Australian Potash Limited and Another v Kalman Murphy & Ors on behalf of Waturta

[2021] NNTTA 46

NATIONAL NATIVE TITLE TRIBUNAL

Australian Potash Limited and Another v Kalman Murphy & Ors on behalf of Waturta [2021] NNTTA 46 (8 September 2021)

Application Nos:

WF2021/0002, WF2021/0003 & WF2021/0004

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

Australian Potash Limited
(grantee party)

- and -

Kalman Murphy & Ors on behalf of Waturta (WC2018/012)
(native title party)

- and -

State of Western Australia

(Government party)

FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE

Tribunal:

Mr Glen Kelly, Member

Place:

Perth

Date:

8 September 2021

Catchwords:

Native title – future act – application for a determination in relation to mining leases – existence of registered native title rights and interests – consideration of previous Tribunal determinations - s 39 criteria considered – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect on development of social, cultural and economic structures – proposed future act giving rise to related future act – effect of the act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – consideration of utility of imposing conditions - determination that the acts may be done

Legislation:

Environmental Protection Act 1986(WA)

Mining Act 1978 (WA)

Mining Regulations 1981 (WA)

Native Title Act 1993 (Cth)

Aboriginal Heritage Act 1972(WA)

Cases:

Australian Potash Limited and Another v Kalman Murphy & Ors on behalf of Waturta [2021] NNTTA 24(Waturta v APL I)

Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690 (Cheedy v WA)

Ted Comanoo Evans and Richard Evans on behalf of the Koara People v State of Western Australia & ORS [1997] FCA 741 (Evans v WA)

FMG Pilbara Pty Ltd v Cox[2009] FCAFC 49 (FMG v Cox)

Gold Road Resources Limited v Harvey Murray on behalf of Yilkaand Another [2018] NNTTA 52 (Gold Road v Murray)

India Bore Diamond Holdings Pty Ltd and Another v Bunuba Dawangarri Aboriginal Corporation RNTBC [2021] NNTTA 5 (India Bore Diamonds v Bunuba)

Kalman Murphy & Ors on behalf of Waturta v Ausgold Exploration Pty Ltd & Another [2019] NNTTA 89 (Waturta v Ausgold)

Kalman Murphy & Others on Behalf of Waturta v Australia Potash Limited and Another[2021] NNTTA 13 (Waturta v APL II)

Kalman Murphy and Others on behalf of Waturta v Lake Wells Exploration Pty Ltd and Another[2020] NNTTA 13 (Waturta v Lake Wells Exploration)

Kalman Murphy and others on behalf of Waturta v Piper Preston Pty Ltd[2020] NNTTA 74 (Waturta v Piper Preston)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) [1986] HCA 40 (Minister for Aboriginal Affairs v Peko-Wallsend)

Sean Investments Pty Ltd v Mackeller [1981] FCA 174 (Sean v Mackeller)

Ward v Western Australia[1996] FCA 1452 (Ward v WA)

Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd[2013] FCA 1432  (Watson v Blackreef)

Western Australia v Ward[2000] FCA 191 (WA v Ward)

Western Australia/Koara People/Sons of Gwalia Ltd.; Mount Edon Gold Mines (Aust) Ltd; DJ & RM Cottee & PJ Townsend, (1996) 132 FLR 73; [1996] NNTTA 31 (Re Koara People)

Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (WA) Ltd(1996) 133 FLR 124; [1996] NNTTA 30 (Waljen)

White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales, [2011] NNTTA 110; (2011) 257 FLR 205; [2011] NNTTA 110 (White Mining v Wonnarua)

WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 372; (1999) (WMC Resources v Evans)

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

Representatives of the native title party:

Cornelia Motroni, Sophie Kilpatrick and Andre Maynard, Cross Country Native Title Services Pty Ltd

Representative of the grantee party:

Ken Green, Green Legal

Representative of the Government party:

Domhnall McCloskey, State Solicitor’s Office

reasons for determination

Background and approach

[1]       This is a decision concerning whether the State of Western Australia (the Government Party) may grant mining leases M38/1287, M38/1288 and M38/1289 (the proposed leases) to Australian Potash Limited (APL) and if so, whether these grants should be subject to conditions.

[2]       The proposed leases, which cover an area of approximately 2,209 Ha, are located in the Goldfields region of Western Australia approximately 165km north-northeast of Laverton.  The Waturta people (Waturta) are the registered native title claimants for an area which covers the entirety of the proposed leases (WAD297/2018, WC2018/012).

[3] The Government party gave notice pursuant to s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to ‘do the acts’ of granting the proposed leases on 12 August 2020. The parties were then required to conduct good faith negotiations with a view to obtaining the agreement of Waturta to the acts (NTA s 31(1)).

[4]       The parties were not able to reach agreement and on 14 February 2021, pursuant to s 35 of the NTA, APL applied to the Tribunal for a s 38 determination that the acts may be done (ie that the proposed leases may be granted).  The applications were accepted by the Tribunal on 19 February 2021 and that same day the President of the Tribunal directed me to constitute the Tribunal for the purposes of conducting an inquiry into the applications.

[5]       Per s 36(2) of the NTA, I cannot proceed to make a s 38 determination in this matter if Waturta satisfied me that either the Government party or APL had failed to negotiate in good faith as required by s 31(1) of the NTA.  Waturta made the allegation that the Government party did not negotiate in good faith, however made no such assertion against APL.

[6]       An inquiry was conducted on the matter of good faith and in Waturta v APL I, I determined the allegations of want of good faith against the Government party were not made out.  As a result of that determination, I have power to conduct an inquiry and make a s 38 determination.

[7]       In this inquiry, I am required to make one of the following determinations pursuant to s 38 of the NTA:

1.         that the grant of the proposed leases must not be done;

2.         that the grant of the proposed leases may be done; or,

3.        that the grant of the proposed leases may be done subject to conditions.

[8]       The matters I am mandatorily required take into account in making this determination are set out in s 39 of the NTA.  In performing this mandate, I adopt the principles enunciated in Waljen at [165] and [167], and subsequently approved by the Court in Cheedy v WA at [20], which are that the:

task involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interests of the Aboriginal people concerned.

And that:

The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.

[9]       For the reasons set out below, my determination is that the grant of the proposed leases may be done.

Tribunal proceedings

[10]     The parties were notified that a preliminary conference to discuss directions for the inquiry process was to be held on 4 March 2021.  Draft directions were circulated to the parties in advance of this conference. 

[11]     Prior to and during the conference, the parties were advised it was my intention to run any good faith inquiry in advance of the s 39 inquiry.  Waturta indicated they would allege a lack of good faith on the part of the Government party, and directions were made accordingly with the good faith inquiry determined on 2 June 2021 (Waturta v APL I).

[12]     On 29 April 2021 the Government party provided its contentions in relation to the s 39 criteria, as did APL on 30 April 2021.  Both of these sets of contentions were accompanied by supporting documents which are detailed in a further section of this determination.

[13]     Waturta sought an extension for its provision of contentions and evidence which, following conferral with the parties, was granted along with extensions on the subsequent directions pertaining to APL and the Government Party.  Waturta provided contentions on 27 May 2021 and an unaffirmed affidavit from Mr Kado Muir.  An affirmed version of this affidavit was provided to the Tribunal on 2 June 2021, which I accepted. 

[14]     Also part of Waturta’s evidence was an affidavit from Ms Cornelia Motroni, a legal representative of Waturta.  Attached to this was an affidavit from Mr Kalman Murphy (affirmed 27 August 2020) that was submitted for a previous Tribunal inquiry being Waturta v APL II concerning E38/3423 in which the Tribunal determined the expedited procedure applied.

[15]     Both Mr Muir and Mr Murphy are persons listed as the applicant for the Waturta native title claim.   Mr Muir says he is a Wati, an initiated man with responsibility to care for country, while Mr Murphy states he is also a Wati who is responsible for looking after sites and ensuring sacred places are protected.  I accept their authority to speak on behalf of Waturta and to provide evidence in this inquiry. 

[16]     I note that Mr Murphy’s affidavit concerns a licence area that is approximately 15 kilometres southeast of the proposed leases, however his affidavit contains some general evidence about the area of the proposed leases. As such I consider this evidence relevant in this inquiry and accept this affidavit.

[17]     APL sought a short extension in order to finalise its evidence, which was granted, and on 19 June 2021 provided its contentions in reply along with a further suite of documents which is detailed in a further section of this determination.  The Government party lodged its contentions in reply on 18 June 2021 with no accompanying documents.

[18]     Parties then provided their views on whether the matter should be decided on the papers or whether a s 151 hearing should be convened.  Both the Government party and Waturta submitted they were content for the matter to be decided on the papers.

[19]     APL provided a qualified view that the matter could be decided on the papers, noting it had provided affidavit evidence from members of the Waturta native title group that it submitted was contradictory to that provided by Waturta.  As such, APL submitted that if it were necessary for the Tribunal to assess the credit of witnesses and make a decision of whether the evidence of one deponent is preferable over the other, then a hearing should be held in order to allow for cross examination.

[20]     Upon reviewing the materials provided by each of the parties, I formed the view that a hearing would not be necessary and decided pursuant to s 151(2) that the matter could be decided on the papers.  The parties were advised of this on 9 July 2021.

[21]     On further examination of the materials, I also formed the view that issues raised in relation to s 39(1)(a)(i) by both APL and the Government party were worthy of further examination.  APL and the Government party contended that there are no registered native title rights over the area of the proposed leases and therefore there is no effect to be measured through s 39(1)(a)(i).  Given the potential impact on Waturta, I sought further written submissions on this topic alone, that is, restricted to s 39(1)(a)(i), of which the parties were advised on 9 July 2021.

[22]     The Government party provided its views on 13 July 2021 with APL providing their views on 21 July 2021.

[23]     Waturta made no submissions and instead submitted 2 new affidavits from Waturta claim group member Mr Ivan Fraser that they wished to have accepted as part of Waturta’s evidence. 

[24]     One of the affidavits of Mr Fraser contained gender restricted cultural information in relation to Lake Wells and was accompanied by a request to issue non-disclosure directions.  The non-restricted affidavit set out some of the same cultural information as contained in the restricted affidavit, but to a larger extent, contained a series of allegations against APL and its conduct that were not related to this inquiry.

[25]     In making the request to have these affidavits accepted, Waturta incorrectly asserted I was still receiving submissions, despite it being clear that I was seeking views only on  the topic of s 39(1)(a)(i).  In seeking to have this material accepted, Waturta also selectively quoted s 109 of the NTA by saying that:

The native title party respectfully refers to section 109(1) of the Native Title Act 1993 (Cth) and the requirement for the Tribunal to pursue its functions in a fair, just and informal way. Further the native title party refers to the requirement for the Tribunal to take account of the cultural and customary concerns of the Aboriginal people. Finally the native title party refers to s 109(3) NTA that the Tribunal is not bound by technicalities, legal forms or rules of evidence.

[26]     Whereas s 109 of the NTA in fact says:

109 Tribunal’s way of operating

Objectives

(1)      The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.

Concerns of Aboriginal peoples and Torres Strait Islanders

(2) The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved.

Tribunal not bound by technicalities etc.

(3) The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence. [emphasis added]

[27]     Although Waturta omitted key portions of s 109(2) in their request, I also note s 142 of the NTA which requires the Tribunal to give every party a reasonable opportunity to present their case.  I could have considered that this late request was unreasonable and the parties had already been furnished with the opportunity to present their evidence.  However, in light of s 142 and considering Waturta are the party most likely to be adversely affected by this determination, I formed the view that I would accept the restricted affidavit of Mr Fraser on the basis that it contained information that was relevant to the inquiry. Mr Fraser says he is a senior Wati and senior custodian for a large area which includes the Waturta claim area and I accept he has standing to provide evidence in this inquiry.

[28]     I further formed the view that I would not accept the unrestricted affidavit of Mr Fraser as it did not contain information that was relevant to the inquiry in that it did not make reference to the s 39 matters that I am required to consider in my determination. 

[29]     Having formed this view, I advised the parties that I would only accept the restricted affidavit of Mr Fraser and issued non-disclosure directions.  In light of s 142, I sought the views of the parties on this course of action and sought further submissions from APL and the Government party limited to the restricted affidavit of Mr Fraser.

[30]     The Government party responded that it had no issue with the intended course of action and had no comments.  APL agreed with the refusal of the unrestricted affidavit and held a view the restricted affidavit should also be refused while also providing a response to the restricted affidavit.  Waturta made no submission either way.

[31]     Having examined the parties’ views I remain satisfied with the course of action and have only considered the restricted affidavit of Mr Fraser in this inquiry and the responses to it by the Government party and APL.

[32]     On 11 August 2021 Tribunal staff emailed the parties notifying them that I would also have regard to 4 expedited procedure determinations that relate to Lake Wells and its surrounds (which are detailed in a further section of this determination).  Additionally, this email provided a copy of proposed draft conditions with comments on these draft conditions sought from the parties by 17 August 2021.

[33]     None of the parties indicated issues with having regard to the 4 expedited procedure determinations. Waturta and APL expressed effectively opposing positions in relation to the draft conditions with APL providing both contentions and additional information as set out in the ‘Conditions’ section of this determination.  This additional information enabled the Tribunal’s geospatial staff to construct mapping to which I had regard. The mapping was provided to the parties on 27 August 2021 for comment by 2 September 2021.

[34]     No comments were received from Waturta while the Government party provided a small clarification for the purposes of the construction of the map.  APL submitted it had no concern with my having regard to the map.

Section 39 inquiry material

[35]     Following is a summary of the relevant material before me provided by the parties:

Waturta:

a)        Contentions dated 27 May 2021.

b)        Affidavit of Cornelia Motroni affirmed 17 May attaching affidavit of Mr Kalman Murphy affirmed 27 August 2020.

c)        Affidavit of Mr Kado Muir affirmed 2 June 2021.

d)        Email from Ms Sophie Kilpatrick, Cross Country Native Title Services to the Tribunal advising of Waturta’s s 151 views dated 23 June 2021.

e)        Email from Ms Sophie Kilpatrick to the Tribunal advising of Waturta’s s 39(1)(a)(i) Views dated 21 July 2021.

f)         Restricted Affidavit of Mr Ivan Fraser affirmed 19 July 2021.

g)        Email from Mr Andre Maynard to the Tribunal advising of Waturta’s views on proposed conditions dated 17 August 2021.

APL:

a)        Contentions dated 30 April 2021.

b)        List of Authorities dated 30 April 2021.

c)        List of Documents dated 30 April 2021.

d)        Contentions in Reply dated 19 June 2021.

e)        Reply List of Authorities dated 19 June 2021.

f)         Reply List of Documents dated 19 June 2021.

g)        Affidavit of Mr Ken Green affirmed 18 June 2021.

h)        Affidavit of Mr Matthew Shackleton affirmed 18 June 2021.

i)         Affidavit of Mr Daniel de Gand affirmed 18 June 2021.

j)         APL s 151 views dated 23 June 2021.

k)        APL s 39(1)(a)(i) views dated 23 June 2021.

l)         APL comment on Members intended course of action – unrestricted affidavit of Mr Ivan Fraser dated 28 July 2021.

m)       APL response to the gender restricted affidavit of Mr Ivan Fraser dated 28 July 2021.

n)        APL response to Tribunal’s proposed conditions.

o)        APL response to Tribunals intention to have regard to mapping produced by the Tribunal.

p)        Documents in support which are listed at Attachment 1.

Government party:

a)        Contentions dated 29 April 2021.

b)        Government party Book of Documents in support of contentions dated 29 April 2021.

c)        Contentions in Reply dated 19 June 2021.

d)        Email from Mr Domhnall McCloskey, WA State Solicitors Office with Government party’s s 151 views dated 23 June 2021.

e)        Email from Mr Domhnall McCloskey with Government party’s s 39(1)(a)(i) views dated 13 July 2021.

f)         Email with comments from Mr Anthony Civiello to the Tribunal re unrestricted and gender restricted affidavits of Mr Ivan Fraser dated 28 July 2021.

The s 39 criteria

[36]     The submissions of the parties are extensive.  However, in making a determination, the Tribunal (like any administrative decision maker) is not bound to consider everything that a party has submitted just because it might conceivably be relevant.  A decision maker is only required to take into account what they are bound to consider.

[37]     The criteria that the Tribunal is bound to consider in making a determination are expressly set out in s 39.  As stated previously, the NTA ‘does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence’.

APL’s proposed activities

[38]     Because s 39(1) expressly requires the Tribunal to consider ‘the effect of the act’ on the matters listed, ‘in order to carry out that mandate, it will be necessary for the Tribunal to form a view as to the activities which will be undertaken by a grantee party … and the impact of those activities on the matters referred to in s 39(1).’

[39]     To this end, the proposed leases form a portion of the larger Lake Wells Sulphate of Potash (SOP) project proposed by APL.  The SOP project is situated on the southern portion of Lake Wells which is a salt lake system traversing some 170 km end to end, located in WA’s goldfields approximately 160 km north-northeast of Laverton.  The project itself is in the south western portion of Lake Wells as shown in Attachment 2.

[40] APL has previously been granted a number of mining leases over the larger portion of the SOP project footprint (being mining leases M38/1274, M38/1275 and M38/1276). These look to have been notified under s 29 of the NTA prior to the time the Waturta claim was registered. Therefore APL and the Government party were not required to seek any agreement from Waturta under s 31(1)(b) of the NTA because Waturta was not a native title party at the relevant time.

[41]     Material provided by APL states that the company ‘intends to develop a borefield to pump hyper-saline brines’ from the aquifers in the area ‘into a series of large, shallow evaporation ponds.’   APL sets out that the borefield will comprise 78 bores designed to extract 540 litres/second of brine to sequential evaporation ponds, which in turn will precipitate out common salt (sodium chloride or halite) to increase the concentration of dissolved potassium salts prior to final processing.

[42]     The overall development envelope of the SOP project is shown in Attachment 3.  This development envelope covers 13,951 ha, of which 9,322 ha is termed ‘on playa’ (in the depression of or immediately surrounding the lake bed itself) while 4,629 ha is described as ‘off playa’.

[43]     Of this development envelope, materials provided by APL set out that the estimated disturbance area in the on playa component is 2,470 ha consisting of 2,410 ha of concentrator/crystalliser ponds, a 30 ha bitterns pond and 30 ha of brine borefields which includes pipelines, bore pads and access roads.  From the plan at Attachment 4 of this determination, the area proposed for ponds looks to be around 10km from west to east with a borefield corridor extending some 25 km to the east and another extending in excess of 10 km to the south. Approximately one third of the ponds are proposed to be located on the granted lease M38/1275. The remainder are proposed for the western portion of the proposed lease M38/1287. The eastern portion of M38/1287 and both M38/1288 and M38/1289 are proposed for borefields.

[44]     APL states that concentrator and crystallisation ponds are proposed to be placed predominantly on the existing salt flats (ie lake beds), before concentrate is moved to a set of harvest ponds to the south of the lake for final concentration and processing. From the plan at Attachment 4, the larger proportion of the harvest ponds are located on the previously granted leases M38/1274 and M38/1275.

[45]     APL estimates the life span of the SOP project to be around 30 years after which all infrastructure with the exception of the pond walls on the lake bed will be removed.  It is estimated that by the end of the project life the pond walls will be 12 m high, being lifted approximately every 5 years due to the accumulation of common salt in the ponds.  Additionally, there will be a salt deposit some 5 m thick in the former ponds on the lake bed.

[46]     APL’s intent post closure is to return the land to its pre-mining use of cattle grazing.  APL state that the residual salt bed will dissolve in rain events and gradually dissolve into the existing hypersaline groundwater system, although no time frame is estimated for this process.

[47] The proposed leases are mining leases to be granted pursuant to s 75 of the Mining Act 1978 (WA) (Mining Act). Pursuant to s 78 of the Mining Act the proposed leases would be granted for a period of 21 years, after which they may be renewed. The rights of the holder of the proposed leases are set out in s 85 of the Mining Act and are subject to the Mining Regulations 1981 (WA) and any endorsements and conditions the Government party proposes to impose on the proposed leases.  The endorsements and conditions the Government party has indicated it will apply to the proposed leases can be seen at Attachment 5.  I note that the proposed endorsements and conditions for each of the proposed leases are identical.

Section 39(1)(a)(i) – the effect of the acts on the enjoyment of Waturta’s registered native title rights and interests

[48]     In considering the effect of the acts on the enjoyment of native title rights and interests, the Court has stated this section ‘protect[s] only the physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and does not protect purely religious or spiritual relationships with land’.

[49]     Further to this, the Tribunal has previously determined that:

…evidence needs to be given of how those registered native title rights and interests (whether determined or only claimed) are exercised and enjoyed.  A mere statement, contention or assertion that interests claimed will be effected [sic] without evidence of their current use and the potential impact on them will not suffice to enable the Tribunal to make findings on this point.

[50]     The focus here being on evidence to support both the ‘enjoyment’ of registered native title rights and interests on the land and the impact on that enjoyment. 

[51]     The requirement to consider only registered native title rights and interests gives rise to a particular question in this inquiry.  This arises from Waturta’s contentions where they set out  that:

The area the subject of the Tenements is vacant Crown land.  The NTP is not aware of any prior extinguishment tenure having been in existence over the Tenements.

[52]     This is an incorrect assertion by Waturta as is shown through the materials presented in the course of this inquiry.  The maps referred to in paragraphs [51] and [52] of Waturta v APL I (the good faith inquiry), which were provided by the Government party to Waturta, show the tenure beneath the proposed leases as pastoral lease.  It is also  depicted in Attachment C of the extract of the Register of Native Title Claims for the Waturta native title claim.  The affidavit of Mr Muir also acknowledges the existence of station tracks and there is material in the Government party book of documents which show the underlying tenure to be pastoral lease.

[53]     APL also provided the certificates of title for the Lake Wells pastoral lease from what may be the original grant of the lease in 1968 to the current lease which was registered in 2015.  These certificates demonstrate the area subject to the proposed leases is not vacant crown land, but is pastoral lease.

[54]     Waturta also incorrectly assert at paragraph [14] of their contentions that ‘[w]here such [extinguishing] tenure existed the NTP claim that any resultant extinguishment must be disregarded in accordance with s 47B NTA.’  In this instance however, s 47B of the NTA does not apply.

[55]     The pastoral tenure underlying the proposed leases raises questions in relation to the registered native title rights and interests of the Waturta claim, as s 39(1)(a)(i) requires.  As pointed out by APL, the extract from the Register of Native Title Claims (RNTC) for Waturta sets out the registered native title rights and interests as:

Where there has been no extinguishment of native title rights and interests, or where any extinguishment must be disregarded, the applicant claims the right to possess, occupy, use and enjoy the lands and waters the subject of the application as against the whole world.

[56]     The registration decision of the claim shows non-exclusive rights claimed by Waturta were framed in the same manner as follows:

Where native title rights and interests have been partially extinguished, the applicant claims the non-exclusive right to possess, occupy, use and enjoy the lands and waters the subject of the application.

[57]     In the registration decision, it was determined that the non-exclusive rights claimed by Waturta had not been established on a prima facie basis. As a result, no non-exclusive rights were registered on the RNTC.  As such, only those exclusive rights outlined at [55] have been registered on the RNTC.

[58]     The Government party contends that the phrase ‘where there has been no extinguishment of native title rights and interests, or where any extinguishment must be disregarded’ means that, if the Tribunal accepts there are areas in the Waturta application that have been subject to previous extinguishment, they are not subject to the registered rights and interests.

[59]     APL contends that by virtue of there being prior extinguishment in the form of the pastoral lease, ‘the NTP is not the benefactor of any registered native title rights over the Inquiry Area, and accordingly, s 39(1)(a)(i) NT Act need not be considered further in respect of the Inquiry Tenements.’

[60]     As mentioned at paragraph [21] of this determination, I sought parties’ further views on this issue, in effect to provide Waturta with the opportunity to refine their views.  Waturta provided no further submission on this matter. The Government Party submitted that, given what it had set out previously, the grant of the proposed leases will have no effect on the enjoyment of native title rights and interests within the meaning of s 39(1)(a)(i) and the Tribunal should make a finding to this effect.

[61]     APL reiterated its views and stated that:

2.7      It therefore follows (by reference to the Register of Native Title Claims) that no native title right (more particularly, no native title right of exclusive possession) is claimed and registered over the area of the Inquiry Tenements.

2.8      In the absence of any registered native title right over the area of the Inquiry Tenements, s 39(1)(a)(i) NT Act need not be considered further.

[62]     I don’t share the view that no native title rights or interests are claimed over the area.  The claim of exclusive native title is registered over the entirety of the proposed licences. This gives rise to the procedural rights and this inquiry.

[63]     Further to this, although Waturta assert there is no prior extinguishment on the area of the proposed leases, having further ventilated the issue to the parties I decline, as the Government party and APL have sought, to make a finding that s 39(1)(a)(i) does not apply in this instance.  

[64]     While I can see the logic of the argument APL and the Government party are presenting, s 39(1)(a)(i) does not require the Tribunal to determine whether or not exclusive native title is possible over the area of the proposed leases nor what non-exclusive rights or interests the Court may choose to determine instead.  At present, the RNTC shows there are registered rights and interests over the area of the proposed leases.  As such, the Tribunal is required to assess the factual material before it which shows ‘how those registered native title rights and interests (whether determined or only claimed) are exercised and enjoyed’ in the area subject to the act and how the act impacts upon the physical enjoyment of these registered rights.

[65]     Ultimately however, little hinges on the question of whether there may or may not be registered native title rights in the specific area of the inquiry.  I am of the view that the material placed before me by Waturta is insufficient for me to conclude there will be an adverse effect on the registered native title rights that is the ‘right to possess, occupy, use and enjoy the lands and waters the subject of the application as against the whole world.’ 

[66]     There is some evidence about how the registered native title rights are exercised in the area of the proposed leases. It is found in the affidavits of Mr Murphy and Mr Muir.  The evidence however, is cast in general terms.

[67]     Mr Muir asserts it is his understanding that the rights asserted have ‘been recognised on a factual basis when the Waturta claim was entered onto the Register of native title claims.’  This is not correct however, they were accepted on a prima facie basis for the purposes of claim registration. 

[68]     Mr Muir further asserts that ‘the grant of the mining lease[s] will prevent me and my fellow common law native title holders from exercising’ the registered rights.   On this, Mr Muir and Waturta group members are native title claimants rather than holders, although it is accepted that the ‘Tribunal is required to assume the existence of the native title rights entered onto the Register’ for the purposes of determinations such as this.

[69]     Mr Muir states that the registered rights and interests (being exclusive possession) include (but are not limited to) the:

…right to access take and use the natural resources of the land, the right to access the land, the right to hunt and collect food on the land, the right to teach my young people about our culture and our history, the right to speak for the land, the right to make decisions about the land.

[70]     Mr Muir further sets out that members of the Waturta group ‘currently enjoy the right to access, take and use the natural resources of the land, this includes water, flora, fauna, clays and ochre found within these lands’; that ‘[i]t is currently our native title right to access the land at any time and at our convenience’; that  ‘[w]e currently enjoy an unencumbered right to hunt and gather food and collect bush medicines on the land the subject of the mining tenement applications’; and that ‘[t]he right to teach my young people … is maintained by accessing the land’.  There is however, no specific evidence on the actual ‘enjoyment’ of these rights (as required by s 39(1)(a)(i)), the frequency of this enjoyment, the persons involved, or how the grant of the proposed leases will affect the enjoyment of these rights.

[71]     Mr Murphy refers to hunting and camping in the general area ‘when I was growing up.’  Again however, there is no specific evidence that has been provided as to the current enjoyment of these rights or as to how the grant of the proposed leases may affect them.

[72]      As set out previously a ‘statement, contention or assertion that interests claimed will be effected [sic] without evidence of their current use and the potential impact on them will not suffice to enable the Tribunal to make findings on this point.’  What is required is evidence about how those asserted rights are actually enjoyed, and then evidence on the effect of the act on that enjoyment.

[73]     The Tribunal must take a common sense approach to the factual material before it and unfavourable inferences can be drawn if there is insufficient material to support a party’s claim.  Applying this approach to the evidence before me, I consider there is insufficient material to indicate the acts will have an adverse effect on the exercise of Waturta’s registered native title rights and interests.

Section 39(1)(a)(ii) – the effect of the acts on Waturta’s way of life, culture and traditions

[74]     In Waljen, the presiding members remarked that ‘[a]s with the previous criterion there will need to be evidence of the way of life, culture and traditions of the native title parties and of the effect of the proposed act on them.’  Member Sosso expanded on this in White Mining v Wonnarua by saying that ‘[i]n order for the Tribunal to sensibly evaluate the likely effect of the doing of the future act on the matters contained in s 39(1)(a), there must be evidence from which inferences can be drawn and scenarios developed.’

[75]     As expressed by Member Sosso, the grant of mining title will create impacts however:

…with respect, one can only evaluate the likelihood of any future negative impacts of the grant of the tenement if there is evidence before the Tribunal about the contemporary way of life, culture and traditions of the claim group and how that way of life, culture and tradition manifests itself on the subject land.

[76]     Waturta provide contentions that are general in nature and are not supported by evidence as to why their contentions may be correct from their point of view.  The affidavit of Mr Muir speaks in terms of Waturta’s right to do certain things as part of their way of life, culture and traditions. However his affidavit doesn’t take the next required step in relation to an inquiry such as this and provide evidence of the actual doing of these things and how these may be impacted upon by the grant of the proposed leases.  As the Government party contends, it is not shown how these asserted rights are exercised.

[77]     As such, I consider the general evidence provided by Waturta is insufficient to find that the acts will have an adverse effect on Waturta’s way of life, culture and traditions.

Section 39(1)(a)(iii) – the effect of the acts on the development of Waturta’s social, cultural and economic structures

[78]     Waturta submit that if the proposed leases are granted ‘without the GP having the obligation to engage with the NTP’ then the grant of the proposed leases and the SOP project will have a negative effect on the socio-economic structures of the Waturta people.   Waturta continue by setting out that, despite the long standing operation of the mining industry in the WA Goldfields, the socio-economic standing of Aboriginal people remains very low.  They express a lack of confidence in APL to deliver on any commitments it may have in relation to Waturta social and economic structures. 

[79]     While it would seem uncontroversial that the Aboriginal community of the Goldfields suffer from a low socio-economic status despite the long standing history of the mining industry in the region, this point is not the subject of this inquiry.  Rather, what is required of Waturta is to set out what the social, cultural and economic structures are in relation to the area of land that is subject to the proposed leases, how Waturta are engaged in these structures and how these will be negatively affected by the acts of granting the proposed leases.

[80]     Mr Muir expresses dismay at the notion of the proposed leases being granted without an agreement with the Waturta people.  This is understandable, however as outlined in Waturta v APL I at paragraphs [47] – [59], it appeared as though Waturta and APL had made positive progress on reaching agreement. This was prior to Waturta’s representatives instead pursuing issues with the Government Party around the State Deed rather than finalising a possible agreement with APL. Ultimately this action was not fruitful and APL made applications to the Tribunal for this determination.

[81]     The issue raised in Mr Muir’s affidavit which has most relevance to the s 39(1)(a)(iii) criterion is that surrounding sandalwood harvest.  Mr Muir states that the Forest Products Commission (FPC) have notified Waturta of an intention to conduct a sandalwood salvage harvest over approximately 2000 hectares which he states ‘is directly related to the development and operation of the Lake Wells Potash mine’. 

[82]     Mr Muir also sets out that upon Waturta raising issues with the FPC, it has been referred to the Native Title division of the State Solicitors Office, the implication being it may be subject to a separate future act notification and consultation process under Part 2 Division 3 of the NTA.  APL note however, that no other information is provided on this particular issue aside from that which is in the affidavit of Mr Muir.

[83]     Mr Muir further sets out his view that:

‘[t]his is an example of how the grant of mining tenure to the Grantee Party … without due regard to the economic development structures of the native title party has negative effect on our capacity to develop economic structures.’ 

[84]     While this issue is raised, no further particulars are provided to enable me to measure what effect this will have on Waturta.  Details such as the prevalence of sandalwood on those particular areas or information about the economic structures (and their activities) of the Waturta people in this context would have enabled me to engage with this issue in the context of s 39(1)(a)(iii).  Unfortunately this did not occur, so I am unable to do so.

[85]     Overall, APL contends the SOP project will have a positive impact on Waturta’s social, cultural and economic structures due to the availability of employment, funding of training, provision of communications infrastructure to the Cosmo Newberry community and a number of other factors.  These are addressed more completely below in the section regarding s 39(1)(e) – Public Interest.

[86]     Again though, due to the general nature of the evidence provided by Waturta in relation to this criterion, I cannot find the grant of the proposed leases will have an adverse effect on the development of Waturta’s social, cultural and economic structures.

Section 39(1)(a)(iv) – the effect of the acts on Waturta’s freedom of access to the land and waters, and freedom to carry out rites, ceremonies or other activities of cultural significance

[87]     This section requires the Tribunal to consider the tangible effect on the native title party’s ‘contemporary accessing of the subject land.’

[88]     The Waturta contentions and the evidence from Mr Muir about s 39(1)(a)(iv) is quite general.  Mr Muir expresses concern that the ‘two station tracks traversing M38/1287 and M38/1288 … are the main routes we use when driving through Waturta country to access ceremonial places, when hunting and when otherwise exercising our native title rights to enjoy freedom of access on our land.’  Mr Muir states that this includes the ability to access the Mt Gerard Protected Area, the headwaters of the Yilly Yilly Creek and ceremonies at a site referred to as ‘the Stone arrangement’.

[89]     APL contends that, to the extent the grant of the proposed leases may impact on the ability to access these places, there remain alternate routes that could be used and provides a map for these routes.  This map shows interruption of a road that proceeds across the lake and through M38/1287 however it also shows that roadways in closer proximity to Mt Gerard reserve and a western approach to Yilly Yilly Creek (on the western extension of the interrupted road) remain uninterrupted and intact.  APL also note it will provide road upgrades for approximately 80 km of public road to improve access to the SOP project.

[90]     Additionally, I also note the Government party intends to impose the following condition on each of the proposed leases (which will also bind any assignee) (GVP13):

Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the mining tenement is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.

[91]     I consider the general evidence provided by Waturta is insufficient to find the acts will have an adverse effect on Waturta’s freedom of access to the land. In these circumstances, the Government party’s condition should provide sufficient access protection.

Section 39(1)(a)(v) – the effect of the acts on any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions

[92]     The expression ‘areas or sites of particular significance’ is also used in s 237(b) of the NTA.  To be of ‘particular significance’, an area or site must be of special or more than ordinary significance to the native title party according to their traditions and it must be known, able to be located and its significance able to be explained to the Tribunal. 

[93]     There is a significant amount of information in relation to Lake Wells and its significance, although there are some differences in the materials put forward.  The information before me from the materials provided by the parties includes:

1.        April 2016 Heritage Assessment of the Strawbridge Project for Anglo Gold Ashanti by Daniel de Gand.

2.        November 2016 Aboriginal Heritage Assessment of Lake Wells Project for Goldphyre Resources Ltd by Daniel de Gand.

3.        January 2020 Report on Aboriginal Heritage Assessment of the Lake Wells Project for APL by Daniel de Gand

4.        Affidavit of Mr Kado Muir.

5.        Affidavit of Mr Daniel de Gand.

6.        Gender restricted affidavit of Mr Ivan Fraser.

7.        Affidavit of Mr Kalman Murphy.

[94]     There are also a number of Tribunal determinations relating to the expedited procedure of the NTA that I have had regard to insofar as they relate to areas or sites of particular significance within the area of the proposed leases.  These are:

1.        Waturta v Ausgold 

2.        Waturta v Lake Wells Exploration 

3.        Waturta v Piper Preston

4.        Waturta v APL II

[95]     The Government party book of documents also contains searches of the Register of Aboriginal Sites kept under the Aboriginal Heritage Act 1972 (WA) (AHA). The searches show there are no registered sites in any of the proposed leases, however there are three areas listed as ‘Stored Data/Not a Site’ which are named Marlutja (Lake Wells), Kurumin and Witan. APL notes that when an area is listed as ‘Stored Data/Not a Site’ it has been assessed as not meeting the requirements of s 5 of the AHA. On this, Mr Muir states that he has attempted to have Marlutja (Lake Wells) registered under the AHA however has been unsuccessful and is of the view this diminishes the protection under the AHA.

[96]     Turning to the three Aboriginal heritage assessments by Mr de Gand, who I accept has significant experience in the area as a consulting anthropologist, these were conducted in study areas that were either partly or entirely over the areas of the proposed leases. 

[97]     In relation to the participants in each of the surveys undertaken as part of the heritage assessments, Mr de Gand states in his affidavit that:

The Traditional Owners who participated in the APL Surveys comprised some of the most senior Traditional Owners having cultural affiliation with the respective survey areas  …  These were acknowledged by all participants in each respective survey as being senior Traditional Owners.  In my opinion, they were, and are, similarly regarded as senior Traditional Owners by their respective communities.

[98]     Mr de Gand notes in his affidavit that Mr Muir and Mr Fraser were survey participants for the April 2016 heritage assessment.

[99]     The April 2016 heritage assessment identifies sites in the Farquharson Tablelands to the north and northeast of the proposed leases.  Both the April 2016 and the November 2016 heritage assessments note the existence and location of a site named Taralgutara which is a registered site (site ID 3156) located within the Mt Gibson Protected Area some 15km to the north west of proposed lease M38/1287.  In his affidavit, Mr de Gand also states that elder and informant Mr Mindie Chapman (now deceased) indicated this site is on a Yiwarra, a dreaming track or path, that went from east to west.

[100]    Additionally, in each of these three heritage assessments, the traditional name for Lake Wells is given as Lalalganna.  In his affidavit, Mr de Gand states he was also informed of this by Mr Chapman.

[101]    The January 2020 heritage assessment was specifically focussed on APL’s Lake Wells SOP project.  This included a field visit to the footprint of the SOP project which includes the proposed leases subject to this inquiry and what looks to be the previously granted mining leases and a number of surrounding exploration licences.  The January 2020 heritage assessment notes a number of sites to the north and northwest of the SOP project footprint being Taralgutara, Manta Tapia (described as a site complex to the north west of the Lake Wells SOP project) and a site complex in Yilly Yilly Creek described as being north of the project area.

[102]    In all three heritage assessments Mr de Gand also sets out that:

The Kanyala Tjukurpa Yiwarra (Kanyala Dreaming Track) features strongly north of the Lake Wells Project Area and traverses these areas diagonally from the northwest to the Southeast outside of the Lake Wells Project Area. Associations with this Dreaming Track feature in the form of discrete Sites. The mythological narrative of the ancestral beings’, i.e. the Kanyala, ancestral being, activities in the region, connects these Sites and provides the substance of the mythological narrative. Discrete Sites connected by the narrative of the Kanyala are located northwest and north east of the Australian Potash Ltd work areas. Senior Men did not identify the yiwarra (track) as having profound heritage significance and consequently the track is not subject to heritage recommendations. The discrete Sites on the other hand have profound heritage significance.

[103]    This information adds to the picture of the cultural heritage that is evident in the area and indicates that the dreaming track itself isn’t the area of particular significance, but the places along it are.

[104]    In his affidavit, Mr de Gand refers specifically to Lake Wells itself and to the January 2020 heritage assessment:

An outcome of the APL Surveys was that the Traditional Owners who participated in those surveys did not express any concern as to development over the area … [of] the APL Development Envelope

and that

At no time during any of the APL Surveys did any participating Traditional Owner say that Lake Wells was an Aboriginal site, as that phrase is defined by the Aboriginal Heritage Act 1972 (WA), or otherwise say Lake Wells was a place of particular significance.

[105]    This is in contrast to the evidence put forward by Mr Muir in this inquiry who says that ‘Marlutja’ or Lake Wells is a site of particular significance.  Mr Muir states it is part of a cultural landscape that includes two significant dreaming stories or Tjukurrpa and is an important feature on traditional travel routes.  Mr Muir says:

The Marlu Tjukurrpa is one of our most important tjukurrpa stories … The Marlu Tjukurrpa Yiwara dreaming comes down through Lake Wells from the north and west then exits the lake east of these mining tenements and heads down towards Cosmo and Minnie Creek.

[106]    Mr Muir further says:

The Manta Tjapia “sensitive’ Tjukurrpa, is an important secret men’s only area and has associated sites in the Farquharson Tablelands immediately to the north of Lake Wells.  Two of the associated sites [are] the Mr Gerard Protected Area … and Yilly Yilly Creek.

and that

The manta tjapia area (Farquharson Tableland) is where two big desert dreaming stories cross over.

[107]    The restricted affidavit of Mr Fraser provides a further element to Mr Muir’s evidence above, although Mr Fraser’s affidavit is more concerned with the upper reaches of Yilly Yilly Creek with an associated connection to Lake Wells.  Mr Fraser’s affidavit concerns a second tjukurrpa that crosses the marlu tjukurrpa on the lower parts of the Farquharson Tablelands and which runs from west to east, connecting to a dreaming that goes through to South Australia.  Mr Fraser states that Lake Wells is part of this Tjukurrpa.

[108]    Turning to previous Tribunal determinations in and around the area of the proposed leases, while they each deal with separate areas, there are commonalities that are of relevance to this inquiry.  In the first instance, the Marlu Tjukurrpa Yiwara and its associated pathway features heavily in each of these determinations and is noted as travelling in a north/south direction through or around each of the tenements that were the subject of these determinations.  The determinations also noted that, with the exception of Waturta v Piper Preston, Waturta do not argue that the dreaming track itself is of particular significance, but that the places along it are.

[109]    A number of these determinations also note a significant area known as Marnta Tjapia which is described as a complex of sites on the southern portion of the Farquharson Tablelands, immediately to the north of the proposed leases, which includes the Mt Gerard Protected area and the headwaters of Yilly Yilly Creek. 

[110]    In Waturta v Lake Wells Exploration, Marnta Tjapia was explained as a site complex where two major tjukurrpa yiwara intersect, one being the Marlu tjukurrpa which runs generally from the north to the south generally along the Lake Wells landforms, and another more sensitive and restricted tjukurrpa running west to east generally along the Farquharson tablelands to which the gender restricted affidavit of Mr Fraser relates.  In Waturta v Lake Wells Exploration, because of the Marnta Tjapia complex, the southern area of the Farquharson tablelands was accepted as a site of particular significance.

[111]    In both Waturta v Piper Preston and Waturta v APL II, Lake Wells itself was accepted to be a site of particular significance, although express limits were applied in Waturta v Piper Preston. 

[112]    Like in Waturta v Piper Preston, in this inquiry the Government party accepts that Lake Wells is a site of particular significance. However APL contends there is little assistance that can be gained from Waturta v Piper Preston, Waturta v Ausgold and Waturta v APL II in this inquiry and that, in light of Mr de Gand’s evidence, the Tribunal should find no areas of particular significance exist in the area of the proposed leases.

[113]    I disagree with APL that little can be taken from the previous Tribunal determinations but I do agree that Mr de Gand can be considered credible and has a high level of knowledge in the area.  I also note that while there are differences between the heritage assessments by Mr de Gand and the evidence from Waturta members provided in this inquiry, there are also consistencies with and between the previous Tribunal determinations noted here.

[114]    The previous Tribunal determinations I refer to above, in conjunction with the evidence provided in this inquiry generate a strong picture of a significant cultural landscape that exists in and around Lake Wells which plays a significant role in the traditions and culture of the Waturta people and beyond.  Like some of the previous Tribunal determinations noted above, in this inquiry Waturta don’t assert the dreaming track of the tjukurrpa itself is of particular significance, rather it is the places associated with it that are.  One of these places is Lake Wells.

[115]    As a result of the above material, I find that Lake Wells is an area of particular significance to the Waturta people for the purposes of s 39(1)(a)(v) in accordance with their traditions.

What is the effect of the grants on areas or sites of particular significance?

[116]    That there will be an effect on the area of the proposed leases is beyond doubt.  There will be considerable physical infrastructure that will be in place for at least 3 decades and following closure, there will remain a series of 12m high walls on M38/1287 in addition to a bed of common salt which is expected to be 5m in thickness.  This is set to dissipate into the unconfined aquifer, however there is no estimate as to how long this dissipation will take.

[117]    The effect on the area of M38/1288 and M38/1289 will be considerably less.  Although there will be some effect, based on the map at Attachment 4, this effect looks to be principally borefields (comprised of pipelines, bore pads and access tracks) and much of this infrastructure will not be on the lake bed itself, but adjacent to it.  This infrastructure is set to be decommissioned and removed at closure.

[118]    Without wanting to trivialise the effect the grant of the proposed leases and the SOP project might have, the level of ground disturbance set out for this proposal does contrast with mining projects such as an open cut mines.  It is the natural basin provided by the lake bed itself that will underlay the SOP project and remain intact.  Additionally, the SOP project area covers a small proportion of the overall area of Lake Wells, which may mitigate any overall effect.

[119]    Whether these factors mitigate any effect or not from the point of view of the Waturta people is difficult to determine as the Waturta evidence focusses on whether the area of Lake Wells is a place of particular significance rather than detailing any potential effect of the acts.  In his affidavit Mr Muir does state that:

As a wati, I have responsibility to care for country and look after tjukurrpa.  If something happens to the tjukurrpa in my country then I will get in trouble from other wati and I will feel shame, kunta, and lost respect because I was not able to protect the tjukurrpa.  If the tjukurrpa is interfered with then we could lose an important part of the story.

And that

there is a very high likelihood that the carrying out of these activities will disturb the country and Tjukurrpa and cause irreparable physical and spiritual harm.

[120]    Similarly, the restricted affidavit of Mr Fraser focusses on the significance of the area rather than the effect of the grant of the proposed leases.  While the affidavit from Mr Murphy for Waturta v APL II and tendered in this inquiry expresses his obligation to protect Lake Wells and to stop interference caused by drilling and other ground disturbing activities that might disrupt the tjukurrpa, much of the information in this affidavit is concerned with the significance of the area.

[121]    As in White Mining v Wonnarua, ‘[i]n order for the Tribunal to sensibly evaluate the likely effect of the doing of the future act on the matters contained in s 39(1)(a), there must be evidence from which inferences can be drawn and scenarios developed.’  While I can draw general inferences that there will be an effect, evidence as to what these effects might be needs to be set out by Waturta.

[122]    While Waturta broadly contend the three heritage assessments are deficient, they must be given some weight as the three related surveys were conducted with persons who are described as senior men, two of whom were on all three surveys and one who was present in both the January 2020 and April 2016 assessments. 

[123]    The January 2020 heritage assessment was focussed exclusively on the proposed SOP project area (as noted in Attachment 4 of this determination).  In the assessment, Mr de Gand reports that, upon surveying the entire SOP project area, the survey team members ‘stated that the proposed infrastructure could proceed as planned.’  I am not of the view that this diminishes the particular significance of Lake Wells to the Waturta people, however it does indicate a level of comfort with the SOP project (as proposed) which draws the conclusion that the Waturta group members did not consider the SOP project would have a significant effect on this area of particular significance.  I note that, since the January 2020 heritage assessment, the SOP project area has been modified as can be seen from the map at Attachment 6.  However, I do not consider the modification sufficient enough to materially change my findings here.

[124]    The Government party contends that its terms and conditions and in particular the extra conditions proposed (Attachment 5) will limit or avoid the concerns of Waturta given they require notice to Waturta prior to different types of activity.

[125]    On the basis of the January 2020 heritage assessment and in the absence of sufficient evidence from Waturta as to the effect of the grants on the area of particular significance, the only inference to be drawn is that the SOP project (as noted in Attachment 4 and as modified in Attachment 6) will not have an adverse effect on Lake Wells as an area of particular significance.

Section 39(1)(b) – Waturta’s interests, proposals or wishes in relation to the management, use or control of the land or waters where there are native title rights and interests that will be affected by the acts

[126]    In his affidavit, Mr Muir requests that that if the proposed leases are granted, Waturta seeks conditions ‘preserving our unencumbered right’:

•     ‘to possess, occupy, use and enjoy the lands and waters the … as against the whole world’;

•     ‘to access take and use the natural resources of the land, including water, flora, fauna, clays and ochre found within these lands at any time’;

•     ‘to access the land at any time’;

•     ‘to hunt and gather food … at any time’; and

•     ‘to teach my young people about the land, our culture and our history’.

[127]    In the alternative, Mr Muir states Waturta seeks ‘a condition for the grant of this tenement is for the parties to enter into an access agreement’ (49-53).  Although Mr Muir asserts that Waturta have ‘unencumbered rights’, as noted previously, the evidence regarding the enjoyment of these rights is very general.  

[128]    In relation to the above wishes, whether any conditions are required or permitted will be discussed under the heading below which relates to conditions.

[129]    I note that whilst the 2020 heritage assessment states ‘that the Senior Aboriginal heritage consultants provided their consent for the Proposed Works … as stipulated in this Report’ it recommends that if APL ‘intends to extend their Project Area and/or alter their Proposed Works Program (as stipulated in this Report) … then these should be discussed, prior to any ground disturbing activity, with the Aboriginal Heritage Consultants and further heritage surveys [be] conducted where deemed necessary’.

[130]    It appears from the Heritage Assessment that the Aboriginal Heritage Consultants gave their consent to the proposed works on the SOP Project Area because it contained ‘no Breakaways, Hills or Creeks’. The Aboriginal Heritage Consultants considered these areas had ‘potential Aboriginal Heritage Significance’ and requested these areas ‘be avoided and exempt from Work Programs that could permanently impact and damage such areas’ with a 50-meter exclusion zone.  However, they stated that ‘Work Programs which do not permanently impact these areas, such as, but not limited to: rock and soil sampling, ground electromagnetic assessments, travel across areas by 4WD, etc. can be conducted’.

Section 39(1)(c) – The economic or other significance of the acts to Australia, the State, the area and Aboriginal peoples who live in the area

[131]    Waturta contend that the SOP project is of medium scale and of moderate economic significance.  Further, Waturta contend that the project will have no or a negative economic effect unless APL positively engage with them.  Waturta then contend that the long history of mining in the Goldfields has delivered no real benefit to their community given the low socio-economic status of the Aboriginal community in the Goldfields region general. 

[132]    APL accepts the SOP project is of a moderate economic significance to Australia and the State, however it contends the project is of great significance to the local area, including Laverton and Cosmo Newberry.  This is due to the investment in a STEM programme at Laverton School of approximately $100,000 per year and the development and operational funding of a TAFE facility modelled on the Martu-ku Yiwarra Training Centre in Wiluna to provide a training pathway to local employment.  APL also contends a strong local significance will be brought about by the installation of communications infrastructure to the SOP project that will bring internet connectivity and presumably mobile phone coverage to Cosmo Newberry.

[133]    The installation of communications infrastructure will be a direct benefit to the local people who live in the area.  The proposed investment in the STEM programme and TAFE facility are similarly positive initiatives although, on the evidence provided, they are not specifically targeted at Aboriginal people. However, by virtue of the demographics of the area, these initiatives could expect to have some impact for the local Aboriginal community.

[134]    Although these initiatives are positive, APL haven’t provided evidence of the effectiveness of the Wiluna TAFE facility that the proposed Laverton TAFE facility is modelled on nor any proposals for Aboriginal employment and/or contracting opportunities. 

[135]    Even so, I consider the grant will be of moderate significance to Australia and the State, and of some significance to the local area and to the Aboriginal people who reside in the area.

Section 39(1)(e) – Any public interest in the doing of the acts

[136]    Waturta acknowledge there is a moderate level of public interest in the doing of the acts, however they contend this is countered by other negative effects such as the potential impact on the environment, on areas and sites of cultural significance and on the socio-economic status of Aboriginal people.

[137]    APL includes in its documents a public benefits assessment (APL Document 46) and argues the SOP project will generate an overall economic benefit of $2,726.6 million over 30 years and will be ‘of great significance to the local area.’  As indicated previously, the public benefits assessment notes APL will contribute 25% of the operating costs for a TAFE facility at Laverton, is likely to employ 25-30 local people, and intends to design, construct and manage a communications network that will ‘provide high speed bandwidth to the site and the surrounding area … giving 181 people (or 99 dwellings) access to internet services’ including ‘the 57 residents at the remote Cosmo Newberry Aboriginal community.’

[138]    There is also public benefit in the recognition, management and protection of Aboriginal cultural heritage and sites which Waturta contend counter any positive outcomes that may occur in other areas of public interest.  I would agree there is a deleterious effect for any project should it have an effect on places of particular significance, however the effect can only be measured on the evidence provided, which I note above was insufficient in this matter.

[139]    Overall, I accept the grant of the proposed leases is in the public interest as it will contribute to the development of the local area and contribute to the State in a moderate way, including training, employment, improved infrastructure and the increased domestic supply of SOP.

Section 39(1)(f) – Any other matter the Tribunal considers relevant

[140]    I am of the view that there are no other relevant matters that have not already considered above or incorporated below in my consideration regarding conditions.

Conditions

The power to impose conditions

[141]    In Evans v Western Australia at [213], Nicholson J noted:

there is nothing in s 38(1)(c) which expressly limits the nature of conditions other than s 38(2) ... The subject matter of the conditions appears to be shaped by the broad purpose there be a determination of the act and by the requirements of s 39 that in making its determination the arbitral body must take into account the criteria there listed.

[142]    Therefore, in imposing conditions, there should be material which supports their imposition.  For example, conditions can be imposed to minimise any adverse effect on the native title holders’ rights and interests if the material before the Tribunal justifies it (see, for example, Re Koara People at [93], and more recently India Bore Diamond v Bunuba at [52]).

[143]    Further, in Evans v Western Australia at [213], Nicholson J noted:

the evident purpose of s 38 … is to have the arbitral body finally determine the issues where negotiations between the parties have failed to do so ... I regard it as inherent in s38 the arbitral body not leave the outstanding issues between the parties unresolved.

Contentions regarding conditions

[144]    In addition to considering those matters in the affidavit of Mr Muir discussed at [126] and [127] of this determination, Waturta contend I should impose the conditions that:

(a)       All Endorsements and Conditions outlined in the Government Party Book of Documents.

(b)       All Extra conditions offered by DMIRS outlined in the Government Party Book of Documents.

(c)       APL pays to the Waturta a Milestone Payment of $50,000 per tenement.

(d)       Conditions 1 – 9 as outlined in the Waturta contentions.

(e)       Any other conditions the Tribunal considers reasonable.

The Government party’s endorsements and conditions

[145]    Waturta do not explain why I should impose the endorsements and conditions that will already be set by the Government party.  As contended by APL, an endorsement is a device to bring something to the attention of the Grantee party including existing statutes, instruments and statutory rights of certain officers of the Government party and a number of which concern interests other than Waturta.  In the absence of any reasons for why, I do not consider it appropriate to impose the Government party’s endorsements and conditions as conditions for this determination.

Milestone Payment

[146]    Waturta argue that a condition for annual payments of $50,000 per lease will provide a positive social and economic impact on Waturta per s 39(1)(a)(iii).  They argue that such a condition would not offend s 38(2) which prohibits the Tribunal from imposing any condition that entitles a native title party to payments worked out by reference to the amount of profits made, income derived or things produced by the grantee party after the act is done.

[147]    The Tribunal has accepted that payments for land disturbance is permitted such as in Gold Road v Murray at [14]-[17]. In that matter however, the parties were in agreement about the payments and s 39(4)(a) of the NTA requires the Tribunal to take matters of agreement into account when making a determination. In this matter there is no such agreement and I can make no such condition.

Waturta Conditions 1 – 9

[148]    The conditions being sought by Waturta run over 14 pages and consist of in excess of 50 clauses.  In summary they are:

1.        The development of a caring for country program (including an annual $50,000 implementation payment), a cultural heritage management plan, and environmental management plan and consultation on a mine closure plan.

2.        The audit of APL compliance of condition 1 on an annual basis.

3.        Penalties for late payments if payments are provided for in conditions.

4.        Setting of a procedure for when making applications under s 16 or 18 of the AHA.

5.        Requiring APL to cover reasonable legal costs and disbursement of Waturta in relation to any conditions.

6.        Setting requirements for the employment of Waturta people.

7.        Setting requirements for the contracting of Waturta business.

8.        Setting a requirement to act in good faith and use best endeavours in employment and contracting.

9.        A requirement to conduct an annual meeting with Waturta.

[149]    In in effect, what is sought by Waturta is what might be expected in a s 31 agreement between the parties but in light of agreement not being reached, I can understand the rationale behind Waturta seeking these conditions to be set.  In the context of this inquiry however, Waturta have not provided specific material or evidence that supports the imposition of these conditions. 

[150]    Similarly, in relation to the requests put forward by Mr Muir in his affidavit, as in other areas in this inquiry, the material is general and there is little evidence that explains these requests.  Making assertions and requests to do certain things is well within the rights of the native title party to do, however this must be supported by evidence upon which the Tribunal may act.

Proposed draft conditions

[151]    In the process of considering whether to impose conditions, I took into account the proposal of Waturta noted at paragraphs [129] and [130], namely that if APL seek to extend their project area or alter their works program, then discussion should occur and further heritage survey be conducted where necessary.  As a result of this I sent the proposed draft conditions set out at Attachment 7 to all parties for comment.

[152]    Waturta commented they agreed with the draft conditions however put forward they should not be limited to the proposed leases but should apply to the entire project area.  The acts being examined in this inquiry are that of the grant of the proposed leases with the remainder of the project area consisting of previously granted mining leases.  Nothing in s 38 of the NTA permits the Tribunal to impose conditions on any other acts besides the act or acts subject to the inquiry.  As noted in Re Koara, the Tribunal has no power to impose conditions after a determination has been made, or in the case of previously granted leases, after an act has been performed.   As such, conditions here are limited to the proposed leases.

[153] The APL response was that the draft conditions should not be applied and also provided suggested amendments should they ultimately be applied. APL also provided 2 further documents. The first was request for change to proposal under section 45C of the Environmental Protection Act 1986 (WA) which details an overall reduction in the area of land to be disturbed by the SOP project and a slight amendment to the development envelope in M38/1288 and M38/1289 which will have the effect of moving the proposed pipeline a small distance further south and away from Lake Wells.

[154]    The second document is correspondence from the WA Minister for Aboriginal Affairs dated 9 April 2021 providing s 18(3) AHA consent over the SOP project area which includes the following mining leases and exploration licenses:

•         M38/1274

•         M38/1275

•         M38/1276

•         E38/1903

•         E38/2113

•         E38/2988

•         E38/3021

•         E38/3028

•         E38/3224

•         E38/2742

[155]    The Tribunal’s geospatial unit developed mapping of this area and Tribunal staff provided it to the parties for comment.  A copy of this mapping is provided in Attachment 8 showing the full extent of the area with s 18 consent.  It is noteworthy that this area includes the Mt Gerard protected area which contains the site Taralgudara.  This area is located outside of the proposed leases so is beyond the scope of this inquiry and any conditions I may impose.

[156] APL made a number of arguments opposing the imposition of the proposed draft conditions, including raising questions as to whether s 39(1)(a)(i) could be used as a basis for conditions given its view that there are no registered native title rights and therefore that s 39(1)(b) does not apply either. I have addressed that question at paragraphs [63]-[64] above. APL also raised questions about whether conditions may be applied from findings in s 39(1)(a)(v) due to its view that there are no sites of particular significance, but again I answer this question at paragraph [115].

[157]    APL also argues the draft conditions would have little utility.  As mentioned above, in responding to the draft conditions, APL provided its s 18 AHA consent from the Minister for Aboriginal Affairs which the Tribunal subsequently mapped and distributed to the parties.  This mapping highlights several things, first the full extent of the project area as expressed by those tenements for which s 18 AHA consent has been granted. Second, that there are no breakaways, hills or creeks in the area of the proposed leases. As noted in the January 2020 heritage assessment, Waturta only requested additional surveys if ground disturbing work was to be conducted in areas that contained such features.

[158]    Having considered the parties’ submissions and the Tribunal mapping, I will not impose conditions on this occasion.

Determination

[159]    The determination of the Tribunal is that the acts, being the grant of M38/1287, M38/1288 and M38/1289 may be done.

Glen Kelly

Member

8 September 2021ATTACHMENT 1

APL Material

Reference

Description

APL Doc 29

Extract from Register of Native Title Claims for WC2018/012, Waturta (7pp) - dated 17 August 2018

APL Doc 30

ASX Announcement – Definitive Feasibility Study, Outstanding Outcomes Over 30 Year Mine Life (46pp) – dated 28 August 2019

APL Doc 31

ASX Announcement – Agreement with Geraldton Port (3pp) – dated 9 September 2021

APL Doc 32

Presentation - Definitive Feasibility Study (32pp) – dated September 2021

APL Doc 33

Report for Australian Potash Ltd - Aboriginal Heritage Assessment of the Lake Wells Project by Daniel de Gand (76pp) – dated January 2021

APL Doc 34

Agreement -  Authority to conduct water exploration activities between APL and Lake Wells Exploration Pty Ltd (3pp) – dated 27 March 2021

APL Doc 35

Mineralisation Report for M38-1287 in support of mining lease application (40pp) – dated 26 June 2021

APL Doc 36

Mineralisation Report for M38-1288 in support of mining lease application (40pp) – dated 26 June 2021

APL Doc 37

Mineralisation Report for M38-1289 in support of mining lease application (40pp) – dated 26 June 2021

APL Doc 38

Application for Mining Lease, partial conversion of E38/2988 – contains project outline (10pp) – dated 26 June 2021

APL Doc 39

Application for Mining Lease, partial conversion of E38/2988 – contains project outline (10pp) – dated 26 June 2021

APL Doc 40

Application for Mining Lease, partial conversion of E38/2988 – contains project outline (10pp) – dated 26 June 2021

APL Doc 41

APL 2020 Annual Report (78pp) – dated 30 June 2021

APL Doc 42

Lake Wells Environmental Review Document for SOP Project – Key document (1386pp) – dated 30 June 2021

APL Doc 43

Email from DMIRS to Green Legal attaching Initial Negotiation Pack (79pp) - dated 10 September 2021

APL Doc 44

ASX Announcement – Laverton Regional Schools STEM Innovation Day (5pp) – dated 14 September 2021

APL Doc 45

ASX Announcement – APC Successfully Raises $7 million to Advance the Lake Wells Sulphate of Potash Project  (3pp) – dated 3 November 2021

APL Doc 46

Public Benefits Assessment for NAIF submission – EY (47pp) – dated 6 November 2021

APL Doc 47

ASX Announcement – Fifth Agreement Executed in Offtake Program – 100% of DFS Output Now Under Offtake (4pp) – dated 23 November 2021

APL Doc 48

Presentation - 2020 AGM (18pp) – dated 25 November 2021

APL Doc 49

Ministerial Statement No. 1162 pursuant to s 45 of the EP Act - that a proposal may be implemented (12pp) – dated 1 February 2021

APL Doc 50

ASX Announcement – Full environmental approval received (3pp) – dated 2 February 2021

APL Doc 51

ASX Announcement – Organic Certification High Value Product Strategy (5pp) – dated 9 February 2021

APL Doc 52

ASX Announcement – Organic Certification Clarification – with JORC Code, 2012 Edition – Table 1 in relation to the testing results (11pp) – dated 15 February 2021

APL Doc 53

ASX Announcement – NAIF approves $140 million loan for Lake Wells Sulphate of Potash project in Western Australia (4pp) – dated 2 March 2021

APL Doc 54

Presentation - Euroz Hartleys Institutional Conference on Rottenest Island (19pp) – dated 11 March 2021

APL Doc 55

ASX Announcement - Front End Engineering Design (FEED) positions K-Brite at the Premium End of the Global SOP Market and Report: Front End Engineering and Design Program Results Summary (73pp) – dated 20 April 2021

APL Doc 56

ASX Announcement - Production bore field drilling contract awarded (2pp) – dated 22 April 2021

APL Doc 57

AHIS Search of M38/1287 – Registered sites (none) (3pp) – dated 23 April 2021

APL Doc 58

AHIS Search of M38/1288 – Registered sites (none) (3pp) – dated 23 April 2021

APL Doc 59

AHIS Search of M38/1289 – Registered sites (none) (3pp) – dated 23 April 2021

APL Doc 60

AHIS Search of M38/1287 – Other heritage places (two) (4pp) – dated 23 April 2021

APL Doc 61

AHIS Search if M38/1288 – Other heritage places (two) (3pp) – dated 23 April 2021

APL Doc 62

AHIS Search of M38/1289 – Other heritage places (two) (3pp) – dated 23 April 2021

APL Doc 63

AHIS Search of M38/1287 – Map of heritage survey areas (3pp) – dated 23 April 2021

APL Doc 64

AHIS Search of M38/1288 – Map of heritage survey areas (3pp) – dated 23 April 2021

APL Doc 65

AHIS Search of M38/1289 – List of heritage surveys (3pp) – dated 23 April 2021

APL Doc 66

Map of project with EPA approved development envelope relative to M’s and M’s subject to this inquiry (1pp) – dated 29 April 2021

APL Doc 67

Map of project with granted and pending E’s and M’s.  Shows EPA approved development envelope (1pp) – dated 29 April 2021

APL Doc 68

Large scale map over all tenements showing heritage surveys (1pp) – dated 29 April 2021

APL Doc 69

Certificate of Title CL438-1968 (Cancelled) (4pp) – dated 28 February 1968

APL Doc 70

Certificate of Title CL255-1983 (Cancelled) (4pp) – dated 12 October 1983

APL Doc 71

Certificate of Title CL153-1985 (Cancelled) (4pp) – dated 25 June 1985

APL Doc 72

Map of Lake Wells Pastoral Lease (1pp) – dated 14 February 1989

APL Doc 73

Pastoral lease documents (renewal or modified), 1989 to 2015 (8pp) – dated 25 November 2014

APL Doc 74

Email from Ken Green on behalf of Grantee Party on whether matter should be heard on the papers (4pp) – dated 23 June 2021

APL Doc 75

GIS files – Vegetation Communities, Lake Wells SOP Project

APL Doc 76

Letter, Green Legal to Waturta, 30/09/2020

APL Doc 77

Certificate of Title for lease, Lot 6 on Deposited Plan 238031. 

No map included (2pp) – registered 1 July 2015

APL Doc 78

Certificate of Title for lease, Lot 2 on Deposited Plan 238031. 

No map included (2pp) – registered 1 July 2015

APL Doc 79

Certificate of Title for lease, Lot 5 on Deposited Plan 238031. 

No map included (2pp) – registered 1 July 2015

APL Doc 80

Vegetation Community Map showing possibly threatened community, includes EPA approved development envelope (1pp) – dated 8 June 2021

APL Doc 81

Screenshot showing Landgate Pastoral Lease (1pp) – dated 8 June 2021

APL Doc 82

Map showing access roads (1pp) – dated 9 June 2021

APL Doc 83

Map showing E38/3380 and E38/3311 (1pp) – dated 17 June 2021

APL Doc 87

Letter, Minister for Aboriginal Affairs to APL, AHA s 18 consent, dated 9 April 2021

APL Doc 88

Request for change to proposal under section 45C of the Environmental Protection Act (1986) (WA), dated June 2021.

ATTACHMENT 2

Location of Lake Wells SOP Project (Source: APL Doc 42, p 213)

ATTACHMENT 3

Lake Wells SOP Project Overall Development Envelope (Source: APL Doc 42, p 42)

ATTACHMENT 4

Lake Wells SOP footprint showing M38/1287 (MLA1), M38/1288 (MLA2), M38/1289 (MLA3), proposed pond layout and proposed pipelines and bores (Source: APL Doc 35, p 11)

ATTACHMENT 5

ATTACHMENT 5

ATTACHMENT 6

Proposed Amendments to Development Envelopes (Source: APL Doc 88, p19)

ATTACHMENT 7

Proposed draft conditions provided to the parties

1.        If the grantee party wishes to conduct any activity other than low impact activities on any area of M38/1287, M38/1288 and M38/1289 that is located outside of the Development Envelopes noted in the Lake Wells Sulphate of Potash Project Environmental Review Document June 2020 at Figure 2 page 11 (GP Doc 42), then it must first cause a survey to be conducted over the area where any such activity is proposed. Low impact activities means any activity which involves:

(a)  aerial surveying;

(b)  geological mapping;

(c)  traversing land on foot or light vehicles using existing tracks where possible;

(d)  water and soil sampling using hand held equipment (including panning, metal detecting and hand auguring);

(e)  rock chipping (hand specimen);

(f)  the establishment of small tent or caravan camps of temporary nature and ordinarily associated with exploration activities and not involving heavy vehicles or water bores;

(g)  field mapping;

(h)  non-ground disturbing geophysical surveys; or

(i)   such other activity as the parties may agree upon;

but excludes:

(j)   intensive removal of vegetation or ground disturbance such as costeaning, excavating and bulk sampling;

(k)  construction of new roads and tracks;

(l)   large scale exploration camps;

(m) line clearing involving extensive clearing of vegetation using earth moving equipment, bulldozers or front-end loaders;

(n)  geophysical surveying other than non-ground disturbing geophysical surveys; or

(o)  drilling using hand held rig or rig mounted on any vehicle.

2.        The survey must be conducted by a) a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional, agreed between the native title party and the grantee party, engaged and paid for by the grantee party, and b) up to three Waturta native title claimants or common law holders (should there be a native title determination) as nominated by the native title party (nominated persons). Nomination by the native title party must be in writing and include full contact particulars of the nominated persons.

3.        The grantee party must pay the reasonable costs of the nominated persons’ attendance and participation in the survey. This is not intended to include the professional costs of legal or other representation or advice, nor the cost of inter-State travel. Other Waturta native title claimants or common law holders (should there be a native title determination) may attend as observers to the survey.

4.        The grantee party must give written notice to the native title party of its intention to conduct the survey and when giving notice must include a suitable topographical map showing the areas proposed to be surveyed, and the location of the lease. If, within 30 days of receipt of the notice, the native title party fails to nominate any persons for the survey, then the grantee party need not conduct such survey.

5.        Subject to any law, the survey required under condition 3 must be completed within 60 days of the native title party’s nomination with the parties cooperating in good faith on the conduct of the survey. If the survey is not carried out in this time due to the failure of the native title party to cooperate in good faith with the grantee party, then the grantee party need not conduct such survey.

6.        The grantee party must not disclose to any person any confidential information given to it by the native title party or the Waturta native title claimants or common law holders (should there be a native title determination) regarding Aboriginal heritage or cultural information, during or as a result of the survey, except (and only then on a confidential basis):

(a)  with the written consent of the native title party; or

(b)  to a bona fide prospective assignee of the lease; or

(c)  to an actual assignee of the lease; or

(d)  to its employees, agents, contractors and consultants for the sole purpose of ensuring that no Aboriginal sites or cultural heritage are interfered with and as far as the information relates only to the location of those areas; or

(e)  as required by law; or

(f)  for a purpose under the Aboriginal Heritage Act 1972 (WA).

8.        Upon assignment of any lease, the grantee party must ensure the assignee is bound by these conditions as if it were the grantee party. For the purpose of this condition, grantee party includes any assignee and assignment includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession.

ATTACHMENT 8

Tribunal Generated Map Provided to Parties for Comment