Wakamurru (Aboriginal Corporation) RNTBC v Kalium Lakes Potash Pty Ltd
[2019] NNTTA 128
•24 December 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wakamurru (Aboriginal Corporation) RNTBC and Another v Kalium Lakes Potash Pty Ltd & Another [2019] NNTTA 128 (24 December 2019)
Application Nos: | WO2018/0556, WO2018/0557, WO2018/0558, WO2018/0576 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Wakamurru (Aboriginal Corporation) RNTBC (WCD2018/007)
- and -
Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (WCD2013/004)
(native title parties)
- and -
Kalium Lakes Potash Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 24 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, 30, 31, 32, 141(2), 151(2), 237 Mining Act 1978 (WA) ss 57, 58, 61, 66 Aboriginal Heritage Act 1972 (WA) s 18 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) |
Cases: | Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale) Josephine Forrest and Ors on behalf of the Yi-Martuwarra Ngurrara Native Title Claimants v State of Western Australia [2019] NNTTA 43 (Forrest v Western Australia) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Muir on behalf of the Manta Rirrtinya People v State of Western Australia [2018] FCA 1388 Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (TMPAC v Lake Wells) Tarlka Matuwa Piarku Aboriginal Corporation RNTBC v Rachlan Holdings Pty Ltd and Another [2016] NNTTA 27 (TMPAC v Rachlan Holdings) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of Tarlka Matuwa Piarku Aboriginal Corporation: | Sally Raine, Fremantle Law Pty Ltd |
| Representative of Wakamurru (Aboriginal Corporation): | Gavin Dunn, Central Desert Native Title Services Ltd |
| Representative of the grantee party: | Rhys Davies, DLA Piper Australia |
| Representatives of the Government party: | Caitlin Gilchrist and Domhnall McCloskey, State Solicitor’s Office Matthew Smith and Michael McMahon, 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 exploration licences E38/3295, E38/3296 and E38/3297 (licences) to Kalium Lakes Potash Pty Ltd (Kalium).
The State of Western Australia (State) gave notice of its intention to grant the licences in accordance with s 29 of the NTA. The notification day for E38/3295 and E38/3296 was 4 April 2018 and the notification day for E38/3297 was 13 April 2018.
Each 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.
As discussed further at [7] and [9] below, the relevant native title parties lodged objections against the State’s inclusion of the expedited procedure statement in accordance with s 32(3) of the NTA. The Tribunal is therefore required under s 32(4) of the NTA to determine whether the grant of each of the licences is an act attracting the expedited procedure. I have been directed to constitute the Tribunal for the purposes of making those determinations.
For the reasons outlined below, my determination is that the grant of each of the licences is not an act attracting the expedited procedure.
The native title parties to the objection applications
In accordance with the determination made by the Federal Court in WF (Deceased) on behalf of the Wiluna People v State of Western Australia (Wiluna determination), Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (TMPAC) holds native title in trust in relation to the whole of the proposed area of E38/3297 and part of each of E38/3295 and E38/3296.
At the time the State issued the s 29 notices for the licences, it was therefore required to give notice to TMPAC as a native title party in accordance with s 29(2)(a) of the NTA. TMPAC lodged objections against the State’s inclusion of the expedited procedure statement with respect to E38/3295 and E38/3297 on 4 August 2018 and 8 August 2018, respectively.
Native title in relation to the balance of the area of E38/3295 and E38/3296 is now held by Wakamurru (Aboriginal Corporation) RNTBC (Wakamurru) in trust for the Manta Rirrtinya People in accordance with Muir on behalf of the Manta Rirrtinya People v State of Western Australia (Manta Rirrtinya determination).
The Manta Rirrtinya determination was made on 13 September 2018, after the closing date for objections for E38/3295 and E38/3296. Accordingly, it was the registered native title claimant for the Manta Rirrtinya native title claim (WC2017/005), which was, at the time of the s 29 notice, a native title party in accordance with s 29(2)(b)(i) of the NTA. The Manta Rirrtinya registered native title claimant lodged objections in relation to both E38/3295 and E38/3296 on 3 August 2018.
The Manta Rirrtinya registered native title claimant ceased to be a native title party for E38/3295 and E38/3296 when it ceased to be a registered native title claimant (s 30(2) NTA). Wakamurru became a native title party once it became a registered native title body corporate following the Manta Rirrtinya determination (s 30(1)(c) NTA).
This position is reflected in the note to s 30(2) which provides that “[i]f a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate”. See also Forrest v Western Australia at [25]. Accordingly, while the relevant objection applications for E38/3295 and E38/3296 were properly lodged by the Manta Rirrtinya registered native title claimant, it is no longer a native title party to those applications.
However, the effect of s 141(2) of the NTA is that, in addition to the State and Kalium, all native title parties are parties to an expedited procedure objection application. It therefore follows that, once it became a native title party in accordance with s 30(1)(c), Wakamurru also became a party to the objection applications in relation to E38/3295 and E38/3296 and is entitled to participate in these proceedings.
The issues in the inquiry
Under s 237 of the NTA, the grant of each 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.
In these matters, neither TMPAC nor Wakamurru is pursuing its objections in relation to ss 237(a) and (c) (TMPAC contentions paragraph 6; Wakamurru contentions paragraph 1.4). As there is no evidence before me in relation to ss 237(a) and (c), and applying the common sense approach to evidence as discussed in Ward v Western Australia at [26], I conclude that the grant of each of the licences is not likely to interfere directly with the community or social activities of the native title holders or involve major disturbance to any part of the licence areas.
Accordingly, this inquiry focusses on whether the grant of each licence is likely to interfere with areas or sites of particular significance to the native title holders, in accordance with their traditions per s 237(b).
Determination on the papers
Each party provided contentions and evidence in accordance with the Tribunal’s directions in each matter as follows.
TMPAC provided contentions and a reply together with the following evidence:
(a)redacted Victor Ashwin statement, dated 29 January 2016;
(b)redacted Dr William Kruse affidavit, dated 1 February 2016;
(c)redacted final draft report entitled “Report for the purpose of registering Lake Carnegie as an Aboriginal Site under the Western Australian Aboriginal Heritage Act 1972” by Dr William Kruse;
(d)statement of Victor Ashwin, dated 22 July 2019 relating to E38/3295;
(e)statement of Allan Ashwin, dated 22 July 2019 relating to E38/3295;
(f)map entitled “Areas of Particular Significance within Tenement E38/3295” (Map E38/3295);
(g)statement of Victor Ashwin, dated 22 July 2019 relating to E38/3297;
(h)statement of Allan Ashwin, dated 22 July 2019 relating to E38/3297;
(i)statement of Rita Cutter, dated 22 July 2019 relating to E38/3297; and
(j)two maps entitled “Areas of Particular Significance within Tenement E38/3297” (Maps E38/3297) – one showing a large area of particular significance and another showing a smaller area of particular significance.
TMPAC requested non-disclosure directions be made in relation to the documents listed at (d), (e) and (g) to (i) above on the basis they contained gender restricted and culturally sensitive information. Having considered the affidavits, taking account of consultation between the parties and being satisfied the directions were appropriate, I made final non-disclosure directions on 29 July 2019. I have referred to the restricted information only to the extent necessary to ensure my reasons are explained and supported.
Both Allan and Victor Ashwin explain that they are native title holders for the Wiluna determination area and are wati or initiated men with authority to speak for the licence areas. I accept their evidence. I also accept the evidence and report listed at (a) to (c) above which TMPAC explains was provided to the Tribunal in TMPAC v Rachlan Holdings and relates to Lake Carnegie.
Wakamurru also provided contentions, a reply and an affidavit of Allan Ashwin, affirmed 5 June 2019. Mr Ashwin explains that he is a native title holder for both the Wiluna and the Manta Rirrtinya determinations as well as others. Mr Ashwin says that as a wati, he has authority to speak for the area of E38/3295 and E38/3296 and I accept his evidence.
The State provided contentions and evidence in relation to each objection. The State’s evidence comprises 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 accompanying statements under s 58 of the Mining Act 1978 (WA) (Mining Act) and details of proposed endorsements and conditions to be imposed on the grant of each licence.
Kalium provided contentions in relation to each objection as well as witness statements of Brett Hazelden, Managing Director of Kalium, and affidavits of Mikayla Banks, Native Title and Aboriginal Heritage Advisor for Kalium for each matter. I note Mr Hazelden and Ms Banks have provided separate evidence addressing the Wakamurru and TMPAC objections. While the two statements or affidavits (as is relevant) are largely identical, each contains some information specific to the objections to which they relate.
All parties agreed to the matters being determined on the papers, as permitted by
s 151(2) of the NTA. In agreeing to a determination on the papers, Kalium provided an email containing additional comments in response to Wakamurru’s reply. Wakamurru took issue with those comments, given the directions did not provide for them. Kalium said the comments reflected the basis on which it was content to have the matters determined on the papers and was intended to avoid the need for an oral hearing. I did not consider Kalium’s email to raise new information or arguments such that it would warrant further directions or a hearing.
Having regard to the information before me I am satisfied that the inquiry can be adequately determined without a hearing.
The licences and Kalium’s proposed exploration activities
The licences are exploration licences proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
The State’s evidence reveals the following information in relation to each licence:
E38/3295
Land tenure & designations
· 62.48% Pastoral Lease (56.51% Prenti Downs; 5.97% Windidda-Aboriginal Corporation)
· 37.51% Unallocated Crown Land
· 15.92% ANCA Wetlands – Lake Carnegie System
Aboriginal sites and places
· 1 Registered Aboriginal Site – Lake Carnegie, file and boundary restrictions, male access only
· 1 Other Heritage Place – Well Springs, file and boundary restrictions, male access only
E38/3296
Land tenure & designations
· 91.88% Pastoral Lease – Prenti Downs
· 8.12% Unallocated Crown Land
· 1.7% ANCA Wetlands – Lake Carnegie System
Aboriginal sites and places
· 1 Registered Aboriginal Site – Lake Carnegie, file and boundary restrictions, male access only
E38/3297
Land tenure & designations
· 81.23% Pastoral Lease (7.8% Carnegie; 7.7% Niminga; 65.73% Prenti Downs)
· 18.76% Unallocated Crown Land
· 7.17% ANCA Wetlands – Lake Carnegie System
Aboriginal sites and places
· 1 Registered Aboriginal Site – Lake Carnegie, file and boundary restrictions, male access only
Mr Hazelden’s evidence states that he is the Managing Director of Kalium. His statements are helpful in outlining the nature of Kalium’s proposed exploration activities as well as potash exploration generally. Mr Hazelden explains that the licences form part of the Carnegie Potash Project which aims to explore and develop a large sub-surface brine deposit in the vicinity of Lake Carnegie into a solar evaporation and processing operation that produces sulphate of potash.
Ms Banks’ evidence outlines the status of Kalium’s negotiations with TMPAC and Wakamurru as well as Kalium’s approach to heritage protection. Both Ms Banks and Mr Hazelden state Kalium’s intention is to arrange for a heritage survey, regardless of whether agreement is reached with the native title parties.
I note that Kalium’s evidence in relation to each objection relates only to the area of the licences subject to the area held by each native title party. I have discussed that issue further below.
The initial activities proposed for each licence include a geophysical survey, a drilling program and use of the bores for monitoring and production. Mr Hazelden’s Wakamurru statement notes that, while a geophysical survey may be conducted over the portion of E38/3295 subject to the Manta Rirrtinya determination, no other ground disturbing activities are currently proposed for that area. I have taken account of Kalium’s proposed initial exploration program for the purposes of my predictive assessment with respect to the licences, but note that it may be subject to change. (Hazelden TMPAC statement paragraphs 17-64; Hazelden Wakamurru statement paragraphs 17-57)
In addition to the proposed endorsements and conditions, the State also proposes to include a condition on each licence relating to entry into a Regional Standard Heritage Agreement (RSHA) at the request of either native title party.
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]. 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).
What areas or sites have been identified as being of particular significance to TMPAC?
The areas or sites which TMPAC contends are of particular significance within the proposed areas of E38/3295 and E38/3297 are:
(a)the whole of Lake Carnegie which extends into both licences (as well as E38/3296);
(b)that part of Windidda Creek within the area of E38/3295;
(c)an area shaded pink southwest of Well Spring shown on Map E38/3295;
(d)an area shaded pink east of Bullock Bore shown on Maps E38/3297; and
(e)an area shaded pink that includes Toonil Pool shown on Maps E38/3297 (Toonil Pool Area).
The statements of Victor Ashwin and Allan Ashwin together with Dr Kruse’s affidavit and report address the significance of areas (a) – (d) above. Rita Cutter’s statement relates to the Toonil Pool Area. A brief description of each area is set out below.
Lake Carnegie
As set out above, Lake Carnegie is a registered Aboriginal site under the Aboriginal Heritage Act 1972 (WA) (AHA). The Tribunal has previously found Lake Carnegie to be a site of particular significance in TMPAC v Rachlan Holdings (see discussion at [24]-[27]). That matter also involved Kalium, as an assignee of Rachlan Holdings Pty Ltd. As noted above, the redacted statement of Victor Ashwin dated 29 January 2016 and Dr Kruse’s evidence were originally provided in that earlier matter. I now also have the benefit of further unredacted statements of Victor and Allan Ashwin.
TMPAC’s evidence explains that Lake Carnegie is closely associated with several Jukurrpa. The unredacted statements of Victor and Allan Ashwin provide more detail regarding a number of the Jukurrpa, including their path or location and the consequences of disturbance. Victor Ashwin’s statement for E38/3295 also describes the male initiation ceremonies associated with two of the Jukurrpa.
Dr Kruse says the Lake is associated with “at least seven Jukurrpa, some of which directly involve the creation of the Lake, and others which are associated with its locality and surrounds, and two which are the major sacred stories for male initiation”. Dr Kruse’s evidence also explains the role of the Jukurrpa amongst Aboriginal people of the Western Desert Cultural Bloc (Kruse affidavit at 7 and 11).
Windidda Creek within E38/3295
Victor Ashwin describes the creation of Windidda Creek, and the trees within the creek, by a mythical being which travelled through the area. He says that the creek and the trees are now part of the Jukurrpa and are a manifestation of the mythical being. Allan Ashwin’s statement for E38/3295 also refers to this area and the mythical being.
Area shaded pink southwest of Well Spring on Map E38/3295
TMPAC submits that this area comprises creeks that flow into Well Spring and then into Lake Carnegie. The AHIS Searches reveal an ‘Other Heritage Place’ ID 25675 Well Springs over part of the area shown on Map E38/3295. This site has the status of Stored Data and is of a mythological type with a male only access restriction.
Victor and Allan Ashwin describe a being that lives in Well Spring and the springs and the creeks that flow into it. They both explain the consequences for disturbing this area.
Area shaded pink east of Bullock Bore on Maps E38/3297
In his statement for E38/3297, Allan Ashwin gives a detailed description of this site and explains that only initiated men may go there. He outlines the consequences that arise if others visit this area. Both Victor and Allan Ashwin identify this site as associated with a Jukurrpa.
Toonil Pool
Ms Cutter’s statement explains the association of the Toonil Pool Area with a Women’s Jukurrpa within E38/3297. She describes rituals associated with the Jukurrpa and that it is a women only place.
Conclusion
Kalium neither admits nor denies that these areas or sites are of particular significance to TMPAC. The State does not specifically address the issue of significance in its contentions, however it adopts Kalium’s contentions.
Having reviewed the evidence, I am satisfied that each of these sites or areas is sufficiently identified and is of particular significance to TMPAC for the purposes of
s 237(b).
What areas or sites have been identified as being of particular significance to Wakamurru?
Allan Ashwin’s evidence identifies the following sites or areas of particular significance to Wakamurru with the proposed area of E38/3295 and E38/3296.
Lake Carnegie and tjukurr tracks
Wakamurru contends that Lake Carnegie itself is of immense importance to the native title holders, particularly initiated men.
Allan Ashwin deposes at paragraph 15 that there are a lot of tjukurrpa that travel into Lake Carnegie from different directions. He says at paragraphs 16-18 of his affidavit:
16. There are three main tjukurrpa stories and tjukurr tracks which come through this country where the Tenements are: the marlu tjukurrpa [kangaroo Dreaming], the kirti kirti tjukurrpa [hill kangaroo / euro Dreaming] and the tjarntu tjukurrpa [Dog/dingo Dreaming].
17. These tjukurrpa stories are restricted to wati, and I can’t talk about them in any detail here. Women cannot know these stories or songs. I’ve seen all the songs and dances for these tjukurrpa and I know them well.
18. There is a very important place in the south-west corner of tenement E38/3295. There are some big water pools in this sandhill country which run into a big tea tree swamp. This place is known as Mulleja. This is a key part of the marlu tjukurrpa and it is a really special place. There are some parts of Mulleja that cannot be visited by women, but other parts can be.
Mr Ashwin says further at paragraph 25, that “[b]ecause we all follow that same tjukurrpa passing through this country, and different mobs look after different parts of the tjukurrpa, if we allowed the mining company to go in there and muck things up – other people that follow the same desert law would be angry at us.”
The State argues at paragraph 44 that while parts of Lake Carnegie fall within the proposed licences, the Manta Rirrtinya determination does not cover Lake Carnegie. It says further that Wakamurru has not provided details of why Lake Carnegie is of particular significance to the native title holders in accordance with their traditions. Kalium similarly argues that only a very small portion of Lake Carnegie located within E38/3296 falls within the Manta Rirrtinya determination area. (Kalium contentions paragraph 21)
As I discuss further below in relation to Mulleja, whether Lake Carnegie falls within the Manta Rirrtinya determination area is not determinative for s 237(b). The relevant issue is whether an area or site is of particular significance to the native title holders in accordance with their traditions and whether it will be subject to interference from the grant.
I have already found that Lake Carnegie is a site of particular significance to TMPAC in relation to E38/3295 and E38/3297.
While I agree that Mr Ashwin’s evidence for Wakamurru is not as fulsome as the restricted evidence provided by TMPAC, it is, as you would expect, consistent and of a similar import.
I accept the importance of the kirti kirti tjukurrpa, the tjarntu tjukurrpa and the marlu tjukurrpa to Wakamurru and I accept that they pass through Lake Carnegie. I note the State also accepts the marlu tjukurrpa is a site of particular significance to Wakamurru (State’s contentions paragraph 41).
However, other than Mr Ashwin’s evidence regarding the tjukurrpa travelling through Lake Carnegie and the Mulleja site discussed below, there is insufficient information about the location of the tjukurrpa on the licence areas to enable me to find they are sites of particular significance. In its reply Wakamurru restates its reliance on Mr Ashwin’s evidence, extracted above, that the three main tjukurrpa stories and tjukurr tracks come through the licences. I accept that is the case but other than Lake Carnegie, it is not clear where they come through the licences.
Taking account of all of the evidence in relation to Lake Carnegie, the tjukurrpa, and the shared laws and customs of the Western Desert Cultural Bloc, which is reflected in Mr Ashwin’s evidence, I am satisfied that Lake Carnegie within the area of E38/3295 and E38/3296 is a site of particular significance to Wakamurru.
However, as no detail is provided of the path of the tjukurrpa or any specific areas with the proposed licences as relevant to those paths (save for Mulleja discussed below), I am unable to make any finding regarding areas or sites of particular significance beyond Lake Carnegie.
Mulleja
Much of Allan Ashwin’s affidavit evidence in relation to the E38/3295 focusses on a site called Mulleja.
Mr Ashwin explains that Mulleja is located in the south-west corner of E38/3295. He says there are “some big water pools in this sandhill country which run into a big tea tree swamp.” Mr Ashwin says this site is a key part of the marlu jukurrpa and describes the path of the tjukurrpa which stops at Mulleja and then heads east. Parts of it cannot be visited by women (Ashwin affidavit paragraphs 18-19). Wakamurru contends this site is of immense and particular significance to the native title holders, particularly initiated men (Wakamurru contentions paragraph 5.21(f)).
The State accepts that parts of Mulleja are gender restricted and that this site is likely to be of more than ordinary significance to members of Wakamurru, but argues it has not been identified with the degree of specificity required for s 237(b). The State notes that if Wakamurru is reluctant to reveal the precise location of a sensitive site, the Tribunal may make non-disclosure orders to assist in protecting that information (State’s contentions paragraph 50).
The State also notes that, if Mulleja is the heavily vegetated site on the south west corner of E38/3295, it appears to fall outside the area of the Manta Rirrtinya determination (State’s contentions paragraph 51). Kalium makes the same point in its contentions at paragraph 21. Ms Banks’ affidavit attaches an extract from the Tribunal’s Native Title Vision mapping tool. Ms Banks says that from this extract it appears that the only area meeting Mr Ashwin’s description is outside the Manta Rirrtinya determination area.
Kalium argues that to the extent this site falls outside the Manta Rirrtinya determination area, it does not form part of the ‘land or waters concerned’ as that term is used in s 237(b) and is therefore not relevant to these proceedings. In my view that submission is plainly incorrect having regard to the decision of Barker J in Hale, which held that the scope of the inquiry into an expedited procedure objection is concerned with the area of the proposed act specified in the s 29 notice.
Relevantly, His Honour said at [107]–[113]:
107.In short, the State contends that because an inquiry by the arbitral body arises, and only arises, because of a particular objector’s objection, the “land or waters concerned”, to which s 237 relates, must necessarily be the “land or waters” which overlap the claim or determined area of an objector.
108.In my view, s 32(4), which is fundamental to the arbitral responsibilities that the Tribunal has in this case, is not amenable to such a construction.
109.In the circumstances of any objection, what matters must be considered having regard to the criteria stated in paras (a), (b) and (c) of s 237, is an evidentiary issue guided by the matters put in issue by the objector.
110.Under s 32(4), once there is an objection by a native title party, as there is here, the Tribunal “must determine whether the act is an act attracting the expedited procedure”. It must hold an inquiry to determine the question.
111.The criteria in s 237(a) require the Tribunal to ask whether the grant of the tenement is likely to interfere directly with the carrying on of the community or social activities of the objector in relation to the land or waters concerned – that is to say the land or waters to which the act in question – the grant of the tenement – relates. The same is to be said of the criteria to be regarded in paras (b) and (c).
112.It is always going to be an evidentiary question as to whether or not an objector, even one who only has a registered native title claim over a portion of the land or waters the subject of the proposed act, will be affected in relevant ways by the act.
113.Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body.
What Hale confirms is that, once an objection is made by any native title party, the question before the Tribunal is whether the expedited procedure applies to the grant of the relevant tenement as notified, i.e. the tenement as a whole. Consistent with that position, the Court also recognised that it is open to the Tribunal to request parties to an inquiry to provide relevant information (Hale at [98]). President Dowsett also recently considered the application of Hale in Tjiwarl v Gianni [80]-[84].
Therefore, in relation to the Mulleja site, the issue for consideration on the facts of this case, is whether it is a site of particular significance within the meaning of
s 237(b) within the licence area and if so, whether it will be subject to interference by the grant of the licence. Such sites may arise beyond the boundaries of a claim or determination, particularly in a case such as this where, as reflected in the evidence, groups which form part of the Western Desert Cultural Bloc share traditional laws and customs and sites of particular significance (see also the discussion on this issue in TMPAC v Lake Wells at [72]). . As Justice Barker noted in Hale at [112] (extracted above), this will always be an evidentiary question.
Neither Kalium nor the State appear to dispute that the Mulleja site may be located in the south-west corner of the licence area. Their contentions focus on whether the site is located within the Manta Rirrtinya determination area, which as I have noted, is not the relevant issue. Kalium argues, in the alternative, that Wakamurru’s evidence is not sufficiently specific to enable it to identify its location and extent (Kalium contentions paragraph 26).
In its reply, Wakamurru restates Mr Ashwin’s evidence regarding the location of the site, specifically that he was shown a map of the licences, understands where they are located, knows the area well and identified Mulleja as being in the south-west corner of E38/3295 (Wakamurru reply paragraph 6.11). Mr Ashwin’s evidence also includes details of trips that he and other wati have taken or plan to take to Mulleja to check on important tjukurrkpa sites (Ashwin affidavit paragraphs 22-24).
Wakamurru says further that it is inappropriate for the State and Kalium to attempt to define the boundary of a site of significance without consultation with the native title party, noting the complex nature of the tjukurrpa, and its relationship/connectedness with the surrounding landscape.
Mr Ashwin clearly identifies Mulleja as being located in the south-west corner of the proposed licence area. He names it and describes it by reference to the landscape as well as the path of the tjukurrpa. I accept Mr Ashwin’s evidence that Mulleja is located in the south-west corner of E38/3295. I note that Mr Ashwin’s evidence as to location is similar to evidence accepted by President Dowsett in Marputu v Gianni at [16].
The State accepts that this site is likely to be of more than ordinary significance to members of Wakamurru. Kalium’s contentions do not specifically address this point.
Taking account of all of the evidence, I am satisfied that Mulleja is located within the area of proposed E38/3295 and is a site of particular significance to Wakamurru, within the meaning of s 237(b).
Is the grant of the licences likely to interfere with the sites of particular significance to Wakamurru and TMPAC?
Kalium and the State argue that interference is unlikely due to a range of factors including:
(a)the nature of Kalium’s proposed exploration activities;
(b)Kalium’s intention to consult with the native title parties to avoid sites of significance;
(c)the protection afforded by the AHA;
(d)the proposed RSHA condition and endorsements and conditions to be included on the licences.
The evidence from TMPAC and Wakamurru is that their traditions do not permit any entry onto Lake Carnegie and the other sites or areas I have found to be of particular significance to them. The Federal Court has accepted that even slight interference may be unacceptable in some cases (FMG v Yindjibarndi at [75]-[76]). In TMPAC v Rachlan Holdings at [32] Member Shurven accepted that simple entry onto Lake Carnegie would constitute unacceptable interference and that neither the AHA or RSHA “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)”. The evidence in this case supports that position, not just for Lake Carnegie, but for the other sites I have found to be of particular significance.
I note that Kalium has made contentions regarding the role of these proceedings in the context of any Ministerial approval under s 18 of the AHA (specifically, that their purpose is not to act as a veto on s 18 applications) and the fact that the native title parties remain free to exercise their rights under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) as the “last resort” of the statutory protective regime.
The purpose of these proceedings is to decide whether, having regard to the terms of s 237 of the NTA, the expedited procedure applies to the grant of the licences or whether all negotiation parties should be required to negotiate in good faith about the doing of the act under s 31. Of course, the relevant statutory regimes are important considerations for s 237. However, just as these proceedings do not affect the operation of s 18 of the AHA, equally the operation of State or Commonwealth heritage protection laws are not a complete answer for s 237.
I agree with Member Shurven’s analysis in the context of the licences and the various sites I have found to be of particular significance.
It follows that I find the grant of each of the licences is likely to cause interference within the meaning of s 237(b).
Determination
I determine that the grant of each of E38/3295, E38/3296 and E38/3297 to Kalium Lakes Potash Pty Ltd is not an act attracting the expedited procedure.
Ms Nerida Cooley
Member
24 December 2019
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