Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another
[2019] NNTTA 116
•10 December 2019
NATIONAL NATIVE TITLE TRIBUNAL
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (10 December 2019)
Application Nos: | WO2018/0691, WO2018/0692, WO2018/0694, WO2018/0695, WO2018/0696 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (WCD2013/004 & WCD2013/007)
- and -
Kalman Murphy & Others on behalf of Waturta (WC2018/012)
(native title parties)
- and -
Lake Wells Exploration Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 10 December 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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: | Native Title Act 1993 (Cth) ss 29, 31, 32(4), 151, 237 Mining Act 1978 (WA) ss 57, 58, 61, 66 Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18 |
Cases: | Andy Andrews, Jeffrey Waller & Anita Camfoo (on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu, Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal groups); Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto (on behalf of the Ngalakan group); Peter Woods, Tex Camfoo and Sammy Bulabul (on behalf of the Ngalakan and Rembarrnga Groups)/Exploration & Resource Development Pty Ltd/Northern Territory [2002] NNTTA 170 (Andrews v Northern Territory) Atkins and Others on behalf of Gingirana v Drillabit Pty Ltd and Another [2016] NNTTA 17 (Atkins v Drillabit) BP (Deceased) v State of Western Australia [2013] FCA 760 Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (Bunuba v Oladipo) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale) 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) Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v Rich Resources Investments Pty Ltd and Another [2016] NNTTA 16 (Tjurabalan v Rich Resources) Kalman Murphy & Ors on behalf of Waturta v Ausgold Exploration Pty Ltd & Another [2019] NNTTA 89 (Waturta v Ausgold Exploration) WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 Wilma Freddie on behalf of the Wiluna Group/Western Australia/Giralia Resources NL [2002] NNTTA 29 (Wiluna Group v Giralia Resources) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC: | Sally Raine, Fremantle Law Pty Ltd |
| Representative of Waturta: | 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: | Tom Ledger, State Solicitor’s Office, Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
INTRODUCTION
This is a decision about whether the expedited procedure under the Native Title Act1993 (Cth) (NTA) applies to the grant of explorations licences E38/3314, E38/3315 and E38/3316 (licences) to Lake Wells Exploration Pty Ltd (Lake Wells).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licences, with a notification day of 16 May 2018.
The notice included a statement that the State considers the grants of the licences are acts attracting the expedited procedure, which would, subject to any successful objection, allow the licences to be granted without negotiation under s 31 of the NTA.
All three licences are situated wholly (in the case of E38/3314) or partly (E38/3315 and E38/3316) within the area of the native title determination application made by the Waturta native title claim group (Waturta claim). On 16 September 2018, the registered native title claimant for the Waturta claim (Waturta) lodged objections against the State’s inclusion of the expedited procedure statement with respect to all three licences.
Licences E38/3315 and E38/3316 are also partly situated within the area of the determinations made by the Federal Court in WF (Deceased) on behalf of the Wiluna People v State of Western Australia and BP (Deceased) v State of Western Australia (Wiluna determinations). On 14 September 2018, Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (TMPAC), which holds native title in trust under the Wiluna determinations, lodged objections against the State’s inclusion of the expedited procedure statement with respect to licences E38/3315 and E38/3316.
The President of the Tribunal, the Honourable John Dowsett AM, QC, has directed me to constitute the Tribunal for the purposes of determining, under s 32(4) of the NTA, whether the grants of the licences are acts attracting the expedited procedure.
For the reasons outlined below, my determination is that the grant of each of the licences is not an act attracting the expedited procedure.
ISSUES AND APPROACH
Under s 237 of the NTA, the grant of a 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 legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. My task, in considering whether the expedited procedure applies, 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. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.
There is no determination of native title in relation to the area of the licences subject to the Waturta claim. However, Waturta is a registered native title claimant for the area and a native title party for these proceedings. Accordingly, it is appropriate for Waturta to provide evidence and contentions for the purpose of the Tribunal’s predictive assessment for ss 237(a) and (b) in relation to that area.
Waturta contends in all three matters that the grant of the licences will result in interference within the meaning of ss 237(a) and 237(b).
TMPAC is not pressing its application in relation to ss 237(a) and (c), and contends only that E38/3315 and E38/3316 will result in interference within the meaning of 237(b).
DETERMINATION ON THE PAPERS
All parties have provided contentions in accordance with the Tribunal’s directions in each matter and TMPAC and Waturta also provided contentions in reply.
The State provided evidence including mapping, a Tengraph Quick Appraisal form, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), the licence applications and applicant work programs and details of proposed endorsements and conditions to be imposed on the grant of the licence.
Waturta’s evidence comprises an affidavit of Mr Kado Muir affirmed 6 June 2019. Mr Muir deposes that the Waturta claim area is his traditional county and that he is an initiated man, or wati, which makes him responsible for looking after sites and making sure sacred places are respected. I accept Mr Muir has authority to speak for relevant parts of the licences.
TMPAC’s evidence comprises statements from Mr Victor Ashwin and his father, Mr Alan Ashwin, both dated 9 July 2019, and a map entitled ‘Areas of Particular Significance within Tenements E38/3315 and E38/3316’. TMPAC requested non-disclosure directions be made over some of the evidence which was gender restricted and culturally sensitive. No party took issue with that request and I made the directions, having considered the affidavits and being satisfied the directions were appropriate. Both witnesses say they are native title holders, are knowledge holders for the country within E38/3315 and E38/3316, and that they have authority to speak about the relevant area of those licences, which I accept. Taking account of the cultural and customary concerns outlined in both affidavits, I have referred to the information only to the extent necessary to ensure my reasons are explained and supported.
All parties agreed to the matters being determined on the papers, as permitted by s 151(2) of the NTA. Having regard to the information before me I am satisfied that the inquiry can be adequately determined without a hearing.
THE LICENCES AND PROPOSED EXPLORATION ACTIVITIES
The licences are exploration licences proposed to be granted under s 57 of the Mining Act 1978 (WA) (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.
According to the State’s evidence, the whole of the area of E38/3314 and E38/3315, and just over half of the area of E38/3316, is subject to the grant of pastoral leases. The remainder of E38/3316 is unallocated Crown land.
The statements under s 58 of the Mining Act (s 58 statements) which accompanied the licence applications reveals that Lake Wells considers the area of each of the licences to be prospective for base metals and gold. Each of the s 58 statements includes a proposed work program for years 1 and 2 and says that further detailed work programs are contingent on the results for those years.
In its contentions, Lake Wells has not provided any additional information in relation to its proposed activities. The State refers to the “low-scale and infrequent exploration activities planned” by Lake Wells (State’s Waturta contentions paragraph 49.4), but there is no evident basis for that view.
Having regard to the evidence, I consider it is likely that Lake Wells may exercise its rights under the licences to the full extent permitted.
PREDICTIVE ASSESSMENT
Section 237(a): is the grant of the licences likely to interfere directly with the community or social activities of the native title holders?
What community or social activities do Waturta carry on in the licence areas?
Waturta’s evidence and contentions are the same for all three licences. It contends that the grant of each of the licences will interfere with the following activities.
Hunting of turkey, kangaroo and emu and collection of emu eggs
The evidence in relation to these activities is brief. Mr Muir says “[w]e also hunt for turkey, emu and kangaroo on these Tenements” (Muir affidavit paragraph 58).
Mr Muir refers to the licences as being part of “emu egg country”. He expresses concern that if Lake Wells undertakes clearing and drilling activities, and takes water from the licence areas, then the emus may lose their kapi (water) source and will die or not nest in these areas in the future. Mr Muir says in that case, there will be no emu eggs to eat or emus to hunt and that these are core activities conducted on the licence areas.
Collection of bush foods
Mr Muir deposes that he travels though the areas of the licences “all the time” and that he and other Waturta claimants collect kurumin, which is a small plant with red seeds, which only grows in certain parts of Waturta country. Mr Muir says he also collects a delicate bush tomato called tjantu which grows in the area of the licences, and which he has harvested recently.
The concerns expressed by Mr Muir in his evidence are that Waturta will be prevented from collecting these bush foods if the licences are granted without Lake Wells being required to consult or negotiate, and that drilling may affect the plants by changing the acidity levels of the surface soils (Muir affidavit paragraph 57).
Passing on traditional knowledge
Mr Muir says that the conduct of the hunting and gathering activities mentioned above are also associated with Waturta people travelling along the yiwarra (Dreaming tracks). He states that children are taught about these activities, the plants and animals and the yiwarra and tjukurrpa whilst on the licence areas. He deposes that the grant of the licences without negotiation with Waturta will therefore affect these activities (Muir affidavit paragraph 59).
Will the grant of the licences interfere directly with the carrying on of Waturta’s activities?
The accepted approach to the application of s 237(a) is summarised in Yindjibarndi v FMG, at [16]. The interference contemplated by s 237(a) must be direct. This requires an evaluative judgement that the grant of the licence is likely to be the proximate cause of the interference. The interference must also be substantial, rather than trivial.
What does Lake Well’s contend?
At paragraphs 8-10 of its contentions, Lake Wells says that it will not exclude any community or social activities that Waturta intends to conduct on the area of the licences subject to the Waturta claim, unless it is unsafe to do so, in which case it will consult with Waturta. If any activity proposed by Waturta is deemed temporarily unsafe, Lake Wells says it will consult with Waturta in order to seek a mutually agreeable outcome.
Lake Wells also says that it will notify Waturta prior to any exploration activity likely to restrict the gathering of bush tucker, medicines or the hunting of game, and consult with it on ways of minimising any disturbance.
In its reply at 8, Waturta says Lake Wells has not provided any evidence to support these contentions and refers to Mr Muir’s evidence that Lake Wells has not responded to proposed amendments to a draft agreement (Muir affidavit paragraph 34). It says further that, even if there were evidence to support Lake Well’s contentions that it will confer with Waturta, this does not address the question of interference. Waturta explains this is because its concerns do not just relate to the issue of access, but also to the impact of drilling and water extraction.
What does the State contend?
The State argues that Waturta has provided insufficient detail regarding the hunting, gathering and inter-generational teaching activities outlined in Mr Muir’s evidence, including the locations, timing, frequency, duration and numbers of people involved. It also notes that only parts of the relevant yiwarra travel through the licence areas.
The State argues further that, while Waturta has provided some evidence of how Lake Wells’ activities may interfere with the hunting of emu and collection of emu eggs, those activities are inherently capable of co-existence with mineral exploration. Similarly, in relation to the collection of kurumin and tjantu, the State says there is also no evidence of how much of the overall area of the licences is required for these activities, and why particular areas are required to the exclusion of others at any given time (State’s contentions paragraphs 34-42).
In reply to these arguments, Waturta again emphasises that the issue of prevention of access is not its primary concern, rather the impact of the exploration activities on emu nesting and kurumin and tjantu plants (Waturta reply paragraphs 31-33). In relation to passing on traditional knowledge, it says any inability to access the relevant parts of the yiwarra due to a lack of available water means Waturta will not be able to pass on knowledge with respect to those parts of the tjukurrpa.
Conclusion
While I accept that community and social activities of the kinds described by Mr Muir may occur in the area of the licences, I consider Waturta’s evidence is of too general a nature to enable me to find interference under s 237(a) is likely. As noted above at [29], the interference must be direct and substantial. Waturta’s contentions have focussed on the impact of exploration on emu nesting and plant life, however, the only evidence of impact is that of Mr Muir, which appears speculative.
Mr Muir does not explain the basis for his evidence regarding the effect of drilling on the surface soil. Waturta says at paragraph 37 of its reply that Mr Muir’s evidence demonstrates that he and Waturta are drawing on their experience of exploration activities elsewhere, however that is not expressly stated in the evidence. Further, at paragraph 39 of his evidence Mr Muir states simply that exploration activities under s 66 of the Mining Act “may affect the plants and animals too”. While I acknowledge that Mr Muir’s evidence on the potential impacts of drilling is uncontested, I am not satisfied that it is of sufficient probative value to support Waturta’s contentions on this point.
There is also no detail provided in relation to the extent of the licences relevant for emu nesting and the kurumin and tjantu plants. Mr Muir refers at paragraph 56 of his affidavit to kurumin growing “in certain parts” and tjantu growing “in this particular area” but he does not specify which parts he is referring to or whether the particular area is the whole of the licence area. The same critique applies to the reference to the licences being part of emu egg country in paragraph 57.
Similarly, Waturta’s arguments regarding water extraction at paragraph 24 of its contentions are not supported by the evidence. While I have found that Lake Wells may exercise the full suite of rights under the licence, that does not mean it is likely all rights will be exercised to the full extent in all parts of the licences at all times.
Having regard to all of the evidence, I am not satisfied that interference within the meaning of s 237(a) is likely.
Section 237(b): is the grant of the licences likely to interfere with areas or sites of particular significance to the native title holders?
The accepted approach to s 237(b) is also summarised in Yindjibarndi v FMG at [17] – [18]. In particular, 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. There must be a real risk of interference, but even slight interference may be unacceptable in the context of s 237(b).
Waturta has identified sites of particular significance in the area of each of the licences and TMPAC has identified sites with respect to both E38/3315 and E38/3316. I have considered the particular significance of each of these sites separately below, before turning to the likelihood of interference associated with the grant of each licence.
What areas or sites have been identified as being of particular significance to Waturta?
E38/3314
Walka sites
Mr Muir refers to two important walka or painting sites in the area of E38/3314. These sites are identified on the AHIS searches for this licence as:
(a)registered Aboriginal site ID 2096 named Warren Bore Series 1, described as Painting, Repository/Cache, Water Source; and
(b)lodged site ID 1387 named Warren Bore Series 4, described as Painting.
Mr Muir deposes that both of these sites, as well as two other registered walka sites nearby, are associated with the Marlu Tjukurrpa Yiwarra, one of the most important tjukurrpa stories. He says at paragraph 41 of his affidavit:
Walka sites are very significant to us. They were made by our old people and tell the stories of our tjukurrpa. People who do not know those stories, and who don’t have any right to them under our traditional ways, must not go to these walka places.
Mr Muir goes on further to explain that these sites are part of a complex of sites or a significant area called manta tjapia that extends across an extensive area of the Farquharson Tableland, which is where two big desert dreaming stories cross over. The Marlu Tjukurrpa Yiwarra is described as heading south generally along the Lake Wells landforms. There is also another highly sensitive story going from west to east along the Farquharson Tableland landforms, which Mr Muir says he is not allowed to talk about.
In its contentions, the State questions whether the location of either of the walka sites in E38/3314 has been identified with sufficient particularity, noting that the precise location is not clear from the maps included in the AHIS searches. Further, the State argues that, although Mr Muir has described the significance of tjukurrpa generally, Waturta has not provided sufficient evidence about the particular significance of the Marlu Tjukurrpa. The State cites the analysis in Tjurabalan v Rich Resources at [61]-[62] to argue that there must be sufficient evidence to identify a specific site or area associated with tjukurrpa stories and distinguish itself as particularly significant (State’s contentions paragraphs 56-61).
In reply, Waturta says that Mr Muir’s evidence is that both sites fall within the licence area and that the significance is explained by reference to their restricted nature and their association with the Marlu Tjukurrpa, which Mr Muir says is one of Waturta’s most important tjukurrpa stories (Waturta reply at paragraphs 43-48).
I find the State’s submission as to the location of the sites surprising given one of the sites is registered and shown on the AHIS Searches as extending into the licence area. Having regard to the mapping and Mr Muir’s evidence I am sufficiently satisfied that the walka sites extend into the licence area.
I am also satisfied from Mr Muir’s description of the walka sites that they are of particular significance to Waturta. While I agree with the State that Mr Muir could have further explained the significance and story of the Marlu Tjukurrpa, the sites in question are the walka sites, which tell the story of the tjukurrpa. Waturta is not asserting here that the dreaming track is a site of particular significance. However, as discussed further below, I have also taken into account that Waturta’s evidence with respect to the Marlu Tjukurrpa is consistent with TMPAC’s evidence as well as previous decisions of the Tribunal.
I am therefore satisfied for the purposes of s 237(b), that the walka sites identified at [43] are sites of particular significance to Waturta.
E38/3315
Pilkari Kutjarra
Mr Muir identifies Pilkari Kutjarra (Bilgarrie Cutarrie Pool), near Rock n Roll bore on Bonython Creek, as the tjarin or conception site for his brother, Talbot. He refers to this site as his brother’s Dreaming place, and tells a story about when their mother found out she was pregnant with Talbot. Mr Muir describes this as a private story for his brother and so I have not repeated the details here. I note the map of E38/3315 at Attachment 1 to the State’s contentions shows Bilgarrie Cutarrie Pool as being located within the licence area. At paragraph 45 of his affidavit, Mr Muir explains the significance of this site as follows:
Under our traditions, we as a group have an obligation to protect and care for tjarin sites of our people. They are of particular significance to us. If we don’t do this, the consequences are that we may be punished by the spirits of the land, and someone might get sick or die.
The State accepts that this site is identified sufficiently, but, again, does not accept it is of more than ordinary significance. It argues that simply stating that an obligation exists for Waturta to protect and care for tjarin sites does not equate to the site being of particular significance. The State contends that specific evidence is required as to why this particular site is of more than ordinary significance to Waturta people in accordance with their traditions, as opposed to Mr Muir’s statement that all tjarin sites are of particular significance (State’s contentions paragraphs 69-69.1).
In response, Waturta argues that it has explained the significance of the site by reference to it being a tjarin site. Waturta says the grave consequences for not protecting a tjarin site do not necessarily arise in relation to failure to protect the range and breadth of sites of significance to a native title party. In support of this position, Waturta cites Atkins v Drillabit at [52] where Member Shurven considered that the evidence explained a site’s significance as distinct from the more general significance of a native title party’s country as a whole. Waturta says that the State is going beyond the scope of the test set by Carr J in Cheinmora v Striker Resources.
In Cheinmora v Striker Resources, Carr J was considering arguments to the effect that s 237(b) should be construed so that the word "particular" does not qualify the word "significance" such that all that is required “is that the sites be of significance particular to the persons who are the holders of the native title in accordance with their traditions”.
The Court’s conclusion at 35 was:
The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the Native Title party claims are of particular significance, the Tribunal will have to make its own factual assessment of that matter.
I agree with Waturta’s submissions on this point. The distinction which has been made many times by the Tribunal, including in Tjurabalan v Rich Resources relied on by the State, is between areas and sites which are generally culturally significant (as might be said of the native title party’s country as a whole), and specific areas and sites of particular significance to the native title holders. If all tjarin sites are of more than ordinary significance to Waturta, there is no requirement for Waturta to justify why this tjarin site is of more significance than any other.
Having regard to the evidence, I am satisfied that the Pilkari Kutjarra (Bilgarrie Cutarrie Pool) is a site of particular significance to Waturta.
Kulali soak and Mulga rock hole
Mr Muir says that Kulali soak is situated in the west of the licence area while Mulga rock hole is located in the south eastern part of the licence. He says these water sources are important cultural and resource sites.
The State notes the location of Kulali soak is shown on annexure KREAM 2 and accepts it is sufficiently identified but says that Mulga rock hole is not identified with enough particularity. Further, the State disputes that Waturta has adequately explained the significance of either site (State’s contentions paragraphs 71-72; 74.1-74.2).
Waturta contends that Mr Muir’s description of Mulga rock hole as located “on the south eastern part” of the licence is of sufficient particularity, consistent with President Dowsett’s finding with respect to the nyii nyii jukurrpa in Marputu v Gianni at [50]. I do not agree with that analysis. The relevant finding in Marputu v Gianni took account of a range of factors, including the description of the route of the jukurrpa, together with its end point and the small size of the tenement.
That is not the case here. E38/3315 is very large by comparison and the only description given is that the rock hole is located in the south eastern part of the licence. I am not able to locate Mulga rock hole from this general description.
On the question of the particular significance of Kulali soak, Waturta relies on Mr Muir’s evidence at paragraphs 54-55 of his affidavit regarding the importance of rock holes and soaks generally. Mr Muir says these are places where old people camped and their spirits can be felt there. He refers to the scarcity of kapi or water and says it is “our source of life”. Mr Muir also expresses concern regarding the impact of drilling on these water sources and the resulting accountability of Waturta people.
In its contentions, Waturta also relies on President Dowsett’s comments on the significance of water sources in Marputu v Gianni at [53] and [55], including that “the essentiality of water for human survival would, in most cases, be a sufficient basis for inferring particular significance”.
The evidence in this case, including as to the nature of Kulali soak and the reasons for its significance, are consistent with Marputu v Gianni. I am similarly satisfied of the particular significance of Kulali soak to Waturta in this case.
Marlu Tjukurrpa
According to Mr Muir’s evidence, a very important tjukurrpa yiwarra (sacred track) travels through E38/3315 at Bonython Creek across to Lake Wells. This is the big Marlu (kangaroo) Dreaming mentioned above at [45]. Mr Muir says at paragraph 47:
We have a duty to protect Bonython Creek, as part of that yiwarra the marlu travelled along. We need to make sure it isn’t affected or damaged by any exploration activities and we can’t do this if the miner doesn’t have to come and talk to us.
The State says that it accepts Bonython Creek is sufficiently identified and that Mr Muir’s evidence establishes that the Marlu Tjukurrpa runs through the creek. However, the State again says that there is insufficient evidence to establish the particular significance of the Marlu Tjukurrpa.
Waturta responds to this assertion at paragraph 56 of its reply. It again refers to Mr Muir’s evidence that the big Marlu (kangaroo) Dreaming is one of Waturta’s very important tjukurrpa. Mr Muir’s evidence at paragraph 42 of his affidavit (summarised above at [45]), identifies both the Marlu Tjukurrpa (which comes from the north to the south) and another highly sensitive story going from east to west as “two big desert dreaming stories”.
As noted above, it would have been helpful if Mr Muir had provided some additional details of the Marlu Tjukurrpa and its particular significance. However, in this matter I also have the benefit of TMPAC’s evidence, which mentions this tjukurrpa as well. The Marlu Tjurrkpa was also recently considered by the Tribunal in Waturta v Ausgold Exploration, where Member Shurven was satisfied at [27] that a site associated with the Marlu Tjukurrpa was a site of particular significance to Waturta.
Having regard to all of the above, I am satisfied of the particular significance of Bonython Creek to Waturta arising from its association with the Marlu Tjukurrpa.
E38/3316
Yilgarrie Hill
Mr Muir identifies a hill called Yilgarrie on the Marlu Yiwarra just to the north of the Waturta claim area as a sacred site within the area of E38/3316. Mr Muir says at paragraph 48 the yiwarra travels from Windidda across through Bonython Creek to Lake Wells. He notes that Yilgarrie means blue sky and says that he can’t talk about the details of the site because it is only for initiated wati. Mr Muir notes that even though this site is outside of the Waturta claim area he has responsibilities to speak up for and protect it.
Again, Mr Muir’s evidence in relation to this site is consistent with the evidence provided by TMPAC (see below at [85]).
The State notes that Mr Muir has admitted this area is outside the Waturta claim area and says that in any event there is no evidence of its significance other than its association with the Marlu Tjukurrpa. Waturta’s objection to the grant of this licence is not limited in scope to its claim area (see Hale at [113]). The question is whether the site is of particular significance to Waturta in accordance with its traditions. Clearly, from the evidence from both native title parties in this case, and as previously considered by the Tribunal, certain tjukurrpa may be of cultural significance across the Western Desert cultural bloc and responsibility for areas or sites may be shared (see for example the evidence extracted at [8] in Wiluna Group v Giralia Resources and the Tribunal’s finding at [10]).
Having already accepted the particular significance of Bonython Creek arises from its association to the Marlu Tjukurrpa, I am satisfied that Yilgarrie Hill is similarly a site of particular significance to Waturta in this case.
Kuntapapa claypan
Mr Muir says Kuntapapa is a claypan in the licence area further south of Yilgarrie, near Beacon Hill. It is said to be part of a papa or dingo tjukurrpa connected to the Marlu Tjukurrpa story (Muir affidavit paragraph 49).
The State contends that Beacon Hill is outside the licence area and that it is unclear whether Kuntapapa is within E38/3316. I agree that the location of this site is unclear. It does appear from annexure KREAM 3 to Mr Muir’s affidavit and the map of the licence at Annexure 1 of the State’s contentions that Beacon Hill is outside the licence area. While Mr Muir says the site is in the licence, he also says it is “near” Beacon Hill. It would have been open to Mr Muir to mark the approximate location of the site on the map at annexure KREAM 3 or use some other additional means of identification. Indicating its location solely by reference to a site outside the licence area is not particularly helpful.
Accordingly, I am not able to conclude from the evidence provided that this site is located within the licence area.
Kalyarapi (Collurabie Hills)
Mr Muir deposes that these hills are of particular significance as they are part of the Marlu Tjukurrpa. The State accepts that at least a portion of the hills is within the licence area. I accept, for the reasons already noted, that these hills which are part of the Marlu Tjukurrpa are of particular significance to Waturta.
At paragraph 50 of his affidavit, Mr Muir also mentions hills on the south eastern part of this licence associated with the Papa and Marlu stories. However, the location of these hills is not clear and I am unable to draw any conclusion in relation to them.
Kalyarapi claypan
Mr Muir says this claypan is important, however he is not sure if it is within the licence area and so I am unable to draw any conclusion in relation to this site.
Area of Bonython Creek adjacent to Kulali soak
Mr Muir says the northern part of the licence area within the Waturta claim area covers an area of Bonython Creek adjacent to Kulali soak which is also an important part of the Marlu Tjukurrpa Yiwarra.
The State accepts that the Marlu Tjukkurpa is likely to hold significance to Waturta, that Mr Muir’s evidence establishes this tjukurrpa runs through Bonython Creek, and that Bonython Creek is sufficiently identified on the map at annexure KREAM 2. However, it repeats its arguments that Waturta has not provided sufficient evidence to explain the significance of the Marlu Tjukkurpa.
For the reasons noted previously, I am satisfied of the particular significance of the Marlu Tjukkurpa and accept that the area of Bonython Creek adjacent to Kulali soak is an area of particular significance to Waturta for the purposes of s 237(b).
Parangu
At paragraphs 54 and 55 of his affidavit, Mr Muir speaks of the significance of water source places or sites called parangu (being where water collects between dunes), waangu (rock holes) and tjunu (soaks). He notes there are at least some of these water sources in the licence areas. The State’s contentions suggest that Mr Muir identifies parangu as a particular site, however, I do not consider that is the case. These paragraphs explain the significance of water sources generally. The specific water source sites identified by Mr Muir in the licence areas have already been addressed above.
What areas or sites have been identified as being of particular significance to TMPAC?
E38/3315 and E38/3316
TMPAC contend that a number of yapu (hills), being Von Treuer Tableland, Panton Bluff, Sachse Bluff, Yilgarrie Hills and Carclew Range, that encroach into the northern portion of the licences are sites of particular significance to Martu People due to their association with two Jukurrpa (Dreamings). TMPAC has provided a map showing the location and extent to which these hills are located within the licence areas.
The following unrestricted summary of the evidence in relation to these two Jukurrpa is set out at paragraphs 17-18 of TMPAC’s contentions:
17.The hills are associated with two Jukurrpa. Both Victor and Alan Ashwin describe them in detail. The mythical being associated with the first Jukurrpa travelled through these hills. The travels of this being covered a larger area than the parts of the proposed exploration areas that encroach the Wiluna determination. It travelled over other parts of the determination and beyond it. The being camped at the Yilgarrie Hills and a hidden rockhole marks this camp site. Alan Ashwin identifies the rockhole in his statement and says that it is a men’s only place. Only a small part of Yilgarrie Hills is within the Wiluna determination and it is not possible to determine on the material lodged with the Tribunal whether the rockhole is located in this part. Alan Ashwin explains that the presence of Hill Kangaroo in the hills is connected to this Jukurrpa. This Jukurrpa is closely related to another and the mythical beings in each interact. Victor Ashwin explains the interaction. He also explains how each Jukurrpa is relevant to male initiation laws and customs for Martu people and or Aboriginal people in other parts of Western Australia. In connection with Martu people, Victor Ashwin explains that during law ceremonies the song and dance for the Jukurrpa that travels through the hills is performed when initiates “come out of the bush”. Part of the song can be performed in front of women and children. Victor Ashwin refers to this as the top part. Part can only be performed in front of initiated males and Victor Ashwin refers to it as the underneath part.
18.Both Victor Ashwin and Alan Ashwin explain that the second Jukurrpa concerns mythical beings who live in caves at the hills.
[Footnotes omitted]
Both Victor Ashwin and Alan Ashwin also explain the consequences of interference with the identified hills. TMPAC’s contentions at paragraphs 22-23 state:
22.Victor Ashwin and Alan Ashwin explain that Martu people avoid the hills because of the presence of the mythical beings that live in the caves there. They are dangerous to Martu people and non-Martu people. Victor Ashwin explains that the danger is like Picnic at Hanging Rock. It follows that mere access to the hills constitutes interference with this site or area according to Martu laws and customs.
23.In addition, physical disturbance of the hills also constitutes interference. Victor Ashwin explains:
Martu got to look after the hills, he belong to all the initiated men, belong to all of us. We just the caretakers. If hills disturbed, people get killed using black magic. We don’t want them digging up these hills, land. We don’t want that. Even rock-chipping. We don’t [want] them go chip our sacred sites.
It is clear that if the hills are disturbed, then there are potentially very serious physical consequences for the Martu people who have the responsibility to look after it.
[Footnotes omitted]
As mentioned above, TMPAC’s evidence is also consistent in a number of respects with aspects of Mr Muir’s evidence, particularly as regards to the significance of the Marlu Tjukurrpa and Yilgarrie Hill. Mr Alan Ashwin also mentions Coolali (Kulali) soak and Bonython Creek.
Lake Wells accepts that the evidence establishes the Hill Kangaroo jukurrpa passes through the licences. However, it contends that TMPAC has not identified, with adequate specificity, why the areas or sites within E38/3315 and E38/3316 that are associated with either jukurrpa, are of particular importance.
The State similarly argues that the particular significance of the sites on the licences has not been adequately explained. It has referred to the Tribunal’s decision in Andrews v Northern Territory at [124] which noted that:
… while Dreaming Tracks are significant, not all Dreamings are of equal importance, and not all places along a Track are of equal significance, at least to particular native title holders. In each and every case a person speaking on behalf of native title holders should explain why a particular Dreaming site is of particular importance.
The Tribunal in that case also went on to say that “The particular sacredness of the site in the scheme of things needs to be explained before a finding of significance can be made”.
In relation to the Hill Kangaroo jukurrpa, the State notes that it relates to a much broader area than the licences. The State says that while the evidence establishes that the Dreaming passes through the licences, the particular significance of these sites has not been explained (State’s contentions paragraph 42). I have already addressed the appropriate test for particular significance above at [54]-[56] and I have also accepted that certain jukurrpa span large areas and may hold cultural significance across the Western Desert bloc (at [72]). Similarly, the State says that because the mythical beings referred to exist in hills across Australia, the significance for the hills in the licences is not sufficiently clear. I do agree the particular significance of these beings in the hills concerned could be more clearly explained. In its reply at paragraph 1, TMPAC contends that what makes the hills more than ordinarily significant is the association of the Hill Kangaroo Jurkurrpa with male initiation rituals and its relationship to the restricted Jurkurrpa referred to in the evidence.
I accept that contention. Having regard to all of the evidence, I am satisfied, to use the language from Andrews v Northern Territory, of “the particular sacredness” of the hills due to their association with male initiation rights and practice as identified in the evidence. I therefore find that the hills as marked on map provided by TMPAC with its evidence are sites of particular significance to TMPAC within the meaning of s 237(b).
Is the grant of the licences likely to interfere with the sites of particular significance to Waturta and TMPAC?
I have found that sites of particular significance to Waturta exist in the area of each of the licences and that sites or areas of particular significance identified by TMPAC exist in the area of E38/3315 and E38/3316. Both TMPAC and Waturta have expressed concerns that the grant of the licences, as relevant to them, will interfere with these sites of particular significance. Both native title parties contend that mere entry into the sites or areas constitutes interference and may result in consequences for them and others (Waturta reply at paragraph 67 and TMPAC contentions at paragraphs 21-22). Concerns are also raised about the impact of physical disturbance (Waturta reply at paragraph 65 and TMPAC contentions at paragraphs 23-25).
Lake Wells says that it understands its legal obligations and will comply with the conditions and endorsements on the licences. It also supports the State’s contentions.
The State’s contentions in both the TMPAC and Waturta objection applications are largely consistent. They raise a number of arguments which I have briefly addressed below.
Insufficient evidence of the likelihood of interference
I have found that Lake Wells is likely to exercise its rights under the licences to the full extent permitted. The State says that the native title parties have not adequately identified how Lake Well’s activities will cause damage or disturbance to the sites. However, I don’t accept that is the case. In the context of the limited information provided by Lake Wells, and the possible range of activities that may be undertaken under the licence, each native title party has explained its concerns regarding both access to restricted sites and physical disturbance, as noted above.
Relevance of evidence of previous interference from mining tenements
At paragraph 115 of its contentions in the Waturta matters, the State identifies the number of exploration licences previously granted in relation to each licence area. Waturta’s observes that many of the previous tenements did not cover the whole of the licence areas and a number were of limited duration.
I do not consider the State’s arguments on this question to be particularly instructive in the context of these licences. I accept that there may be occasions when evidence of previous physical disturbance in an area may be relevant to a likelihood of interference within the context of s 237(b). However, this is not one of those cases.
The State has not provided any evidence of particular impacts but says the Tribunal is entitled to infer that there has been ground disturbance and that this prior disturbance means the grant of the licences is unlikely to cause “substantial further disturbance’. However, that is not the relevant test for s 237(b). The issue is whether the grant is likely to cause interference with areas or sites of particular significance to the native title holders. Depending on the particular facts, such interference may be recurrent or repeated and still be interference within the meaning of s 237(b).
Further, previous physical disturbance under historical tenements would appear unlikely to mitigate the kind of interference of concern to TMPAC and Waturta in this case.
Protections from the Regional Standard Heritage Agreement
The State proposes to include a Regional Standard Heritage Agreement (RSHA) condition for each native title party on the licences. In its contentions at paragraph 34, TMPAC contends that an RSHA is of limited utility in the context of the evidence in this case where significant sites have already been identified and there is no practical way of avoidance.
At paragraph 28 of its reply, Waturta has also highlighted a number of practical difficulties with the operation of the RSHA condition having regard to the facts. A number of the issues raised accord with my recent comments on the apparent limitations of the RSHA condition in Nyamal v Gianni at [66] and [67]. Having regard to the evidence in this case, I do not consider the imposition of an RSHA condition will reduce the likelihood of interference from the grant of the licences.
Similarly, while there is no reason to consider Lake Wells would not comply with the general conditions and endorsements to be imposed on the licences, those terms do not go to mitigate the likelihood of interference within the meaning of s 237(b).
Protection under the Aboriginal Heritage Act 1972 (WA).
Lake Wells says that it is aware of its obligations under the Aboriginal Heritage Act 1972 (WA) (AHA) and will report any potential Aboriginal heritage site identified during the course of its activities. Waturta says that Lake Wells has not explained how it will identify an Aboriginal site and has conflated the definition of Aboriginal site under the AHA with an area or site of particular significance within the meaning of s 237(b) of the NTA. It further says that Lake Wells has not provided any evidence or contentions about any intention to confer with Waturta about the areas or sites of particular significance to Waturta.
The State argues, as it has in other recent matters, that the Tribunal should adopt what it calls the “normal” conclusion that protection under the AHA will be adequate to prevent interference. The basis of the State’s argument is that s 17 of the AHA makes it an offence to excavate, destroy, damage conceal or in any way alter any Aboriginal site (as defined in s 5 of the AHA) without Ministerial consent under s 18 of the AHA. The State says the sites identified by TMPAC and Waturta may be sites within s 5(a) or (b) but it has not explained how s 17 may apply in the context where the potential interference is access or entry to restricted areas or sites.
TMPAC contends that the AHA is not engaged in such a case. It also argues that because large parts of E38/3315 and E38/3316 are covered by known areas or sites of particular significance, the scope for Lake Wells to avoid those sites is greatly reduced. In that respect TMPAC cites the following evidence of Alan Ashwin at paragraph 10 of his affidavit:
See all these hills [Von Treuer Tableland, Panton Bluff, Sasche Bluff, Yilgarrie Hills, Carclew Range], they all broken up. They stop, then open up and there’s flat, these creeks come down here but mainly its open flat. If they [grantee party] do work then in open flat but best in them hills to say away from them yapu.
TMPAC argues that in this context the most protection the AHA can afford is procedural fairness as part of the s 18 process. The State says in response that TMPAC has failed to give due regard to the function of the Aboriginal Cultural Material Committee (ACMC) under the s 18 process. I recently made observations about the role of the ACMC under the s 18 process in Bunuba v Oladipo at [52], which apply equally here.
On the facts of this case where access or entry to certain restricted areas would constitute interference within the scope of s 237(b), I am not satisfied that the AHA will mitigate the likelihood of interference with the sites and areas I have found to be of particular significance.
Conclusion
It follows that I am not satisfied the various measures described above will be effective to mitigate the likelihood of interference with the various areas and sites I have found to be of particular significance.
Accordingly, I find that:
(a)the grant of E38/3314 is likely to interfere with areas or sites of particular significance to Waturta; and
(b)the grant of each of E38/3315 and E38/3316 is likely to interfere with areas or sites of particular significance to Waturta and TMPAC.
Section 237(c): is the grant of the licences likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Neither native title party has made contentions in relation to s 237(c). Lake Wells has nonetheless provided contentions on this issue, noting that it will act lawfully and comply with the endorsements and conditions to be included on the licences (Lake Wells’ contentions paragraphs 16-23).
There is nothing before me which indicates the grant of the licences is likely to involve major disturbance to any of the land or waters concerned. Therefore, I find disturbance within the meaning of s 237(c) is unlikely.
Determination
I determine that the grant of each of E38/3314, E38/3315 and E38/3316 to Lake Wells Exploration Pty Ltd is not an act attracting the expedited procedure under the NTA.
Nerida Cooley
Member
10 December 2019
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