN could extract up to 1000 tonnes of material from the area, and conduct various other activtities without triggering the RSHA condition or provisions of the AHA. As the Ngaanyatjarra reply outlines, the AHA is ‘not designed to provide protection to any areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title, in the tenement area, which is the intention of s 237(b)’ (emphasis in original).
As noted by McKerracher J in FMG Pilbara v Yindjibarndi Aboriginal Corporation (at [76]), interference that may seem insubstantial to some, may be substantial having regard to the native title party’s traditions. In my view, this present inquiry is such a matter. Taking into account that the licence area is overlapped by vacant Crown land, the native title holders hold exclusive possession, there is little previous tenement activity and Lake Throssel is a large site of particular significance, I conclude ACN’s exploration activities have a real chance or risk of interfering with Lake Throssel.
Determination
The determination of the Tribunal is that the grant of licence E38/3065 to ACN 159 782 537 Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
21 March 2017
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