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

NATIONAL NATIVE TITLE TRIBUNAL

Kalman Murphy & Ors on behalf of Waturta v Ausgold Exploration Pty Ltd & Another [2019] NNTTA 89 (29 October 2019)

Application No:

WO2018/0597

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 & Ors on behalf of Waturta (WC2018/012)

(native title party)

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Ausgold 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:	Helen Shurven, Member
Place:	Perth
Date:	29 October 2019
Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure
Legislation:	Mining Act 1978 (WA) s 66 Native Title Act 1993 (Cth) ss 29, 32, 237
Cases:	Ben Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Delores Cheinmora v Striker Resources NL; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Hale on behalf of Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale v Western Australia) May Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Moses Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory)
Representative of the native title party:	Sophie Kilpatrick, Cross Country Native Title Services Pty Ltd

Representative of the grantee party:

Jacob Loveland, All Mining Legal Pty Ltd

Representatives of the Government party:

Amelia Devlyn, State Solicitor’s Office

Bethany Conway and Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E38/3311 (the licence) to Ausgold Exploration Pty Ltd (Ausgold). The notice included a statement that the grant of the licence is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts the grant is not likely to, in summary:
(a)interfere directly with the community or social activities of the native title holder (s 237(a));
(b)interfere with areas or sites of particular significance in accordance with the traditions of the native title holder (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 licence is approximately 249.06 square kilometres in the Shire of Laverton. The licence is partially overlapped by the registered native title claim of Waturta (WC2018/012). According to the Register of Native Title Claims, the registered rights and interests of the Waturta claimants include, where it can be recognised, the right to possess, occupy, use and enjoy the lands and waters of the claim area as against the whole world.
The Waturta claimants lodged an application with the National Native Title Tribunal in response to the State’s assertion that the expedited procedure applies to the grant of the licence. Waturta argue the expedited procedure should not apply as the grant will likely cause interference of the kind contemplated in s 237(a) and s 237(b). Waturta do not pursue an objection under s 237(c) and, applying the common sense approach (outlined in Ward v Western Australia at [26]), there is nothing before me to indicate that the grant of the licence is likely to involve such major disturbance. Therefore, I find disturbance under s 237(c) is unlikely, and focus this inquiry on the provisions of ss 237(a) and (b).

Preliminary Matters

Waturta provided contentions and a reply to the parties’ materials, as well as relying on the affidavits of Mr Kado Muir and Mr Kalman Murphy. Mr Muir describes himself as an initiated man, a wati, and outlines that this status makes him responsible for looking after sites and ensuring they are respected (at 12). Mr Murphy also identifies as a wati and states he is responsible for the Waturta area and the surrounds (at 7). I accept Mr Muir’s and Mr Murphy’s authority to speak for this area.
The State provided contentions with supporting documents, and Ausgold provided brief contentions. I considered this inquiry could be determined on the papers, without the need for a hearing, and the parties had no issue with that approach.
I have examined the relevant information and evidence provided by the parties, and by drawing factual conclusions from that material as outlined below, I find the expedited procedure does not apply to the grant of the licence.

Section 237(a): Is the grant of the licence likely to interfere directly with the community or social activities of the Waturta community on or related to the area of E38/3311?

In my consideration under s 237(a), I must balance a grantee party’s proposed exploration activities with any evidence of the native title claimant’s community and social activities, to determine whether the activities can coexist without direct or substantial interference (see for example Rosas v Northern Territory at [71]).
Waturta contentions assert that hunting of emu and collection of emu eggs, collection of kampara (bush tomatoes), travelling along Yiwarra (dreaming tracks) and passing on traditional knowledge occur on the licence (at 16).

Hunting of emu and collection of eggs

Mr Muir outlines that the licence falls within ‘core emu (tjakipirri) country’ (at 48). Mr Murphy outlines that the area is a ‘good hunting place’ for marlu (kangaroo) and kaliya (emu) (at 20). Emus are said to nest in the area and Mr Murphy and Mr Muir express concern that drilling will disturb the nesting. Further, it is said that if ‘they don’t nest there, then there won’t be emu eggs or emus for us to hunt’ (Mr Murphy’s affidavit at 20).
The State contends this evidence is insufficient in that no details are provided as to the frequency, the duration or the participants of the activities (at 30). Further, the State submits that hunting and mineral exploration activity are, by their nature, inherently capable of coexistence (at 32).
Whilst some evidence has been provided to establish that hunting and collection of emu eggs occur on the licence, it is not sufficiently detailed to enable me to assess how the community conduct these activities, who conducts them and where they are conducted in relation to the licence area. As such, I am not satisfied there would likely be direct or substantial interference with these activities as contemplated in s 237(a). In making this finding, I accept the State’s submission regarding the capability of hunting and mineral exploration activity to coexist in this instance.

Collecting kampara (bush tomatoes)

Mr Muir states the licence area is ‘also home to bush tomatoes or kampara’ (at 49). They are collected to be eaten and it is said that this has been done for generations. The kampara are said to be very valuable to the community (at 49). Mr Muir outlines the following concerns regarding exploration activities interfering with the collection of kampara (at 49):
We will be prevented from doing this [collecting kampara] if the Tenement is granted without Ausgold being required to consult or negotiate with us about where they can create and access tracks and drill. When drilling is conducted, dirt with different acidity levels is extracted and left on the surface for a period of time before drilling holes are rehabilitated. This soil or dirt gets blown around and affects the kampara which are only adapted for the surface soils and the minerals and acidity level of that surface soil.
In response to this, the State contends the evidence lacks detail about the frequency, the duration and the number of people involved in this activity (at 35). I accept this contention and am not satisfied the evidence in relation to collecting kampara is sufficiently detailed in order for me to find such activity will be directly and substantially interfered with such as to offend s 237(a), particularly given the size of the licence and the lack of specificity regarding the location of the kampara.

Travelling along Yiwarra or Dreaming tracks and passing on traditional knowledge

Waturta contentions assert that passing on traditional knowledge on trips along the Yiwarra (Dreaming tracks) will be impacted by the Ausgold’s activities (at 24). Much of the evidence referred to in Waturta’s contentions regarding these activities appears to relate to the required assessment pursuant to section 237(b), rather than s 237(a) and, as such, is discussed later in this decision.
Relevantly, Mr Muir explains community and social activities are important because:
…they are associated with us and our old people travelling along the yiwarra that the tjukurrpa followed. We also teach our children about these activities and the plans and animals and the yiwarra and tjukurrpa whilst out on the Tenement area (at 50).
Mr Murphy outlines that he is aware that his old people travelled along the yiwarra through the licence area on their way to practise ceremony (at 19).
In its assessment of this evidence, the State asserts there is no clear nexus between the travelling along the yiwarra and passing on traditional knowledge and the requirements of s 237(a) (at 45). I accept this contention.

Conclusion

In my view, there is insufficient detail about the actual exercise of Waturta people’s social and community activities. I am, therefore, not satisfied the evidence supports a finding that the social and community activities of the Waturta native title claimants will be interfered with in the sense contemplated by s 237(a).

Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title claimants on or related to the area of E38/3311?

An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title claimants in accordance with their traditions (see Cheinmora v Striker Resources at 34-35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]).
Waturta assert the licence intersects with important Dreaming tracks or tjukurrpa and outline likely impacts on areas which they argue are of particular significance to the Waturta native title claimants (at 8).
The importance of tjukurrpa is detailed in Waturta’s evidence. For example, Mr Muir explains the term tjukurrpa describes a body of beliefs which ‘include the stories of creation, [and] the evidence of that creation in the land’ (at 6). Mr Murphy describes tjukurrpa as the main law that has to be followed under traditional rules (at 11). The world, in the Dreamtime, is described as ‘soft, flat and featureless’ as the tjukurrpa beings travelled (Mr Muir at 7). Mr Muir explains (at 8):
As they [the tjukurrpa beings] 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 are all creations of the tjukurrpa. All these things that we know and recognise as the landscape were created by the activities of the tjukurrpa beings.
Similarly, Mr Murphy states (at 11):
All the places they went, and did things, and the tracks of yiwarra they made are the most important places and areas we have to protect and care for… Protecting the tjukurrpa places and yiwarra is our number on responsibility as owners of country.
A number of tjukurrpa are referred to, however, only the marlu tjukurrpa satisfied the requirement of particular significance, in my view. I outline my reasons for drawing this conclusion below.

Mount Feldtmann and the marlu tjukurrpa yiwarra

Mr Murphy and Mr Muir state that the marlu tjukurrpa, a kangaroo Dreaming, passes through the licence area (at 17 and 18 of their affidavits, respectively). Mr Muir describes the tjukurrpa as ‘very important’, a ‘big tjukurrpa’ and an ‘important story for senior wati’ (at 18). Mr Murphy and Mr Muir explain that the marlu tjukurrpa travels through the tenement and that Mount Feldtmann is a site of particular significance. Mount Feldtmann is on the yiwarra, the tjukurrpa track, and that the marlu travelled through there (at 17 and 18, respectively). Further, Mount Feldtmann and the tjukurrpa are described as connecting to other identified areas significant to him and the Waturta claimants (see for example Mr Murphy at 17). One of these identified areas and an associated water source is said to be named after the marlu tjukurrpa (Mr Muir at 18).
Contentions from Waturta also outline that the marlu tjukurrpa yiwarra is connected to Mount Feldtmann and travels in a north-south direction through the licence (at 25), which is consistent with Mr Muir’s evidence (at 43). According to the State mapping, Mount Feldtmann is located in approximately the centre northern part of the licence. The feature is spelt variously through the mapping and documentation, and in this decision I have adopted the spelling as included in the State’s official Tengraph document for consistency.
The State accepts the marlu tjukurrpa is significant to the native title claimants, however, it submits the evidence is not sufficiently detailed to support a finding that it is, or goes through, an area of particular significance (at 58). Ausgold does not make any specific contentions in relation to named sites or areas referred to in the Waturta materials. In response, Waturta’s reply contends that the marlu tjukurrpa yiwarra itself is an area of particular significance, and that Mount Feldtmann is a site of particular significance (at 34).
I note that Mr Murphy and Mr Muir also provide evidence about the importance of tjukurrpa generally, in accordance with the native title claimants’ traditions (for example, at 11-12 and 6-15 of their affidavits respectively). On its own, this evidence is not sufficient to support a conclusion that an area is of particular significance (see for example my conclusions below about other tjukurrpa and related areas). However, when taken as a whole, the evidence about the marlu tjukurrpa and the evidence about tjukurrpa generally and the native title traditions, is sufficient for me to conclude Mount Feldtmann is a site or area of particular significance because of its relationship to the marlu tjukurrpa, which travels through the licence.

Tjila tjukurrpa yiwarra and the important men’s tjukurrpa

Mr Muir identifies another tjukurrpa, the tjila tjukurrpa as traveling through the Waturta claim area (at 20). The tjila tjukurrpa is said to ‘likely’ pass through the licence area (at 43). Few further details about this tjukurrpa are provided.
Similarly, Mr Murphy provides evidence of an important men’s tjukurrpa that travels through the Waturta claim area (at 16). He states that only wati are allowed to speak about it. Mr Murphy says that the story might have travelled through the licence area and this can only be confirmed by talking to senior watis (at 16).
In relation to these tjukurrpa, the State is of the view that they have not been located with sufficient particularity to enable them to be located in the licence area (State’s contentions at 63-64).
Even taking into account the information provided in the Waturta contentions (at 28-30), which supplements the affidavit evidence, I consider that the evidence regarding these two tjukurrpa is broad and sparse, particularly in relation to their location and the explanation of their particular significance to the Waturta native title claimants. As such, I am unable to find the areas or sites associated with these two tjukurrpa meet the requirement of particular significance for the purposes of s 237(b).

Other mentioned sites

Waturta contentions assert that other sites or areas of significance are ‘likely’ to exist within the licence (see for example at 32). These include camping places used by the old people and water source places, or parangu (Mr Muir’s affidavit at 45-46; Mr Murphy’s affidavit at 19).
While I accept that these sites may exist, insufficient detail has been provided for me to be satisfied they are of particular significance as required by s 237(b).

Is the grant of the licence likely to interfere with any of the identified areas or sites of particular significance to the Waturta claimants?

When evaluating the degree of interference for the purposes of s 237(b), I must consider the nature of the site, the nature of the likely interference and the laws and traditions of the native title holders (see Silver v Northern Territory). As concluded by McKerracher J in FMG v Yindjibarndi (at [79]), the interference must be substantial or non-trivial, however, the meaning of these terms ‘must be taken in the context of the particular site and the laws and customs in relation to that site’.
As I have noted, I conclude Mount Feldtmann is a site of particular significance.
The State argue Mount Feldtmann is within the licence area, but outside the Waturta claim area (at 53). As noted in Hale v Western Australia (at [103]-[113]), the scope of an expedited procedure objection inquiry is not restricted to the area overlapped by the objector’s native title claim or determination but the whole area specified in the s 29 notice.
Further, Mr Muir notes he and other wati have responsibilities beyond the boundaries of the Waturta claim:
…I’m responsible, along with other wati in the claim area, for areas and sites of significance associated with the tjurkurrpa that travels through the Waturta claim area. This also applies to country neighbouring the Waturta claim area. If I have knowledge about tjurkurrpa, even though it’s outside of the Waturta claim area, I would be responsible for speaking up about it if it was threatened (at 32).
While Ausgold has not provided any specific detail about its intended activities, the State’s documentary evidence includes a statement accompanying Ausgold’s licence application setting out its proposed mineral exploration work program (at page 14). Waturta summarise its understanding of Ausgold’s proposed exploration program:
… the Grantee Party proposes to conduct the following activities in the first year of the Tenement term pursuant to s66 of the Mining Act [Mining Act 1978 (WA) (Mining Act)]:
a) Access the Tenement;
b) Conduct soil sampling
c) Geophysical surveys and geophysical interpretation
d) Reconnaissance aircore drilling.
In the second year of the Tenement term, the Grantee Party proposes to conduct the following activities:
a) Stream sediment and soil sampling; and
b) Infill aircore drilling (at 12-13).
I accept the summary in the Waturta contentions accords with the detail provided in the Ausgold statement.
Noting the proposed activities listed, in the absence of further information being provided, I assume that Ausgold intend to utilise the full suite of rights available to it upon grant of the licence. This would allow Ausgold to, for example, extract up to 1,000 tonnes of earth from the licence during the life of the licence (pursuant to the Mining Regulations 1981 (WA)).
The State argues Waturta have not outlined ‘how the exercise of [Ausgold’s] rights would interfere with specific areas or sites of particular significance’ (at 79). However, I do find there is sufficient evidence in both affidavits regarding likely interference with the marlu tjukurrpa, as well as the consequences of such. For example, Mr Murphy states (at 18):
…the grant of the Tenement will give Ausgold rights to travel through the tenement with machinery and vehicles, take samples of up to 1000 tonnes, carry out drilling and take water from country. All of these activities will affect the Yiwarra for that marlu… and therefore the tjukurrpa itself. If this happens, then I would get in big trouble with the tjilpa and the spirits of the land. I could get sick or someone in my family could get sick.

Likewise, Mr Muir explains (at 31):
… 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 lose 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, people could get sick too because we did not look after the country and the tjukurrpa.
Mr Muir also outlines the type of punishment which can be meted by the spirits of the land, or by other wati, if certain sites or areas are not looked after in accordance with the native title party traditions (at 31, 33). That evidence is also consistent with that provided by Mr Murphy (at 18).
Mr Muir outlines his concern that Ausgold may cause interference with areas on the licence by clearing tracks, accessing the area, or other exploration activities (at 37). He notes that activities open to Ausgold under s 66 of the Mining Act, such as traveling through the licence with vehicles, digging pits and trenches, taking land or earth, ‘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’ (at 40-41). Mr Murphy gives similar evidence. The evidence outlines the consequences of interference with tjukurrpa sites, including losing part of an important story, as well as community and individual consequences in accordance with the native title party’s traditions (at 31 and 34 for example).
I accept that should Ausgold conduct exploration activities, even non-ground disturbing activities or ‘low impact’ activities such as driving light vehicles, or water and soil sampling using hand held equipment around or near Mount Feldtmann, it is likely to cause interference with the tjukurrpa associated with Mount Feldtmann. As noted in FMG v Yindjibarndi (at [76]), this interference need not necessarily be physical, and what an explorer regards as non-trivial may not necessarily accord with what the native title party regards as such. The question then is whether the State’s regulatory regime would mitigate any such interference?
The State outlines (at 81, and see also 84-85, 94-100) that:
In any event, the Grantee Party has indicated that it will comply with its AHA [Aboriginal Heritage Act 1972 (WA) (AHA)] requirements prior to conducting exploration activities in the vicinity of an Aboriginal heritage site and will report any potential Aboriginal heritage site identified in the course of its exploration activities. The Grantee Party has also contended that it will observe the endorsements and comply with the conditions to which the grant of the proposed tenement is subject to.
It is not clear how Ausgold will identify potential Aboriginal heritage sites without guidance from Waturta. I note the Waturta reply highlights this issue (at 13):
… the Grantee Party provides no evidence or particular about that it understands its obligations area under the AHA, what constitutes an Aboriginal heritage site, or how it might identify a potential Aboriginal heritage site (as defined under the AHA). Further, the Grantee Party appears to conflate the definition of an Aboriginal site (howsoever it understand and interprets that definition) in the AHA with a site or area of particular significance as defined at s 237(b) of the NTA [the Act].
Further to this, I note the AHA does not require heritage surveys be conducted nor communications be had with a native title party before non-ground disturbing activities can be conducted on a licence.
The State has indicated it will apply the following Regional Standard Heritage Agreement (RSHA) condition on the grant of the licence (at 15, italics in original):
In respect of the area covered by the licence the licensee, if so requested in [sic] by Waturta, the native title applicants in Federal Court application No. WAD297/2018 (the “native title party”), such request being sent by pre-paid post to reach the licensee’s or agent’s address no more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the native title party the Regional Standard Heritage Agreement (“RSHA”) nominated by the native title party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading “Regional Standard Heritage Agreement”.
The State asserts that (at 84):
… the Native Title Party would have the opportunity to clearly identify the sites and areas should they elect to execute an RSHA. This would inform the Grantee Party and enable them to avoid exploration activities around such sites.
While the State allows the native title party to elect which RSHA they might seek to have imposed on the grant of the licence, Waturta highlights a number of practical issues with the RSHAs. In relation to the Yamatji Marlpa Aboriginal Corporation (YMAC) and South West Land and Sea Council (SWALSC) agreements, Waturta note that both organisations are parties to their respective RSHAs (at 22(a)). It is noted that s 203BB(3) of the Act restricts such organisations, known as Native Title Representative Bodies, to perform their duties in relation to land or waters wholly or partly within their representative regions. In relation to this, Waturta note (at 22(c)):
The Waturta claim and the Tenement fall wholly within the area for which the Goldfields Land and Sea Council is currently a native title service provider, and therefore not within any area YMAC or SWALSC is responsible for. Accordingly, it would not be possible for an RSHA to be executed as between the Grantee Party and YMAC or SWALSC on behalf of the Waturta applicant with respect to the Tenement.
In relation to the final agreement listed in the RSHA condition, the Goldfields Land and Sea Council Agreement, Waturta highlight that the Goldfields Land and Sea Council is no longer funded as a native title service provider (at 22(d)). This fact, Waturta argues, makes it impossible for an RSHA to be executed between Ausgold and the Goldfields Land and Sea Council on behalf of the Waturta applicant (at 22(d)). I acknowledge the analysis provided by Waturta and find the proposed RHSA condition does not reduce the risk of interference.
Finally, there is nothing in my reading of the conditions and endorsements intended to be applied by the State to the grant of this licence which addresses the issues raised by the native title party in this inquiry.

Conclusion

I am satisfied that given the nature and importance of the marlu tjukurrpa yiwarra, together with its pathway through this licence, and its association with Mount Feldtmann, it is likely that exploration activities conducted on the grant of the licence will interfere with areas or sites of particular significance in accordance with the traditions of the native title holder.

Determination

My determination is that the grant of E38/3311 to Ausgold Exploration Pty Ltd is not an act that attracts the expedited procedure.

Helen Shurven
Member
29 October 2019