Kalman Murphy & Others on behalf of Waturta v William Robert Richmond and Another
[2021] NNTTA 55
•7 October 2021
NATIONAL NATIVE TITLE TRIBUNAL
Kalman Murphy & Others on behalf of Waturta v William Robert Richmond and Another [2021] NNTTA 55 (7 October 2021)
Application No: | WO2021/0704 |
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 & Others on behalf of Waturta (WC2018/012)
(native title party)
- and -
William Robert Richmond
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven |
Place: | Melbourne |
Date: | 7 October 2021 |
Catchwords: |
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Legislation: | Native Title Act 1993 (Cth) ss 29, 237 Aboriginal Heritage Act 1972 (WA) ss 16, 17, 18 Mining Act 1978 (WA) s 66 Mining Regulations 1981 (WA) reg 20 | |
Cases: | 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) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Forrest v Aruma Exploration) Moses Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (Western Desert Lands v Teck Australia) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, [2004] NNTTA 30 (Freddie v Asia Investment Corporation) | |
| Representative of the native title party: | Andre Maynard, Cross Country Native Title Services Pty Ltd |
| Representative of the grantee party: | Tim Kavenagh, Kavenagh Legal |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E38/3522 to William Robert Richmond. The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure. By including a statement in their notice of the proposed grant that the expedited procedure applies, the State asserts the activities permitted under the proposed licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to, in summary:
a)interfere directly with community or social activities carried on by members of the native title claims or determined areas;
b)interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The proposed licence is approximately 28 square kilometres in size, and 134 kilometres northerly of Laverton in the Laverton Shire of Western Australia. The Waturta Claim Group (Waturta) claim native title rights and interests, including in part of the area of the proposed licence. The Register of Native Title Claims records that 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.
Waturta exercised their right to lodge an objection with the National Native Title Tribunal against the State’s assertion that the expedited procedure applies. While their objection application covered all sub-sections of s 237, the Waturta contentions and subsequent email communication confirmed Waturta would focus on s 237(a) and s 237(b). Taking a common sense view of the materials provided by parties, I could not conclude s 237(c) was likely to be offended by the activities of Mr Richmond. As such, these reasons focus on s 237(a) and 237(b).
Contentions and evidence
The State’s materials
The State provided contentions and materials, including proposed endorsements and conditions they intend to impose on the licence on grant, mapping, tenure information, and information from the Aboriginal Heritage Inquiry System (AHIS), which records Aboriginal heritage places in Western Australia, as assessed under the Aboriginal Heritage Act 1972 (WA) (the AHA). No such places are recorded for the area covered by the proposed licence. I note the area of the proposed licence is unallocated crown land.
Mr Richmond’s materials
Mr Richmond’s representative provided a statement of contentions. The contentions refer to the rights Mr Richmond will have as an explorer on the proposed licence once it is granted, but argue (at 7) ‘this does not mean that the Grantee Party [Mr Richmond] will exercise all of those rights to the full extent in all parts of the Proposed Tenement at all times’. The State make a similar argument (at 30.1). However, there is nothing outlining further detail in that regard, apart from some general information about the proposed work program, as included in the State’s materials, from Mr Richmond. That information includes the first year work program, that further work will depend on the first phase of exploration, and reference to using a contracting technical firm to obtain services including ‘drill hole targeting’. Given that Mr Richmond’s program refers to the intention to explore for gold, base metals and ‘other viable commodities’, and obtaining advice about drill hole targeting, I assume he will be drilling on parts of the proposed licence during his exploration activities.
I have no doubt Mr Richmond is unlikely to be working on the whole of the licence, at the same time, at all times. However, given the lack of information provided, I have assumed Mr Richmond will, from time to time in parts of the proposed licence, undertake the full scope of activity to which he is entitled under the grant of an exploration licence as set out in s 66 of the Mining Act 1978 (WA) (the Mining Act):
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 limited, 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 though 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 in the land.
I also note the Mining Regulations 1981 (WA) outline the amount of material able to be removed from the exploration licence is as follows:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
Waturta materials
Waturta provided a statement of contentions and the sworn affidavit of Mr Muir who is an applicant for the Waturta native title claim and a wati (initiated man). Waturta did not provide a statement of contentions in reply to the State’s or Mr Richmond’s materials.
Is the grant of the licence likely to interfere directly with the community or social activities of Waturta?
In my consideration of the materials in relation to s 237(a), I must balance a grantee party’s proposed exploration activities with any evidence of the native title claimant’s community or social activities, to determine whether the activities can coexist without direct or substantial interference (see for example Rosas v Northern Territory at [71]).
Waturta argue the social or community activities of camping, hunting and collecting bush food and medicine will suffer from interference by exploration activities. Reference is also made in Waturta contentions (at 24-25) that caring for country occurs in the form of attending to rockholes, and exploration activity will scare away hunted animals and interfere with bush food and bush medicine. Evidence is provided in broad terms in support of such arguments (Mr Muir at 51-52 for example).
Mr Richmond and the State argue (at 11 and 24-25 respectively) that the Waturta evidence and contentions are too general to lead to a conclusion that interference under s 237(a) is likely. For example, they argue Waturta does not specify the nature or extent of visits to the proposed licence, or where within the area medicines and bush food exist.
As has been noted in previous Tribunal decisions, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial way (see Freddie v Asia Investment Corporation at [13]).
Conclusion
I find there is insufficient detail about Waturta’s social or community activities as they are conducted on or near the proposed licence. I am not satisfied the evidence or materials from this inquiry supports a conclusion that social or community activities of the Waturta native title claimants will be interfered with in the sense contemplated by s 237(a).
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 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]).
If I conclude there is a site or area of particular significance, I must then assess the likelihood of interference with that site or area for the purposes of s 237(b). I must consider the nature of the site or area, the nature of the likely interference and the laws and traditions of the native title holders (see Silver v Northern Territory). As concluded by the Federal Court 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’.
Have any sites of particular significance been established?
Waturta provide evidence and information about the dreaming path (tjukurrpa) of Tjinkurna (the Dragonfly man), and a Rock feature/Rock hole. Waturta contentions (at 15) note that ‘This tjukurrpa yiwarra is of particular significance, in accordance with the Waturta claimants’ traditions, because it is associated with, and known by, the ngurra holders or owners of country with long-term family ties. It is also of particular significance to wati’. Mr Muir (at 43) provides detail about the Dragonfly man dreaming story, the direction the Dragonfly man travels in relation to the proposed licence (on and through the area), and explains the area the Dragonfly man rested, and that ‘there is a rock feature that formed from his rest as well as a rockhole’. Mr Muir locates the rockhole in the north-western area of the proposed licence (at 43). Mr Muir provides further detail of the context of the dreaming story in relation to other features near the proposed licence, such as Mount Mabel (which is to the west of the proposed licence) (at 44). Mr Muir also explains the significance of the Dragonfly tjukurrpa, for Waturta people in general, and for wati specifically.
Mr Richmond (at 26) argues the rock feature or rockhole has not been sufficiently located, and (at 28) he is unsure as to whether reference to a rockhole (at 48-49 of Mr Muir’s affidavit) is the same rockhole. Mr Richmond (at 29) points to a previous decision of the Tribunal where the location of rockholes was not accepted as the description was ‘vague’. However, that was a different inquiry, with a different location and different native title party. I must look at the information and evidence provided in the relevant inquiry to establish whether I accept, as a matter of fact, a site of particular significance exists on or near the proposed licence.
Mr Richmond (at 30) and the State (at 38) are critical that the location of the dreaming track and/or the relevant rockhole are not marked on map attached to Mr Muir’s affidavit. While it is of assistance to my decision making where a party can mark relevant areas on a map, I also accept there are reasons why a party, particularly a native title party, may not wish to mark out areas which have cultural or traditional sensitivities. I accept Mr Muir has described the pathway of the dreaming track through the proposed licence, and its relationship to the rockhole in the north west of the proposed licence. He has done so in detail, and with reference to points outside the proposed licence which feature on State mapping (for example, Mount Mabel).
The State contentions (at 38) accept the Dragonfly dreaming ‘has significance’ to the native title party, but goes on to say ‘the majority’ of the dreaming track ‘appears to be outside [the proposed licence]’. The question I need to turn my mind to is whether or not the grant of the proposed licence and the activities allowed under the grant are likely to interfere with areas or sites of particular significance in accordance with traditions of the Waturta native title claimants. Whether or not a small or large area of a site of particular significance exists on or near to a proposed licence is not the relevant question, although it may figure in drawing conclusions in an inquiry matter, and that will depend on the facts of each matter. In this matter, I am satisfied the rockhole associated with the dreaming track exists on the licence, and the dreaming track travels through the licence.
The State also argues (at 38) the rockhole ‘is outside the overlap area’, by which I take to mean is outside the area where the native title claim and the proposed licence overlap. However, as established in Hale v Western Australia (at [103]-[115]), 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 as specified in the s 29 notice.
Mr Richmond argues (at 31) that even if the location of areas described by Mr Muir are accepted, ‘the explanation given…does not “show it is of more than ordinary significance to the native title claimants in accordance with their traditions”’. I do not accept this argument, as Mr Muir has provided detailed information about the importance of dreaming tracks (at 7-16), different types of dreaming tracks (at 17), and how and why the dreaming track and the rockhole in this inquiry are of particular significance to the Waturta people, and wati, as outlined below in my consideration of interference with such areas.
I accept the dreaming track, and the rockhole in the northwest of the proposed licence which has meaning in the context of the dreaming track, are sites of particular significance to Waturta people.
Is it likely exploration activities of Mr Richmond will interfere with the Dragonfly tjukurrpa or the rockhole associated with the tjukurrpa?
The Waturta contentions argue (at 16) that activities permitted under s 66 ‘can damage and interfere with the tjukurrpa’. Mr Richmond’s contentions argue that ‘the evidence does not establish any physical intervention would occur’, and also argues the evidence did not establish where the dreaming site existed on the proposed licence (at 21-23, 25). However, Mr Muir gave quite detailed information about the pathway of the tjukurrpa across and on the licence, as well as the existence of the rockhole on the licence, and its context with that tjukurrpa pathway. In addition, the Federal Court has been very clear about the type of interference that s 237(b) relates to. Justice McKerracher, in FMG v Yindjibarndi (at [76]) outlined:
As to the contention…that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
Mr Muir (at 47) explains that ‘If the Dragonfly man 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’. He also explains (at 48) the rockhole relates to the Dragonfly dreaming, and that:
This is an important place for my old people who would travel through this area and rest at the rockhole. It is still an important place for Waturta People today. Waturta People, including me and my family, continue to visit this rockhole to clean it and to drink the water.
Mr Muir goes on to outline (at 49) that ‘If this rockhole was visited by the Applicant without permission by the Waturta People it would interfere with the spirit of that area. Those people who negatively impact upon this site could get sick’.
The Waturta contentions (at 13) outline that they have no information about where Mr Richmond proposes to exercise his rights. Mr Muir provides detailed evidence about the exploration licence activities which will be permitted under the Mining Act, including ‘travelling around with vehicles and machinery’, ‘track clearing’ and ‘soil sampling’. In addition, Mr Muir provides specific examples of interference, such as being ‘concerned about Applicant or contractors visiting land subject to the Tenement and damaging it by clearing vegetation for vehicle tracks. There is very limited access to the Tenement by old tracks’ (at 42). This is consistent with information and mapping provided in the States materials, where no tracks are noted on the tengraph, and none appear on mapping. Even if tracks do exist on or near to the proposed licence, Mr Richmond has not responded to the concerns raised about likely interference of that nature.
Mr Muir outlines (at 37; see also 34, 36, 40, 42, 46) the nature of the tjurkurrpa and rockhole means:
‘there is a very high likelihood that the carrying out of these activities [allowed under s 66 of the Mining Act] will disturb the country and Tjukurrpa and cause irreparable physical and spiritual harm. Myself, my family and other Waturta members will be shamed by this harm and I will be punished physically and spiritually.
Mr Muir also outlines (at 38):
myself and other wati in Waturta may be held liable by other wati along the Dreaming tracks or tjukurrpa yiwarre that travel through the claim area to the north and to the east for not protecting and looking after the country and the cultural and spiritual places on that country.
The State argue (at 42) there has been previous exploration on the proposed licence area, and that Waturta ‘has not contended that any past exploration activities within the proposed tenement have in fact interfered with the [rockhole or dreaming track]’. However, it has long been established that even if an area has been previously subject to exploration activities, that does not mean the area has lost its traditional significance or that further disturbance would not constitute interference (see, for example, Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]).
The State outline their regulatory regime, and argue this will mitigate the likelihood of interference with any sites of particular significance. For example, they intend to impose various conditions and endorsements on the grant of the licence (at 8-9). However, these endorsements and conditions focus on ground-disturbing activities, on pre-activity permissions from various State organisations, and on post-activity rehabilitation. I could see nothing in the proposed endorsements and conditions which addressed the nature of the interference with the dreaming track or the rockhole as described by Mr Muir. I also note that the underlying tenure of the area is unallocated crown land.
The State argue (at 43) that ‘the operation of AHA reduces the likelihood that the grant of the proposed tenement will result in the excavation, destruction, damaging or concealing or in any way altering of such a site yet to be registered under the said Act’. In making their argument, the State refer especially to s 17 of the AHA. However, I note the threshold of activity amounting to interference with a site of particular significance under s 237(b) of the Act may be less than is required for an offence under s 17 of the AHA. Additionally, the AHA does not require either heritage surveys to be conducted or communication with the native title party prior to non-ground disturbing activities being conducted on a licence.
I accept Mr Muir has established that activities which would otherwise not constitute an offence under s 17 of the AHA are likely to cause interference with sites of particular significance as contemplated by s 237(b). I also note that prohibited activities under s 17 of the AHA may be authorised under ss 16 or 18 of the AHA.
As noted above (at [23]) in reference to the Federal Court decision in FMG v Yindjibarndi (at [76]), 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.
Conclusion
I find Waturta has provided sufficient information and evidence for me to conclude that the grant of the proposed licence, and the activities Mr Richmond will be authorised to conduct on the proposed licence, are such that they are likely to interfere in a substantial or non-trivial way with areas or sites of particular significance in accordance with traditions of the Waturta native title claimants.
Determination
I find the grant of exploration licence E38/3522 to William Robert Richmond is not an act attracting the expedited procedure.
H Shurven
7 October 2021
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