Ashwin and Others on behalf of the Wutha People v Yellow Rock Resources Ltd and Another

[2014] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Ashwin and Others on behalf of the Wutha People v Yellow Rock Resources Ltd and Another [2014] NNTTA 30 (19 March 2014)

Application No:               WO2012/1242

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Raymond William Ashwin, June Rose Ashwin, Geoffrey Alfred Ashwin and Ralph Edward Ashwin on behalf of the Wutha People (WC1999/010) (native title party)

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The State of Western Australia (Government party)         

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Yellow Rock Resources Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  19 March 2014

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to involve major disturbance to land or waters - expedited procedure attracted

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237

Mining Act 1978 (WA)

Aboriginal Heritage Act 1972 (WA)

Cases:Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tullock v Bushwin’)

Little v Oriole Resources Pty Ltd (2005) 146 FLR 576 (‘Little v Oriole Resources’)

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Ammon’)

Mantjintjarra Ngalia 2/Western Australia/Ausnico Limited [2013] NNTTA 172 ('Mantjintjarra v Ausnico')

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker v Western Australia’)

Parker v State of Western Australia (2008) 167 FCR 340 (‘Parker v Western Australia No 2’)

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Cliffs Asia Pacific Iron Ore Pty Ltd [2013] NNTTA 122 (‘Ashwin v Cliffs Asia Pacific’)

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 (‘Ashwin v Doray Minerals Limited’)

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Peter Romeo Gianni [2013] NNTTA 88 (‘Ashwin v Gianni’)

Silver v Northern Territory (2002) 169 FLR 1 (‘Silver v Northern Territory’)

Smith v Western Australia (2001) 108 FCR 442 (‘Smith v Western Australia’)

Walley v Western Australia (2002) 169 FLR 437 (‘Walley v Western Australia’)

Representative of the      

native title party:             Mr Paul Tolcon, Mony De Kerloy Barristers & Solicitors

Representatives of the     Ms Rosanna Hill, State Solicitor’s Office
Government party:         Mr Clyde Lannan, Department of Mines and Petroleum

Representatives of the    
grantee party:                 Mr Greg Abbott, M & M Walter Consulting

REASONS FOR DETERMINATION

1. On 22 August 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E51/1534 (‘the proposed licence’) to Yellow Rock Resources Ltd (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).

2. The notice describes the proposed licence as comprising an area of approximately 22.4 square kilometres and is located 50 kilometres south of Meekatharra, in the Shire of Meekatharra.

3. The proposed licence overlaps the registered native title claim of the Wutha People (WCD1999/010 – registered from 15 June 1999) by 37.76 per cent. On 26 November 2012, the Wutha People (‘native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence.

4. The proposed licence is also wholly overlapped by the Yugunga-Nya registered claim (WC1999/046 – registered from 12 June 2000) (‘Yugunga-Nya’). An expedited procedure objection application was also lodged on behalf of Yugunga-Nya (designated WO2012/1343), however, this objection application was withdrawn on 4 October 2013.

Background

1. At an adjourned status conference held on 24 April 2013, the grantee party requested for the matter to proceed to inquiry. Directions for the inquiry were set and, in compliance with these directions, the parties provided submissions and evidence: the Government party’s initial evidence on 17 May 2013 through the Department of Mines and Petroleum (‘DMP’); the native title party contentions on 21 May 2013; the grantee party’s contentions on 4 June 2013; and, following an amendment to directions, the Government party’s contentions on 4 November 2013.

2. I was appointed as the Member to conduct the inquiry by President Raelene Webb QC on 6 January 2014.

3. The Tribunal provided parties with a map of the area of the proposed licence (produced by the Tribunal’s Geospatial unit and dated 20 November 2013) and were advised I may rely on it for the purposes of this inquiry. The topographic map includes information from the Register of Aboriginal Sites, native title determination application boundaries and relevant tenure information. No objections to the use of the map in my deliberations were received from the parties.

4. In its statement of contentions, the native title party had expressed its intention to call Ms June Ashwin and Mr Geoff Ashwin as witnesses to give oral evidence, and outlined the evidence to be given. However, at the listing hearing held on 7 November 2014, all parties agreed that the matter could proceed to be heard on the papers according to s 151(2) of the Act. For the avoidance of doubt, the Tribunal emailed parties querying whether the native title party maintained its request for an oral hearing. On 6 March 2014, Mr Tolcon, on behalf of the native title party, confirmed that the native title party agreed to the matter being heard on the papers. As such I am satisfied that the issues can be adequately determined in the absence of the parties (as per s 151 of the Act).

Legal principles

1. Section 237 of the Act provides:

   A future act is an act attracting the expedited procedure if:

   (a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

2. In relation to the legal principles to be applied in this matter, I adopt those outlined by President Webb in Yindjibarndi v FMG at [15]-[21].

Evidence in relation to the proposed act

1. The Government party provided the following documents in relation to the proposed licence:

   ·A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.

   ·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’).

   ·A copy of the tenement application;

   ·A Draft Tenement Endorsements and Conditions Extract; and

   ·A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.

2. The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be as follows:

   ·Pastoral leases 3114/898 (YARRABUBBA), 3114/584 (HILLVIEW) and 3114/550 (POLELLE) overlapping the proposed license by a total of 84.9 per cent (19, 6.7 and 59.2 per cent respectively);

   ·Common reserves CR5571 and 10597, overlapping the proposed licence at 13 per cent and 0.8 per cent respectively;

   ·Reserve lease RLJ833663, overlapping the proposed licence at 0.8 per cent; and

   ·Three road reserves, all overlapping the proposed licence at less than 0.1 per cent.

3. The quick appraisal indicates the proposed licence was overlapped by: one previously granted prospecting licence, active between 2006 and 2008 at 8.5 per cent, now surrendered; one temporary reserve, active between 1961 and 1962 at 96.5 per cent, now cancelled; and a large number of mineral claims, active between 1970 and 1978 at between less than 0.1 and 5.2 per cent, all now surrendered or unknown.

4. No party has provided information or evidence about the extent to which this underlying tenure overlaps the native title party claim area within the proposed licence, however, Tribunal mapping suggests that some pastoral lease land and common reserve CR5571 covers the claim and proposed licence overlap.

5. The quick appraisal outlines the following services located on the proposed licence:

   ·Two minor roads;

   ·Eight tracks;

   ·One well/bore with windmill; and

   ·Three fence lines.

6. The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DAA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows there are no DAA recorded sites or 'other heritage places' within the proposed licence.

7. There does not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.

8. The draft Endorsement and Conditions Extract for the proposed licence indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tullock v Bushwin at [11]). The following additional conditions will also be imposed on the proposed licence:

   5.   The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs, water carting equipment or other mechanised equipment.

   6.   The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

   ·The grant of the licence; or

   ·Registration of a transfer introducing a new Licensee;

   advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

9. The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:

   1. The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder;

   2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

   In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

   3.   The Licensee attention is drawn to the provisions of the:

   ·     Waterways Conservation Act, 1976

   ·     Rights in Water and Irrigation Act, 1914

   ·     Metropolitan Water Supply, Sewerage and Drainage Act, 1909

   ·     Country Areas Water Supply Act, 1947

   · Water Agencies (Powers) Act 1984

   · Water Resources Legislation Amendment Act 2007

4.   The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

5.   The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

6.   The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:

7.   Advice shall be sought form the DoW if proposing any within a defined waterway and within a lateral distance of:

·     50 metres from the outer-most water dependent vegetation of any perennial waterway; and

·     30 metres from the outer-most water dependent vegetation of any seasonal waterway.

In respect to Proclaimed Ground Water Areas the following endorsement applies:

8.   The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by DoW.

Native title party’s statement of contentions

1. The native title party’s contentions are summarised in the following three paragraphs.

2. Interference with Community or Social Activities (s 237(a))

   ·The grant of the proposed licence is likely to interfere directly with the carrying on of the community and social activities of the Wutha people (at 5).

   ·The grantee party will be able to exercise rights and interests in the land that will interfere with the native title party’s ability to access the land (at 5(a)).

   ·The exercise of the grantee party’s rights and interests will interfere with the carrying on of community activities of the native title party, such as hunting, gathering, extraction of flora, the use of other resources of the land, and any religious, ceremonial and other activities (at 5(b)).

   ·The exercise of the grantee party’s rights and interests will interfere with the carrying on of social activities such as the telling of stories and dreaming and the continuation of oral traditions about the relationships of the native title party to the land (at 5(c)).

   ·The native title party reiterate paragraph seven of their expedited procedure objection application (at 5(d)), which states:

   oThere are difficulties identifying the area of the proposed licence with sufficient particularity based on the topographical details provided in the s 29 notice. As such, the native title party have been unable to know exactly what country is being talked about except for its general location;

   oThe native title party have connections to country covered by the proposed licence, maintained through hunting game, collecting bush tucker and medicines, and visiting and looking after sites. Activities permitted under the proposed licence will scare away bush animals, destroy plants used for bush tucker and medicine, and possibly destroy sites.

   oThe native title party can only provide permission or further information once they know the intentions of the grantee party and the exact area that will be affected; and

   oThe native title party believes the grant of the exploration licence will create rights, the exercise of which will involve major disturbance to the land, including the right to drill holes and excavate material.

3. Interference with Areas or Sites of Particular Significance (s 237 (b))

   ·The grant of the tenement is likely to interfere directly with areas or sites of particular significance (at 6).

   ·Not all sites of particular significance to the native title party have been recorded and it cannot be said with any certainty that the grant of the proposed license is not likely to interfere with sites or areas of particular significance until an approved heritage protection survey has been undertaken with the native title party (at 6(a)).

   ·The Government party has not proposed that a condition be imposed requiring the carrying out of an approved heritage protection survey with the native title party at 6(b)).

   ·The provisions of the AHA provide for a ministerial discretion to permit interference with Aboriginal sites at 6(c)).

   ·The Government party has not proposed that a condition be imposed requiring the written permission of the native title party prior to the exercise of the Minister’s discretion at 6(d)).

   ·The Government party has not proposed a condition be imposed requiring the grantee party to enter into a Wutha Heritage Protection Agreement or for the grantee party to enter into some form of site identification and protection process (at 6 (e)).

   ·The native title party reiterate paragraph seven of their expedited procedure objection application (see [19] above).

4. Major disturbance to Land or Waters (s 237 (c))

   ·The grant of the tenement is likely to involve, or create rights whose exercise will involve, major disturbance to the land (at 7).

   ·It cannot be said with certainty that the rights accorded to the grantee party under the proposed licence will not have a significant impact on Aboriginal people who use the land (at 7(a)).

   ·Account needs to be taken of the community life, customs, traditions and cultural concerns of the native title party (at 7(b))

5. The native title party has not provided any material in support of its contentions and originally suggested that witnesses (Ms Ashwin and Mr Ashwin) for the native title party would give evidence in support of the above contentions. The native title party contended that the witnesses may also give evidence of its traditional relationship with the land and the stories and dreaming told by Wutha people from generation to generation (at 13).

6. Specifically, the contentions state that Ms Ashwin and Mr Ashwin would give evidence that the native title party’s community and social activities which relate to the proposed licence area include:

   ·The responsibility, according to traditional Aboriginal law and custom, to protect and care for all country (including the area of the proposed license) for which the Wutha people hold registered native title rights and interests (at 15(a));

   ·The duty to protect and care for those areas surrounding and including sites of spiritual significance, which are fundamental to Aboriginal customary law and sites of particular significance to the Wutha people (at 15(b));

   ·The duty to protect and care for areas of particular importance such as those used for hunting and gathering at 15(c)); and

   ·The activity of exercising the right to negotiate future act proposals on land located within the area of the Wutha people’s native title determination application (at 15(d)).

7. Furthermore, the witnesses were also to give evidence that the grant of the proposed license is likely to interfere with the native title party’s community and social activities associated with the exercise of its registered native title rights and interests, and in particular:

   ·Access rights to land and the right to control the access of others to the tenement areas;

   ·The right to use and enjoy resources and make decisions about the use and enjoyment of resources;

   ·The right to maintain and protect places of importance under traditional laws, customs and practises; and

   ·The right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area (at 15).

8. However, the native title party simply did not prosecute this intention to provide oral evidence in any way, either directly or through their representatives, and as such I make no further comment about the evidence the native title party would or would not have given should an oral hearing have been granted.

Grantee party statement of contentions

1. The grantee party makes brief submissions in relation to each subsection of s 237 of the Act, but otherwise indicates that it seeks to rely on the State’s submissions.

2. In relation to s 237(a), the grantee party states it will not exclude any community activities upon the proposed licence unless during a particular activity it is considered temporarily unsafe for the conduct of community activities (at 1.1), and that it will notify the native title party prior to undertaking any activity likely to restrict the community and social activities the native title party has identified (at 1.3).

3. In relation to s 237(b), the grantee party indicates it will comply with the AHA and has never been prosecuted under the AHA (at 2.3).

Government party contentions and evidence

1. The government party contends among other things that:

   ·the rights which will be conferred by the proposed licence (if granted) are set out in section 66 of the Mining Act (an extract of which is included), that the exploration license is for an initial term of 5 years and is renewable, and that the grantee party has proposed the following methods of exploration:

   o   literature search;

   o   acquiring available geophysical/orthoimagery data;

   o   acquiring new geological products and maps

   o   field mapping, rockchip and soil geochemistry; and

   o   drilling.

   ·The grantee party has indicated their awareness of, and intention to comply with, obligations contained in the AHA (at 15).

   ·The grantee party has indicated their willingness to undertake heritage surveys and has also offered to enter into a Regional Standard Heritage Agreement with the Yugunga-Nya claim group (at 15). The Government party (at 22) state that, while this offer has not been made to the native title party, it still indicates the grantee party’s awareness and willingness to work with native title claimants to protect heritage sites.

   ·The Government party (at 17) proposes to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract (see [17]-[18] above).

   ·The licence can be forfeited for any breach of statutory or imposed conditions (at 18).

2. The Government party contends that, in the absence of evidence to the contrary, the Tribunal must assume that a grantee party will not act in breach of the relevant statue law, regulations or conditions imposed upon them (at 23).

Government party’s contentions in relation to s 237(a)

1. The Government party states that the Tribunal should not accept the contentions put forward by the native title party as to their community and social activities as they are general in nature, and are mere assertions that are unsupported by any evidence (at 46).

2. The Government party outline (at 46) that, to the extent the Tribunal does find community or social activities are carried out on the proposed licence, there is not likely to be direct interference because:

   ·The grantee party’s proposed activities will be low-impact and non-intrusive

   ·The grantee party has indicated its willingness to enter into an RSHA type agreement with Yugunga-Nya, which shows a willingness to consult and avoid activities that are likely to interfere with the native title party

   ·Previous mineral exploration and possible mining is likely to have already affected the exercise of community and social activities in that area

   ·The tenement is largely covered by pastoral lease

   ·There are no Aboriginal communities existing within the area

   ·Exploration activities are inherently capable of existing alongside the community and social activities of a native title party

   ·While there may be a small possibility of inadvertent interference between the grantee party’s exploration activities and the native title party’s law ceremonies, this potential hazard would only exist during the limited period that law business is held. However, the grantee party has demonstrated its intention to respect and accommodate Aboriginal cultural issues. Therefore, an inference could be made that, provided the grantee party is forewarned of the time and location of these ceremonies, it is not likely to conduct its activities in a way that may interfere with the activities of the native title party

3. I also note that the claim only overlaps a relatively small percentage of the proposed licence in any event.

Government Party’s contentions in relation to s 237(b)

1. The Government party quite correctly states that the native title party has not produced any evidence regarding sites or areas of particular significance and provides some reasoning in relation to that (at 55-56).

2. The Government party challenges the native title party’s implicit contention that a lack of consultation with the native title party before entering the land or doing an activity constitutes interference for the purpose of this section of the Act, particularly given the absence of any evidence of sites within the proposed licence (at 57).

3. The Government party states (at 58) that in any event, interference is not likely because:

   ·The grantee party has indicated its willingness to enter into an RSHA type agreement with Yugunga-Nya

   ·The grantee party’s proposed activities will be low-impact and non-intrusive

   ·The Government party’s proposed condition and endorsements are intended to prevent the types of concerns listed by the native title party

   ·There has been previous mineral exploration and possible mining

   ·The area is largely covered by pastoral lease

   ·The State’s regulatory regime is likely to prevent interference with any area or site of particular significance

Government Party’s contentions in relation to s 237(c)

1. The Government party states that this limb of s 237 is only attracted when there is a significant, direct physical disturbance of land or waters and that the grant of the proposed licence is not likely to involve such because:

   ·The grantee party’s proposed activities will be low-impact and non-intrusive.

   ·The State’s regulatory regimes will likely avoid any such major disturbance.

   ·The proposed conditions and endorsements the Government party intends to impose on the proposed licence.

   ·The previous mineral exploration and current pastoral lease over the proposed licence area.

   ·The absence of any particular characteristics that would be likely to result in disturbance to land or waters given the proposed activities of the grantee party.

Considering the Evidence in context of s 237 of the Act

Interference with community or social activities – s 237(a)

1. The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and activities undertaken pursuant to it 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 notion of direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith v Western Australia at [26]. The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith v Western Australia at [27].

2. I accept the Government party’s arguments that the native title party has not made out any likely interference with community or social activities and as such conclude it is unlikely that the grantee party activities will interfere with the community or social activities of the native title party for the purposes of s 237(a).

Interference with sites or areas of particular significance – s 237(b)

1. In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions.

2. I accept the Government party’s argument that the native title party has not provided evidence to suggest there are sites or areas of particular significance on the claim/proposed licence overlap area and that, even had there been such sites, based on the available evidence I accept the State’s regulatory regime in this matter would have been sufficient to protect such sites given the previous mineral exploration and other activity over the area. As such I conclude there is not likely to be a real chance or risk of interference with sites or areas of particular significance in this matter.

Major disturbance to land or waters – s 237(c)

1. The Tribunal is 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 native title party (see Little v Oriole at [41]-[57]).

2. I agree with the Government party that the native title party has not made out any particular features or aspects on the proposed licence/claim overlap in this matter, and I conclude a real risk of major disturbance to land or waters is unlikely to occur, based on the available evidence.

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E51/1534 to Yellow Rock Resources Ltd, is an act attracting the expedited procedure. 

Helen Shurven
Member

19 March 2014