Raymond Ashwin & Ors on behalf of Wutha/Western Australia/Falcon Minerals Ltd
[2013] NNTTA 75
•21 June 2013
NATIONAL NATIVE TITLE TRIBUNAL
Raymond Ashwin & Ors on behalf of Wutha/Western Australia/Falcon Minerals Ltd, [2013] NNTTA 75 (21 June 2013)
Application No: WO2012/1084
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 Wutha – (WC1999/010) (native title party)
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The State of Western Australia (Government party)
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Falcon Minerals Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 21 June 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, 32, 109, 146, 151, 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA) s 61, 66
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:
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
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
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 Caitlin Martin, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representative of the Mr Richard Diermajer, Falcon Minerals Ltd
grantee party:
REASONS FOR DETERMINATION
On 13 June 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant an amalgamated exploration licence AM0395751 (E38/1986) (‘the proposed licence’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence is located in the Shires of both Laverton and Wiluna, comprising approximately 5.65 square kilometres, 135 kilometres east of Wiluna.
The proposed licence is wholly situated within the registered native title claim of the Wutha People (WC1999/010) – registered from 15 June 1999. The Mantintjarra Ngalia #2 native title party (WC2006/006) also wholly overlaps the proposed licence.
On 3 October 2012, Raymond Ashwin and Ors on behalf of Wutha (WC1999/010) (‘the native title party’) made an expedited procedure objection application to the Tribunal in respect of the proposed licence (designated by the Tribunal as WO2012/1084).
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.
At the first preliminary conference convened on 20 November 2012 the grantee party advised that it already had an agreement with Mantjintjarra Ngalia #2 in relation to the proposed tenement and did not intend to enter another agreement with Wutha over the same area.
On 19 December 2012, I was appointed Member for the purposes of the conduct of an inquiry into the application.
On 15 January 2013, the grantee party representative advised the Tribunal by email that he would be unavailable to attend the status conference scheduled to be convened on 16 January 2013, but indicated that he had agreed with the native title party representative that the matter should proceed to inquiry. At the status conference on 16 January 2013, the native title party representative requested an extension to compliance dates, which was subsequently granted.
Pursuant to the directions, the Government party lodged supporting documents on 13 February 2013; the native title party submitted a statement of contentions on 26 February 2013; the grantee party submitted a statement of contentions on 8 March 2013 and the Government party lodged a statement of contentions in response on 19 March 2013.
The native title party’s contentions of 26 February 2013 state that oral evidence was sought to be given by Ms June Ashwin, which would relate to various matters outlined at paragraphs 12-16.
A listing hearing was convened on 4 April 2013. The native title party did not pursue the application for the hearing of the oral evidence of Ms Ashwin and indicated that no other evidence would be adduced. Parties agreed that the matter could proceed on the papers.
In its original statement of contentions the native title party submitted that ‘the portion of any of the witnesses evidence that relates to matters pertaining to the stories or dreamings, or both, of the native title party be considered confidential due to the cultural and customary concerns of the native title party’ (at para 17). I would take this to be a request for an order under s 155, however, the native title party subsequently agreed to the matter proceeding without witnesses’ evidence. As the matter was not pursued further by the native title party, no s 155 order has been made.
On 1 May 2013, the Tribunal provided parties with a copy of the map to be used for the purposes of the determination of this application, and no objections were received in response.
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 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).
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].
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]).
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.
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 in relation to the proposed act
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 application;
·copies of the proposed endorsements and conditions of grants; and
·a tengraph quick appraisal for the tenement.
Government party documentation establishes the underlying land tenure of E38/1986 (and AM0395751) is wholly vacant Crown land, and also wholly covered by a heritage survey area (ID 327).
Documentation establishes that E38/1986 has previously been overlapped by six exploration licences, encroaching variously between 0.6 per cent and 70 per cent, and one wholly overlapping temporary reserve granted in 1959 and cancelled in 1964.
Documentation also establishes AM0395751 (E38/1986) has been previously overlapped by two of the exploration licences noted above for E38/1986, as well as two mining leases, both granted in 2004 and surrendered in 2012 overlapping 22.8 per cent and 77.2 per cent respectively.
The quick appraisal document shows that that the topographical features and infrastructure affected by AM0395751 (E38/1986) are an unspecified prospect and a drillhole prospect.
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 a DIA recorded ‘other heritage place’ within E38/1986, being Site 23658 Collurabbie Claypan 1 (quarry, artefacts/ scatter). Tribunal mapping indicates that this site is outside AM0395751. Tribunal mapping also indicates that there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for E38/1986 is included in the Government party documentation indicates that the grant 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]).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licences:
The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations;
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained; and
The grant of this licence does not include the land the subject of the prior Exploration Licence 38/1057. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulation 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
Native title party contentions and evidence
The native title party provided submissions in this matter on 26 February 2013. In relation to s 237(a), the native title party contends (at para 5) that the grant of the tenement is likely to interfere with the community or social activities of the Wutha people because it will interfere with their access to the land, impede activities such as hunting, gathering, extracting flora, the use of other resources, any other religious, ceremonial and other activities on the land, and the continuation of oral traditions within the group.
In relation to s 237(b), the native title party contends (at para 6) that the grant of the tenement is likely to interfere directly with areas or sites of particular significance in accordance with their traditions because not all sites of particular significance to the Wutha people have been recorded and that a heritage protection survey is required to ensure there is no likely interference with sites. The Government party has not proposed such a condition. The native title party further submits that the provisions of the Aboriginal Heritage Act 1972 provide for a Ministerial discretion to permit interference with sites, the Government party has not proposed a condition requiring the written permission of the native title party prior to any such exercise of Ministerial discretion, nor a condition requiring the grantee party to enter a Wutha heritage agreement. Furthermore, they argue that ongoing consultation has not occurred to identify sites, as per the disclaimer issued on the DIA Aboriginal Heritage Inquiry System, and, consequently, interference with sites of particular significance to the native title party is likely.
As to s 237(c), the native title party contend (at para 7) that the grant of the tenement is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to land. The native title party contend that unless arrangements for consultation and access are made by way of a heritage agreement, ‘it cannot be said with certainty’ that the grant of the tenement is not likely to involve major disturbance to the land, or create rights whose exercise is not likely to involve major disturbance to the land.
Grantee party evidence
The grantee party submitted contentions on 8 March 2013, in which it states (at para 7) that it plans to conduct mineral exploration for nickel sulphide and gold mineralisation within the proposed licence. It states that the proposed work program in year one will include surface geochemical surveys and ground electromagnetic surveys in an effort to generate suitable targets for drill testing. These activities are stated to be low-impact and will have minimal impact on the surface environment. The grantee party indicates that if survey results are positive, it is likely that reverse circulation drilling will be undertaken to test targets, which may require the clearing of surface vegetation to enable a safe work site (and if this is the case, the size of a typical drill pad is about 20m x 20m and the tracks that lead to the site may be up to 3.5m wide). It states (at para 7) that consultation with Aboriginal heritage consultants will be sought prior to any ground disturbing activity, and that the areas of ground disturbance will be rehabilitated on completion of activities.
The grantee party notes (at para 1) that it is aware of the operation of the Aboriginal Heritage Act and the obligation not to disturb heritage sites, registered or otherwise. The grantee party further notes (at para 2) that it was the holder of mining leases M38/975 and M38/976 (‘the former mining leases’), which are in the area now overlapping the proposed tenement. It states that the grantee party (or its former joint venture partner) completed a site register search for the DIA database when the land was under the former mining leases, and states that it has a long history of operating in the Collurabbie Project area, including the proposed licence area. It states that it has conducted significant exploration in the area without incident, and indicates (at para 3) that it (or its former joint venture partner) completed a Heritage Assessment of the Collurabbie Project area, including the proposed licence area, in October 2008 (when the area was under the former mining leases). This survey was completed in consultation with Mantjintjarra Ngalia #2, with sites noted in the Collurabbie Project area, but not necessarily including the proposed licence area. Subsequent to the survey, the grantee party implemented site management recommendations. It confirms (at para 4) that it has an operating heritage agreement system in place with Mantjintjarra Ngalia #2 since 5 January 2010, which arrangement includes the proposed licence area, and that if the proposed licence is granted the current heritage agreement process in place will be expanded to included that land.
The grantee party indicates (at para 5) that it is willing to undertake a heritage survey of the proposed licence if ground disturbing exploration is to be undertaken, as per the terms of the heritage agreement in place currently. It notes (at para 6) that it (or its former joint venture partner) have previously conducted significant exploration over the land subject to amalgamation, and this work includes aerial geophysical surveys, ground geophysical surveys, geochemical surveys, diamond drilling and access track construction.
Community or social activities (s 237(a))
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 account of 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]).
In this matter, the native title party has provided general contentions (as outlined above at [28]) regarding s 237(a) of the Act, mainly concerned with the grantee party’s potential interference with access to the land, and associated activities including hunting, gathering, extraction of flora and other resources, ceremonial activities and continuation of its oral storytelling traditions. No affidavit evidence was provided by the native title party, who had instead indicated that they intended to call on country oral evidence of Ms June Ashwin. As outlined at [10] and [11] above, the native title party subsequently indicated at the listing hearing that the matter could proceed on the papers. The Government party argues (at para 31) that the statements contained in the native title party’s contentions are not evidence but rather assertions unsupported by evidence, or further and in the alternative, the statements are too general to be given any or any significant weight. I concur with the Government party (at paras 31 and 48) that there is no evidence before me of any relevant community or social activities on the area of the proposed tenement by its members, or as to how the grant of the proposed tenement will interfere with such activities. The Tribunal has repeatedly found, 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]).
I also concur with the Government party (at 49) that to the extent that the evidence demonstrates that members of the native title party do carry out any community or social activities in the area of the proposed tenement, there is not likely to be direct interference with those activities because:
•The area of the proposed tenement is currently subject to mining tenement E38/1986 and has been subject to prior mineral exploration and possibly mining activity, and these activities have affected, and continue to affect, the extent to which community or social activities can be carried out in the relevant area;
•There are no aboriginal communities within the proposed tenement;
•The low-scale exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon the conduct of the activities outlined by the native title party;
•Hunting and exploration activities are, by their nature, inherently capable of coexistence;
•Given the limited nature of the rights held by an exploration licensee, there is little prospect of access being prevented in any substantial way; and
•To the extent that the activities conducted by the native title party consist of ceremonies within the proposed tenement area, there is limited scope for intersection of these activities with the activities of exploration, and furthermore, there is evidence that so long as the grantee party is made aware of the location and time of each ceremony, it is not likely to conduct its operations in a way which interferes with the ceremony.
In the circumstances, I am unable to conclude the grant of the proposed licences will interfere with social and community activities of the native title party on the proposed licence of the kind contemplated by s 237(a) of the Act in this matter.
Sites of particular significance (s 237(b))
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. DIA documentation indicates that the Collurabbie Claypan is within the proposed tenement. 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.
The native title party has provided general contentions in relation to s 237(b), outlined at [29] above. As the Government party note (at para 58), the native title party’s contentions do not specifically address the Collurabbie Claypan, except to say at paragraph 6(g) that the site exists and that other significant sites may yet be identified. In my opinion there is insufficient evidence for the Tribunal to be satisfied that the Collurabbie Claypan is a site of particular significance, in the sense that it stands out in some way from the general background of other sites and the country as a whole, or the likelihood of interference. 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]).
As I have come to the conclusion that I am unable to be satisfied that there are areas of particular significance to the native title party within the proposed tenement area, it is not necessary for the Tribunal to address the question of the adequacy or otherwise of the regulatory regime.
In these circumstances I am unable to conclude that the grant of the proposed licence is likely to interfere with any areas or sites of particular significance to the native title party on the proposed licence of the kind contemplated by s 237 (b) of the Act in this matter.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on 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]).
The native title party’s contentions in relation to s 237(c) are outlined at [30] above. The native title party state (at para 7) that the grant of the proposed tenement is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to the land because ‘it cannot be said with certainty that the rights accorded to the grantee party by the grant of the proposed tenement will not have a significant impact on Aboriginal people who use the land, and account needs to be taken of the community life, customs, traditions and cultural concerns of the Wutha people’.
The native title party has not advanced its invocation of this limb of s 237 other than to, effectively, relate its contents. The premise of its argument assumes its conclusion. No evidence is adduced to support.
In these circumstances, I do not find that major disturbance to land and waters of the type contemplated by s 237(c) of the Act is likely to occur as a result of the grant of the proposed licence.
Determination
The determination of the Tribunal is that the act, namely the grant of AM0395751 (E38/1986) to Falcon Minerals Ltd, is an act attracting the expedited procedure.
Daniel O’Dea
Member
21 June 2013
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