Raymond Ashwin and Others on behalf of the Wutha People v Verona Capital Pty Ltd & Another
[2014] NNTTA 76
•29 July 2014
NATIONAL NATIVE TITLE TRIBUNAL
Raymond Ashwin and Others on behalf of the Wutha People v Verona Capital Pty Ltd & Another [2014] NNTTA 76 (29 July 2014)
Application No: WO2013/0789
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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Verona Capital Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 29 July 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, 30, 31, 32, 146, 148(a), 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Acts Interpretation Act1901 (Cth), s 36(2)
Cases:Ashwin and Others on behalf of the Wutha People v Peter Romeo Gianni and Another [2014] NNTTA 23 (‘Ashwin v Gianni’)
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’)
Smith v Western Australia (2001) 108 FCR 442 (‘Smith v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd & Anor [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representative of the
native title party: Mr Stephen Catania, Mony De Kerloy Barristers & Solicitors
Representatives of the Ms Sarah Power, State Solicitor’s Office
Government party: Mr Matthew Smith, Department of Mines and Petroleum
Representatives of the
grantee party: Ms Sara Winton, McMahon Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 24 April 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 E53/1738 (‘the proposed licence’) to Verona Capital 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 67 graticular blocks (approximately 205.26 square kilometres) with a centroid of 26o 41’ S, 121o 38’ E, located 80 kilometres easterly of Wiluna, in the Shire of Wiluna.
An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) within 4 months of the ‘notification day’ (see s 32(3) of the Act). As explained by ss 32(3) and s 30(1)(a) and (b), the objection may be made by either: a) any registered native title body corporate (‘RNTBC’) in respect of the relevant land or waters who is either (i) registered as an RNTBC at 3 months after the notification day, or (ii) if the RNTBC is registered after that three month period, the RNTBC has resulted from a claim that was registered before the end of three months from the notification day; or b) any registered native title claimant in respect of the relevant land or waters who is registered at four months from the notification day provided the claim was filed before the end of three months from the notification day.
The notification date for this matter was 24 April 2013. The three month period for filing a native title claim ended on 24 July 2013. The four month period for lodgement of objections ended on 24 August 2013, and by the operation of s 36(2) of the Acts Interpretation Act1901 (Cth), the closing date for lodgement became 26 August 2013, the next working day.
The proposed licence is overlapped as follows:
·the Wutha people’s native title claim (WC1999/010 – registered from 15 June 1999) by 93.1 per cent;
·the Mantjintjarra Ngalia #2 native title claim (WC2006/006 – registered from 1 April 2009) by 93.1 per cent; and
·the Wiluna native title determination (WCD2013/004 – determined on 29 July 2013) by 6.9 per cent.
The following expedited procedure objection applications were made to the Tribunal in relation to the proposed licence:
·on 17 July 2013 by the Wutha people (‘native title party’); and
·on 23 August 2013 by the Wiluna native title determination.
The Mantjintjarra Ngalia #2 native title claim entered into a Regional Standard Heritage Agreement (‘RSHA’) with the grantee party (‘Mantjintjarra Ngalia #2 RSHA’) on 13 September 2013.
The grantee party excised from the proposed licence the 6.9 per cent of land which overlapped the Wiluna native title determination. As the grant of the proposed licence would no longer have an effect on the native title rights and interests of the Wiluna native title determination, the Tribunal did not have jurisdiction to determine their expedited procedure objection application and so the Tribunal dismissed that application on 10 June 2014, pursuant to s 148(a) of the Act.
As such, the only native title party for the purposes of this inquiry is the Wutha People.
Background
On 10 September 2013, a preliminary conference was held at which parties advised they wished to negotiate an agreement in relation to the matter. I was appointed to be the Member for the purposes of determining the inquiry, should such be needed, on 24 October 2013. On 15 January 2014 and 12 February 2014, a status conference and adjourned status conference were held respectively, at which parties advised they were still negotiating an agreement and requested further time to do so. At the further adjourned status conference on 26 February 2014, parties had still not been able to reach agreement and so the Tribunal referred the matter to make a determination. Accordingly, on that day, I set directions for an inquiry.
In compliance with the directions, parties provided submissions and evidence as follows: the Government party’s initial evidence on 20 March 2014 through the Department of Mines and Petroleum (‘DMP’); the native title party contentions on 22 April 2014; the grantee party’s contentions on 1 May 2014; and the Government party’s contentions on 14 May 2014.
On 29 May 2014, the Tribunal emailed all parties:
The matter is scheduled for a listing hearing on Thursday, 5 June 2014. If all parties agree to the following points, this listing hearing can be vacated...
(a) you agree that the matter may proceed to inquiry before the Member on the papers (no further hearing will be scheduled) and
(b) you do not intend to make any further submissions.
That same day, each of the parties had confirmed via email that they agreed the matter could proceed to be heard on the papers. Specifically, the native title party’s legal representative advised:
(a) The Native Title Party agrees that the matter proceed to inquiry, and
(b) The Native Title Party does not intend to make any further submissions.
Legal principles
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.
In relation to the legal principles to be applied in this matter, I adopt those outlined by President Webb in Yindjibarndi Aboriginal Corporation v FMG Pilbara at [15]-[21].
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 as follows:
·Vacant crown land, overlapping the proposed licence at 93.1 per cent; and
·Pastoral lease 3114/1067 (Yelma), overlapping the proposed licence at 6.9 per cent.
The quick appraisal shows that the proposed licence area has previously been subject to the following mineral tenure:
·three expired or surrendered exploration licences active between 1993 and 2008, overlapping the proposed licence between 0.2 and 9 per cent;
·one surrendered mineral claim, active between 1972 and 1973, overlapping the proposed licence at less than 0.1 per cent; and
·two cancelled temporary reserves, active between 1959 and 1973, overlapping the proposed licence between 28 and 100 per cent.
The quick appraisal outlines the following services located on the proposed licence:
· 148 cliffs/breakaways/rockridges; and
· 37 non-perennial minor watercourses.
The report from the DAA Database shows there is one registered Aboriginal site located on the proposed licence - Yelma Creek Paintings (Site ID 478, paintings, artefacts/scatter, open access, no gender restrictions). According to the DAA Database there do not appear to be any ‘other heritage places’ located on 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 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 at [11]-[12]) and two standard conditions imposed for licences overlapping pastoral or grazing leases. These 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 DoW’s 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
The native title party’s contentions appear to be based on a pro forma document submitted in previous expedited procedure matters before the Tribunal. 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 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 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
The grantee party makes submissions in relation to the contentions and evidence of the native title party, the Mantjintjarra Ngalia #2 RSHA and each subsection of s 237 of the Act.
In relation to the contentions and evidence of the native title party, the grantee party states:
·the native title party has failed to provide any evidence of the existence of sites of particular significance within the proposed licence (at 18);
·the native title party has failed to provide any evidence that the State’s protective regime will be inadequate to prevent interference with any sites of particular significance that may exist on the proposed licence (at 21); and
·as the native title party has failed to provide any evidence to support its contentions, little weight should be given to those contentions (at 25).
In relation to the Mantjintjarra Ngalia #2 RSHA, the grantee party states:
·the Mantjintjarra Ngalia #2 native title claim overlaps exactly the same area of the proposed licence as the native title party claim (at 26);
·the Mantjintjarra Ngalia #2 RSHA was accepted and executed by the Mantjintjarra Ngalia #2 native title claim group on 13 September 2013, covering the whole area of the proposed licence covered by the native title party claim (at 29);
·it is aware of the provisions of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) and the penalties thereunder (at 30 to 33);
·it has never been prosecuted under the AHA or accused of breaching the AHA (at 34);
·the Mantjintjarra Ngalia #2 RSHA ensures that the grantee party is compliant with the State’s heritage protection regime (at 35); and
·entering into the Mantjintjarra Ngalia #2 RSHA demonstrates the grantee party’s attitude to the protection of Aboriginal heritage and its willingness to meet the native title party’s heritage protection concerns (at 36 and 37).
In relation to s 237(a), the grantee party states:
·its exploration work will be broad based include conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling and surveys, occasioning only minor disturbance (at 46);
·the work will be low-level and temporary in nature (at 47);
·the proposed licence is only a very small part of the native title party’s claim area, leaving large areas where the native title party can conduct its community and social activities (at 49 and 50);
·its activities are unlikely to be frequent or cover large portions of the proposed licence area, and restrictions on the native title party’s access to an area will only be temporary and for safety reasons (at 51 and 52);
·the community and social activities of the native title party are likely to be, and have been, subject to or co-existent with past and present mining and pastoral activities on the proposed licence area (at 55);
·it will comply with all legislative requirements (at 57); and
·no evidence has been provided by the native title party that it carries on any community or social activities on the proposed licence, or that the grant of the proposed licence will interfere with any such activities (at 58).
In relation to s 237(b), the grantee party states:
·it is aware of the registered site within the proposed licence, which is open access with reliable co-ordinates, and the site will be adequately protected under the State’s heritage protection regime and the Mantjintjarra Ngalia #2 RSHA (at 64 to 66);
·it acknowledges that there may be sites of particular significance on the proposed licence that are not registered and it has entered into the Mantjintjarra Ngalia #2 RSHA in order to conduct heritage surveys to identify any such sites (at 67 and 68);
·a heritage survey will be conducted prior to the commencement of any ground disturbing activities, and any sites of particular significance identified will be avoided (at 69 and 70);
·its rights are limited to those granted under the Mining Act 1978 (WA) (‘Mining Act’) for exploration licences (at 73);
·the grant of the proposed licence is unlikely to interfere with any sites of particular significance due to the operation and protection of the State’s regulatory regime in conjunction with the Mantjintjarra Ngalia #2 RSHA (at 85); and
·the native title party has failed to provide evidence of the existence of any sites of particular significance within the proposed licence area (at 88 and 90).
In relation to s 237(c), the grantee party states that the native title party has provided no evidence that the grant of the proposed licence will create rights likely to involve major disturbance to land or waters.
Attached to the grantee party’s contentions is a copy of a DMP Quick Appraisal for the proposed licence and a copy of DAA Database searches for the proposed licence.
I note that the grantee party has not provided its scope of works, nor definitively outlined the activities it intends to undertake upon the proposed licence. The grantee party has provided a non-exhaustive list of activities it intends to undertake and has said that its activities will be ‘low-level’. The grantee party has not ruled out exercising all rights available to it under the Mining Act. In the absence to the contrary, I must assume that the grantee party will exercise its full suite of rights conferred by the Mining Act.
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 five years and is renewable; and that there is no basis for conclusion that the grantee will not act in accordance with its stated intentions (at 11–15).
The Government party states it proposes to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract (at 16) and that the grantee party has entered into the Mantjintjarra Ngalia #2 RSHA over the same area of the proposed licence (at 20).
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). It contends the grantee party’s submissions provide a ‘firm basis’ for concluding that the interference contemplated under the limbs of s 237 of the Act is unlikely (at 26).
Government party’s contentions in relation to s 237(a)
The Government party submits there is no evidence to support the native title party’s assertions that certain community and social activities are carried out on the proposed licence area (at 47). The Government party also submits (at 48) there is not likely to be direct interference with such activities given:
·the grantee party has indicated that most of the proposed exploration activities will be low-impact and temporary in nature;
·the activities of the grantee party will be in small, specific areas of the proposed licence so will have minimal impact on the native title party’s access to, and activities in, the proposed licence particularly given the intentions of the grantee party to conduct its activities with cultural sensitivity and maintain good relations with the native title party;
·the proposed licence is subject to the Mantjintjarra Ngalia #2 RSHA which will ensure heritage surveys are conducted prior to any ground-disturbing work being carried out;
·prior mineral exploration activity and the overlap of a pastoral lease are likely to have affected, and continue to affect the extent to which community and social activities can be carried out on the proposed licence;
·there are no Aboriginal communities within the area;
·exploration activities are inherently capable of coexistence with hunting activities of a native title party; and
·grantee party and native title party activities may intersect but that does not mean a real chance of substantial interference or restriction of access.
I accept all of these arguments in this matter.
Government party’s contentions in relation to s 237(b)
The Government party correctly states the native title party has not produced any evidence that any sites or areas of particular significance exist within the proposed licence (at 29). It contends (at 60) that even if there are areas or sites of particular significance within the proposed licence, interference with those areas or sites is unlikely because:
·the grantee party has said most of its activities will be low-impact and non-intrusive, and ground-disturbing activities will be conducted in a culturally-sensitive manner that will not impact on heritage sites;
·the endorsements and conditions proposed to be placed on the proposed licence are intended to prevent most of the native title party’s concerns arising from the grantee party’s activities;
·there is no evidence of any sites or areas of particular significance existing within the proposed licence;
·the grantee party has expressed its intention to comply with its legal obligations, respect and accommodate Aboriginal cultural issues and engender good relations;
·the activities of the grantee party are likely to be of the same, or no more significant, impact than previous mining and pastoral activities on the proposed licence; and
·the AHA and its associated processes are likely to prevent interference with any area or site of particular significance.
I accept all of these arguments in this matter.
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 (at 67), and that the grant of the proposed licence is not likely to involve such because (at 69):
·the grantee party has stated that most of its proposed activities will be low-impact and non-intrusive;
·the State’s regulatory regimes will likely avoid any such major disturbance and the Government party intends to impose conditions and endorsements on the proposed licence;
·any authorised disturbance to land and waters caused by the activities of the grantee party may be mitigated by the proposed conditions requiring rehabilitation of the land following the completion of exploration;
·the proposed licence area has been subject to previous mineral exploration; and
·it does not appear that the proposed licence area has any particular or physical characteristics that would make the grantee party’s activities likely to result in a major disturbance to land and waters.
Again I accept these arguments from the Government party in the absence of contrary evidence from the native title party.
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, even assuming the grantee party was to assert the full suite of rights available to it. As such I 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) in this matter.
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 will likely be sufficient to protect such sites given: the previous and current mineral exploration activity over the area; the grantee party’s acknowledgment of its responsibilities under the AHA; and the grantee party's contentions and documents in support of its approach, including its signing of the Mantjintjarra Ngalia #2 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 for the purposes of s 237(b).
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 of whether 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 Resources 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 for the purposes of s 237(c).
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E53/1738 to Verona Capital Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
29 July 2014
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