Kalman Murphy & Others on Behalf of Waturta v Australia Potash Limited and Another - [2021] NNTTA 13

NATIONAL NATIVE TITLE TRIBUNAL

Kalman Murphy & Others on Behalf of Waturta v Australia Potash Limited and Another [2021] NNTTA 13 (14 April 2021)

Application No:

WO2020/0289

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 & Others on Behalf of Waturta (WC2018/012)

(native title party)

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Australia Potash Limited

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Nerida Cooley, Member
Place:	Brisbane
Date:	14 April 2021

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 area of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) s 5 Mining Act 1978 (WA) ss 58, 57, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237
Cases:	Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Goldphyre WA Pty Ltd, [2013] NNTTA 101 (Yilka v Goldphyre) Marputu Aboriginal Corporation RNTBC v Element 25 Limited & Another [2020] NNTTA 58 (Marputu v Element 25) Kalman Murphy and Others on behalf of Waturta v Lake Wells Exploration Pty Ltd and Another [2020] NNTTA 13 (Waturta v Lake Wells) Kalman Murphy and others on behalf of Waturta v Piper Preston Pty Ltd [2020] NNTTA 74 (Waturta v Piper Preston)
Representative of the native title party:	Sophie Kilpatrick, Cross Country Native Title Services

Representative of the grantee party:

Ken Green, Green Legal

Representatives of the Government party:

Anthony Civiello, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulations and Safety

REASONS FOR DETERMINATION

Introduction

This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E38/3423 (licence) to Australian Potash Limited (APL).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice that the Minister for Mines and Petroleum may grant the licence, specifying the notification day of 20 November 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure. If the expedited procedure applies, the licence may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA.
The whole of the licence area is located within the area of the Waturta People’s native title determination application. On 19 March 2020, the registered native title claimant for the Waturta People’s native title determination application (Waturta) lodged an objection against the inclusion of the expedited procedure statement (s 32(3) NTA).
Accordingly, the Tribunal is required, under s 32(4) of the NTA, to determine whether the grant of the licence is an act attracting the expedited procedure. I have been directed to constitute the Tribunal for that purpose. For the reasons outlined below, my determination is that the expedited procedure applies to the grant of the licence.

Determination on the papers

In accordance with the Tribunal’s directions, the State provided contentions and evidence including mapping, a Tengraph Quick Appraisal, searches of the Aboriginal Heritage Inquiry System (AHIS search), the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and details of proposed endorsements and conditions to be imposed on the grant of the licence.
Waturta provided contentions (including by way of reply) and an affidavit of Mr Kalman Michael Murphy, affirmed 27 August 2020. Mr Murphy is a member of the applicant for the Waturta native title determination application and a member of the Waturta claim group.
APL provided contentions and an affidavit of its exploration manager, Mr Christopher Dale Shaw, sworn 15 October 2020.
Having considered the material provided, I am satisfied that the matter can be adequately determined without a hearing, as permitted by s 151(2) of the NTA.

Issues for the inquiry

Under s 237 of the NTA, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The accepted approach to s 237 is summarised in Yindjibarndi v FMG at [15]. The Tribunal’s role is to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence.
Waturta’s Form 4 application raised issues relevant to each limb of s 237. However, as stated in its contentions at 9, Waturta now contends only that the grant of the licence is likely to cause interference within the meaning of s 237(b). Accordingly, it is the likelihood of that interference which is the focus of this inquiry.
Further, having regard to the material before me, there is no basis to conclude that the grant of the licence is likely to cause interference as contemplated by s 237(a) or major disturbance under s 237(c).

The licence and APL’s proposed exploration activities

The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act outlines the rights conferred on the holder of an exploration licence, which include the right to ‘excavate, extract or remove… earth, soil, rock, stone, fluid or mineral bearing substances’ up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The Tengraph Quick Appraisal provided by the State reveals a range of information about the licence area, including that:
(a)the licence area is 3346.41 hectares; and
(b)the underlying land tenure is unallocated Crown land (85.41%) and pastoral lease (14.59%).
In its s 58 statement APL outlines a proposed year 1 exploration budget of $45,518 for activities that include:
(a)literature and historical report search and data compilation;
(b)acquisition, implementation and interpretation of remote sensing/GSWA/GIS data;
(c)target generation and planning;
(d)passive Seismic data collection;
(e)passive Seismic data processing; and
(f)surface brine collection and assay.
According to the s 58 statement years 2-3 are likely to have drill testing at a cost of approximately $22,000. The statement notes further that, unlike hard mineral deposits, the drill spacing is measured in kilometres not 10s of metres, meaning the drilling activities display a relatively low environmental impact.
Additional information is provided in Mr Shaw’s affidavit. Mr Shaw deposes that the licence is part of APL’s plans for its Lake Wells Sulphate of Potash Project. He says that he recommended APL apply for the licence as he assessed that the licence area was a “likely extension of the brine hosted potash resource which is the target mineral of the Project”.
Mr Shaw goes on to say that, since APL applied for the licence, he has developed a more precise exploration plan for the licence. In particular, he presently anticipates APL will conduct all of the activities listed on page 2 of the s 58 statement except for ‘surface brine collection and assay’ and will conduct drill testing at no more than six locations (shown on the map annexed as CDS5 to Mr Shaw’s affidavit).
Mr Shaw describes the drill testing and risks to surface water at 18-19 of his affidavit as follows:
18. Because the targe[t] mineral for APL is brine hosted potash, the drill testing will simply comprise constructing “water bores”. The manner of constructing the water bore will not be dissimilar to the manner in which suburban water bore might be constructed. The approximate depth of those water bores will be 150 metres to 170 metres. Each of the bores will then be tested for yield and grade.
19. I am well aware of the risks associated with brine exploration and their control measures. I am very confident that brine exploration undertaken by APL will not impact any surface water, including any soaks. Such an impact will be a breach of the statutory regime under which APL operated. Since I was employed during September 2017 as APL’s Exploration Manager I have, as part of the Project, overseen the drilling of over 40 holes, including over 20 water bores, without incident.
In its s 58 statement, APL stated that it is a potash focussed exploration company and primarily explores for potash and gold, although exploration will also occur for other minerals known to occur in the region, such as nickel, chromium, copper and zinc. However, Mr Shaw’s evidence is that, based on his review of the data, he does not presently intend for APL to explore the licence for any mineral other than brine hosted potash.

Predictive assessment - Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Waturta?

As discussed in Yindjibarndi v FMG at [17]-[18], an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders.

What areas or sites of particular significance are identified by Waturta?

Waturta argues that the grant of the licence is likely to interfere with Marlutja, (shown on the mapping as Lake Wells).
Waturta’s contentions at 16 argue that the AHIS search provides that Marlutja is significant for ceremonial and mythological reasons.
Marlutja is not a registered Aboriginal site under the AHA. It is listed as an ‘Other Heritage Place’ (ID 38260) on the AHIS Search. The information recorded about Marlutja ID 38260 is that its type is ‘Ceremonial, Mythological, Natural Feature’ and it is subject to both gender and boundary restrictions. However, the status is shown as ‘Stored Data/Not a Site’ which, according to the AHIS search, means that the place has been assessed as not meeting the requirements of s 5 of the Aboriginal Heritage Act 1972 (WA).
Of course the AHIS search is not determinative for present purposes. A site or area may be of particular significance for the purpose of s 237(b) regardless of whether it meets the requirements of s 5 of the AHA as the requirements of each of these statutory provisions differ (see discussion in Marputu v Element 25 at [96]-[100]).
Waturta says that Mr Murphy’s affidavit sets out more detail of the particular significance of Marlutja, which is associated with the marlu tjukurrpa (kangaroo dreaming). Waturta also cites a number of previous determinations where the Tribunal found sites or areas associated with the marlu tjukurrpa to be sites or areas of particular significance for s 237(b).
To that point, I note also that shortly after the parties’ materials were provided in this matter, President Dowsett found, in Waturta v Piper Preston, that Marlutja is an area or site of particular significance to Waturta.
Mr Murphy’s evidence in this case regarding the significance of Marlutja and its association with the marlu tjukurrpa is very similar to that outlined by President Dowsett at [6]–[15] of Waturta v Piper Preston.
A key difference is that the proposed tenement considered in Waturta v Piper Preston lies completely within Marlutja, whereas in this case, the proximity of the lake to the licence area is the subject of some contention between the parties.
At 21, Mr Murphy states that the dreaming track “goes right down through Lake Wells and travels through the Tenement down to Minnie Creek” and that “on his way to Minnie Creek, he [being the marlu] travels through the Farquharson Tablelands and the Mount Gerard Reserve”. The location of Minnie Creek is not apparent from the material however I note that there was a Minnie Creek identified as an important men’s site in Yilka v Goldphyre. In that case Minnie Creek was described as being approximately 10 kilometres north of the proposed tenement, which would seem to locate it about 100 kilometres south-east of the licence. The Farquharson Tablelands can be seen in the map at CDS3 and appear to be located over 30 kilometres north east of the licence. Mt Gerard Reserve does not appear in the mapping provided by parties but it is referred to in Waturta v Lake Wells. Based on the description of the site in that decision, it would be located to the north of the licence.
However, while Mr Murphy states that the marlu yiwarra (Dreaming track) travels through the licence, Waturta does not argue that the track or any associated area or site is an area or site of particular significance for s 237(b). The only location in or near the licence that Mr Murphy specifically identifies as being of particular significance to Waturta is Marlutja.
As to the location of Marlutja, Mr Murphy deposes at 20 that the licence is “right next to” Marlutja. He also states at 27 that there is a fresh water soak right on the bottom tip of Marlutja which, from looking at the maps annexed as KMM1 to his affidavit, means the soak is “right on the edge” of the licence. KMM1 contains two maps, one of which is a copy of the map of Other Heritage Places which also forms part of the AHIS Search provided by the State. This map shows the boundary of Other Heritage Place Marlutja ID 38260 extending into the licence area. The second map shows the lake in relation to the licence boundary, without the AHIS overlay. Both maps appear to show the bottom tip of Lake Wells near to the licence, although it is not clear that the lake abuts the licence.
Mr Murphy expresses concern about the soak on the edge of the licence, but that is in the context of the possible contamination of water from exploration activities, not in the context of s 237(b), which is the only limb of s 237 pressed by Waturta. Waturta appears to accept the relevance of Mr Shaw’s evidence to the issue of contamination of the soak (reply at 30). Waturta also confirms in its reply at 22 that it does not assert the soak is itself a site of particular significance. Rather, it says the soak is part of Marlutja and explains, in part, the significance of Marlutja.
APL takes issue (at 5.13) with what it says are inconsistent statements by Waturta regarding the location of Marlutja. However, Waturta says it was drawing a distinction between the map showing the Other Heritage Place Marlutja ID 38260 (which does extend into the licence area) and the landform of the lake (reply at 8).
In its contentions at 17, Waturta accepts that “most of” Marlutja falls outside the licence but argues that interference is likely because Marlutja is “immediately adjacent” to the licence and “part of it falls on the boundary” – which Waturta explains is a reference to the tip of Marlutja, where Mr Murphy says the soak falls on the boundary (reply at 10).
However, that is not exactly what Mr Murphy says. He describes the soak as “at the bottom tip of Marlutja” and “right on the edge” of the licence, which may still position it outside the licence.
Waturta also states that its position is consistent with the State’s contentions at 19.3 where the State contends I should conclude Marlutja is located “near to, but outside,” the licence (reply at 10). I am not sure those positions are entirely consistent, but in any event Mr Murphy appears clear that Marlutja is adjacent or “right next to” the licence.
While the proximity of Marlutja to the licence is not evident from the maps at KMM1, various other maps (or different copies of the same maps) are contained in the material provided by the State and APL. Some of those maps are clearer than the maps annexed as KMM1 and show that there is a short distance between the end of the lake and the licence boundary. See for example the map of registered sites attached to the AHIS Search provided by the State and the map at annexure CDS5 of Mr Shaw’s affidavit.
Taking account of all of the evidence, I am satisfied that Marlutja is located near to, but outside the licence.
The State (at 19.4) accepts the significance of the marlu tjukurrpa to Waturta but questions the particular significance of Marlutja, noting that the decisions cited by Waturta do not go so far as recognising the particular significance of Marlutja itself. Of course, as I have already noted, the subsequent determination in Waturta v Piper Preston did find Marlutja to be of particular significance to Waturta. The State’s position here appears to differ from Waturta v Piper Preston where, according to the reasons at [40], the State accepted that Marlutja is of particular significance because of its association with the marlu tjukurrpa.
Consistent with the decision in Waturta v Piper Preston I am also satisfied on the evidence that Marlutja is of particular significance to Waturta for the purposes of

s 237(b). I do not find APL’s arguments about the relevance of any decision under s 5 of the AHA compelling. As noted above, the statutory requirements under the AHA differ to those for s 237(b).

Is the grant of the licence likely to interfere with Marlutja?

Mr Murphy says he is very concerned about APL’s activities next to Marlutja and says he will get into trouble if APL damages Marlutja. At 23, Mr Murphy outlines his understanding that any disturbance to the land “on or right next to” Marlutja would upset the spirit of the kangaroo and the dingo associated with the marlu tjukurrpa. He also says at 26 that activities in the licence area will affect the marlu yiwarra and therefore the tjukurrpa itself “because they will be done right next to Marlutja and because the marlu yiwarra travels through” the licence. At 28 Mr Murphy states he is concerned about APL’s activities next to Marlutja because it is a special men’s place and women should not come here.
As I have already noted, Waturta does not assert here that the path of the marlu yiwarra through the licence is a site or area of particular significance for s 237(b), which appears to differ from the position in Waturta v Piper Preston. Also, save for the general reference to the dreaming track continuing to Minnie Creek, the path through the licence is not identified.
The question then arising is whether activities under the licence which may occur in close proximity to Marlutja (being outside the licence area) are likely to cause interference for s 237(b). In Waturta v Piper Preston, President Dowsett observed (at [61]) that the likelihood of interference in such circumstances, is significantly reduced.
In this case, Waturta’s argument is that exploration activities in the licence area are likely to affect Marlutja, which I have found is near to, but outside the licence area. The Tribunal has in the past accepted that that the grant of a tenement may interfere with sites outside the tenement area. However, that is usually in circumstances where there is evidence of activities by the grantee party outside the tenement area that are related to activities within the tenement, such as construction of roads, which is not the case here. See discussion in Yindjibarndi v FMG at [17].

Waturta relies on, and I acknowledge, the observations in Marputu v Element 25 at [76] which question the need for “direct” or “physical” interference with areas or sites of particular significance located outside a tenement. However, as President Dowsett noted in that case, “the question of establishing the likelihood of interference with areas or sites outside of the proposed tenement poses difficulties beyond those associated with interference said to have occurred within the proposed tenement”.
I have taken account of the location of the proposed drilling to be undertaken by APL, which is not in that part of the licence closest to Marlutja. I do acknowledge, as submitted by Waturta in reply at 25, that Mr Shaw’s evidence is qualified as what is “presently” proposed and further, that at least some of the activities listed in the s 58 statement could occur in the area of the licence near Marlutja.
However, Mr Murphy’s consistent concern is about activities on or right next to Marlutja (see for example 23, 26-30). At 29 he states there are artefacts on the shoreline and that “rock chipping or even walking through there without talking to us will damage these artefacts and upset the spirits of our oldies”. As already noted, the mapping shows a short distance between Marlutja and the licence so it seems unlikely that the shoreline will be disturbed.
Given this short distance between Marlutja and the licence area and there being no evidence of any activities proposed outside the licence, I am not satisfied that APL’s activities could be reasonably construed as being conducted on or right next to Marlutja. In all of the circumstances I am unable to conclude that there is a real, not remote, chance of interference to Marlutja from the grant of the licence.

Determination

I determine that the grant of exploration licence E38/3423 is an act attracting the expedited procedure.

Nerida Cooley
Member
14 April 2021