Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Rachlan Holdings Pty Ltd

[2016] NNTTA 27

NATIONAL NATIVE TITLE TRIBUNAL

Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Rachlan Holdings Pty Ltd and Another [2016] NNTTA 27 (14 July 2016)

Application No: WO2015/0188 and WO2015/0261

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

Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (WCD2013/004)

(native title party)

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Rachlan Holdings Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	14 July 2016

Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether acts are likely to directly interfere with community or social activities – whether acts are likely to interfere with areas or sites of particular significance – whether acts are likely to involve major disturbance to land and waters – expedited procedure not attracted

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237

Mining Act 1978 (WA)

Aboriginal Heritage Act 1972 (WA)

Cases:

Dann v Western Australia and Another (1997) 74 FCR 391; [1997] FCA 332 (‘Dann v Western Australia’)

FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC (2014) 227 FCR 182; [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)

Little v Oriole Resources Pty Ltd (2005) 146 FLR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’)

Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113 (‘Rosas v Northern Territory’)

Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representatives of the native title party:

Ms Sally Raine, Hammond Legal

Mr Justin Edwards, Francis Burt Chambers

Representative of the grantee party:

Ms Jade Nelson, DLA Piper

Mr Rhys Davies, DLA Piper

Representatives of the Government party:

Ms Bethany Conway, Department of Mines & Petroleum

Mr Domhnall McCloskey, State Solicitors Office

REASONS FOR DETERMINATION

1. This decision considers whether the State Government of Western Australia can grant exploration licences E38/2982 and E38/2973 (the licences) to Rachlan Holdings Pty Ltd without the normal requirement for negotiations with the Tarlka Matuwa Piarku Aboriginal Corporation (TMPAC). TMPAC is the registered body corporate which holds the determined native title rights and interests on behalf of the Wiluna people. Rachlan Holdings assigned its interests in the licences to Kalium Lakes Potash, which has been progressing the applications for the licences on behalf of Rachlan Holdings, and will be the holder of the licences in the event they are granted. Both licences are entirely overlapped by the Wiluna native title determination. E38/2982 sits adjacent to E38/2973 and shares its eastern border with the western border of E38/2973.

2. The E38/2973 licence is approximately 612.2344 square kilometres in size and is located 173 kilometres east of Wiluna in the Shire of Wiluna. It has been determined by the Federal Court that the Wiluna people have exclusive possession of 80.69 per cent of the licence, and non-exclusive possession of the remaining 19.31 per cent.

3. The E38/2982 licence is approximately 557.2497 square kilometres in size and is located 147 kilometres east of Wiluna in the Shire of Wiluna. It has been determined by the Federal Court that the Wiluna people have exclusive possession of 73.53 per cent of the licence, and non-exclusive possession of the remaining 26.47 per cent.

4. By including the expedited procedure statement in their notice under s 29 of the Native Title Act 1993 (Cth), the State asserts the activities permitted under the licences are not likely to interfere with the native title holder’s community or social activities, or sites or areas of particular significance, or involve major disturbance to the land and waters of the licence (see s 237(a), (b) and (c)). TMPAC have lodged an objection to the inclusion of that statement, with the National Native Title Tribunal. In objecting to the expedited procedure statement, the Wiluna people argue interference or disturbance is likely. All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.

5. A decision that the expedited procedure applies means the State can grant the licences and Kalium Lakes Potash can proceed to explore without negotiating with TMPAC (see s 32(4)). A decision that the expedited procedure does not apply means the normal negotiation procedure is required: the State and Kalium Lakes Potash, on behalf of Rachlan Holdings, must negotiate in good faith with TMPAC, with a view to reaching an agreement about the grant of the licences. Those negotiations may be done with or without mediation assistance from the Tribunal (see s 31).

6. I have been appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies. My decision on this must be based on the criteria set out in s 237, which is the focus of this inquiry.

7. TMPAC do not submit arguments on the issues raised by s 237(a), about whether the grant of the licences will likely interfere directly with the carrying on of the community and social activities of the Wiluna people. Based on the limited evidence before me on that issue, I find the licences are not likely to interfere directly with the carrying on of the community and social activities of the Wiluna people.

8. TMPAC’s contentions argue the grant of the licences, and the exercise of the rights afforded by that grant to Kalium Lakes Potash, would be contrary to ss 237(b) and 237(c). That is, they argue the grant of the licences is likely to directly interfere with areas or sites of particular significance to the Wiluna people, and that the grant is likely to involve major disturbance, or create rights whose exercise is likely to involve major disturbance, to the land or waters concerned.

9. I must address these issues relating to ss 237(b) and 237(c) by making a predictive assessment of whether the grant of the licences is likely to have those effects. In performing this assessment, I must look at what is likely to occur as a result of the grant of the licences and decide whether there is a real chance or risk of interference, or major disturbance, having regard to the rights conferred by the grant of the licences, the nature of the proposal and the applicable regulatory regime (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [15]-[21]; Walley v Western Australia at [8]-[9]).

10. Accompanying TMPAC’s statement of contentions are the redacted Statement of Evidence of Mr Victor Ashwin and the redacted affidavit Dr William Kruse. These documents were redacted to protect and preserve the cultural importance of some of the information, which the Wiluna people felt could not be protected by s 155 orders. I have not had regard to documents provided by the Wiluna people containing explanations of the redactions, as both the State and Rachlan objected to those explanatory documents, and in their reply TMPAC indicated they did not, after all, wish to rely on those explanations. Mr Ashwin states he has authority to speak about the country covered by the licences and has been initiated in all the Jukurrpa (traditional law) for the area. I accept the affidavit of Mr Ashwin provided by TMPAC and I accept he has authority to speak in his stated capacity for the area of the licences. Dr Kruse is a senior and experienced anthropologist who states he has worked with Aboriginal people, including the Wiluna people, across the Western Desert area for many years. The State argue little weight should be given to Dr Kruse’s affidavit, particularly due to issues associated with references to a map (as outlined in more detail further below in regard to the Maling map) and references to sites associated with the map in his affidavit. However, I accept Dr Kruse has the requisite qualifications and experience to provide an expert report to assist TMPAC in this matter, and I provide comments regarding the affidavit to the extent it is appropriate in this decision.

11. On the basis of the submissions and evidence provided by the parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant:

    a)Interlocutory issues raised during the listing hearing, including: mapping, rebuttal by the grantee party, and s 155 non-disclosure directions;

    b)Is there a real risk of interference to areas or sites of particular significance to the Wiluna people?

    c)Are the grants likely to involve major disturbance, or create rights whose exercise is likely to involve major disturbance, to any land or waters concerned?

a)Interlocutory issues

1. Mapping

1. The Wiluna people lodged a reply to the contentions and evidence lodged by the State and Kalium Lakes Potash on behalf of Rachlan Holdings. With the reply, the Wiluna people also lodged an affidavit from Mr Jeremy Maling, an anthropologist working with the Wiluna people. This was done in response to some confusion arising over a map said to be attached to Mr Ashwin’s Statement of Evidence. This map was provided separately to Mr Ashwin’s statement and was referred to in the Wiluna people’s contentions as being prepared by anthropologist, Mr Maling, but bore the name of D Bordeau as the author on the map. The Wiluna people’s reply sought to clarify this with an affidavit from Mr Maling, which contained information pertaining to the creation of the map and made reference to various areas and sites listed on the map.

2. The State and Kalium Lakes Potash objected to Mr Maling’s affidavit as seeking to introduce further evidence to substantiate the existence of sites on the licences. The State and Kalium Lakes Potash argued I should consider only the evidence lodged by the Wiluna people through the evidence provided by Mr Ashwin and Dr Kruse. They argued I should not allow the Wiluna people to introduce new evidence through their reply and so should not have regard to those aspects of Mr Maling’s affidavit. This argument was made in the context of late initial submissions from the Wiluna people, and a clear direction that leave was not given to the Wiluna people to submit further materials apart from their reply.

3. To address these issues, the Tribunal convened a listing hearing. At the listing hearing, the Wiluna people’s representative submitted the main purpose of lodging Mr Maling’s affidavit was to explain the sources of information from which the map was created and to clarify confusion about its author. The representatives of the State and Kalium Lakes Potash accepted Mr Maling’s affidavit to the extent it clarified the authorship of the map, but did not accept any part of it which went beyond that purpose. Both the State and Kalium Lakes Potash argued I should only place evidential weight on the map to the extent it supports, or is supported by, Mr Ashwin’s evidence.

4. In relation to this issue, I agree with the State and Kalium Lakes Potash. For the purposes of this determination, I rely on the evidence of Mr Ashwin and Dr Kruse as the primary evidence of the Wiluna people. After considering Mr Maling’s affidavit, I am of the view it will assist me to verify the origins of the map associated with Mr Ashwin’s statement. I do not believe it would be appropriate for me to consider any information in Mr Maling’s affidavit that goes beyond this purpose. While the map assists me by providing visual context to Mr Ashwin’s evidence, it appears that many of the sites or places referred to in his statement have been redacted, apart from Lake Carnegie.

1. Rebuttal by the grantee party

1. Kalium Lakes Potash also sought leave to lodge a reply, to rebut contentions made in the Wiluna people’s reply, either orally at the listing hearing or in written format. I gave leave for the representative of Kalium Lakes Potash to make their submissions orally at the listing hearing, which the representative did. Other parties were able to seek clarification or provide additional information, as needed, at the hearing. I have taken these submissions into account in my deliberations in this matter.

2. I am satisfied, following the listing hearing, it is appropriate to deal with this inquiry ‘on the papers’ (that is, without further hearings), pursuant to s 151(2).

1. Section 155 non-disclosure directions

1. Following a request from the grantee party, and submissions from the other parties, I made non-disclosure directions under s 155 in relation to some items of evidence on the basis they were commercially sensitive and/or confidential. The directions provided that the relevant items of evidence must be kept confidential to the Tribunal and representatives of the Wiluna people and the State, and be used only for the purposes of this inquiry. As such, I refer to those items in the broadest sense in this decision.

b)Is there a real risk of interference to areas or sites of particular significance to the Wiluna people?

1. Are there any areas or sites on the licences?

1. The s 237(b) criteria require me to conduct my assessment in two stages. First, I must ascertain if there are any areas or sites of particular (that is, more than ordinary) significance to the Wiluna people in accordance with their traditions within the licences. If I answer this in the affirmative, I am then required to consider whether there is likely to be (that is, a real risk of) interference with those areas or sites.

2. I note the licences almost entirely overlap Lake Carnegie, but for a few sections on their periphery. Lake Carnegie is listed as an ‘other heritage place’ on the Register of Sites maintained by the Department of Aboriginal Affairs (DAA) (site ID 25671, mythological, male access only). The Wiluna people have made an application to the DAA for Lake Carnegie to be recorded as a registered site on the DAA Register. It is currently listed as an ‘other heritage place’ as a final decision has not yet been made as to whether it meets the criteria for registration as an Aboriginal site under the Aboriginal Heritage Act 1972 (the AHA).

3. Sites recorded with the DAA can be characterised in two main ways. Firstly, as a ‘registered site’, which means the site or place has been assessed as meeting s 5 of the AHA. Secondly, as an ‘other heritage place’, which includes sites or places which have been assessed as not meeting s 5, and places where information has been received in relation to the place but s 5 assessment has not been completed. The AHA protects ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’.

4. The existence of sites recorded on the DAA register does not necessarily mean they are of ‘particular significance’ for the purposes of s 237(b). Additionally, a site of particular significance for the purposes of s 237(b) does not need to be recorded on the DAA register. Regardless of whether or not an ‘other heritage place’ is administratively assessed as meeting s 5 of the AHA, a native title party may establish that one or more of those sites constitute ‘areas or sites of particular significance’ to them ‘in accordance with their traditions’ (per s 237(b)) by providing sufficient evidence. However, the DAA register can assist in providing additional or supporting information.

5. The DAA register shows another ‘other heritage place’, Marlamindie (site ID 25676, mythological, male access only), on the western border of E38/2982. The south eastern tip of the registered site Watjirrangarri (site ID 2714, mythological, no gender restrictions) also intersects with the north western border of E38/2982.

1. Are any of the sites of particular significance?

1. There is no evidence before me that suggests that Marlamindie or Watjirrangarri are sites of particular significance. The focus of the evidence provided by TMPAC is on the significance of Lake Carnegie to the Wiluna people. Mr Ashwin deposes that Lake Carnegie is a sacred site and people cannot go on it. He states that Martu people (which includes the Wiluna people) never go on the Lake as there is a Dingo dreaming on the Lake that can eat a person’s spirit. Mr Ashwin describes the effect being that the person will be physically alive, but their spirit will be dead and the person will begin to get sick. Mr Ashwin stresses many times in his evidence the importance of avoiding the Lake due to its importance to the Martu people, outlining those stories and their significance.

2. Dr Kruse provides helpful insight into the Martu understanding of what is particularly significant to them. Dr Kruse deposes that Martu people distinguish between the significance of country generally formed during the creative epoch and those areas and locations associated with specific activities of the mythic beings and the significance of their actions for the Martu way of life. He states that Jukurrpa refers to the actions of the mythic beings during the creative epoch, which remain ever-present and which continue to have agency in the world. This is consistent with the evidence of Mr Ashwin when he describes the dangers within Lake Carnegie, even in the present day, and that all the places Jukurrpa has been through are still there today.

3. Dr Kruse deposes that in his long association with the Wiluna people, as well as other Martu people, the Wiluna people have consistently referred to Lake Carnegie as a special and ‘main place’. Dr Kruse also deposes he has heard Martu people discuss Lake Carnegie as a well-known example of the importance of Jukurrpa creating country and how country has a relationship to broader Martu society through Jukurrpa, particularly in relation to ceremony.

4. On the basis of the evidence of both Mr Ashwin and Dr Kruse, I find that Lake Carnegie is a site of particular significance to the Wiluna people for the purposes of s 237(b). While the Wiluna people’s contentions refer to other sites and areas on the licence, there is no evidence from Mr Ashwin or Dr Kruse about the other sites or the ‘other heritage places’ that overlap the licences, although that may have been outlined in the redacted parts of the evidence. I say nothing further about the other sites in this decision.

1. Is there a real risk of interference with sites of particular significance on the licences?

1. Having concluded that Lake Carnegie is a site of particular significance over both the licences, I turn to the issue of interference. As outlined in Yindjibarndi Aboriginal Corporation v FMG Pilbara, and accepted by the Federal Court in FMG Pilbara v Yindjibarndi Aboriginal Corporation, even slight interference may be unacceptable in some circumstances. The nature of the site, the nature of potential interference, and the Wiluna people’s laws and traditions are all important in drawing conclusions regarding interference. I must give weight to the State’s regulatory regime, and there must be a real chance or risk of interference with the site of particular significance, and not just a possible chance.

2. The circumstances of this matter are uncommon in that the Lake Carnegie site covers almost the entirety of the licences, apart from some small portions on their periphery.

3. Mr Brett Hazelden, Managing Director of Kalium Lakes Potash, outlines in his affidavit that the company seeks to establish a commercially viable potash project in Western Australia. Potash is found in high concentration in brine contained in aquifers associated with salt lakes, such as Lake Carnegie. Kalium Lakes Potash’s initial phase of exploration will involve the use of a hand-held auger drill to take 1.5 metre deep soil samples across the licences, followed by further and more intensive exploration work to follow. It is clear from the proposed works outlined in the evidence of Kalium Lakes Potash that workers will need to carry out this work on Lake Carnegie.

1. From its evidence, it appears that Kalium Lakes Potash is aware of its obligations under the State’s regulatory regime. There is a statutory declaration on file offering a Regional Standard Heritage Agreement to cover these licences. However, it is clear from Mr Ashwin’s evidence that merely stepping onto Lake Carnegie is strictly impermissible for anyone under the traditional law of the Wiluna people, who believe there are serious consequences for doing so. The Lake Carnegie site covers such a great extent of the licences that it will be almost impossible for Kalium Lakes Potash to conduct any exploration on the licences without interfering with Lake Carnegie. Kalium Lakes Potash has acknowledged in its contentions and evidence that in order for it to conduct any work on the Lake without possibly interfering with an Aboriginal site under the AHA, it will need to apply for permission under s 18 of the AHA. I have no evidence to suggest Kalium Lakes Potash will not act within the law. However, I need to consider whether, even if Kalium Lake Potash acts within the regulatory regime established by the State, interference with a site of particular significance is likely under s 237(b).

2. I accept that simple entry onto Lake Carnegie, a site of particular significance to the Wiluna people, would constitute unacceptable interference under their traditions and laws. Lake Carnegie covers almost all of area of the licences, so it would be impossible for Kalium Lakes Potash to carry out the type of exploration program it has proposed without entry onto the Lake. I believe neither the AHA nor a Regional Standard Heritage Agreement (which the State would include as a condition of the grant of the licences) would provide the requisite protection for an area such as Lake Carnegie, as the threshold for interference under those regimes is higher than that needed to constitute interference for the purposes of s 237(b).

3. For these reasons, I conclude Lake Carnegie is a site of particular significance to the Wiluna people in accordance with their traditions, and there is a real risk of interference with that site by the activities of Kalium Lakes Potash.

c)Are the grants likely to involve major disturbance, or create rights whose exercise is likely to involve major disturbance, to any land or waters concerned?

1. What work does Kalium Lakes Potash intend to carry out on the licences?

1. Kalium Lakes Potash intends to explore for potash, which is a collective term for a number of different potassium salts found within the aquifers associated with salt lakes. The company explains that potash exploration is different from hard rock mineral exploration as the exploration target is a fluid deposit rather than a fixed solid rock deposit. Consequently it can be accessed at a number of points within the aquifer, resulting in significantly fewer drill holes being required to identify the key characteristics of the deposit. Kalium Lakes Potash states there is also a much greater degree of flexibility in the location of drill holes, with much less overall impact than hard rock mineral exploration activities.

2. Mr Hazelden explains that initial exploration activities will involve the use of a hand-held auger drill across the licences to take soil samples to a depth of 1.5 metres. He outlines this process would likely take no more than 10 days and require no more than two personnel, after which the land would be immediately rehabilitated by the replacement of any disturbed soil.

3. Mr Hazelden outlines that subsequent exploration activities would involve:

   a)soil sampling on a one kilometre to three kilometre grid within the licences and laboratory interpretation of those sampling results;

   b)the conduct of drilling at some of those locations referred to in (a), which is likely to require a period of 90 days and no more than five personnel;

   c)the interpretation of drilling results to identify no more than approximately 12 locations for pump testing activities, which would involve the pumping of brine from bore holes onto the Lake or into sumps or trenches for a period of approximately 72 hours;

   d)the conduct of pump testing activities at some of the locations mentioned in (c), which are likely to require a period of no more than 36 days and no more than three personnel;

   e)excavation and pump testing of small trenches which involves the testing of inflow rates into the trenches and pumping from the trench onto the Lake or into sumps or other trenches for a period of approximately 72 hours;

   f)the conduct of excavation and pump testing activities at some of those locations referred to in (e), which are likely to require a period of no more than 36 days and no more than three personnel; and

   g)the conduct of a geophysical survey by foot or utilising a quad-bike in no more than 20 lines of 100 metre spacing within the licences, which is likely to require a period of no more than 21 days and no more than two personnel.

1. Will the activities of Kalium Lakes Potash involve major disturbance, or create rights whose exercise is likely to involve major disturbance, to the licences?

1. The Wiluna people argue their concerns, including concerns arising out of their laws and customs, are relevant matters when evaluating any likely disturbance (Little v Oriole Resources at [52]-[54]; Dann v Western Australia at 395, 401 and 413). They also argue that where wetlands are part of a national park or reserve, are undisturbed, and there is evidence the exploration proposed has the potential to significantly disturb the vegetation and soil, then it may be open for me to infer there is a likelihood of major disturbance (Rosas v Northern Territory at [96]).

2. I am required to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it), from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the Wiluna people (see Little v Oriole Resources at [41]-[57]). While I will take into account the views of the Wiluna people, they are not determinative as I must look at the perspective of the entire Australian community.

3. The importance of Lake Carnegie to the Wiluna people is clear from Mr Ashwin’s evidence, and, as discussed above, the Wiluna people consider merely venturing onto Lake Carnegie to be unacceptable interference with the Lake. However, I must also consider the perspective of the entire Australian community in light of the work Kalium Lakes Potash intends to carry out and the regulatory regime put in place by the State.

4. The Wiluna people outline in their contentions that Lake Carnegie is recognised as a wetland of national importance in the Commonwealth Department of the Environment’s A Directory of Important Wetlands in Australia. They say this, together with the proposed conditions the State intends to put on the grant of the licences in relation to the wetlands, signifies there is a likelihood of major disturbance if Kalium Lakes Potash carries out its proposed exploration activities.

5. The work program outlined by Kalium Lakes Potash appears to be minimally intrusive (compared, for example, to hard rock exploration) when considered in context of s 237(c), as it targets a fluid deposit, which suggests the area can be rehabilitated effectively and relatively quickly. The evidence presented by Mr Hazelden, including photographic evidence attached to his affidavit, indicates that the amount of drill holes, personnel and time on site required, appear to minimally impact the land and waters for the purposes of s 237(c) and the question of major disturbance.

6. I also note the protection afforded by the State’s regulatory regime, in particular, the conditions and endorsements the State proposes to attach to the grant of the licences, such as:

   ·Kalium Lakes Potash’s activities will be subject to regulatory regimes with respect to mining, Aboriginal heritage and the environment. The proposed endorsements direct the company’s attention to the AHA and to environmental and water management legislation. There is no evidence the company is unlikely to comply with these regimes. In fact, Mr Hazelden has provided extensive evidence of the company’s awareness of the various aspects of the State’s environment and water management legislation and policies.

   ·The proposed conditions require Kalium Lakes Potash to rehabilitate all disturbances made to the surface of the land to the satisfaction of the Department of Mines and Petroleum’s Environmental Officer, and prohibit certain ground disturbing activities unless written approval is obtained.

   ·The proposed conditions also require Kalium Lakes Potash to seek prior written consent from the Department of Parks and Wildlife if they wish to carry out activities within 200 metres of the Lake Carnegie System (listed as ANCA AW/32 Lake Carnegie System due to the Lake’s inclusion on the Commonwealth Department of the Environment’s A Directory of Important Wetlands in Australia).

7. Taking these factors into account, I find the grant of the licences is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

Determination

1. The determination is that the act, namely the grant of exploration licences E38/2973 and E38/2982 to Rachlan Holdings Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member

14 July 2016