Kalman Murphy & Ors on behalf of Waturta v FMG Resources Pty Ltd & Another
[2020] NNTTA 19
•24 February 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kalman Murphy & Ors on behalf of Waturta v FMG Resources Pty Ltd & Another [2020] NNTTA 19 (24 February 2020)
Application No: | WO2019/0066 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kalman Murphy & Ors on behalf of Waturta (WC2018/012)
(native title party)
- and -
FMG Resources Pty Ltd
(grantee party)
- and -
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: | 24 February 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interference with areas or sites of particular significance – the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18 Mining Act 1978 (WA) ss 57, 58, 61, 66, 94A Native Title Act 1993 (Cth) ss 29, 151, 237 |
Cases: | Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal v Gianni) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu 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) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v GE Resources Pty Ltd and Another [2019] NNTTA 74 (Wanjina-Wunggurr v GE Resources) |
| Representative of the native title party: | Sophie Kilpatrick, Cross Country Native Title Services Pty Ltd |
| Representative of the grantee party: | Ken Green, Green Legal |
| Representatives of the Government party: | Maria Farrar and Anthony Civiello, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This decision is about whether or not the grant of exploration licence E38/3320 (the licence) to FMG Resources Pty Ltd (FMG) attracts the expedited procedure. The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (Act) 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 the licence is 21314.26 ha and it is located in the Laverton Shire. The licence overlaps the registered native title claim of Waturta (WC2018/012) by 46.84%. 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 s 237(a) and s 237(b) interference is likely, however, in this inquiry Waturta is only pursing the assertion concerning s 237(b). Applying the common sense approach outlined in Ward v Western Australia (at [26]), I find there is no evidence to support a conclusion that the grant of the licence is likely to cause the interference contemplated in s 237(a) or involve the disturbance, or create rights likely to involve such disturbance, outlined in s 237 (c) of the Act.
In determining whether the expedited procedure applies or not I must make a predictive assessment of what is likely to occur as a result of the grant and decide whether there is a real chance or risk of interference (see FMG v Yindjibarndi at [39]). 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, FMG and the State must negotiate in good faith with a view to reaching agreement with Waturta about the grant.
For the reasons outlined below, my determination is that the expedited procedure does not apply to the grant of E38/3320.
Parties’ submissions
Waturta provided contentions and the affidavit of Kalman Michael Murphy affirmed 29 October 2019. Mr Murphy identifies himself as an initiated man, wati, and says he is responsible for the Waturta claim area, and its surrounding country through his ancestors (Affidavit at [2], [7]). I accept Mr Murphy’s authority to speak for this area.
The State provided contentions, tenure information including a Department of Mines, Industry Regulation Safety ‘Quick Appraisal’ report, a series of maps, the results of searches of the Department of Planning, Lands and Heritage’s Aboriginal Heritage Inquiry System (AHIS), the statement under s 58 of the Mining Act 1978 (WA) (Mining Act), and a draft Tenement Endorsement and Conditions extract.
Despite being required to provide the Tribunal and other parties with the evidence upon which it intended to rely and a statement of contentions, FMG did not provide any materials in this inquiry.
Waturta also provided a reply to the State’s materials.
Having considered all of the materials 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. Waturta and the State indicated they were content with that approach. No response was received from FMG.
The licence and proposed exploration activities
The licence is an exploration licence proposed to be granted pursuant to 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, informs me that FMG considers the licence area to be prospective for ‘iron ore, precious metals or base metals mineralisation’. The statement outlines the program for the initial phase will include ‘aerial photography, analysis of aeromagnetic and landsat data, analysis of public domain historical exploration data, geological mapping and rock chip sampling’. The estimated expenditure in year 1 includes $18,000 for geological mapping and rock chip sampling and $20,000 for ‘gridding, access and aboriginal heritage clearance’.
No explanation is given as to what is proposed in terms of ‘Aboriginal heritage clearance’. Waturta (referencing Mr Murphy’s affidavit at [14]) says there has been no conferral with FMG about proposed activities and ‘[t]here is no agreement to facilitate protection of sites or areas of particular significance to the Native Title Party’ (Contentions at [13]).
FMG’s proposed activities for the second year are also listed. Depending on the results of year 1, these include drilling, interpretation and reporting, and metallurgical testing.
As mentioned above, FMG has not provided any materials in this matter. I accept that it is open to FMG to undertake the full suite of rights outlined in s 66 of the Mining Act. Noting the broad range of activities proposed, I consider it likely that FMG will exercise its rights under the licence to the full extent permitted.
The quick appraisal informs me that there is one ‘live tenement’ which overlaps the licence area by 0.46% (L38/184). The State says that pursuant to s 94A of the Mining Act, an exploration licence can be applied for or granted in respect of land that is the subject of a miscellaneous licence (Contentions at [8]). I note also condition 6 of the draft Tenement Endorsement and Conditions extract submitted by the State which provides:
‘6. The rights of ingress to and egress from Miscellaneous Licence 38/184 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.’
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to Waturta?
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 (see Silver v Northern Territory). 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.
What areas or sites have been identified and are they of particular significance to Waturta?
Waturta says the licence area includes a site of particular significance known as Tjarukati or the “Last Waterhole”. Mr Murphy explains it is on the Warren Bore Road, ‘right on the bend in the far eastern part of the Tenement’ (Affidavit at [15]). In its reply, Waturta provided a map marked and signed by Mr Murphy indicating the specific location of Tjarukati. The State consented to the map being provided. FMG made no comment regarding the map.
Mr Murphy says (Affidavit at [15]-[16]):
‘Tjarukati is a very special place to us because it is the last big rockhole (and major water source) when travelling from Mangkili to Mulga Queen before you get to Mulga Queen’... ‘Our old people followed these waterholes when travelling back and forth between Mulga Queen and Magkili. They are part of our old people’s yiwarra. Our old people camped along them and sang the songs for them and cared for them.’
Yiwarra is described by Mr Murphy as the track made by the tjukurrpa as it travelled through the country ‘making places and doing things’. He says he is ‘responsible for the yiwarra I know about even outside my country’ (at [12]).
The order of the rockholes given by Mr Murphy describes the path followed by the old people when travelling from Karu in the De La Poer Range Nature Reserve, to Miltji, Mangkili, Tjarukati and on to Mulga Queen (Affidavit at [15]). The De La Poer Range Nature Reserve is seen on the ‘Native Title and Aboriginal Interests’ map provided by the State as being located to the east of the licence and slightly to the south. The Mulga Queen community is marked on the same map at approximately the same distance from the licence to the west and a little to the south.
Mr Murphy says (at [17]):
‘When the rains come, Tjarukati fills up with water. It’s a rocky place. It’s beautiful. There are willow trees growing there. Uncle Mindi took me and my brother Troy Chapman there growing up. He showed us that we have to sing out to the oldies, our grandparents, when we visit special places like Tjarukati. If you don’t do this, the spirits at the waterhole might get upset with you and send you strange weather. The water at Tjarukati has healing powers. It gives you energy and is very rich – it is very precious water’.
Finally, Mr Murphy says that because Tjarukati was often visited ‘by our oldies, there are artefacts there. Rock chipping and even walking through there without talking to us will damage these artefacts and upset the spirits of our oldies’ (Affidavit at [20]).
The State says Warturta ‘has not provided a map to clearly identify the location of the Tjarukati’ nor is there sufficient evidence to establish its location (Contentions at [30]-[31]). As noted at [18] above, and without objection by the parties, Warturta in reply provided a map signed by Mr Murphy marking the location of Tjarukati on a bend on the Warren Bore Road as described in contentions and evidence, and within the licence area.
The State accepts that the Tjarukati site has significance to Waturta.
The State also contends that Waturta had not provided sufficient evidence to identify the location of the yiwarra from Mangkili to Mulga Queen ‘and specifically any of the parts that will pass through or near the area of the proposed tenement’ (Contentions at [32]). In my view Waturta has provided sufficient evidence to identify the location. Further, my understanding of the Waturta contentions and evidence is that it is the Tjarukati which is the area or site of particular significance for the purposes of s 237(b), not the yiwarra.
Is the Tjarukati an area or site of particular significance?
In my view Waturta has established that the Tjarukati is an area or site of special or more than ordinary significance in accordance with their traditions; the area is well known and has been located and the nature of the significance explained; and it is located within the licence. Accordingly, I find the Tjarukati to be an area or site of particular significance to Waturta in accordance with their traditions.
Is the grant of the licence likely to interfere with the Tjarukati?
Mr Murphy says under traditional Western Desert rules extra special care must be taken ‘of this waterhole, to make sure it’s clean and it has water in it, to keep the spirits of our old people and of the land happy, and for the animals and people to use’ (Affidavit at [16]). He says that if you don’t sing out to the spirits when visiting Tjarukati the spirits ‘might get upset with you and send you strange weather’ (at [17]). He explains that the water itself is precious, and that it has healing powers. He says he needs to sing the song taught to him ‘to keep the water clean and to keep the spirits happy’ (at [18]). This he says is ‘part of our tjukurrpa, our law’. Mr Murphy also says he is concerned about the impact drilling and chemicals might have if washed into the rockhole. He says that artefacts left by his ancestors could be damaged and the spirits upset by ‘even walking through there without talking to us’, and that if FMG causes damage ‘we will get in trouble by the spirits and by the Tjilpis, the senior Wati across the Western Desert’ (Affidavit at [20]-[21]).
As noted at [15] above, I have found that it is likely that FMG will exercise their rights to the full extent permitted. Pursuant to s 66 Mining Act the licence if granted would authorise FMG 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.
The State says the exercise of the rights conferred by the licence will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment which together and separately ensure the avoidance of any interference to land and waters (Contentions at [35]).
Regional Standard Heritage Agreement (RSHA)
The State says it will place what is commonly referred to as the RSHA condition on the grant of the licence (Contentions at [15]).
In Nyamal v Gianni, Member Cooley said ‘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’ (at [66]). And, at [67] referred to President Dowsett’s decision in Marputu v Gianni as follows:
[66] 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.
Noting the above and the fact that the area or site has been particularised, I am not satisfied that the RSHA mitigates the risk of interference in this case.
Aboriginal Heritage Act 1972 (WA) (AHA)
The State says the AHA ‘and its associated processes’ are likely to prevent interference with any area or site of particular significance (Contentions at [36.2]). Specifically, it says this is so as s 17 makes it an offence to excavate, destroy, damage, conceal or in any way alter any “Aboriginal site” (as defined by s 5 of the AHA) within the licence area without Ministerial consent under s 18, irrespective of whether the site is registered.
There is no statement from FMG about what it understands its obligations are under the AHA.
In Marputu v Gianni, President Dowsett said:
[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, the President said:
[62] 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.
For the reasons outlined above, I am unable to conclude that the AHA is adequate in mitigating the risk of interference to the Tjarukati.
Relevance of prior interference
The State contends that there has been fifteen previous exploration licences and one granted miscellaneous licence over some part of the licence area (Contentions at [9]), although no specific contention is made regarding historical interference (as noted by Waturta). In the absence of evidence I am unable to conclude that any activity or impact caused by the grant of historical tenements is relevant to this inquiry (see, for example, Wanjina-Wunggurr v GE Resources).
Conclusion
I have found that the Tjarukati is an area or site 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 E38/3320 to FMG Resources Pty Ltd is not an act attracting the expedited procedure.
Mr JR McNamara
Member
24 February 2020
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