Raymond Ashwin & Ors on behalf of the Wutha People/Western Australia/Black Peak WA Pty Ltd

[2013] NNTTA 5

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin & Ors on behalf of the Wutha People/Western Australia/Black Peak WA Pty Ltd, [2013] NNTTA 5 (24 January 2013)

Application Nos: WO2012/0343 & 0363

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Raymond Ashwin & Ors on behalf of the Wutha People – (WC99/10) (native title party)

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The State of Western Australia (Government party)

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Black Peak WA Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                  Helen Shurven, Member
Place:   Perth
Date:     24 January 2013

Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance– expedited procedure attracted.

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

Aboriginal Heritage Act 1972 (WA)

Environmental Protection Act 1986 (WA)

Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Waterways Conservation Act 1976 (WA)

Rights in Water and Irrigation Act 1976 (WA)

Metropolitan Water Supply, Sewerage and Drainage Act 1909 (WA)

Country Areas Water Supply Act 1947 (WA)

Water Agencies (Powers) Act 1984 (WA)

Water Resources Legislation Amendment Act 2007 (WA)

Cases: Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15

Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22

Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576

Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010)

Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65

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

Parker v Western Australia and Others (2008) 167 FCR 340

Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18

Smith v Western Australia and Another (2001) 108 FCR 442

Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24

Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30

Representative of the   Mr Paul Tolcon, Mony de Kerloy

native title party:          

Representatives of the Ms Jade Harman and Mr Cheyne Beetham, State Solicitor’s Office

Government party:       Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the   Ms Grace Tan, Central Tenement Services

grantee party:               

REASONS FOR DETERMINATION

1. On 11 January 2012 and 25 January 2012, the Government party gave notices under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E38/2647 and E51/1504 respectively (‘the proposed licences’) to Black Peak WA Pty Ltd (‘the grantee party’) and included in the notices a statement that it considered the grants attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).

2. E38/2647 is situated in the Shire of Laverton and E51/1504 is situated in the Shire of Meekatharra.  Their sizes and locations are as follows:

• E38/2647 is 5,180 hectares in size and located 109 kilometres northwest of Cosmo Newberry Mission.  The native title claim of the Wutha People (WC99/10 - registered from 15 June 1999) wholly overlaps the proposed licence.

• E51/1504 is 21,076.42 hectares in size and located 63 kilometres southeast of Meekatharra. The native title claim of the Wutha People (WC99/10 - registered from 15 June 1999) overlaps the proposed licence by 52.55 per cent.

1. On 11 April 2012, expedited procedure objection applications were lodged with the Tribunal in respect of the proposed licences by Raymond Ashwin and others on behalf of the Wutha People native title claim group (‘the native title party’).

2. E38/2647 also wholly overlaps the native title claim of the Mantjintjarra Ngalia 2 (WC06/6 – registered from 1 April 2009).  An expedited procedure objection application was lodged with the Tribunal by the Mantjintjarra Ngalia 2 on 7 May 2012, but this was withdrawn on 13 June 2012.

3. E51/1504 also wholly overlaps the native title claim of the Yugunga Nya People (WC99/46 – registered from 12 June 2000).  An expedited procedure objection application was lodged with the Tribunal by the Yugunga Nya People on 25 May 2012, but this was withdrawn on 13 July 2012.

4. In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Directions set on 11 May 2012 in relation to E38/2647 allowed for State compliance up to and including 3 September 2012, with other parties’ compliance to follow. Directions set on 21 May 2012 in relation to E51/1504 allowed for State compliance up to and including 17 September 2012, with other parties’ compliance to follow.

5. At the adjourned Preliminary Conference on 12 June 2012, the grantee party advised that it wished to proceed to inquiry in relation to both matters, as it had signed heritage protection agreements with the other native title claim groups that overlap the respective proposed licences. 

6. On 4 September 2012, the State requested that the compliance dates in relation to E38/2647 be aligned with those for E51/1504, effectively providing a short extension of dates in the latter matter.  On 13 September 2012 the President approved the State’s request to align the compliance dates.

7. The Department of Mines and Petroleum (DMP) provided the State’s evidence on 5 September 2012.

8. On 24 September 2012, the native title party provided its contentions to the Tribunal.   

9. On 10 October 2012, the State requested an extension of compliance dates for it to provide contentions by the State Solicitor’s Office (SSO).  On 16 October 2012, the President set the compliance date of 23 October 2012 for the State.

10. The grantee party did not provide contentions or evidence to the Tribunal.

11. On 19 October 2012, the State requested a further extension of compliance dates for it to provide contentions by the State Solicitor’s Office.  On 7 November 2012, the President set the compliance date of 26 November 2012 for the State.

12. The State provided contentions on 23 November 2012.

13. On 18 December 2012, I was appointed by the President of the Tribunal as the Member to conduct the inquiry in this matter.

14. Despite an initial request by the native title party in their contentions for an on-country hearing of their evidence in these matters, at the Listing Hearing on 13 December 2012 the representative of the native title party confirmed that they agreed for the inquiry in these matters to proceed ‘on the papers’.  The State and the grantee party representatives also agreed for the inquiry to proceed ‘on the papers’.

15. The inquiry proceeded to be determined ‘on the papers’ as per s 151 of the Act, and I am satisfied that it can be adequately determined in this way.

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.

2. In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).

3. In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].

4. In relation to determining s 237(a), I adopt the following findings from Tarlpa:

   · History and interpretation of s 237(a) as amended (at [57]-[64]).

   · The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’

   · The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).

   ·   Must the community or social activities take place on the proposed licence area? (at [85]-[86]).

5. With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340.

6. 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 was likely to be done, rather than what could be done (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’), in particular [588]-[589]).

Evidence provided by the Government party

1. The Government party has provided: a statement of contentions; tengraph plans with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement applications; copies of the proposed endorsements and conditions of grants and a tengraph quick appraisal for each tenement.

E38/2647

1. Government party documentation establishes the underlying land tenure of E38/2647 is vacant crown land.

2. Documentation establishes that E38/2647 has previously been overlapped by 4 exploration licences and 1 prospecting licence, granted between 1992 and 2006 (with between 81.4 per cent overlap and 0.5 per cent overlap), and all now surrendered, withdrawn or expired.  There are no live tenements which overlap E38/2647.

3. The quick appraisal document shows there to be no services affected.

E51/1504

1. Government party documentation establishes the underlying land tenure of E51/1504 includes:

   ·   A pastoral lease 3114/584 (Hillview) (at 47.4 per cent);

   ·   A pastoral lease 3114/898 (Yarrabubba) (at 52.5 per cent);

   ·   Road reserve (No. 11227) (at less than 0.1 per cent); and

   ·   Road reserve (Youno Downs Road) (at less than 0.1 per cent).

2. Documentation establishes that E51/1504 has previously been overlapped by 12 granted exploration licences, granted between 1994 and 2010 (with between 56.5 per cent overlap and 0.1 per cent overlap), and all now surrendered or withdrawn.  There are no live tenements which overlap E51/1504 and one pending exploration licence, which overlaps E51/1504 by 1.4%.

3. The quick appraisal document shows that there appear to be no services affected on E38/2647 and services affected on E51/1504 are various minor watercourses and wells/bores with windmills, tracks, fence lines, yards, rocky outcrops and a minor road.

Other Information

1. The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there:

   ·     is one ‘other heritage place’ within E51/1504, namely the Yarrabubba man-made structure (ID 11884 – open access, no restrictions), and no DIA registered sites recorded; and

   ·     are no DIA registered sites within E38/2647, and no ‘other heritage places’ recorded.  

2. Tribunal mapping indicates that there are no Aboriginal communities located upon or near the area of the proposed licences, and confirms there is one ‘other heritage place’ (ID 11884) within E51/1504.

3. A draft tenement Endorsement and Conditions Extract for the proposed licences included in the Government party documentation indicates that the grant of each of the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]).

4. Additional conditions to be imposed on E51/1504 require that any pastoral or grazing lessee be notified of certain exploration activities and of the grant or transfer of the proposed licence (Conditions 5 and 6 respectively).

5. 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 E38/2647:

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

   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.

6. 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 E51/1504:

   1)The Licensee’s attention is drawn 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 Licencee 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 DoW 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 from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:

   ·50 metres from the outer-most water dependant vegetation of any perennial waterway, and

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

   In respect of 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.

The Government party also provided detailed contentions in support of the DMP information, and in support of its submission that the acts were of the kind which did not attract the expedited procedure.

Evidence provided by the native title party

1. The native title party provided submissions in this matter, through their representative, on 24 September 2012.  These submissions do not provide specific information regarding the social or community activities of the native title party on the proposed licences, nor was any information provided about sites of particular significance on the proposed licences or relating to disturbance to land and waters in the areas of the proposed licences.  The submissions were of little assistance to the Tribunal in relation to this objection inquiry. 

2. Unfortunately, the native title party did not provide any affidavits, signed statements or other evidence (such as maps, reports etc) to support the broad and generalised claims made in their submissions. 

1. A request for an on-country hearing to allow the native title party to give evidence on-country was made in the native title party’s submissions, but this was later abandoned at the Listing Hearing on 13 December 2012, when the native title party representative agreed for the inquiry in these matters to proceed ‘on the papers’.

Grantee Party Evidence

1. The grantee party did not provide any contentions or evidence to the Tribunal.

Weighing up the evidence

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of 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 and Another (2001) 108 FCR 442 (‘Smith’) at [23]). 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 (see Smith at [23]). The assessment is also contextual, taking into account other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).

2. In this matter, the native title party has provided only the very broadest information about community and social activities, which is difficult to attribute to specific areas of the proposed licences. 

3. There is also a lack of evidence to support the contentions provided by the native title party. For example, there are no signed statements or affidavits from members of the native title party in support of the contentions. 

4. Tribunal mapping provided to parties on 15 January 2013 indicates that there are no Aboriginal communities on or within the vicinity of the proposed licences.

5. As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Deputy President Sumner at [14]).

1. In addition, the Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party.  In Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 at [29]-[30], Member Sosso (whose findings I adopt) outlined that:

   The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.

2. As no contentions or evidence have been submitted by the grantee party regarding its intentions for the proposed licences, it is assumed that the grantee party will exercise its rights to the full should the proposed licences be granted.

3. Without specific evidence or information from the native title party as to the nature and extent of the community and social activities of the native title party on the proposed licences, and taking into account the evidence and information available from the Government party, I am unable to conclude that there would be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real 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. As noted, it is established in DIA documentation that there is one ‘other heritage place’ within E51/1504 and there are no Registered Sites or ‘other heritage places’ within E38/2647. However, this does not mean that there may not be other sites or areas of particular significance to the native title party over the areas of the proposed licences or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.

2. The native title party has provided no specific information in relation to sites of significance, or sites of particular significance, which may exist on the areas of the proposed licences, and no evidence has been provided to assist the Tribunal, apart from the very broadest of contentions, to determine whether any sites of particular significance exist within the proposed licences.

3. There is no evidence to suggest that the grantee party will not comply with the regulatory regime and the fact that it has entered into heritage agreements with the other native title groups whose claims overlap the proposed licences indicates awareness of Aboriginal heritage issues. 

4. The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 at [43]). There is no evidence before me to disclose a sufficient basis to reach a conclusion regarding the existence of particularly significant sites on the proposed licences, or that there will be a likelihood of interference with any sites of particular significance on the proposed licences.

5. Tribunal mapping shows one DIA ‘other heritage place’ on E51/1504 (site 11884) and no sites on each of the licences. Tribunal mapping indicates there are approximately ten registered sites within 5-10 kilometres outside the northern boundary of E51/1504, and many other registered sites surrounding E51/1504 within a 30 kilometre radius. There are four registered sites within 5-10 kilometres outside the east and south boundaries of E38/2647, and a few other registered sites surrounding E38/2647 within a 20 kilometre radius. These sites do not appear to be referred to or identified in the native title party contentions.

6. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15 (at [81]-[91]). The Tribunal must consider, based on the facts of a particular case and the nature and extent of any sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

7. In this matter, there is insufficient evidence for me to conclude there are sites of particular significance for the purposes of s 237(b) of the Act, and I am satisfied that the AHA and its associated processes, as well as the endorsements and conditions to be placed on the proposed licences, are likely to prevent interference with any area or site of particular significance.

Major disturbance to land and waters (s 237(c))

1. The Tribunal is required to evaluate 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 at [41]-[57]).

2. The native title party contentions dealing with s 237(c) of the Act are very general in the submissions provided. The native title party does not appear to have made any specific submissions in regard to the effect of the grant of the proposed licences in relation to s 237(c), nor has it provided any evidence for me to consider.

3. DMP documentation, specifically the ‘services affected’ section of the quick appraisal documents, show there are a number of minor watercourses and wells/bores with windmills on E51/1504.  However, there is no evidence presented of any sensitive topographical, geological or environmental factors on the proposed licences which would lead the community to think that the grantee’s exploration activities would result in major disturbance to land or waters; and there is no evidence that the grantee party is likely to fail to comply with the regulatory regime.

4. I also take into account the extensive endorsements applied by the State to the licence for E51/1504, imposing strictures to protect the various water resources on E51/1504.

5. Taking into account all of these considerations, I do not find that major disturbance to land and waters in the context of s 237(c) of the Act is likely to occur as a result of the grant of the proposed licences.

Determination

1. The determination of the Tribunal is that the acts, namely the grant of exploration licences E38/2647 and E51/1504 to Black Peak WA Pty Ltd, are acts attracting the expedited procedure.

Helen Shurven
Member
24 January 2013