Raymond Ashwin and Others on behalf of the Wutha People v Cliffs Asia Pacific Iron Ore Pty Ltd

[2014] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin and Others on behalf of the Wutha People v Cliffs Asia Pacific Iron Ore Pty Ltd [2014] NNTTA 35 (3 April 2014)

Application No:               WO2013/0372

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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)

- and -

The State of Western Australia (Government party)         

- and -

Cliffs Asia Pacific Iron Ore Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  3 April 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:Ashwin and Others on behalf of the Wutha People v Peter Romeo Gianni and Another [2014] NNTTA 23 (‘Ashwin v Gianni 2’)

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 1’)

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     Mr Jeff O’Halloran, State Solicitor’s Office
Government party:         Mr Matthew Smith, Department of Mines and Petroleum

Representative of the      
grantee party:                 Mr Peter Brammall, Cliffs Asia Pacific Iron Ore Pty Ltd

REASONS FOR DETERMINATION

1. On 30 January 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E29/871-I (‘the proposed licence’) to Cliffs Asia Pacific Iron Ore Pty Ltd (‘the grantee party’). The notice includes 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 6 graticular blocks (approximately 17.95 square kilometres), with a centroid of 29^o 23’ S, 120^o 8’ E, located 94 kilometres westerly of Menzies, in the Shire of Menzies. The notification date for the notice was 30 January 2013 and the 4 month close of notification was 30 May 2013.

3. The proposed licence is entirely overlapped by the registered native title claim of the Wutha People (WC1999/010 – registered from 15 June 1999).  No other registered claims or determinations overlap the proposed licence. On 27 March 2013, the Wutha People (‘native title party’) made an expedited procedure objection application (‘application’) to the Tribunal in relation to the proposed licence.

Background

1. On 4 June 2013, the preliminary conference was held in relation to the application.  The grantee party advised that it would attempt to negotiate an agreement with the native title party and the matter was adjourned to a status conference, held on 9 October 2013.  At the status conference, the grantee party advised it intended to withdraw its application for the proposed licence.  On 6 November 2013, an adjourned status conference was held at which the grantee party requested a further five days to withdraw its application for the proposed licence.  On 27 November 2013, another adjourned status conference was held, and the grantee party advised that it now intended to pursue the grant of the proposed licence. The grantee party requested that the matter to proceed to inquiry and accordingly, I made directions for the inquiry.

2. In compliance with directions: the Government party’s initial evidence was provided on 20 January 2014 through the Department of Mines and Petroleum (‘DMP’); the native title party complied on 24 January 2014; and the grantee party complied on 5 February 2014.  Following a request for a seven day extension, the Government party submitted its contentions on 24 February 2014.  On 5 March 2014, the Tribunal emailed all parties:

   The matter is scheduled for a listing hearing on Thursday, 13 March 2014. If all parties agree to the following points, this listing hearing can be vacated and the Tribunal will be in contact with you again once a determination is made:

   a)   you agree that the matter may proceed to an inquiry before the Member on the papers (no further hearing will be scheduled) and

   b)   you do not intend to make any further submissions.

   ....If any party has further requests or submissions to make the listing hearing may proceed

1. On 5 March 2014, each of the parties confirmed via email that they agreed the matter could proceed to be heard on the papers.  Specifically, the email from the native title party’s legal representative advised 'We agree with the matter proceeding on the papers and will be making no further submissions'.

Conduct of the inquiry

1. The contentions expressed the native title party’s intention to call witnesses to give oral evidence, and outlined the evidence to be given, if the matter were to be decided otherwise than ‘on the papers’ pursuant to s 151(2) of the Act. Specifically, the native title party stated (at (11)) that it intended to call Ms June Ashwin and Mr Geoff Ashwin to give evidence of:

   ·the likelihood of direct interference to the carrying on of the community and social activities of the native title party if the proposed licence is granted;

   ·the native title party’s traditional relationship with the land;

   ·the stories and dreamings told by the Wutha people from generation to generation since time began; and

   ·the relationship between the community and social activities of the native title party and the Wutha people’s relationship with the land and the stories and dreamings told by the Wutha people.

2. The native title party’s contentions do not state the qualifications of the proposed witnesses, though I do note that Ms Ashwin and Mr Ashwin are registered claimants as they are two of the four named persons who comprise the Applicant for the native title party’s native title determination application.

3. The native title party’s statement of contentions appears to be based on a pro forma document submitted in previous expedited procedure matters involving the Wutha People, with the only noticeable differences being the tenement details. The circumstances of this matter, in terms of the native title party not providing evidence to support its contentions, are also very similar to a number of previous expedited procedure determinations involving the Wutha People made by the Tribunal. It appears that the native title party has developed a standard practice of stating in their contentions that they will provide oral evidence. Then, at the stage when all submissions are with the Tribunal and the matter is ready to proceed to inquiry, they either provide no further communications, or state they do not wish to provide any further material, even when given the express opportunity to do so (see Ashwin v Gianni 2, Ashwin v Doray Minerals Limited, Ashwin v Gianni 1, Ashwin v Cliffs Asia Pacific).

4. The Government party has included in its submissions (at 29) that in its view, the issues for determination in these proceedings can be adequately determined in the absence of the parties and do not require an oral hearing.  Taking into account the principles outlined at [11]-[13] by Member O’Dea in the Ashwin vDoray Minerals Limited decision, and that all parties agreed they had no further submissions, I have decided to proceed with this matter on the papers. There was simply no support from the native title party that the issues cannot 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:

237     Act attracting the expedited procedure

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.

1. In Walley v Western Australia, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]) and I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act.

2. In relation to s 237(a), I adopt the legal principles identified in Tullock v Bushwin at [10]-[16].

3. With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Parker v Ammon at [31]–[38] and [40]-[41] (see also Parker v Western Australia; Parker v Western Australia No 2).  I also adopt those set out by Deputy President Sosso in Silver v Northern Territory.

4. The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little v Oriole, especially [41]-[57]).

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 proposed licence 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:

   ·Two vacant Crown Land parcels overlapping at 62.3 and 37.7 per cent;

   ·Declared Rare Flora Sites 102601, 102602, 102603 and 102604 overlapping at 0.2 per cent each;

   ·exploration licence E30/291, held by the grantee party, overlapping the proposed licence at 100 per cent; and

   ·prospecting licence P29/1923, held by the grantee party, overlapping the proposed license at 4.3 per cent.

3. The quick appraisal shows that the proposed licence area has previously been subject to the following mineral tenure:

   ·3 surrendered or expired exploration licences held from 1993 to 1998, 2000 to 2007, and 2010 to 2012, overlapping the proposed licence at 100 per cent, 98.6 percent and 100 per cent, respectively; and

   ·1 surrendered exploration licence held between 2003 and 2010 and 18 surrendered mineral claims, held between 1969 and 1973, overlapping the proposed licence between 0.6 and 7 per cent.

   Clearly, there has been some recent exploration activity over the proposed licence as a whole.

4. The quick appraisal indicates the proposed licence contains seven tracks and 19 non perennial minor watercourses.

5. The report from the DAA Database shows no registered sites within the proposed licence.

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

7. The Draft Tenement Endorsement and Conditions Extract indicates that the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tullock v Western Australia at [11]-[12]) which are:

   1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion;

   2.All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP;

   3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program;

   4.Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.

1. The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:

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

   6.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:

   7.The Licensee’s attention is drawn to the provisions of the:

   ·      Water 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

   8.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.

   9.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:

   10.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:

   11.Advice shall be sought from the DoW if proposing any exploration 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 (21) the following endorsement applies:

   12.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 the DoW.

   13.The land subject to this Licence affects Rare Flora Sites (including Rare Flora Sites 102601, 102602, 102603 and 102604) declared under the Wildlife Conservation Act 1950. The Licensee is advised to contact the Department of Environment and Conservation for information on the management of Declared Rare Flora (or Priority Listed Flora) present within the tenement area.

Native title party’s statement of contentions

1. As stated above, the native title party’s contentions appear to be based on a pro forma document submitted in previous expedited procedure matters before the Tribunal and are outlined in full in Ashwin v Gianni 2 at [26]-[32]. As with previous matters, the native title party has not provided any material in support of its contentions and contemplates that witnesses (Ms Ashwin and Mr Ashwin) for the native title party will give evidence in support of its contentions. And, as with previous matters, the native title party simply did not prosecute this intention in any way, either directly or through their representatives. 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.

2. I refer to my decision in Ashwin v Gianni 2  where the native title party contentions are identical to this matter (at paragraphs [26]-[32].), and adopt those paragraphs for the purpose of this matter rather than re-stating those identical contentions.

Grantee party statement of contentions and evidence

1. The grantee party has submitted contentions addressing the s 237 criteria, together with supporting documents comprising of:

   ·Statutory declaration of Ms Kelly Halford, Tenement Officer for the grantee party, dated 13 November 2012. Ms Halford deposes to the grantee party executing the Government party’s Regional Standard Agreement for Heritage Protection over Tenure (‘RSHA’) and sending it to the native title party for execution;

   ·Copies of the grantee party’s policies and procedures relating to Environment, Exploration Clearing, Exploration Rehabilitation, Exploration Botanical Surveys and its Aboriginal Heritage Operating Procedure; and

   ·Affidavit of Ms Cherry Nola Hayward, Senior Indigenous Advisor for the grantee party, dated 17 January 2014. Ms Hayward deposes to have witnessed, since 2008, the grantee party, employees, contractors and agents abide by the grantee party’s Aboriginal Heritage Operating Procedure and the Aboriginal Heritage Act. She also deposes to have witnessed the grantee party undertake Aboriginal ethnographic heritage assessments before conducting ground disturbing exploration activities and that the grantee party has conducted in excess of 80 Aboriginal ethnographic heritage surveys and several archaeological studies on its exploration and mining tenements.

   The affidavit of Ms Hayward, also indicates the grantee party:

   ·     intends to work in a way which does not adversely impact on heritage sites and which respects Aboriginal cultural heritage concerns,

   ·     intends to use existing roads and tracks, and

   ·     will not conduct ground activities in relation to any identified sites (at 16)

Government and grantee 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 (and includes an extract); the exploration license is for an initial term of 5 years and is renewable; and 'in the absence of any evidence from the grantee party' the Tribunal must assume that the grantee party intends to exercise the full set of rights conferred by section 66 of the Mining Act (at 12–15).  However, the grantee party has provided contentions and evidence, so I take this reference to absence of evidence to be a typographical error. 

2. The Government party states it proposes to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract (at 18) (and as noted above in [22]-[23] of this decision).  It also states the grantee party has indicated its willingness enter into the RSHA with the Wutha claimants, and sets out the general terms of heritage agreements in respect of notifying and consulting with the native title party in relation to proposed works (at 20–22).

3. The Government party states, 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), and that the grantee party’s submissions provide a 'firm basis' for concluding there is not likely to be interference with any of the limbs contemplated under s 237 of the Act (at 24).

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

1. The Government and grantee party submit there is no evidence to support the native title party’s assertions that community and social activities are carried out on the proposed licence area (at 52 and 4-5 respectively).  The Government party also submits (at 54) there is not likely to be direct interference with such activities bearing in mind: the grantee party’s willingness to enter into an RSHA; the grantee party’s 'consultative approach to native title matters'; previous mineral exploration in the area; there are no Aboriginal communities existing within the area; and that exploration activities are inherently capable of coexistence with community and social activities of a native title party.  I accept all of these arguments in this matter.

Government and grantee party’s contentions in relation to s 237(b)

1. The Government party quite correctly states the native title party has not produced any evidence regarding sites or areas of particular significance and provides some detailed reasoning in relation to that (at 62-68).  It contends the grantee party has indicated a desire to work with the native title party to avoid any disturbance to sites of particular significance, and that it is willing to enter into an RSHA -  the native title party has the opportunity to enter into the agreement given the Government party intends to impose an RSHA condition upon the proposed licence (at 66).

2. The Government party also states (at 67-68) that interference is not likely because: there has been previous mineral exploration and the State’s regulatory regime is likely to prevent interference with any area or site of particular significance. The grantee party outlines its awareness of its obligations under the State’s regulatory regime and its own heritage policies, which include the employment of a Senior Indigenous advisor to manage heritage matters and relations with traditional owners.  The grantee party states its heritage policies include: consultation with the indigenous community; conducting ethnographic surveys and archaeological surveys where necessary in areas where ground disturbing activities are planned; using existing tracks, and where no cleared route is available, conducting heritage surveys over the proposed route (at 6).  

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

1. The Government party states 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 State’s regulatory regimes will likely avoid any such major disturbance; the grantee party has relevant policies and procedures for conducting its activities; the Government party intends to impose conditions and endorsements on the proposed licence; there is previous mineral exploration; and there is an absence of any particular characteristics that would be likely to result in disturbance to land or waters from the activities of the grantee party (at 78).

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 and grantee party’s arguments that the native title party has not made out any likely interference with community or social activities and also note the grantee party’s affidavit evidence and its consultation policies in this regard. As such, I conclude it is unlikely that the grantee party’s 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 proposed licence. 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 activity over the area; the Government party will impose the RSHA condition on grant; and the grantee party's contentions, affidavit evidence, and documents in support of its approach, including its willingness to sign the RSHA. 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 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 E29/871-I to Cliffs Asia Pacific Iron Ore Pty Ltd, is an act attracting the expedited procedure. 

Helen Shurven
Member

3 April 2014