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

NATIONAL NATIVE TITLE TRIBUNAL

Kalman Murphy and Others on behalf of Waturta v Lake Wells Exploration Pty Ltd and Another [2020] NNTTA 13 (17 February 2020)

Application No:

WO2019/0161

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

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IN THE MATTER of an inquiry into an expedited procedure objection application

Kalman Murphy and Others on behalf of Waturta (WC2018/012)

(native title party)

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Lake Wells Exploration Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	17 February 2020

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – non disclosure directions - the act is not an act attracting the expedited procedure
Legislation:	Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 32(4), 146(b), 151, 155, 237
Cases:	Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal v Gianni) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (TMPAC v Lake Wells) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (Walalakoo v Boadicea Resources)
Representatives of the native title party:	Sophie Kilpatrick and Ambrose Cummins, Cross Country Native Title Services Pty Ltd

Representative of the grantee party:

Jacob Loveland, All Mining Legal Pty Ltd

Representatives of the Government party:

Michael McMahon, Department of Mines, Industry Regulation and Safety
Domhnall McCloskey, State Solicitor’s Office

REASONS FOR DETERMINATION

This decision is about whether or not the grant of exploration licence E38/3350 (the licence) to Lake Wells Exploration Pty Ltd (Lake Wells) attracts the expedited procedure. The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) which included a statement that it considers the grant to be an act attracting the expedited procedure. By including the statement the State asserts that the grant is not likely to, in summary:
(a)interfere directly with the native title holders’ community or social activities (s 237(a));
(b)interfere with areas or sites of particular significance in accordance with the native title holders’ traditions (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The area of licence is 200 blocks (61062.52 ha) and it is located in the Laverton Shire. The licence is entirely within the registered native title claim of Waturta (WC2018/012). The Waturta claimants lodged an objection application with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence.
Waturta lodged the objection asserting that interference contemplated in s 237(a) and s 237(b) is likely, however, in this inquiry Waturta pursue only the assertion concerning s 237(b). As such, I find that the grant of the licence is not likely to interfere with social or community activities of the native title holders (s 237(a)), or involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned (s 237(c)).
The President of the Tribunal, the Honourable John Dowsett AM, QC, has directed me to constitute the Tribunal for the purposes of determining, under s 32(4) of the NTA, whether the grant of the licence is an act attracting the expedited procedure.
In determining whether the expedited procedure applies or not, I must make a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Lake Wells and the State must negotiate with Waturta about the grant. For the reasons outlined below, my determination is that the expedited procedure does not apply to the grant of the licence.

Parties’ submissions

On 2 September 2019 I made directions for the conduct of the expedited procedure inquiry which required Waturta to provide contentions and evidence on or before 18 October 2019. On 17 October 2019 pursuant to Direction 9 (liberty to apply) Waturta requested non-disclosure directions be made in relation to a proposed affidavit of Mr Kado Muir on the basis that it was gender-restricted (to be viewed by men only). An unrestricted affidavit of Mr Muir was provided with the request and explained that according to his traditions Mr Muir was not allowed to speak in detail about particular tjukurrpa stories or particular places. Having sought their views, neither the State nor Lake Wells opposed the making of the non-disclosure directions.
Given these circumstances, I made directions pursuant to s 155, on 31 October 2019, in relation to the affidavit of Mr Kado Muir dated 21 October 2019. All parties lodged contentions in relation to the unrestricted evidence and separate contentions in relation to the restricted evidence.
Waturta’s material comprises:
·Contentions dated 17 October 2019;
·Affidavit of Kado Rentan Eldred Allison Muir affirmed 15 October 2019 (Muir unrestricted affidavit);
·‘Further (gender-restricted) contentions’ dated 21 October 2019;
·Affidavit (gender-restricted) of Kado Rentan Allison Muir affirmed 21 October 2019 (Muir restricted affidavit); and
·Affidavit of Kalman Michael Murphy affirmed 14 October 2019 (Murphy affidavit).
Mr Muir describes himself as an initiated man, a wati, which he says makes him responsible for looking after sites and making sure sacred places are respected (Muir unrestricted affidavit at [12]). Mr Murphy also identifies as a wati and says he is responsible for the Waturta claim area, and its surrounding country and through his ancestors (Murphy affidavit at [7]). I accept Mr Muir’s and Mr Murphy’s authority to speak for this area.
The State provided contentions (unrestricted) and contentions (male restricted) on 26 November 2019. In addition, the State provided tenure information including a Department of Mines, Industry Regulation and Safety ‘Quick Appraisal’ report, a series of maps, the results of searches of the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS), and Lake Wells’ statement under s 58 of the Mining Act 1978 (WA) (Mining Act) redacted to exclude ‘commercially sensitive material’.
Lake Wells provided contentions (unrestricted) and contentions (male restricted) on 8 November 2019.
Waturta also provided contentions in reply (unrestricted) on 10 December 2019 and contentions in reply (male restricted) on 11 December 2019.
Included in the State’s material is a map of ‘Live Mining Tenure’ which locates E38/3350 in the centre of numerous delineated exploration licence or mining lease areas. At my request and based on State data and spatial information, a table and a map was prepared of ‘live or pending’ tenement data surrounding the licence area where Lake Wells is the tenement holder or applicant. The table and map was sent to the parties and, in accordance with s 142 NTA provided the opportunity to make any submission in relation to these documents. No party objected to the Tribunal referring to the table and map.
Three of the pending exploration licences were recently the subject of an expedited procedure inquiry which resulted in determinations of the Tribunal in each case that the expedited procedure did not apply (see TMPAC v Lake Wells).
Having considered all of the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151 without the need for an oral hearing. All parties indicated they were content to proceed on the papers.

The licence and proposed exploration activities

The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
The statement under s 58 of the Mining Act which accompanied the licence application informs me that Lake Wells considers the area to be prospective for base metals and gold. The statement includes a work program for Year 1 which includes budget for geological field mapping and reconnaissance, rock chip and soil geochemical sampling and assaying, and geological management and drill target generation; and in Year 2, a soil sampling and drilling program. A budget is also allocated in Year 2 for ‘heritage survey and native title negotiation’ however no explanation is provided as to the nature of that part of the program. The statement says that further detailed work programs are contingent on the results for those years.
Lake Wells has not provided any additional information in relation to its proposed activities.
Having regard to the evidence, I consider it is likely that Lake Wells may exercise its rights under the licence to the full extent permitted.

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?

The Tribunal must determine whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular significance. An area or site of particular significance is one of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34-35), it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory).

What areas or sites have been identified as being of particular significance to Waturta?

The AHIS search results inform me that there are no registered Aboriginal sites or other heritage places recorded in the licence area. A table of Aboriginal Heritage Survey Area, Aboriginal Registered Heritage Sites, Lodged Aboriginal Heritage Sites, and DAA Sites ‘intersecting 25km Buffer around E38/3350’ provided by the State identify registered sites Warren Bore Series 1, 2 and 3 to the west of the north-west portion of E38/3350; lodged site Warren Bore Series 4 in the same vicinity; and DAA site Mt Gerard Reserve to the south of the south-west portion of E38/3350. A Topography and Cadastre map provided by the State identifies the DAA site as R 32421 ‘Aboriginal Art and Artifacts’. That map also locates Farquharson Tableland in the south-west area of E38/3350 and Yilly Yilly Rockhole to the south of E38/3350.
Waturta identified the following sites and areas asserted to be of particular significance:
·Manta Tjapia;
·Walka sites associated with the marlu tjukurrpa yiwarra; and
·Yilly Yilly Rockhole.

Manta Tjapia

In his restricted affidavit Mr Muir says at [6] that Manta Tjapia is the term used to describe a highly sensitive and sacred area. He says Manta means land/country and Tjapia is an area that contains a complex of sites of significance for highly sensitive and restricted Tjukurrpa and the associated ceremonies and rituals to wati (law men), particularly wati yina (senior elders) throughout the Western Desert.
In contentions [17] Waturta say Manta Tjapia is of particular significance evidenced by its association with the marlu tjukurrpa (red kangaroo Dreaming), and location on the marlu tjukurrpa yiwarra (kangaroo Dreaming track). Mr Murphy at [16] says:
We have a big story, big tjukurrpa, about the marlu, the kangaroo, that travels through the Waturta claim area. He travels down through Lake Wells on to Minnie Creek. On his way to Minnie Creek, he travels through the Farquharson Tablelands and to the Mt Gerard Reserve. We refer to this area as Manta Tjapia and it is one of the most important places in the whole of the western desert. Senior tjilipi come from far away to meet there from time to time and sing the songs. …
In the Muir unrestricted affidavit at [42], having referred to particular walka sites (discussed below), he says they are part of a (complex of sites or a significant area) manta tjapia ‘that extends across the Farquharson Tableland’. He continues:
‘The manta tjapia area (Farquharson Tableland) is where two big desert dreaming stories cross over. The Marlu Tjukurrpa Yiwarra, comes from the north and heading south generally along the Lake Wells landforms, as well as another highly sensitive story, going from the west to east generally along the Tableland … As can be seen on the maps … the Farquharson Tableland and therefore Manta Tjapia extends across the southern portion of the Tenement’.
Mr Muir refers to the other dreaming story and explains the cultural limitations on the information he can provide. I accept the evidence that the two desert dreaming stories cross over at the Farquharson Tableland in the southern area of the licence.
At [43] of his unrestricted affidavit Mr Muir says ‘there is a ceremonial site within the Mt Gerard Reserve connected to and part of Manta Tjapia that falls to the south of the tenement’, and other ceremonial sites outside of Mt Gerard Reserve ‘for example at the top of Yilly Yilly Creek’.
Maps annexed to Mr Muir’s restricted affidavit show the approximate external boundary of the Manta Tjapia to include the licence area.
Lake Wells in contentions notes that the maps annexed to Mr Muir’s restricted affidavit indicate Manta Tjapia incorporates a large area, including and surrounding E38/3350, and, given its size, references to restricted sites and places of ritual and ceremonial significance are too broad and imprecise to rely on in making the predictive assessment required by s 237(b) NTA. Further, Lake Wells says that to the extent the location of sites, tracks and dreaming places are specified, they are located outside the licence.
The State accepts the marlu tjukurrpa is significant to Warturta. Warturta do not claim that the Marlu Tjukurrpa Yiwarra itself is a site of particular significance but explains the particular significance of the Manta Tjapia (Warturta reply [29]).
The State says (Contentions [37]) that the marlu tjukurrpa is associated with Manta Tjapia area which was broadly described to extend across the Farquharson Tableland. The State contends (gender-restricted) at [18] that while areas or sites associated with Dreamtime stories are capable of being areas or sites of particular significance for the purposes of s 237(b), there must be sufficient evidence.
In relation to the ceremonial site within Mt Gerard Reserve the State in contentions (restricted) says at [21] that the only reference to the ceremonial and ritual sites within Mt Gerard Reserve is in Mr Muir’s restricted affidavit regarding his visitation and the conduct of some activities. The State in contentions notes that the reserve is approximately 24 kilometres outside the licence area (Contentions [47]). In restricted evidence Mr Muir refers to a visit to ‘the Mt Gerard Protected Area’ a few years ago where he was shown certain things and where he was recognised and bestowed with authority, responsibility, songs and story for the Manta Tjapia area. The fact that such an occurrence would occur at this particular place, in the context of the broader region, and at a place recognised by the State as so significant as to dedicate it a reserve (R32421), a place wholly within the Waturta native title determination application area, satisfies me that it is an area or site of particular significance to Waturta for the purposes of s 237(b).
In his restricted affidavit Mr Muir talks about his responsibility to care for, look after, and protect the Manta Tjapia sites and country; the physical and spiritual consequences he will suffer if Manta Tjapia is disturbed; and the anguish which would be caused to himself and his family ‘should anything bad happen in that country’.
In my view, and particularly based on the evidence of Mr Muir explaining the special or more than ordinary significance to Waturta of the place where the two desert dreaming stories cross over at the Farquharson Tableland in the southern area of the licence; the significance, location and proximity of the Mt Gerard Reserve; the association of registered and recorded walka sites and my findings below concerning walka sites and their connection to the licence area, I am of the view that the manta tjapia is an area or site of particular significance. This finding does not relate to the whole of the area marked on the maps annexed to Mr Muir’s restricted affidavit, rather it concerns the area generally marked Farquharson Tableland south to and including the Mt Gerard Reserve on the Topography and Cadastre Map provided by the State. This area is therefore relevant to my consideration of the likelihood of interference.

Walka sites

Mr Muir in his unrestricted affidavit at [41]-[42] says that the ‘Warren Bore Series’ are important Walka sites which tell the story of the tjukurrpa, and are important places associated with the Marlu Tjukurrpa, they are part of the manta tjapia, that is part of a complex of sites that extends across the Farquharson Tableland. As noted at [22] above the Warren Bore registered sites and lodged heritage site are to the west of the north-west portion of E38/3350.
The State in (unrestricted) contentions at [41] accepts that the evidence is likely to establish that the Warren Bore Series (walka sites) associated with the marlu tjukurrpa yiwarra is of particular significance for the purposes of s 237(b), although the State says the evidence does not specify what portion of it (if any) is located within the licence area. I note that in TMPAC v Lake Wells, Member Cooley concluded that the significance of the registered site Warren Bore Series 1 and lodged site Warren Bore Series 4 was explained by their reference to their restricted nature and their association with the Marlu Tjukurrpa and that they were of particular significance to Waturta. I adopt that finding for the purposes of this inquiry pursuant to s 146(b) of the NTA. It is reasonable in my view to also extend that finding, for the same reasons, to registered sites Warren Bore Series 2 and Warren Bore Series 3.
There are four sites that comprise the Warren Bore Series, three are registered and one recorded. As noted earlier, these sites are part of a complex of sites or a significant area (manta tjapia) that extends across the Farquharson Tableland. Mr Muir also refers to the ceremonial site within the Mt Gerard Reserve connected to and part of manta tjapia. He says there are other ceremonial sites outside the licence but in close proximity, for example at the top of Yilly Yilly Creek, and the Yilly Yilly Rockhole also outside the licence is very significant as a place where ‘our old people camped’ and an important water source. Mr Muir also says there are other ceremonial and ritual places located throughout the Farquharson Tableland ‘a number of which fall within the Tenement area’.

In TMPAC v Lake Wells, it appears that similar evidence was given by Mr Muir to explain the relationship between walka sites, the manta tjapia and the marlu tjukurrpa yiwarra. In that matter the particular sites were within the licence application area under consideration. Member Cooley was satisfied the walka sites were of particular significance to Waturta for the purposes of s 237(b). In this matter it is asserted that the manta tjapia is an area or site of particular significance. In this matter registered or recorded sites which are said to be part of the complex of sites included in the manta tjapia are outside the licence area, and the location of other important sites (not registered nor recorded) said to be part of the manta tjapia is disclosed only by reference to the Farquharson Tableland area of the licence.
As President Dowsett in Tjiwarl v Gianni noted at [85]:
‘… Section 237 is concerned with conduct authorised by the proposed grant, regardless of geographical location. If the relevant community or social activities may be interfered with by an action pursuant to the proposed grant, then s237 must be applied according to its terms, as is also the case with areas or sites of particular significance’.
Accordingly, the Warren Bore Series is relevant to my consideration of the likelihood of interference.

Yilly Yilly Rockhole

The State says that Waturta failed to provide any evidence that sufficiently identifies the particular locations of where ‘other ceremonial sites outside of Mt Gerard Reserve near the proposed tenement’ are located.
A general statement that a place is important is not sufficient to conclude that it is a site of particular significance; information is required to conclude that the place stands out from other places to the extent that it is of particular significance to a native title party (Walalakoo v Boadicea Resources at [39]).
Waturta has referred to Yilly Yilly Creek and Yilly Yilly Rockhole as being of ceremonial significance and historical use and survival.
Mr Murphy says in his affidavit at [20] that Yilly Yilly Rockhole has special significance and that there are two rockholes there – one little one at the bottom of the hill and one big one on top of the hill. He says ‘(w)e have a tjukurrpa story for this place. It is the story of the yilpas, the perrente goanna. There is a small yilpa at the bottom and a large yilpa on top. This is a place of the goannas.’ He says that a road or track would affect the story, the tjukurrpa. He says there is a ‘song for that place, but the Tjilpis wouldn’t sing it if the story got covered up’.
Mt Muir says (affidavit [44]) Yilly Yilly Rockhole is a significant waangu (rockhole) and water source, a place where old people camped ‘and their spirits can be felt there’. He says it is associated with the emu – a place the emus nest in and lay their eggs. He expresses concern that if the ‘ground water affects the rockhole’s level of water, then the emus will disappear’.
Unlike the walka sites and the manta tjapia, it is not clear from the evidence if or how there is a relationship between Yilly Yilly Rockhole and the manta tjapia and the marlu tjukurrpa yiwarra. It is not asserted to be. I accept that as a water source Yilly Yilly Rockhole has been of enormous importance to Waturta, however the ceremonial significance is not explained and cannot be inferred. In my view, there is insufficient evidence for me to conclude that the Yilly Yilly Rockhole is and area or site of particular significance for the purposes of s 237(b).

Are the areas or sites identified of particular significance to Waturta?

As noted above I find that the manta tjapia, comprising an area in the south of the licence and generally marked ‘Farquharson Tableland’ on the Topography and Cadastre Map including an area to the south taking in the Mt Gerard Reserve, is an area or site of particular significance to the Waturta. I also find that the Walka sites, Warren Bore Series associated with the marlu tjukurrpa yiwarra, to be areas or sites of particular significance to Waturta. However, I am not satisfied that the evidence supports a finding that Yilly Yilly Rockhole is an area or site of particular significance to Waturta.

Is the grant of the licence likely to interfere with the area of manta tjapia and the walka sites?

Manta Tjapia

Waturta say in contentions [20] that having regard to the extent of manta tjapia the grant of the licence is likely to cause interference with manta tjapia because activities permitted by the grant are things, in particular drilling and other ground disturbing activities, according to Mr Murphy (affidavit 17]) that might upset the tjukurrpa spirits ‘and might make the marlu go away’. He says he knows this has happened on other parts of the marlu tjukurrpa track.
At [20] I said that I consider it is likely that Lake Wells may exercise its rights under the licence to the full extent permitted. Pursuant to s 66 Mining Act the licence if granted would authorise Lake Wells as follows:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject ‑
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.

Walka sites

In contentions at [28] Waturta say that the grant of the licence is likely to interfere with the walka sites even though they fall outside the licence because they are in close proximity to the licence, ‘(within 5 km of the western boundary) and fall between the only road in the vicinity of the Tenement and the Tenement’. Mr Muir suggests that access tracks will need to be created between Warren Bore Road and the licence and for access to the north west of the licence the closest route is through the walka sites, that is the Warren Bore Series. Mr Muir (affidavit at [41]) expresses concern about persons visiting these places, or damaging them by clearing tracks from the road to the licence.
The Topography and Cadastre map provided by the State shows Warren Bore Road running roughly parallel with the western boundary of the licence. It would appear to be the closest access point to the licence. It would appear that the walka sites are located between Warren Bore Road and the north-west portion of the licence, and the manta tjapia including the Mt Gerard Reserve between Warren Bore Road and the south-west portion of the licence.
The quick appraisal document provided by the State informs me that te area of the licence is 90.96% over unallocated crown land and 9.04% over Pastoral Lease Prenti Downs. There are no apparent roads, minor roads or tracks leading into the licence, or through the licence. Warren Bore Road is identified as a minor road. The land and water between Warren Bore Road and the licence would appear to be either leasehold, unallocated crown land, or R 32421. Neither the State nor Lake Wells has addressed access although at contentions [5.12] Lake Wells says it will act lawfully in exercising its rights pursuant to the licence.
Accordingly, in my view there is a risk that the areas of particular significance identified outside of the licence, being the walka areas and the manta tjapia (including the area of Farquahson Tableland south to and including R 32421), will be accessed and that accessing them would be likely to cause interference of the kind referred to in s 237(b). I am also of the view that the exercise of rights by Lake Wells as described above is likely to cause interference of the kind referred to in s 237(b) in the area of the manta tjapia within the licence.

Protections from the Regional Standard Heritage Agreement

In contentions [4.7] Lake Wells says it complied with State requirements by offering to enter into a Regional Standard Heritage Agreement (RSHA) with Waturta.
The State in contentions at [63] say they would require Lake Wells to execute an RSHA in favour of Waturta if requested by Waturta. The State says at [65] that this is a relevant factor in determining whether interference with areas or sites of particular significance is likely.
The RSHA condition would seemingly be ineffective in relation to areas or sites of particular significance outside the licence area. The terms of the condition are prefaced: ‘In respect of the area covered by the licence or license ….’.
In this matter parts of the manta tjapia are both within and outside the licence area, and the walka sites are outside the licence area.
Additionally, in Nyamal v Gianni, Member Cooley said at [66] that ‘to rely on the possible entry into a standard agreement that has not been negotiated by the parties to decide that interference under s 237(b) is unlikely, seems to me to require a number of long bows to be drawn’. And, at [67] referred to President Dowsett in Marputu v Gianni at [66] as follows:
Although the terms of any RSHA may reduce the risk of adverse impact, to some extent, they leave open the real possibility, perhaps likelihood that there would be further disputes, in good faith or otherwise, about concepts such as “take into account”, “significant affect” and “discuss”. As I have previously observed, protection of that general kind may be appropriate where the traditional owners’ concerns are unparticularized, but that is not the present case. In those circumstances, the proposed grantee’s willingness to enter into such an agreement says little about the extent to which the sites will be at risk. The State’s proposed special condition similarly offers little or no protection in this case. In all of these circumstances, I am satisfied that the native title holders’ concerns are reasonable.
I am not satisfied that the RSHA mitigates the risk of interference in this case.

Protection under the Aboriginal Heritage Act 1972 (WA) (AHA)

In contentions [5.5] (and repeated in it gender-restricted contentions) Lake Wells says it is familiar with and understands its obligations to comply with the requirements set out in the AHA prior to conducting any exploration activities ‘within the vicinity of an Aboriginal heritage site’, and at [5.6] it will ‘report any potential Aboriginal heritage site identified during the course of its activities in compliance with the AHA’.
Waturta in reply ([15]) say that Lake Wells provides no evidence or particulars about what it understands its obligation are under the AHA, what constitutes an Aboriginal heritage site, or how it might identify a potential Aboriginal heritage site (as defined under the AHA). I agree.
In Marputu v Gianni, President Dowsett said at [44]:
It is possible that protection under the AH Act may not extend to areas or sites to which s 237(b) applies. It is also possible that s 237(b) may not apply to sites protected under the AH Act. Once this difference in focus is recognized, it becomes difficult to identify the extent to which the AH Act might protect sites of particular significance to traditional owners. In order to do so, it would be necessary that I identify a particular site, identify the various ways in which there might be an adverse impact of the kind contemplated by s 237(b), and then consider the extent to which the AH Act might reduce the likelihood that there will be such impact. No party has made any attempt to demonstrate how the AH Act might operate in the present case.
Further, at [62] he said:
As to the AH Act, its operation is no doubt relevant to the extent of any risk. When a traditional owner fails to identify, with sufficient precision, sites said to be of particular significance, the Tribunal might well infer that the Act may offer a sufficient degree of protection against any adverse impact such as that contemplated by s 237(b). Where, as here, the sites and concerns are particularized, one would expect that the State, or the proposed grantee would identify the way in which the AH Act is said to apply so as to reduce the risk of adverse impacts. There has been no real attempt to do so.
I am unable to conclude that the AHA is adequate in mitigating the risk of interference to the manta tjapia and the walka sites.

Relevance of prior interference

The State at contentions [7] note that there has been seven previous exploration licences over some part of the licence area (and at [52]) which is sufficient to infer that there has been interference because of prior exploration activity in the licence area such that the grant is unlikely to cause substantial further interference.
No evidence is provided of activity or impact.
In any case as stated in TMPAC v Lake Wells at [99] that is not the relevant test for s237(b):
‘The issue is whether the grant is likely to cause interference with areas or sites of particular significance to the native title holders. Depending on the particular facts, such interference may be recurrent or repeated and still be interference within the meaning of s 237(b)’.

Conclusion

I have found that the manta tjapia, comprising an area in the south of the licence and generally marked ‘Farquharson Tableland’ on the Topography and Cadastre Map including an area to the south of the licence taking in the Mt Gerard Reserve, is an area or site of particular significance to the Waturta. I also found that the Walka sites, Warren Bore Series 1, 2, 3 and 4, associated with the marlu tjukurrpa yiwarra, to be areas or sites of particular significance to Waturta. I am not satisfied that the various measures described will be effective to mitigate the likelihood of interference.

Determination

I determine that the grant of exploration licence E38/3350 to Lake Wells Exploration Pty Ltd is not an act attracting the expedited procedure.

Mr JR McNamara
Member
17 February 2020