Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Agrimin Potash Pty Ltd
[2020] NNTTA 29
•6 March 2020
NATIONAL NATIVE TITLE TRIBUNAL
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Agrimin Potash Pty Ltd and Another [2020] NNTTA 29 (6 March 2020)
Application Nos: | WO2019/0365; WO2019/0366; WO2019/0585 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC (WCD2002/002)
(native title party)
- and -
Agrimin Potash Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 6 March 2020 |
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 acts are not acts attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 31, 32, 151(2), 237 |
Cases: | Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (BDAC v Oladipo Minerals) Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (Cheinmora v Striker Resources) Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond [2013] NNTTA 112 (Lungunan v Richmond) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (Forrest v Aruma Exploration) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182 (FMG v Yindjibarndi) James on behalf of the Martu People v Western Australia [2002] FCA 1208 (James v Western Australia) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Smith v Western Australia[2001] FCA 19; (2001) 108 FCR 442 Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (Tullock v Western Australia) Robinson v Fielding [2015] WASC 108 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (Western Desert Lands v Teck Australia) Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v Topia Resources Pty Ltd [2019] NNTTA 12 (Western Desert Lands v Topia) Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd, [2011] NNTTA 170 (Wilma Freddie v Kingx) |
| Representative of the native title party: | Kate Holloman, Yamatji Marlpa Aboriginal Corporation |
| Representatives of the grantee party: | Claire McGowan and Talia Childs, Mining Access Legal |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Emma Salsano and Keahn Sardinha, State Solicitor’s Office |
REASONS FOR DETERMINATION
Introduction
This is a decision under s 32 of the Native Title Act1993 (Cth) (the Act/the NTA) about whether the expedited procedure applies to the grants of exploration licences E45/5417, E45/5419 and E45/5420 (the licences) to Agrimin Potash Pty Ltd (Agrimin). All references to legislation are to the Act unless stated otherwise.
The State of Western Australia (the State) gave notice of their intention to grant the licences and included a statement that they consider the grants are acts attracting the expedited procedure. This would, subject to any successful objection, allow the licences to be granted without the requirement to negotiate as outlined in s 31.
The Western Desert Lands Aboriginal Corporation (WDLAC) holds exclusive native title rights and interests over the licences, on behalf of members of the Martu and Ngurrura native title claims (as determined in James v Western Australia). The contentions and evidence provided by WDLAC in this matter refer to the native title holders as the Martu People and I have adopted that approach in this decision.
WDLAC lodged an objection against the State’s assertion the expedited procedure applies to the licences. WDLAC argue the expedited procedure should not apply to the licences, as interference or disturbance with one or more of the criteria in s 237 of the Act is likely. Agrimin and the State argue the expedited procedure should apply.
For the reasons outlined below, my determination is that the grant of each licence is not an act attracting the expedited procedure.
Issues for Inquiry
Under s 237, a licence grant is only 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 the holders traditions (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)).
WDLAC do not pursue their objection in relation to s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. As such, this inquiry is focused on s 237(a) and s 237(b).
Determination on the papers
The State’s materials
For each licence, the State provided a statement of contentions, and evidence including mapping and tengraph quick appraisal tenure documents. That information shows: each licence has 100 per cent unallocated crown land underlying; Lake Auld runs through E45/5419; and the Percival Lakes runs through E45/5420 and E45/5417. Together with that information was each licence application from Agrimin, with their accompanying statement under s 58 of the Mining Act 1978 (WA), and details of proposed endorsements and conditions to be imposed on each licence by the State. The conditions include the proposed Regional Standard Heritage Agreement (RSHA), should WDLAC request that condition within a specified time period. These are referred to as relevant in this decision.
Search results from the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS searches) have also been included. Sites recorded on the AHIS 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 Aboriginal Heritage Act 1972 (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 an assessment has not been completed to determine if it meets s 5.
The AHA protects ‘Aboriginal sites’ (as defined in s 4 of the AHA) whether those sites are registered on the AHIS or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. Regardless of whether or not an ‘other heritage place’ is administratively assessed as meeting s 5 of the AHA, it is still possible for a native title party to establish that one or more of those sites constitute ‘areas or sites of particular significance’ to them ‘in accordance with their traditions’ (as per s 237(b) of the Act) by providing sufficient evidence.
A summary of the AHIS information is as follows:
E45/5419
·No registered sites
·1 other heritage place: ID 17799 – Lake Auld – No gender restrictions – Lodged - Mythological, Other; Area of Martu cultural significance
E45/5420
·No registered sites or other heritage places
E45/5417
·4 registered sites:
oID 10503 – Karrparti – No gender restrictions – Mythological, Water Source
oID 10504 – Kirawirri – No gender restrictions – Mythological, Camp
oID 10505 - Wayin Karangu – No gender restrictions – Mythological, Water Source
oID 10506 – Talyji – No gender restrictions – Mythological, Water Source
·No other heritage places
Agrimin’s materials
Agrimin provided contentions and an affidavit from the General Manager, Thomas Christopher Lyons, with annexures including: the company’s Annual Report; an ASX Report which has details of the project; and mapping.
WDLAC’s materials
WDLAC provided a statement of contentions, a reply to the State’s and Agrimin’s submissions, and the following witness statements:
·Mr Baker Lane
·Mr Grant Judson
·Mr Lionel Judson
·Mr Melvin Farmer
·Mr Kennedy Finlay
·Mr Alistair Sammy
From the material provided in the statements, I accept the evidence has been provided by those who are the bosses for the Lake Auld and Percival Lakes area (for example, Mr Lane and Mr Grant Judson), or who otherwise have authority to speak for the area on and around the licences. I also note Mr Lionel Judson is a Martu Ranger.
WDLAC also provided:
·A Report about the Cultural Significance of Country within tenements E45/5417, E45/5418, E45/5419, E45/4520, E45/5421 dated September 2019 and authored by Anthropologist Ms Zsuzsanna Gonda; and
·Report on a work area clearance survey of proposed drill locations at the Tabletop Project Area: Macintyre Dobson & Associates, 1999.
In relation to the report by Ms Gonda, tenement applications for E45/5418 and E45/5421 were withdrawn by Agrimin, and so even though they are included in the report, they do not form part of the consideration for this inquiry. In relation to the work area clearance report from 1999, I was not clear how it related to the licences in this inquiry, apart from appearing to be in an area south of the current licences. As such, I say nothing further about this report in my considerations.
The location of the licences
It may assist in understanding the context of much of the material provided in this inquiry, to outline the location of the licences. The Agrimin contentions summarise the location (at 12) as:
The Proposed Tenements comprise an area of 1527.771 square kilometres and are located wholly within the Martu Determination area. They broadly follow the alignment of the western portion of the salt lake known as Percival Lakes and the northern tip of the salt lake known as Lake Auld.
I accept that summary as being an accurate reflection of the geography of the licence.
It is also helpful to note Ms Gonda’s report (at 36), which outlines that:
The lake system which tenements E45/5417. E45/5418, E45/5419, E45/5420 and E45/5421 intersect winds across roughly 400km in the north eastern and central portion of the Martu determination area approximately 100km north and 80km west of Kunawarritji community and 80km east of Parnngurr Community which are occupied by high numbers of Martu people. Various roads are located throughout this portion of country including the Kunawarritji/Wapet Road in the southern portion of E45/5419 which is a well-used pathway connecting Martu people across various communities…
From the evidence, I accept the ‘lake system’ refers to the chain of salt lakes and immediate surrounds including Lake Dora, Lake Blanche, Lake George, Lake Winifred, Lake Auld, Percival Lakes and Tobin Lake. More on this is outlined below, particularly with reference to Lake Auld and Percival Lakes.
Non-disclosure directions
Non-disclosure directions were issued during the course of the inquiry, which limits the extent to which I refer to evidence outlined in the statements and the reports. Nevertheless, that does not preclude me from outlining the facts on which my decisions are based, to the extent to which my reasons are explained. The compliance directions contemplated an agreed statement of facts and a hearing, but parties requested these directions be vacated and the matter be determined on the papers. I was satisfied the inquiry could be adequately determined without a hearing (s 151(2)).
The s 237 predictive assessment
As outlined in Silver v Northern Territory (at [21]), which I adopt for the purposes of this inquiry (emphasis in original):
…section 237 requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences outlined in paragraphs (a) – (c) set out above. The proper approach to the application of section 237 was explained by French J in Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442. His Honour pointed out (at 450): "The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement." … [T]his approach was also endorsed by R D Nicholson J in Little v Western Australia [2001] FCA 1706 at [69].
What activities will Agrimin likely undertake on the licence?
The State’s papers for this inquiry included the statement Agrimin provided with their application for each licence, and Agrimin outline their proposed works in Mr Lyons’ affidavit.
The licences are to be part of Agrimin’s Percival Project, which covers the Percival Lakes area and is prospective for sulphate of potash (Mr Lyons affidavit at 15). Agrimin intend to take a staged approach to exploration, following a strategic progression of activities to build understanding of the brine deposit and define a mineral resource (contentions at 32, Mr Lyons affidavit at 30-31). Personnel are likely to be active in the field between 30-90 days per stage, with approximately eight people (one to two geologists and six support crew) (contentions at 32, Mr Lyons affidavit at 33 and 36).
Initial stage exploration activities are described as having minimal ground disturbance, as follows (Mr Lyons affidavit at 34):
·Reconnaissance: 4WD reconnaissance of access tracks;
·Brine and sediment sampling: shallow lake bed brine and sediment sampling involving hand dug pits, hand augured holes and shallow mechanically augured holes;
·Non-invasive geophysical investigation: including passive seismic, gravity and electromagnetics.
Second stage exploration may include the following, as described by Mr Lyons (at 35):
·Drilling: aircore or diamond core drilling on grid patterns across the lakebed and paleochannel areas. Drill holes may be cased and completed as bores for pump testing with an observation bore/s installed at a nominal distance from the test bore.
·Trenching and pump testing: trial production trenches (100m long x 6m wide x 6m deep) and observation bores. Trenches are to be constructed using an excavator and rehabilitated after tests are completed.
·Evaporation trials: evaporation of lake brine under natural conditions.
The information described in Agrimin’s licence applications provided by DMIRS outlines the first year work program for each licence application (with some differences in the associated expenditure on each licence) as follows:
·Geological activities: planning of exploration programmes, data acquisition, geological data processing, mapping, supervision of field programmes – geologist, sampling – field technician, report preparation.
·Geochemical activities: data acquisition, sampling, data processing.
·Non-core drilling: RAB (rotary airblast) drilling.
·Airborne geophysical activities: data acquisition, data processing.
·Remote sensing activities: purchase of digital aerial photography, purchase of digital landsat imagery, image processing.
·Field supplies: camp consumables and supplies, equipment hire, vehicle hire.
·Drafting: plan preparation.
There is nothing in the applications in terms of a program of works beyond year one.
Section 237(a): is the grant of the licence likely to directly interfere with WDLAC’s community or social activities?
The Tribunal is required to make a predictive assessment of whether the grants of each licence and activities undertaken pursuant to those grants are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). The assessment involves an evaluative judgment about whether the grant of the licences is likely to be the proximate cause of the interference which must be substantial and not trivial (Smith v Western Australia at [26]).
Community or social activities refer to those activities which arise from registered native title rights and interests (see for example Tullock v Western Australia at [93]-[102]). WDLAC have been explicit in their materials and evidence about such rights, and how they relate to the criteria of s 237(a).
What native title rights and interests do WDLAC hold in the area of the licences?
The exclusive native title rights and interests held by the common law holders are outlined below (at (a) to (c)). Those marked in italics are the focus of the evidence of WDLAC in support of their arguments related to s 237(a). There is a great deal of evidence presented in the form of statements and Ms Gonda’s report, and there are non-disclosure orders over some of that material, so I have only provided my analysis to the extent is needed to explain my reasoning and conclusions.
(a)the right to possess, occupy, use and enjoy the land and waters of the determination area to the exclusion of all others, including:
(i)the right to live on the determination area;
(ii)the right to make decisions about the use and enjoyment of the determination area;
(iii)the right to hunt and gather, and to take the waters for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial, and communal needs;
(iv)the right to control access to, and activities conducted by others on, the land and waters of the determination area;
(v)the right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs; and
(vi)the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the determination area;
(b)the right to use the following traditionally accessed resources;
(i)ochre;
(ii)soils;
(iii)rocks and stones; and
(iv)flora and fauna
for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs; and
(c)the right to take, use and enjoy the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs, including the right to hint on and gather fish from the flowing and subterranean waters.
What activities do WDLAC undertake on the licences?
The right to make decisions about the use and enjoyment of the determination area
Martu people, particularly elders, are responsible for making decisions about the use and enjoyment of the lakes system as the ‘bosses’ country (WO2019/0365-0366 contentions at 23, WO2019/0585 contentions at 24).
·The elders have outlined the importance of protecting Percival Lakes, Lake Auld and other lakes in the north east of Martu country (Mr Farmer at 44).
·There are many places people such as Agrimin do not know about that need protecting (Mr Finlay at 20-21).
Responsibility for decision making is based on ongoing adherence to Martu traditional laws and customs (WO2019/0365-0366 contentions at 24, WO2019/0585 contentions at 25 and Ms Gonda’s report at 107-110).
The right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs
WDLAC argue the lakes system is linked to creation stories and the dreamtime (WO2019/0365-0366 contentions at 8 and 25, WO2019/0585 contentions at 8-9 and 26).
·There is a named dreaming that goes through the Percival Lakes area, and its direction and trajectory is outlined. Sites along the lakes are connected by dreaming stories / tracks that criss-cross country (Mr Farmer at 15, 19-20).
·There is a named songline (which I will refer to as ‘W’), whose direction and trajectory is also outlined (from the east of E45/5417), and which includes the area of the licences. The lakes are said to be one system, but different ngurra and different people speak for different parts (Mr Sammy at 33). The ‘W’ songline is sung during male initiation ceremonies and is secret and confidential (Mr Lionel Judson at 9-10). I am satisfied that sites along the lakes are connected by dreaming stories and tracks.
·There is another named story near Well 27 and a dreamtime story associated with a particular reptile near Well 27 and Lake Dora (Mr Sammy at 22-24, 32-36). I note that Well 27 is approximately 50 kilometres south of E45/5419, however, accept it is interconnected to sites and practices on each of these licences.
I accept there are songlines which give instructions to Martu about where to find water (WO2019/0365-0366 contentions at 44 ii, WO2019/0585 contentions at 41 ii, Mr Lionel Judson at 18, Mr Farmer at 29). I also accept Percival Lakes is linked to cultural life including male initiation practices and ceremonies and the transmission of cultural knowledge (WO2019/0365-0366 contentions at 44 iv, WO2019/0585 contentions at 41 iv).
There is evidence of visiting and protecting country (WO2019/0365-0366 contentions at 26).
·It is important to protect the lakes due to law and dreamtime stories (Mr Sammy at 45).
·The songline and dreaming story should not be touched - each year Martu people tour the area, part of the culture will be lost if the old tour is destroyed (Mr Finlay at 11-12, 19).
·Martu people travel on the Kunawarritji Road – it is a main highway for Martu people. Martu people drive and look at Lake Auld all the time (Mr Farmer at 39-40 and see also my comment in this decision at [17] about the road).
Martu people are obligated to protect country (WO2019/0365-0366 contentions at 27, WO2019/0585 contentions at 34 iv).
·The lakes / places need to be protected because of the law and dreamtime stories. There are obligations to the Martu community to protect the special places (Mr Sammy at 45-46).
Unauthorised access or activities can cause physical and spiritual harm to strangers and Martu people (WO2019/0365-0366 contentions at 28, WO2019/0585 contentions at 27).
·‘It’s dangerous for strangers…bad things would happen to strangers who went to the Percival Lakes area without permission’ (Mr Farmer at 42-43). More detail is outlined about that, which I do not elaborate on here due to sensitivities.
Maintenance and protection of sites occurs through the Martu ranger program (WO2019/0365-0366 contentions at 29, WO2019/0585 contentions at 28).
·Part of the ranger work is to go on country and do cultural mapping and cleaning of rockholes. This work stops for law business – the rangers and Mr Judson have been to Percival Lakes multiple times (Mr Lionel Judson statement at 4-7)
Traditional burning occurs in the area (WO2019/0365-0366 contentions at 30, WO2019/0585 contentions at 29).
·Before burning, ‘we sing out the name place, say its name. Let the country know we are coming’. Burning helps bush food come back strong. Martu rangers and Martu people burn depending on the country (Mr Lionel Judson at 21-25; Mr Sammy at 51).
·Ms Gonda’s report contains a section about traditional burning over an area which includes E45/5419, describing the obligations to maintain the portion of country because of traditional affiliation and responsibility to the area, and the ongoing organised activities of the Martu ranger program and Martu elders (paragraphs 44-49).
The right to hunt and gather, and to take waters for the purpose of satisfying personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs
Take water (WO2019/0365-0366 contentions at 31).
·Mukurtu Rockhole is an important water source, birthplace and camping area. People would stop and live there and migrate to follow the water (Mr Farmer at 32-33). I note that rockhole is very near to E45/5419, and Ms Gonda’s report (at Table 2) confirms that, noting the AHIS site Mukurtu Rockhole (ID 10446) (a site categorized as ‘Mythological, Water Source with restricted access’).
·When travelling to Kunawarritji, we stop at Mukurtu Rockhole. There is salt and fresh water along the lakes (Mr Sammy at 49-50, and see also the comment at [17] above regarding the road).
·The salt lakes are special to Martu because of the fresh water springs. ‘We camp at a site around the lakes… [we] can get good water from a soak around the lake’ (Mr Lionel Judson at 11, 28).
·Lake Auld is a source of water (Mr Lane at 8).
Resources must be accessed in accordance with cultural protocols (WO2019/0365-0366 contentions at 32, WO2019/0585 contentions at 30).
·‘There is a right way to [cross the lakes]…you have to let the spirits know’ (Mr Sammy at 38-39).
·‘When we go to the lakes, we burn spinifex. The old people sing in language… We always carry a branch and walk in one line into the lake. You have to be shown how to enter country’ (Mr Lionel Judson at 19-20).
Water attracts wildlife making the area good for hunting and gathering bush foods (WO2019/0365-0366 contentions at 33).
·There is a lot of bush turkey and kangaroo around Lake Auld. Spring trees, bush tomatoes and food can be found around the lake (Mr Lionel Judson at 17, 27).
·Family in the relatively nearby Parngurr community ‘go hunting nearly every weekend’ (Mr Sammy at 47-48 and see also the comment at [17] of this decision) – the context of this evidence is that the focus of the hunting is the lakes system, which I accept.
WDLAC also generally assert the grant of the licences will directly interfere with the carrying out of community and social activities, specifically due to proximity to the lakes system (WO2019/0365-0366 contentions at 37 i and ii, WO2019/0585 contentions at 34 i). Their contentions reiterate that unauthorized entry and not seeking the proper cultural permissions may result in physical or spiritual harm to Martu people and strangers (WO2019/0365-0366 contentions at 37 iii and iv, WO2019/0585 contentions at 34 ii and iii). This is supported by the statement evidence.
WDLAC argue Agrimin’s evidence regarding their proposed exploration activities is broad and general and that I should assume they will exercise the full suite of rights available under s 61 Mining Act (WO2019/0365-0366 contentions at 36 and WO2019/0585 contentions at 33). I accept both of those contentions.
Agrimin’s argument as to why the expedited procedure should apply, in relation to s 237(a)
Agrimin makes reference to various lakes in the area which the licences do not intersect with, and asserts this diminishes the WDLAC arguments regarding any social or community activities conducted on the system of lakes in the area. For example, Agrimin assert it is unlikely there will be intersection between Agrimin and native title holders when conducting social or community activities (contentions at 13, 25-30). Agrimin also argues that the overlap between Lake Auld and E45/4519 is a small portion of that licence (contentions at 25-29).
Agrimin further assert the licences overlap other exploration tenements granted in 2014 and so have been subject to historical exploration. They refer to information which shows WDLAC’s objections to the expedited procedure applying to those previous overlapping tenements were withdrawn due to agreement being reached. Agrimin state (at contentions at 21 – 22):
This indicates that any potential for interference of the kind contemplated by sections 237(a) and 237(b) of the Native Title Act is capable of being effectively managed (to the extent it arises, which is denied) by implementation of an effective agreement between the Native Title Party and the Grantee Party.
As such, it appears exploration on those previous tenements proceeded under cover of agreement between the explorer and the native title holders. No such agreement was able to be negotiated in respect of the licences in this inquiry.
Agrimin further argue that WDLAC’s evidence suggests community and social activities are undertaken during law time, and as such potential interference can be mitigated through consultation with the native title holders. Agrimin feel their staged approach to exploration will also assist to reduce interference (contentions at 31-32). However, as noted above, no agreement has been made by which such consultation can be conducted.
Finally, Agrimin contentions (at 34) refer to the likelihood that any interference, should there be any, would be limited to the area where exploration is taking place, and is likely to be intermittent, and not substantial, in nature.
The State’s argument as to why the expedited procedure should apply, in relation to s 237(a)
The State argue the evidence provided by WDLAC is insufficient to demonstrate the grant of the licences will directly interfere with community or social activities (WO2019/0365-0366 contentions at 31, WO2019/0585 contentions at 20). They contend WDLAC has broadly identified three activities, linked to determined rights, and provided evidence about the importance of the area, but has provided limited information about specific community and social activities (WO2019/0365-0366 contentions at 32, WO2019/0585 contentions at 21).
The State argue WDLAC has not provided evidence about the number of participants, frequency, duration and location of community or social activities, particularly in relation to whether or not such activities are conducted on the licences (WO2019/0365-0366 contentions at 35, WO2019/0585 contentions at 24). Because of this, the State assert that at most, there is a slight, not a substantial, risk that Agrimin may physically be in the way of native title holders when conducting social or community activities (WO2019/0365-0366 contentions at 36, WO2019/0585 contentions at 25).
The State also put forward similar arguments to those outlined by Agrimin - for example, noting that in their view, Agrimin: has a favourable record of exploration; will initially confine itself to minimally disturbing activities; will undertake surveys and cultural awareness training; will aim to not adversely impact sites; and had engaged with WDLAC to try and negotiate a heritage agreement (WO2019/0365-0366 contentions at 38(a)-(d), WO2019/0585 contentions at 28(a)-(d), and as noted in Mr Lyon’s affidavit at 41-46).
Conclusion: are Agrimin’s activities likely to interfere or coexist with WDLAC’s activities?
Under the grant of each licence, Agrimin may extract up to 1,000 tonnes of material from each licence during the life of the grant. While I appreciate the argument made by Agrimin and the State that the size of the licence areas, and the nature of exploration activity, is such that any such interference is likely to be intermittent, I do not accept that intermittent interference is necessarily not substantial interference.
As noted by the Federal Court in Smith v Western Australia (at [26]):
The criterion of direct interference in par (a) may be thought of more fruitfully as functional than as definitional. That is to say, it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.
Given the scope of the social and community activities conducted on and around Percival Lakes and Lake Auld, and the connection of those activities to dreamtime and stories which are central to the Martu traditions, I accept that any interference is likely to be substantial interference for the purposes of s 237(a).
Section 237(b): is the grant of any licence likely to interfere with areas or sites of particular significance?
My assessment of s 237(b) turns on whether or not there are areas or sites of ‘particular significance’ – meaning of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). If an area or site is of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]).
What areas or sites do WDLAC identify?
WDLAC assert the whole of the lakes system is an area of significance (NTP WO2019/0365-0366 contentions at 44). Lake Auld and the Percival Lakes are noted as being of particular significance due to the songlines, creation stories and ongoing ceremonial practices (as outlined in some detail in the contentions and statement, and not repeated here due to sensitivities) (see for example, WO2019/0365-0366 contentions at 45, WO2019/0585 contentions at 42).
The Tribunal has previously found the whole of the Percival Lakes area to be of particular significance to the Martu People (see Western Desert Lands v Topia). I note that E45/5417 abuts the tenement the subject of that decision, and maps provided by the State show E45/5420 and E45/5417 substantially overlap the Percival Lakes.
What areas or sites do I consider to be of particular significance for the purposes of s 237(b)?
The State contentions accept the lakes system is an area of particular significance WO2019/0365-0366 contentions at 43, WO2019/0585 contentions at 33).
I accept that the Percival Lakes area and Lake Auld, as associated with these licences, are sites of particular significance. What contributes to the particular significance here is the connection and links to dreamings and songlines (including dreamings and songlines for initiated men only), and the connection to areas such as Percival Lakes and Lake Auld, according to the traditions of the native title holders in the area of the licences (see for example WO2019/0365-0366 contentions at 43 and 44 i and ii, WO2019/0585 contentions at 40 and 41 i, Ms Gonda’s report at 8, Mr Farmer’s statement at 14-19 and 22-28, Mr Sammy’s statement at 23-33 and 35-36, Mr Finlay’s statement at 9-12, Mr Lionel Judson’s statement at 9-10, Mr Grant Judson’s statement at 5-9, Mr Lane’s statement at 13-14).
Is interference with sites or areas of particular significance likely?
As noted at [44]-[47] above, Agrimin raised several reasons why they considered their exploration activities would not cause interference to areas or sites of particular significance to the native title holders. Their contentions also argued, (for example at 40), that WDLAC’s materials were general and related to areas both within and outside the licence areas. Agrimin also argued that the licences only overlap Percival Lakes and Lake Auld, and not the wider lakes system. My understanding is that the wider lakes system does include Percival Lakes and Lake Auld, and I did not find the WDLAC evidence and materials to be too general. In fact, WDLAC provided a substantial amount of specific information.
Agrimin contentions also argued (at 41) that the evidence did not confirm dreamlines coincided with the licences. I did not find this to be the case, and I accept that the interconnected nature of the dreamline and songlines did include Percival Lakes and Lake Auld.
As noted above, I also accept that previous objections to the expedited procedure were withdrawn on the basis of reaching agreement between the explorer and WDLAC, and no such agreements were able to be reached in relation to the grant of the licences subject to this inquiry. In addition, even if an area has been previously disturbed, this does not necessarily mean the area has lost its particular significance or that further disturbance would not constitute interference according to the native title holders’ traditions (see Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]).
WDLAC argue in their contentions and reply that the States regulatory regime, including the AHA, is insufficient to protect the lakes system, including Percival Lakes and Lake Auld, for reasons including:
·The AHA definition of ‘site’ is more limited than s 237;
·The offence under s 17 of the AHA is more limited than s 237 interference;
·It is unclear what activities require Ministerial consent under s 18 of the AHA
In relation to the operation of the AHA, I note the Supreme Court of Western Australia’s comments in Robinson v Fielding (particularly at 102-103, and 122-123). In that decision, Chaney J concluded ‘There is nothing in the process set out in s 18 which expressly requires consultation with Aboriginal people with interests in sites on the land the subject of a s 18 notice’.
Further, I note the comments in Lungunan v Richmond (for example, at [38]), summarizing the Tribunal’s approach on the interface between the AHA and s 237, which I accept for the purposes of this inquiry. That is, that the nature of the interference to a site contemplated by s 237(b) may be wider than that protected by s 17 of the AHA.
WDLAC also argue in their reply (at 54) that the RSHA, as outlined in [8] above, does not require surveys prior to the conduct of any exploration, and so what Agrimin considers to be ‘low impact exploration’ may be undertaken without a survey taking place.
Conclusion: are Agrimin’s activities likely to interfere with sites or areas of particular significance?
I accept WDLAC’s argument that unauthorised entry to such areas of particular significance may itself constitute interference (citing Wilma Freddie v Kingx Pty Ltd at [53]) (WO2019/0365-0366 contentions at 51, WO2019/0585 contentions at 48). I also accept that unauthorised access to the Percival Lakes and Lake Auld will cause interference (WO2019/0365-0366 contentions at 52, WO2019/0585 contentions at 49, Mr Farmer at 43 and Mr Sammy at 42). In addition, I accept activities such as sampling and drilling will cause physical as well as spiritual disturbance to Percival Lakes and Lake Auld (WO2019/0365-0366 contentions at 54, WO2019/0585 contentions at 51).
The WDLAC reply (at 42) outlines that while Agrimin ‘has set out its proposed exploration program, it is subject to change and the Grantee Party will be able to exercise the full suite of rights under the Mining Act 1961 (WA) if the Proposed Tenements are granted’.
As McKerracher J outlined in FMG v Yindjibarndi (at [79] ‘the impact must be substantial or non-trivial. The meaning of these terms must be taken in the context of the particular site and the laws and customs in relation to that site’. At [75]-[76], McKerracher J further noted:
That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions... It may follow that mere entry onto the site other than on supervised terms and conditions … may from the native title party’s perspective none the less be non-trivial interference...
I adopt the reasoning from BDAC v Oladipo Minerals (at [49]-[53]), in that even if WDLAC are afforded procedural fairness and are consulted prior to the Minister’s decision:
the State does not explain how that mitigates the likelihood of interference under s 237(b) of the NTA on the facts of the present case. Interference that is sanctioned under s 18 of the AHA may nonetheless be interference within the meaning of s 237(b) of the NTA.
Determination
The grants of exploration licences E45/5417, E45/5419 and E45/5420 to Agrimin Potash Pty Ltd are not acts attracting the expedited procedure.
Helen Shurven
Member
6 March 2020
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