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

NATIONAL NATIVE TITLE TRIBUNAL

Kalman Murphy and others on behalf of Waturta v Piper Preston Pty Ltd [2020] NNTTA 74 (26 November 2020)

Application No:

WO2019/0560

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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Piper Preston 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:	The Hon J.A. Dowsett, AM, QC
Place:	Brisbane
Date:	26 November 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 – expedited procedure – the act is not an act attracting the expedited procedure

Legislation:

Aboriginal Heritage Act 1972 (WA) s 17

Mining Act 1978 (WA) s 66

Native Title Act 1993 (Cth) ss 29, 32, 237

Representatives of the native title party:

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

Representative of the grantee party:

Rhys Davies, DLA Piper

Representatives of the Government party:

Michael Olds, State Solicitor’s Office
Michael McMahon, Department of Mines, Industry Regulation & Safety

REASONS FOR DETERMINATION

INTRODUCTION

On 2 July 2018, Kalman Michael Murphy, Kado Rentan Eldred Allison Muir and five others (the “Native Title Party”) filed an application for a native title determination on behalf of the Waturta People. On 17 August 2018, the claim was entered on the Register of Native Title Claims. On 8 March 2019, the Department of Mines, Industry Regulation and Safety of the Western Australian government (the “State”) gave notice pursuant to s 29 of the Native Title Act 1993 (Cth) (the “Native Title Act”) of its intention to grant (the “proposed grant”) exploration licence E38/3380 (the “proposed tenement”) to Piper Preston Pty Ltd (the “Proposed Grantee”). The proposed tenement will be granted pursuant to the Mining Act 1978 (WA) (the “Mining Act”). The notification day, for the purposes of s 29(4) of the Native Title Act, was 13 March 2019. The notice contained a statement pursuant to s 29(7) to the effect that the State considers the proposed grant to be an act attracting the expedited procedure (the “expedited procedure statement”). On 9 July 2019, the Native Title Party lodged an objection to that statement pursuant to s 32(3) of the Native Title Act.
The expedited procedure notice and the objection are procedural steps prescribed in Subdivision P of Part 2 Division 3 of the Native Title Act (“subdiv P”). Subdiv P confers upon native title holders and claimants the right to negotiate in connection with the proposed grant of an exploration licence by the State. Section 237 of the Native Title Act defines the term, “act attracting the expedited procedure” as follows:
A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In effect, the expedited procedure statement is an assertion by the State that negotiation pursuant to subdiv P is not necessary. The objection is, in effect, a challenge by the Native Title Party to the State’s assertion. In these proceedings I must determine whether or not the proposed grant is an act which attracts the expedited procedure. The Native Title Party relies on s 237(b).
Section 66 of the Mining Act sets out the rights conferred by an exploration licence 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.

NATIVE TITLE PARTY’S EVIDENCE

The Native Title Party has filed three affidavits in support of its objection. One is by Kalman Michael Murphy. The other affidavits are by Kado Rentan Eldred Allison Muir, one affidavit being “open”, and the other being “gender restricted” to male persons.

Mr Murphy’s Evidence

As I have said, Mr Murphy is an applicant and claim group member in connection with the native title determination application. He says that the Waturta claim area and the members of the Waturta claim group are both parts of the “Western Desert Mob”. They share the same traditions or rules as people in an area extending to the southern part of the Northern Territory and South Australia. Mr Murphy was born in Kalgoorlie and grew up in Leonora. Leonora is not in the claim area, but is within the Western Desert. His family taught him traditional ways on traditional country, including where he could hunt and camp, and about the country for which he is responsible. His area of responsibility includes the land and waters that are within the Waturta claim area.
Mr Murphy has lived in Kalgoorlie and Leonora for most of his life. He regularly goes out on country, including on to the Waturta claim area, for hunting, camping, to protect sites and to teach his daughters where they can and cannot go under traditional rules. Although the Waturta claim area is part of his traditional country, he also has country to the north-east of the claim area and to the west of it. His rights are derived from ancestors who knew the country and were responsible for it. That responsibility and knowledge have been passed down through ancestors, or through participating in law business. Mr Murphy is responsible for the Waturta claim area and the surrounding country. He is also responsible for protecting sacred places, such responsibility being derived from the tjukurrpa.
He says that when you are “the right people for country” you have the following rights, interests or responsibilities under the Western Desert traditional rules:
·to speak for and protect the country and places, areas or objects of significance to Aboriginal people;
·to hunt, camp, gather, take and use all of the resources of the country (plants, animals, wood, ochre, flint, etc);
·to use fire; and
·to prevent other people from damaging country, or taking things from country without permission.
At para 11 Mr Murphy says:
If we don’t protect places that are very significant to us, and the plants and animals that live in those places, for example, if too much water gets taken out of the ground, and the plants and animals die off, then we will be punished by the spirits of the land. We could get sick or lose someone close to us. We would also miss out on using those plants and animals for our medicine and sustenance.
At paras 12, 13 and 14 Mr Murphy explains the concept of the tjukurrpa as follows:
12. The tjukurrpa is the main law that we have to follow in our western desert traditional rules. It started in the Dreaming, when the world was made, and the tjukurrpa beings travelled through the country making places and doing things as they went. They handed down all the important rules we have to follow. All the places they went, and did things, and the tracks of yiwarra they made are very important places and areas we have to protect and care for and sing the songs for. If we don’t do this as the owners of the country, and as the Wati, then we will be punished and the land will be damaged. This would also have an impact on our plants and animals. Protecting the tjukurrpa places and yiwarra is our number one responsibility as owners of country.
13. Some tjukurrpa stories can be sung or told to all young people and some are closed and only people who are qualified by age and gender, meaning wati and minyma, can learn and pass on these stories and songs.
14. These responsibilities apply across the region, and not just within the Waturta claim area. I am responsible for the yiwarra I know about even outside of my country, especially for those parts that neighbour my country. I will be looked to as a wati as well as a ngurra or land holder, to speak up for country that might be in danger even if it’s outside of the claim area.
[italics removed]
Mr Murphy considers that the proposed tenement is an area that is a really important part of the Waturta country. It lies completely within Lake Wells which is known to the Waturta claimants as “Marlutja”. It is said to be “a very special place”. A large part of the lake lies within the proposed tenement. All of the proposed tenement lies within the claim area. The Marlutja is the dreaming of the “marlu” (kangaroo). It is a very special dreaming, told only to wati. It is a men’s story, not to be told to women. The tjukurrpa records the track of the marlu as it travels through the Waturta claim area, pursued by a dingo. The dreaming track goes through Lake Wells and through the proposed tenement. The dreaming track continues all the way to South Australia. The marlu 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. The Farquharson Tablelands are referred to as “Manta Tjapia”. It is one of the most important places in the whole of the Western Desert. It lies to the north-east of the proposed tenement.
From time to time, “tjilpi” (senior wati) come from far away to meet there and sing the songs. The marlu “yiwarra” (Dreaming track) is one of the top stories for which all of the senior tjilpi are responsible. Mr Murphy fears that he will be punished severely if he does not speak up for this yiwarra. “Speaking up” for it includes protecting it, and stopping interference with it by drilling and other ground-disturbing activities. These activities might upset the tjukurrpa spirits and might make the marlu go away. This has happened on other parts of the marlu tjukurrpa track. The ground was disturbed, and the marlu moved away and did not return.
Mr Murphy says that Lake Wells has been visited by Waturta people. It is very likely that there are artefacts of importance to them on the proposed tenement. It is important that he go there, with other Waturta men, to survey the proposed tenement, so that he can be sure that his traditional responsibilities are fulfilled, and so that he won’t feel shame because of any exploration. In that way, he can ensure that important areas are not damaged.
Mr Murphy says that when the rains come, Lake Wells fills up with water and is beautiful. The place comes back to life. The birds, the turkeys and animals come to the area. Mr Murphy was taken there when he was growing up. He was shown how to, “sing out to the oldies”, when they visited special places like Marlutja. They sang the song to, “keep the spirits happy”. This is all part of the tjukurrpa, their law.
Mr Murphy says that the area should not be touched by a mining company without permission from the wati. Women should not go there as it is a special men’s place. Mr Murphy is worried that oil from drilling machinery will wash into Lake Wells, and then into soaks when it rains. It will poison the animals which use it. If that were to happen the Waturta would also not be able to drink from it. He says rock chippings are to be found there. Even walking through the area, without first talking to the Waturta, will damage the artefacts and upset the spirits of the oldies. If there is damage to Marlutja, the Waturta will, “get into trouble with the sprits and the [t]jilpis, the senior [w]ati across the Western Desert”. If they fail to protect the country, they will be punished.

Mr Muir’s Evidence

Mr Muir is also an applicant for the native title determination, and a member of the claim group. He was born in Leonora, outside of the claim area, but within his own country. His parents took him to Red Well, which is east of Mulga Queen on Bandya Station, just to the west of the Claim Area. Red Well is part of his “ngurra”. I understand this term to mean “homeland”. Red Well is also part of his mother’s ngurra. For the first six or seven years of his life, he lived there, and travelled around the claim area with his parents. They lived off the land and obtained drinking water from rockholes and soaks. The Waturta claim area is his mother’s traditional country and his traditional country. They travelled to, and visited many places within the claim area. His parents also had a house in Leonora. As an adult he lived away from his country for a few years, in order to get university qualifications and to find work. However he became homesick and returned to Leonora. He has lived there ever since, travelling out on his traditional country, including the Waturta claim area.
In paras 7-11, Mr Muir describes the concept of the tjukurrpa as follows:
7.   Tjukurrpa is the term in our desert culture used to describe a body of beliefs which include the stories of creation, the evidence of that creation in the land, and the actions and activities of the dreamtime beings. Sometimes dreamtime beings are referred to as the ‘tjukurrpa people.’ The tjukurrpa links the past, the present and the future. Present day practices are still informed by the tjukurrpa. Everything – the way you cook food, name your children, look after country – is all based on the tjukurrpa.
8.   In the Dreamtime everything was close, it was all together. The world was soft, flat and featureless and the tjukurrpa beings travelled the world, engaging in every day activities, whether it was hunting, fighting, loving, whatever. These tjukurrpa beings would often take the form of animals and then revert to humans, for example, most the birds were mamu, or spirit men.
9.   As they went about their activities they left an imprint of their adventures on the land. These imprints are visible today as features in the landscape; the hills, the lakes, the creeks, the trees, the weather patterns, the waterholes, the people and the animals themselves were all creations of the tjukurrpa. All these things that we know and recognise as the landscape were created by the activities of tjukurrpa beings. The tjukurrpa was fluid and then in reality it became solid and hard. The old people taught me that when the Dreamtime ended it all stretched and hardened, so that today the hills, the rocks, the land are all solid. That’s why one part of a tjukurrpa story can be a long way away from the next part of the same story.
10. The dreaming stories have been there all the time. The land was created by the tjukurrpa in the dreaming. By having knowledge of the tjukurrpa, and understanding the tjukurrpa, a person who has been taught these things can recognise the tjukurrpa in the landscape and understand the interactions of the tjukurrpa across the land.
11. The law from the tjukurrpa is the same law that applies across the deserts. Places, which have the same law are Alice Springs, Balgo, Warburton, Wiluna, Jigalong, Cosmo Newberry, Coonana and Mulga Queen. The desert law applies to the Waturta claim area.
[italics removed]
Mr Muir was initiated under desert law at the age of 24, in Jigalong. Having been initiated, he has access to certain places about which he was told by his mother, but could not visit as a child. Once a man is initiated, he acquires secret knowledge and may visit places that are “ngurlungka”, literally meaning “being afraid” or “to be cautious”. In practice the word refers to “mayaka”, meaning, “secret and sacred places which should be avoided”.
As an initiated man, or wati, he is responsible for looking after sites, and making sure that sacred places are respected. These responsibilities come from the tjukurrpa. There are a number of wati in the Waturta claim group from different families, including Mr Murphy and Mr Troy Chapman. Certain women (“minyma”) know the law relating to women’s sites and women’s stories. They look after those sites and stories in much the same way as the wati look after men’s sites and stories. The women continue to practise women’s law business and perform ceremonies.
Some tjukurrpa stories are “open” and can be sung or told to young people. Some stories are “closed”. Only people who are qualified by gender and age can learn and pass on these songs or stories, they being wati or minyma. There are tjukurrpa stories, or yiwarra, which travel through the Waturta claim area. Some of them are very important across the whole of the Western Desert. The Waturta have a, “strong responsibility for the area”.
Mr Muir says that, in the desert, connection to country or identity is not really based on the language spoken or tribal membership. Rather, it is based on where your home is. It is about having management over dreaming stories and rights to resources in country. “Ngurra” is homeland. It is, “the place you feel and call home”. Mr Muir says that, “you have your kapi (water), marnta (land), and your ngurra (home).” Family connection is one way that a person may acquire rights in country, but it is not the only way. Conception sites (or “tjarrin”) are areas of particular significance. A conception site is the source of a person’s spirit and must be protected according to traditional ways. However the ultimate authority for country is the tjukurrpa. Mr Muir says that, “you get rights in country through learning it”. In order to be accepted and recognised by the law as a holder of country, one generally has to know the stories. Such a person can generally travel the dreaming track, or yiwarra, and be able to identify, or recognise, country, sites and resources along the track.
Mr Muir describes the boundaries of his country in some detail. He can camp and live in that area. He can hunt, gather food and medicines, chop wood and manage and look after water resources. He can also visit places, teach his children, mine ochre, take rocks and do all things necessary to enjoy and protect his land and to enjoy its resources, so long as he follows the laws of the tjukurrpa. All members of the Waturta claim group have these rights.

Mr Muir says that his country includes the country in the Waturta claim area, which he has derived from his mother and her grandparents. He also has a connection to country through his own life history and knowledge, particularly cultural knowledge, acquired over the years. He explains that the right to speak for country is knowing about places and sites, and deciding what may or may not happen to the country. Before anything is done on country there has to be a meeting with the people who can speak for that country. If the right people cannot be identified, then nothing happens. In the case of very sacred areas or sites, such as certain rockholes, he would talk to other wati or senior elders before cleaning them out. If a decision which is to be made will have serious consequences, the decision is taken in a collective way.
Mr Muir describes the responsibility of a wati in much the same way as does Mr Murphy. See paragraphs 28, 29. At paragraph 32, he says:
There is a pimarr or spiritual energy in the land and when you affect that pimarr, it can result in plants and animals and other resources diminishing or disappearing from an area. This can happen with accumulating ground disturbing works in country. We lose out in two ways when this happens – the animals and plants we rely on and gather and hunt when exercising our traditional rights are gone, and we also feel that kunta or shame, and feel very sorry and sad for failing to protect those animals and plants.
[italics removed]
Mr Muir is concerned that the Proposed Grantee might conduct exploration activities on the land without first consulting the traditional owners. He is concerned that, if they do not consult properly, they may do damage to the tjukurrpa sites and elsewhere. Further, if tracks are cleared into the proposed tenement, it may encourage other unwanted intruders. Mr Muir says that the area to be covered by the proposed tenement is culturally, spiritually and environmentally, an important part of the Waturta claim group’s country. It is highly sensitive and significant to wati in neighbouring native title communities and as far away as Martu (to the north) and Ngaanyatjarra (to the east). It includes a most sacred area of significance in the broader region, called Marlutja or Lake Wells. This is a, “highly restricted area and women and men who are not ritually qualified must not know about it, or visit it”.
At paras 41 and 42, Mr Muir says:
41. I understand that the grant of the [proposed tenement] will give the [Proposed Grantee] the following rights:
(a)To travel through and enter the [proposed tenement] with vehicles, machinery and equipment;
(b)To explore for minerals including by diffing pits, trenches and drilling holes;
(c)To take land, earth, soil, rock, stone or fluids up to 1000 tonnes (or more, if approved); and
(d)Take or divert any water from any natural pool, lake or stream or sink a well or bore for any purpose in connection with exploration activities.
42. All of these activities can cause a considerable amount of disturbance to country and if done in the vicinity of a yiwarra or a site of significance then they will damage that yiwarra or site. This may affect the plants and animals too, causing kunta and making us sad. If the yiwarra and/or sites are affected, then the tjukurrpa will be too and we will probably be punished by the spirits and the wati yina.
[italics removed]
Mr Muir says that there are a number of sites of particular significance within the proposed tenement which are likely to be affected by the proposed grant. He says that these places were made by the old people and tell the stories of the tjukurrpa. People who do not know those stories, and who do not have any right to them under traditional ways, must not go to these “walka” places. Mr Muir is concerned that workers for the Proposed Grantee might visit Marlutja and damage it by clearing tracks from the road into the proposed tenement. There is presently limited access to the proposed tenement.
Marlutja (Lake Wells) is an important feature associated with the Marlu tjukurrpa, one of the most important tjukurrpa stories. It is an important men’s only dreaming that travels through the Waturta claim area and right through the proposed tenement. The Marlu tjukurrpa dreaming comes down through Lake Wells from the north-west and then heads down towards Cosmo and Minnie Creek. As Marlutja is a men’s site and sensitive, Mr Muir discusses it further in his gender restricted affidavit.
In the olden days, Marlutja (Lakes Wells) was an important crossing for Aboriginal people travelling across the desert. There is a place on Lake Wells called Waturta, which was the main pathway used by Mr Muir’s elders during the “Pujimen” bushmen days. In addition, Lake Wells is of importance to Waturta people generally, as traditional owners with cultural and heritage associations as ngurra or traditional owners. Lake Wells is also an important resource and heritage site for the traditional owners who continue to live in that country. There are water sources, food sources and special places like Waturta so that Lake Wells is an important heritage place for those families who make up the Waturta native title claim group. The Waturta initiated men have responsibilities as wati and as “ngurrara” (traditional owners) who look after this site.
Lake Wells is immediately adjacent to the Farquharson Tablelands, known as Manta Tjapia. Manta Tjapia is “a highly sensitive and sacred site complex”, of great importance and significance to the Waturta claimants. It is the point at which two big desert dreaming stories cross over. It is highly sensitive and should not be told to women and uninitiated men.
As I have said, Mr Muir has also filed an affidavit on a gender restricted (male only) basis. He says that, although his open affidavit is not gender restricted, it refers to matters which are culturally sensitive. Most of the gender restricted affidavit reinforces his earlier affidavit. However it also identifies the existence of a second tjukurrpa. Mr Muir says that it is so sensitive that he is not comfortable saying anything about it. It is not his place to tell the story. If the Tribunal needs to know more about it, then he will have to bring all of the senior men out on to country to tell the story in the proper cultural way, according to ritual and ceremony. That will not be necessary. I have considered the content of the gender restricted affidavit and do not feel that I need say more, save that it reinforces Mr Muir’s open affidavit. It also raises the issue of the second tjukurrpa which is referred to in some of contentions as the “sensitive Dreaming story”, a name which I shall adopt. Mr Muir says that he would prefer that the proposed tenement not be granted, given the importance of Marlutja and the Manta Tjapia.
It seems there has been some discussion between the Native Title Party and the Proposed Grantee concerning the way in which exploration might proceed, but such discussion has not produced any concrete outcome. See Mr Murphy’s affidavit at paras 16-17. It is concerning that negotiations have broken down, and that the Proposed Grantee has chosen not to participate in these proceedings.

THE STATE’S EVIDENCE AND CONTENTIONS

The State has provided a substantial amount of information. It seems not to be controversial. To the extent necessary, it is discussed in the Native Title Party’s contentions and in those of the State.
The State says that there are no sites within the proposed tenement, which sites are registered under the Aboriginal Heritage Act 1972 (WA) (the “AH Act”). However, the Marlutja is recognised as an Other Heritage Place which includes the whole of the proposed tenement. The State describes it as a “ceremonial, mythological natural feature”.
The State has indicated that it intends to impose certain endorsements and conditions upon the proposed grant. A draft is attached to the State’s contentions at Annexure 4. It includes, “standard conditions as to environmental rehabilitation and as to environmental approval being required before any ground disturbing activities are carried out”. At para 3 of the draft the Proposed Grantee’s “attention is drawn” to numerous legislative provisions concerning water. However no particular constraints are identified.
At para 21 of its contentions the State submits that, for the purposes of s 237(b), the “principles” to be applied in considering the questions posed by that subsection are:
the area or site must be of special or more than ordinary significance to the native title holders, in accordance with their traditions;
an area or site must be well known and able to be located, and the nature of its significance explained;
the interference may involve actual physical intervention, and even slight interference may be unacceptable in the context of s 237(b);
the area or site must generally be located within the proposed licence. An area or site outside the licence area may be taken into account if it can be shown that the relevant activities would directly and physically affect the area or site, and that activities off-site are an integral part of activities on-site; and
there must be a real chance or risk of interference with the area or site.
[citations omitted]
I do not cavil with any of these general propositions. However, I doubt that they can properly be described as “principles”. I shall return to this question.
The State also submits that as a matter of practice it will generally be necessary for the Native Title Party to inform the Tribunal of whether there are sites of particular significance in the vicinity of the proposed tenement. It must also explain the “sacredness by means of evidence adduced from persons with the authority to speak in relation to the sites”.
At para 25 the State contends that the Native Title Party identifies three areas or sites of significance, namely the Marlutja (Lake Wells), the Manta Tjapia (Farquharson Tablelands) and the sensitive Dreaming story identified in a general way by Mr Muir. However the Native Title Party’s case is somewhat wider. For example, in paras 12-14 of Mr Murphy’s affidavit, he gives wider scope to the Marlu tjukurrpa. See also Mr Muir’s open affidavit at paras 43-49 and his gender restricted affidavit at paras 3-7 and 9.
At paras 30 and 31 of its contentions the State accepts that Marlutja (Lake Wells) and Manta Tjapia (Farquharson Tablelands) are located with sufficient particularity and that they are areas or sites of particular significance because of their association with the Marlu tjukurrpa. Because of this association, the State contends that the significance of the Marlu tjukurrpa story must be explained in detail.
At paras 32 and 33 the State accepts that dreaming tracks and areas or sites associated with Dreamtime stories are capable for being areas or sites of particular significance for the purposes of s 237(b). At para 36 the State accepts that the location of the Marlu tjukurrpa has been explained by the Native Title Party’s evidence. It also accepts that the evidence explains “the meaning and significance” of the tjukurrpa “generally” and “the meaning and significance” of the Marlu tjukurrpa story.
The State seems also to accept that the sensitive Dreaming story may be of particular significance. However, at para 37, it submits that its location has not been identified with sufficient particularity to demonstrate that it is located within the proposed tenement. However the evidence strongly suggests that it passes through the Marlutja (Lake Wells) and the north of the proposed tenement.
The State also submits that there is insufficient evidence to justify the Tribunal in finding that the proposed grant is an act which is likely to interfere with the sensitive Dreaming story, notwithstanding its particular significance to the Native Title Party. This position seems to be based upon the so-called “principles” identified in para 21 and set out above, particularly that identified at sub-para 21.2. The difficulty with the use of the word “principles” is that it suggests that the matters are prescribed by s 237(b). In fact the only statutory requirement is that the proposed grant be not likely to interfere with areas or sites of particular significance according to the traditions of the Waturta People.
Section 237(b) says nothing about the particularity with which an area or site must be identified. Of course s 237(b) concerns areas or sites, which terms generally describe locations having boundaries. However one may know that there is an area or site within a wider area, without knowing precisely where it is. For example, one may have been told about a particular area, but not visited it so as to be aware of its exact location. Alternatively, one may have previously visited a site, but not be able to describe its precise location. To say that there is an area or site within the boundaries of a larger area provides more precision than to say that it is outside of a particular area. To say that a proposed tenement includes part of a larger area of cultural significance necessarily implies that the whole of the proposed tenement is of cultural significance.
One must keep in mind the nature of a Dreaming story, as explained by Mr Murphy and Mr Muir. The story may not easily be distinguished from the geographical features which it is said to have formed. As Mr Muir says at para 10 of his open affidavit, a person who has knowledge and understanding of the tjukurrpa can recognise it in the landscape and understands its interactions with the land.
From the cases cited by the State at paras 31-33 of its contentions, it emerges that depending upon the evidence, a tjukurrpa may, itself, be an area or site for the purposes of s 237(b). Alternatively, the evidence may demonstrate that areas or sites formed by the tjukurrpa are, individually, areas or sites for the purposes of that provision. Whilst Mr Muir does not identify any particular area or site associated with the sensitive Dreaming story, he locates the story itself in the northern part of the proposed tenement. I see no reason to doubt Mr Muir’s evidence in this regard. In accepting his evidence, I take into account the frankness with which he has disclosed other sensitive matters. I also note that Mr Muir offered to lead further evidence from senior men, concerning the sensitive Dreaming story. Such evidence would have to be given on country, according to the proper cultural way. I have not taken him up on that offer because I consider it unnecessary that we go to so much trouble, given that the Native Title Party has otherwise demonstrated the particular significance of the area covered by the proposed tenement.
In those circumstances, I accept that the sensitive Dreaming story runs through the northern part of the proposed tenement. In the special circumstances of this case, it is understandable that the Native Title Party would not be inclined to disclose specific areas or sites to the Proposed Grantee or to the Tribunal. My acceptance of Mr Muir’s evidence makes it unnecessary that there be more particular evidence as to particular areas or sites associated with the tjukurrpa.
At paras 45 and 46 of the State’s contentions, it seems to distinguish between interference with specific areas or sites of particular significance on the one hand, and damage to the tjukurrpa itself, on the other. It also seems to distinguish between the tjukurrpa and the track or yiwarra which it follows. In my view, this submission takes too narrow a view of the Native Title Party’s evidence. As Mr Murphy said at para 12, “the tjukurrpa is the main law that we have to follow in our Western Desert traditional rules.” It is clear that thereafter, Mr Murphy is talking about the institution of the tjukurrpa rather than particular areas or sites associated with it. There is nothing surprising about the proposition that if the various aspects of a legal system are not respected and observed, the system itself can fall into disrepute. In western society, lawyers are not infrequently concerned about such a possibility, and the consequences for the society in question. As I understand Mr Murphy, he is effectively saying that the tjukurrpa is the main source of law for the Waturta people and that, if it is disregarded, there may be consequences that are not necessarily foreseeable. The types of interference which might disturb the tjukurrpa are set out in some detail in the evidence.
Similarly, Mr Muir says at para 7 of his open affidavit:
Tjukurrpa is the term in our desert culture used to describe a body of beliefs which include the stories of creation, the evidence of that creation in the land, and the actions and activities of the dreamtime beings.” Sometimes dreamtime beings are referred to as the ‘tjukurrpa people’. The tjukurrpa links the past, the present and the future. Present day practices are still informed by the tjukurrpa. Everything – the way you cook food, name your children, look after country – is all based on the tjukurrpa.
[italics removed]
Further, the reach of the law is widespread and long-standing. At para 10 he observes that, “[the] dreaming stories have been there all the time” and at para 11 that, “[the] law from the tjukurrpa is the same law that applies across the desert …”.
As I understand it, the explanation as to the way in which exploration activities by the Proposed Grantee may interfere with areas or sites of particular significance also applies to the tjukurrpa itself, its yiwarra and identifiable areas and sites which it touches.
As to the evidence of previous disturbance, see para 24 of Mr Murphy’s affidavit and Mr Muir’s open affidavit at paras 31 and 38. Whilst it may have been more helpful, had Mr Muir given more evidence of the significant disturbance caused by previous exploration, the State could have cross-examined him about that matter, but it did not do so. I accept Mr Muir’s evidence of earlier significant disturbance but, given the absence of detail, it is difficult to give it a great degree of weight.
Concerning the possibility of interference, the State asserts, at para 46 of its contentions, that the Proposed Grantee has indicated that it is committed to the agreement-making process. I must say that I would have been more inclined to act upon that assertion had the Proposed Grantee been an active party in these proceedings. There have been previous negotiations between the parties, but they have broken down. Such breakdown may well have been attributable to either or both parties. In any event, it seems unlikely that, in the absence of some incentive to negotiate, the parties will resolve this matter by agreement.
Once it is accepted that an area or site is of particular significance to the Waturta people, the question of the likelihood or otherwise of interference becomes more acute, simply because the more significant the site is, the more likely it will be that even slight disturbance will be unacceptable. As much is true of all cultures and religions.
There can be no doubt that exploration activities of the kind outlined by Mr Muir at para 41 of his open affidavit have the capacity to cause damage of the kind that he anticipates. Further, it would be artificial to ignore the fact that the area is obviously a drainage basin of some sort, and that widespread experience has demonstrated the relative ease with which such features can be contaminated or destroyed. There is nothing irrational about the likelihood of contamination of the drainage basin in the event that there is an increased presence of non-Aboriginal people in the area, whether they be employees of the Proposed Grantee or otherwise. In this regard I distinguish between Aboriginal and non-Aboriginal people only upon the basis that the Native Title Party has demonstrated concern about the matter, which concern I consider to be genuine.

Finally, the State submits that the AH Act and its associated processes are likely to prevent interference with Marlutja, the Marlu tjukurrpa yiwarra, the Manta Tjapia, and the sensitive Dreaming story. The legislation offers some degree of protection against the concerns expressed by Messrs Murphy and Muir. However, legislation prohibiting conduct seeks to deter such conduct by imposing sanctions, usually imprisonment or fines. Penalties for infringement offer little comfort to those who suffer as a result of such conduct, in this case, probably the Native Title Party. It is understandable that the Native Title Party would find an agreement more reassuring than the threat of statutory punishment.
There is a second aspect to this matter. It is the difficulty of enforcing such legislation. First, the proposed tenement is, one would assume, quite remote. I infer that few, if any, people actually live there. Interference might not be detected in time to allow for mitigation and avoidance. Further, there is always room for argument about whether or not the legislation in question applies to particular conduct or places. For example, there may be arguments about whether or not damage to a particular feature amounts to a breach of s 17 of the AH Act. Questions such as, ‘Is it an Aboriginal site’, would be fundamental to any enforcement proceedings. We also know that the Aboriginal concepts with which we struggle are difficult to define and explain in non-Aboriginal terms.
However the point in this case is that it is not unlikely that there will be interference of the kind identified in s 237(b), if the proposed grant is made.

CONCLUSIONS

I am satisfied that the following areas or sites are of particular significance to the Waturta People as native title claimants:
·        the Marlutja (Lake Wells) to the extent that it lies within the proposed tenement;
·        the Manta Tjapia (Farquharson Tablelands) to the extent that it adjoins the proposed tenement;
·        the Marlu tjukurrpa yiwarra as it passes through the proposed tenement;
·        the sensitive Dreaming story yiwarra as it passes through the north of the proposed tenement; and
·        areas of the Marlutja lying outside of, but adjoining the proposed tenement.
As to whether the proposed grant is, or is not now likely to interfere with such areas or sites, I start with the proposition that given the nature of the exploration activity authorized by the grant of an exploration licence, and having regard to the proposed work plan, there is at least some risk of interference with areas or sites within the proposed tenement, as identified above, either as the result of ignorance or negligence. I do not consider that the AH Act offers sufficient clear protection against such risk as to justify the inference that interference is unlikely. The risk of interference may be greater in the north of the proposed tenement where both the Marlu tjukurrpa yiwarra and the sensitive Dreaming story pass.
To the extent that such areas or sites are located outside of the proposed tenement, the likelihood of interference is significantly reduced. The proposed grant does not expressly authorise any conduct outside of the proposed tenement. However I infer that access will necessarily involve travel over other parts of the claim area. It is possible that access might be via Manta Tjapia (Farquharson Tablelands) as it is higher land than the proposed tenement. There is also high land to the west. Given the nature of the Marlutja area, access may pose problems, as may movement around the proposed tenement.
It is reasonable to infer that fluctuations in water level, may make movement around the proposed tenement difficult. Such difficulties may well cause interference to be more likely particularly if motor vehicles, machinery or heavy equipment are involved. These considerations lead me to conclude that I cannot be satisfied that the proposed grant is not likely to interfere with areas or sites of particular significance to the Native Title claimants according to their traditions. The proposed act is not an act to which the expedited procedure applies.

The Hon John Dowsett AM, QC

President

26 November 2020