Raymond Ashwin and Others on behalf of the Wutha People v Kalorra Mining and Exploration Pty Ltd
[2014] NNTTA 38
•22 April 2014
NATIONAL NATIVE TITLE TRIBUNAL
Raymond Ashwin and Others on behalf of the Wutha People v Kalorra Mining and Exploration Pty Ltd [2014] NNTTA 38 (22 April 2014)
Application No: WO2012/1265
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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Kalorra Mining and Exploration Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 22 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 1’)
Parker v State of Western Australia (2008) 167 FCR 340 (‘Parker v Western Australia 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 Ms Caitlin Brandstater, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representative of the
grantee party: Mr David Nore, Kalorra Mining & Exploration Pty Ltd
REASONS FOR DETERMINATION
On 8 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 E57/915 (‘the proposed licence’) to Kalorra Mining & Exploration 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).
The s 29 notice describes the proposed licence as comprising 14 graticular blocks (approximately 42.2 square kilometres) with a centroid of 28o 26’ S, 119o 20’ E, located 50 kilometres southerly of Sandstone, in the Shire of Sandstone. The s 29 notice states that if the proposed licence were to be granted, it would authorise the holder to explore for minerals for a term of five years from the date of grant.
An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) by any person who, four months after the notification day, is a registered native title claimant in respect of the relevant land or waters (see s 29(2)(b)(i), s 32(3) and s 30(1) of the Act). (If there is no registered native title claimant when the s 29 notice is given, the application containing the native title claim must be filed sometime before the end of three months after the notification day included in the s 29 notice (see s 30(1)(a)(i)). The notification date for this matter was 8 August 2012. The three month period for filing a native title claim was 8 November 2012. The four month period for lodgement of objections closed on 8 December 2012.
The proposed licence overlaps, by 100 per cent, the registered native title claim of the Wutha People (WCD1999/010), which was registered from 15 June 1999. No other native title claim was filed, or objection lodged, in respect of this proposed licence. On 27 November 2012, the Wutha People (‘native title party’) made an expedited procedure objection application (‘application’) to the Tribunal in relation to the proposed licence.
Background
On 15 January 2013, a preliminary conference was held at which the grantee party advised it was seeking legal advice in relation to the application. The grantee party failed to participate at further convened conferences until 5 June 2013. At that conference the grantee party advised it intended to reach an agreement with the native title party and anticipated that the matter could be resolved within a five week period. Further conferences were held on 10 July 2013, 7 August 2013, 21 August 2013, 18 September 2013 and 2 October 2013, during which the grantee and the native title parties advised they were close to finalising an agreement. On 16 October 2013, the Tribunal noted the considerable length of time the parties had engaged in negotiations without resolution, and set directions for an inquiry into the matter.
On 24 October 2013, I was appointed as the Member to conduct the inquiry by President Raelene Webb QC.
In compliance with directions the parties, with the exception of the grantee party, provided submissions and/or evidence: the Government party’s initial evidence on 18 November 2013 through the Department of Mines and Petroleum (‘DMP’); the native title party’s contentions on 21 November 2013; and the Government party’s contentions on 16 December 2013.
At the listing hearing on 16 January 2014, the grantee party advised that it had a new representative and the native title party requested a further week to attempt to settle an agreement with the new grantee party representative. The Tribunal gave leave for the parties to do so, and an adjourned listing hearing was convened on 30 January 2014.
At the adjourned listing hearing, all parties were represented and agreed that the matter could proceed to be heard on the papers according to s 151(2) of the Act. This was again confirmed by an email exchange with the native title party on 10 April 2014.
A copy of a map prepared by the Tribunal’s Geospatial Services was provided to all parties on 14 April 2014, noting the Tribunal’s intention to rely on the map unless any party took issue. No party took issue with the map.
Conduct of the inquiry
The native title party’s contentions expressed its 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.
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.
The native title party contentions appear 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 made by the Tribunal involving the Wutha People. 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 indicate 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).
Legal principles
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.
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).
In relation to s 237(a), I adopt the legal principles identified in Tullock v Bushwin at [10]-[16].
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 1; Parker v Western Australia 2). I also adopt those set out by Deputy President Sosso in Silver v Northern Territory.
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
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.
The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be pastoral lease 3114/1054 (Dandaraga), overlapping the proposed license at 100 per cent.
The quick appraisal shows that the proposed licence area has previously been subject to 2 exploration licences granted in 1996 and surrendered in 1997, overlapping the proposed licence at 41.6 per cent and 58.4 per cent respectively.
The quick appraisal outlines the following services located on the proposed licence:
·two tracks;
·two fence lines;
·four rock outcrops;
·Ned Corner well/bore;
·157 cliffs/breakaways/rockridges; and
·23 non-perennial minor watercourses.
The report from the DAA Database shows there are no Aboriginal sites located on the proposed licence. The Government party contentions note (at 10) one ‘other heritage place’ (Site ID 20421 – NSC28, Breakaways, natural feature, open access, no restrictions) is within the area of the proposed licence.
There do not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.
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 Bushwin [11]-[12]) and an additional two standard conditions imposed for licences overlapping pastoral or grazing leases. These conditions 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.
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.
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:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any 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’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
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 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 DoW.
In respect to Waterways the following endorsement applies:
7. 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 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 the DoW.
Native title party’s statement of contentions
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.
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 contentions and evidence
The grantee party has not provided any contentions or evidence and at the listing hearing on 30 January 2014 their representative agreed for the matter to be heard on the papers.
Government party contentions and evidence
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).
The Government party states it proposes to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract (at 16). It also states that it intends to impose a condition requiring the grantee party to enter into a Regional Standard Heritage Agreement if requested by the native title party within 90 days from the grant of the proposed licence (RSHA condition)(at 17).
In the absence of evidence to the contrary, the Government party contends 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 20).
Government party’s contentions in relation to s 237(a)
The Government party submits there is insufficient evidence to support the native title party’s assertions that community and social activities are carried out on the proposed licence area (at 39). The Government party also submits (at 41) there is not likely to be direct interference with such activities given: previous mineral exploration in the area; the existing pastoral lease; there are no Aboriginal communities 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 party’s contentions in relation to s 237(b)
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 reasoning in relation to that (at 42-51). It submits that that interference is not likely because the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area. It also notes the State’s regulatory regime is likely to prevent interference with any area or site of particular significance (51).
Government Party’s contentions in relation to s 237(c)
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 Government party intends to impose conditions and endorsements on the proposed licence; the proposed licence area has been subject to previous mineral exploration and a current pastoral lease; 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 59).
Considering the Evidence in context of s 237 of the Act
Interference with community or social activities – s 237(a)
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]).
I accept the Government party’s argument 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)
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.
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 current pastoral lease and the previous mineral exploration activity over the area. I also note the Government party will impose the RSHA condition on grant and 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)
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]).
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
The determination of the Tribunal is that the act, namely the grant of exploration licence E57/915 to Kalorra Mining & Exploration Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
22 April 2014
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