Raymond Ashwin & Ors on behalf of Wutha/Western Australia/West Coast Geoscience Pty Ltd - [2013] NNTTA 34

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin & Ors on behalf of Wutha/Western Australia/West Coast Geoscience Pty Ltd, [2013] NNTTA 34 (4 April 2013)

Application No: WO2012/0533

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

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IN THE MATTER of a Future Act Determination 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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West Coast Geoscience Pty Ltd (grantee party)

OBJECTION DISMISSED FOR WANT OF JURISDICTION

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  4 April 2013 (Corrigendum dated 18 April 2013)

CORRIGENDUM

Correction to the Future Act Determination made on 4 April 2013, where in the citation at page 1 the date ‘4 March 2013’ should be replaced with ‘4 April 2013’.

Daniel O’Dea
Member
18 April 2013

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin & Ors on behalf of Wutha/Western Australia/West Coast Geoscience Pty Ltd, [2013] NNTTA 34 (4 March 2013)

Application No: WO2012/0533

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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West Coast Geoscience Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                  Daniel O’Dea, Member
Place:   Perth
Date:   4 April 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, 35, 36, 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: 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
Dorothy Tucker and Ors/Western Australia/FraserX Pty Ltd [2003] NNTTA 126
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Linda Champion on behalf of Central West Goldfields People/Western Australia/Main Coast Pty Ltd [2005] NNTTA 35
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576
Little v State of Western Australia [2001] FCA 1706
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
Michael Page/Michael Teelow/Northern Territory [2002] NNTTA 17

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
Western Australia v Ward [1997] FCA 585
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Yallourn Energy Pty Ltd v Bull [1999] 170 FLR 369

Representative of the Mr Paul Tolcon, Mony De Kerloy
native title party:
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office

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

Representative of the Ms Iva Morrell, McMahon Mining Titles Pty Ltd
grantee party:

REASONS FOR DETERMINATION

On 7 March 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E29/816 (‘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 Shire of Menzies and comprises 35 BL or approximately 105 square kilometres, 110 kilometres north-west of Menzies.
The proposed licence is situated 62.25 per cent within the registered native title claim of the Wutha People (WC1999/010) – registered from 15 June 1999. No other registered native title claims or determination areas overlap the proposed licence.
On 7 June 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 E29/816 (designated by the Tribunal as WO2012/0533).
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 24 July 2012 the grantee party advised that it would review and consider a proposed agreement provided by the native title party, and this remained the case as at the first status conference on 3 October 2012. At a further status conference on 24 October 2012, the grantee party advised that it wished to proceed to inquiry.
Pursuant to the directions, the Government party lodged supporting documents on 29 October 2012; the native title party submitted a statement of contentions on 5 November 2012; the grantee party submitted a statement of contentions on 12 November 2012 and (following a request to vary directions) the Government party lodged a statement of contentions in response on 28 November 2012.
The native title party’s contentions of 5 November 2012 requested an on-country hearing ‘in order that all parties are able to better understand and make a proper determination about the effects the subject future act will have on the land and the registered native title rights and interests as per the above contentions’ (at para 11). The contentions state that oral evidence was sought to be given by three witnesses (Ron Harrington Smith, June Ashwin and Geoff Ashwin) which would relate to the likelihood of direct interference to the carrying on of community and social activities of the native title party (at para 14). These activities included the responsibility to protect and care for all the country, the duty to protect and care for the area surrounding and including sites of spiritual significance and areas of particular importance. The activities involved the exercising of the right to negotiate, the use of registered rights and interests and the native title party’s traditional relationship with the land and the stories and dreaming told by the Wutha people (at paras 15-18). A confidentiality order was also requested in relation to the portion of any witness’s evidence that relates to stories or dreaming or both (at para 19).
The grantee party submitted, in its contentions of 13 November 2012, that the native title party had failed to show sufficient cause to justify their request for an on-country hearing (at para 36). The Government party’s contentions of 28 November 2012 also responded to the native title party’s request for an on-country hearing, stating that the native title party had provided no or no compelling grounds as to why the matter ought to proceed with an oral hearing (at para 27). The Government party further outlined that the part of the native title party’s contentions wherein this issue is raised simply recites the choice of the native title party to proceed in the manner referred to, and contains both general statements as to the purpose of adducing the evidence and statements similar in overall content to common assertions or summaries of positions advocated for by native title parties in expedited proceedings in outlining the nature or content of that evidence (at para 27). The native title party’s request for a confidentiality order was also opposed, stating that there was nothing to justify the making of such an order at that time (at para 27).
A listing hearing was convened on 13 December 2012, where the native title party confirmed its request for an on country hearing. The grantee party and the Government party continued to resist that request.
On 18 December 2012, I was appointed Member for the purposes of the conduct of an inquiry into the application.
On 21 December 2012, parties were advised that the native title party could file a copy of evidence sought to be adduced by each witness, in order that I could assess the need for an on-country hearing, by 14 January 2013. On 14 January 2013, the native title party filed affidavits of June Ashwin and Gaye Harris sworn 10 January 2013 and 13 January 2013 respectively (outlined in full below at [40] and [42]). Ms Harris deposes in her affidavit (at para 11) that ‘[t]he sites in and around the proposed tenement are difficult to describe in words and need oral evidence to explain properly’.
On 14 January 2013, parties were advised that the grantee party and Government party could file responsive evidence to the native title party by 4 February 2013. The Government party filed a submission on 17 January 2013 which submitted that the native title party had advised of an intention to adduce oral evidence from Ron Harrington-Smith, June Ashwin and Geoff Ashwin on-country, but instead the affidavits of Ms Ashwin and Ms Harris had subsequently been lodged. Nothing in those affidavits assisted the native title party’s application for an on-country hearing (at para 3).The Government party argued that there is nothing in the affidavits submitted that address the question of why the matter should proceed to an on-country hearing, including a lack of explanation as to why there are alternative requests for location, being either Kalgoorlie or the tenement location (at paras 4-6).
The grantee party filed submissions dated 4 February 2013, together with an affidavit of Shannon McMahon affirmed 31 January 2013. The grantee party response states that the photograph attached to the affidavit of Ms Harris which described at paragraph 12 in her affidavit as ‘site in the proposed tenement’, is not within the tenement area, but rather six kilometres away (the grantee party stated that the same photograph is contained in the Connection to Country report attached to Ms Ashwin’s affidavit at page 22 of that report, and provides its co-ordinates).
On 6 February 2013, the native title party filed a statement of contentions in reply to the grantee party. I note that there were no directions permitting the native title party to file any further responsive submission. The native title party state in this response that the photographs that the grantee party purported were the same (described at [14]) above) are not the same photograph, and that the attachment to Ms Harris’s affidavit is a photograph of part of an important site in the proposed tenement area (at para 6).
On 19 February 2013, I advised the parties that I was of the view that the matter could be determined on the papers.
The power of the Tribunal to determine whether it should hold a hearing in relation to a particular application, or determine the matter on the papers is contained in s 151(2) of the NTA. The Federal Court has found that “the patent intention of this power is that the Tribunal can decide to proceed on the papers if it satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of the parties”. See Little v State of Western Australia [2001] FCA 1706 per Nicholson J at 55. Notwithstanding that discretion s 151(2) makes it clear that the Tribunal “must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties”. As was found by Member Sosso J in Michael Page/Michael Teelow/Northern Territory [2002] NNTTA 17 at 23 it is mandatory for the Tribunal to hold a hearing unless it is of the view that the documents and other evidence sufficiently address the issues to be decided. However, the Tribunal may take into account considerations of cost, delay and inconvenience to the parties of a full hearing as a relevant but not decisive factor, see Michael Page at 34 and Dorothy Tucker and Ors/Western Australia/FraserX Pty Ltd [2003] NNTTA 126 per Daniel O’Dea at 10 to 17.
The native title party’s statement of contentions filed on 5 November 2012, purportedly describe the nature of the evidence that the native title party intended to adduce and why it was that such evidence needed to be adduced on-country. Those contentions did not describe the substance of the evidence to be adduced. I subsequently advised the native title party that before I would be in a position to consider their request, I needed to be able to understand the nature of the evidence to be adduced, the manner in which it was proposed to be adduced and some understanding of why the quality of that evidence could not be replicated in documentary form. While the NTA, pursuant to s 142, requires the Tribunal to ensure that every party is given a reasonable opportunity to present his or her case that consideration is expressly subject to s 151(2). The very volume of expedited procedure objections that the Tribunal is required to deal with, particularly in Western Australia, dictates that it is necessary to carefully consider applications for on-country hearings due to the cost and time such hearings necessarily involve. The great bulk of expedited procedure objection applications are dealt with on the papers without there being application for on-country hearings. Therefore in my view, the Tribunal is entitled to seek an explanation from the party requesting the on-country hearing as to why that is necessary, before it makes a decision. That explanation is best presented along with the evidence that is sought to be adduced, subject, of course, to any confidentiality requirements that may be needed. It should be noted that in this particular matter, the application of the native title party was an application which presented two alternative possibilities. The first was an on-country hearing. By an on-country hearing I mean the evidence is adduced orally on, or very near, the area of the proposed tenement. The alternative application was that the evidence was heard in Kalgoorlie. I take this application to essentially be one that the evidence be given in person, rather than by affidavit. The relevance of Kalgoorlie was the fact that, that is the place of residence of the intended witnesses, albeit some considerable distance from the area of the proposed tenement. There is nothing in the affidavits filed by Ms Ashwin or Ms Harris that in my opinion requires the hearing of the evidence on-country in order to understand its significance. The one exception to that proposition is the question of the disputed location of the asserted site of particular significance referred to in the affidavit of Ms Harris at paragraph 12. The grantee party says it is outside the proposed tenement area. The native title party says it is inside. For reasons set out in paragraph [59] below for the purposes of this decision, I will assume that that site is in fact in the area of the proposed tenement and therefore no issue of particular contention arises in relation to that matter.
In assessing applications of this nature, an issue sometimes arises as to the probative value of the evidence provided to the Tribunal. The Tribunal has repeatedly emphasised the fact that in order to be successful in an expedited procedure objection application, the native title party needs to adduce cogent evidence in relation to the three limbs of s 237. In circumstances where the native title party has been given repeated opportunities to provide evidence of that nature, but the evidence remains meagre, could it be said that the Tribunal by virtue of its obligations under s 151(2) would be required to hold a hearing in order to extract from the witnesses evidence of a more substantial kind? In my opinion, this cannot be the case despite the beneficial nature of the legislation.
The Tribunal has the power to prohibit the disclosure of any evidence given before it or the contents of any document produced to it, (s 155). 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, (see paragraph 19). I would take this to be a request for an order under s 155, however at the time of submission of those contentions, no evidence had been provided to the Tribunal by the native title party. As has been indicated above, I made orders for the provision by the native title party of the evidence upon which it intended to rely, which was subsequently provided in the form of the affidavits of Ms Ashwin and Ms Harris. In the affidavit of Ms Harris the reference was made to the fact that she could not talk about stories which she’d referred to in her affidavit without a confidentiality order, (paragraph 13) and similarly in the native title party’s contentions in reply filed on 6 February 2013, the native title party’s solicitor indicated that Ms Harris could only provide further details to identify or explain a particular women’s site including its exact location under a confidentiality order.
There is no indication in these statements as to the nature of the confidentiality order sought. Was the evidence culturally sensitive or gender restricted? If the latter, there would have been additional questions to address, not least of which is my capacity to make a decision. The practice of the Tribunal in relation to matters of this nature is for the native title party to request the Tribunal to impose an interim confidentiality order allowing it to file copies of the proposed confidential evidence (and provide copies to the other parties) on the basis that, in the event that the Tribunal does not agree to impose a confidentiality order in relation to that evidence, that the native title party would have the discretion to withdraw the evidence from the consideration of the Tribunal. This process is a practical way of giving the native title party every opportunity to provide evidence which is confidential in accordance with its traditional laws and customs and ensures that the Tribunal operates in a way that is consistent with the requirements of s 109(2) of the Act. Simultaneously, however this process allows the Tribunal to as far as possible conduct its processes in public. Also, the Tribunal has on a number of occasions, both in circumstances where an application for a confidentiality order has been made but refused, or simply at request of the native title party, strayed from its standard procedure of setting out the evidence of the native title party in full in its decisions. The Tribunal has agreed that despite the necessity of reference to any of the evidence provided to it in order to explain its decision, it is not necessary in all circumstances to include the full transcript of that evidence. The Tribunal and indeed the High Court have maintained that the mere assertion about the consequences of disclosure of supposedly confidential information may not be sufficient to justify an order, see Western Australia v Ward [1997] FCA 585; 1997 76 FCR 492 at 500 and 510. There must be some evidentiary basis, based on cultural and customary concerns which demonstrate that an order is required, also see Yallourn Energy Pty Ltd v Bull [1999] 170 FLR 369 and Linda Champion on behalf of Central West Goldfields People/Western Australia/Main Coast Pty Ltd [2005] NNTTA 35.

In this matter despite repeated opportunities for the native title party to provide evidence relating to its objection including evidence which would support their holding of an on-country hearing there was no application or request for a confidentiality order. In these circumstances i have come to the view that I can make the determination on the papers.

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 applications; copies of the proposed endorsements and conditions of grants and a tengraph quick appraisal for each tenement.
Government party documentation establishes the underlying land tenure of E29/816 includes:
·   Pastoral Lease H91304 (Perrinvale) (at 98.0 per cent);
·   Vacant Crown Land (at 2.0 per cent); and
·   General Lease H395/580 (at 10 per cent).
Documentation establishes that E29/816 has previously been overlapped by six exploration licences, encroaching variously between 0.3 per cent and 51.4 per cent, and six mineral claims, all granted and surrendered in the 1970s.
The quick appraisal document shows that services affected are a minor road, tracks, fence lines, ten rock outcrops, four non-perennial lakes and a minor watercourse.
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 are no DIA recorded sites within E29/816. Tribunal mapping indicates that there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]).
Additional conditions to be imposed on E29/816 require that:

any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6); and
access to and from M29/86 (if granted) be preserved and that there be no interference with the licence or any installations connected to that licence (Condition 7).

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 licence:

The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations; and
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.

Native title party contentions and evidence

The native title party provided submissions in this matter on 5 November 2012. 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, 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 (at paragraph 6) 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.
As to s 237(c), the native title party contend (at paragraph 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.
Following the further directions outlined at [13] above, the native title party filed the affidavit of Gaye Harris sworn 13 January 2013, made in the following terms:

I, Gaye Noo-tha-ma Harris 7A Gwalia Street of Leonora in the State of Western Australia, Pensioner, being duly sworn MAKE OATH AND SAY as follows:

I am a Wutha person.
I am authorised by the Objector, being the registered native title claimants of the registered native title claim for and on behalf of the Wutha people being the National Native Title Tribunal No. WC99/10 and Federal Court No. WAD 6064/98 (“the Wutha Claim”), to make this affidavit on their behalf, the contents of which they are in agreement.
I make this affidavit in support of the Objector’s objections under s32(4) of the Native Title Act 1993 (Cth) before the Tribunal being No. 12/533 and in support of the Objector’s application to have its objection heard on country.
Save where indicated to the contrary I make this affidavit from facts within my own knowledge.
The contents of this Affidavit are true and correct to my own personal knowledge unless otherwise stated in which case the contents are true and correct to the best of my knowledge, information and belief and the source of my knowledge, information and belief is stated therein.
I was one of the people who worked with Kymberley Russell as AX Cultures to prepare the connection to country report in 2012 which is attached as “JRA-1” to the Affidavit of June Rose Harrington-Smith (also known as June Rose Ashwin) sworn 10 January 2013. I am in some of the photos in the report. See for example the photo of me with June which is photo 14 on page 11 of the report.
The area in and around the proposed tenement E29/816 (“the proposed tenement”) contains sites of our stories and Dreaming. There are also dreaming tracks of the Porcupine, Mountain Devil, Malee Fowl, The Owl, The Woman, and the Seven Sisters. These tracts are near Lake Barlee, Perinvale Road and the turn off road to Mt Ida and Mt Mason.
I try to go to areas of our country including the areas of the proposed tenement regularly with my children and grandchildren to take care of it and to make sure it is (especially any water sources) healthy. I also go out hunting for kangaroo, bungarra emu and pick wild berries, quandong, silky pear and dig for honey ants, and Seeds for grinding into flour, bush medicine is collected for rubbing and healing purposes of the body.
Our songs and dreaming stories are in our land so any disturbance to the land (including the proposed mining and associated activities of the Grantee Party) will affect us. I also try to tell stories and dreaming to my family to continue on our oral traditions about the relationship of the Wutha people to the land.
I understand that there are currently no sites recorded as being of significance to Wutha people in the proposed tenement. However, this does not mean that there are none, as a full heritage consultation has not been undertaken with the Wutha people.
The sites in and around the proposed tenement are difficult to describe in words and need oral evidence to explain properly. In our lore and culture, none of these sites should be damaged or disturbed.
The proposed tenement contains significant sites. For, example, it is very near an important women’s site. That site is in the proposed tenement. I attach as “GH-1” is a copy of a photograph of part of this women’s site. The photograph was taken by Kymberly Russell in late 2012 as part of her preparation of the connection report I referred to in paragraph 6 above.
I can’t talk about the stories related to this site as it concerns women’s business. I would need a confidentiality order to explain these stories and the real significance of this site to our people.
The annexure to the affidavit of Ms Harris is a photograph referred to in paragraph 11 of the affidavit, described as ‘very near an important women’s site’ but also ‘in the proposed tenement’ (at paragraph 11 of the affidavit).
The native title party also submitted an affidavit of June Ashwin (also known as June Harrington-Smith) sworn 10 January 2013, made in the following terms:

I, June Rose Ashwin (also known as June Rose Harrington-Smith) of 137 Varden Street, Kalgoorlie in the State of Western Australia, Bookkeeper, being duly sworn MAKE OATH AND SAY as follows:

I am one of the registered native title claimants of the registered native title claim for and on behalf of the Wutha people being the National Native Title Tribunal No. WC99/10 and Federal Court No. WAD 6064/98 (”the Wutha Claim”).
I make this affidavit in support of the Objector’s objections under s32(4) of the Native Title Act 1993 (Cth) before the Tribunal being No. WO12/533 and in support of the Objector’s application to have its objection heard on country.
I am authorised by the Objector to make this affidavit on their behalf, the contents of which they are in agreement.
Save where indicated to the contrary I make this affidavit from facts within my own knowledge.
The contents of this Affidavit are true and correct to my own personal knowledge unless otherwise stated in which case the contents are true and correct to the best of my knowledge, information and belief and the source of my knowledge, information and belief is stated therein.
I was the person whom commissioned Kymberley Russell as AX Cultures to prepare a connection to country report relating to land the subject of this objection. The report shows the importance of the country to the Wutha People and some of the history of their association with it. A true copy of that report from December 2012 is attached as “JRA-1”.
Some of the sites noted in the report are Wingarra Soak, Wrungall Soak and Ularring. Ularring in particular is an important women’s site and is the metamorphosed body of a female Dreamtime Ancestral Woman.
Some of the area in proposed tenement E29/816 (“the proposed tenement”) contains sites of our stories and Dreaming. There are dreaming tracks in the area. We also believe that rocks and hills that are created by or connected by spirits. Some stories I can’t tell as they are sacred and are for our people only.
The proposed mining activities in the proposed tenement will interfere with our community and social activities such as camping and catching animals like kangaroos and emus by traditional methods along with our use of the natural environment for bush medicine, jewellery and making boomerangs, spear and throwing sticks.
Members of the Wutha people still make those weapons and try to care for their country today. I try to go to areas of country including the areas f the proposed tenement regularly with my children and grandchildren to make sure it is all okay. We clean soaks, springs and other waterways and remove rubbish. We try to look after the land like our forefathers did.
Whilst there are currently no sites recorded as being of significance to Wutha people in the proposed tenement, this does not mean that there are none, as a full heritage consultation has not been undertaken with the Wutha people in accordance with the terms and conditions of any relevant agreement.
There may be sites within proposed tenement area that are significant. My cousin Gay Harris will be doing an affidavit which explains some of these sites as she has full knowledge of this area. These sites which may be archaeological or hunting sites are significant to us so that under our lore and culture there should not be damaged or disturbed. If there are resting places of my ancestors in the area and their spirits are disturbed, they could make me and other Wutha people sick.
The annexure to the affidavit of Ms Ashwin is a copy of a Connection to Country by AX Cultures dated November 2012 (‘Connection to Country report’). The document states that it ‘is the intent of the author to provide a continuous connection to country report for the client Mrs June Harrington-Smith nee Ashwin’ (page 3). The report is a detailed document but contains little by way of specific evidence particular to the inquiry tenement E29/816. I note, for example, that pages 1-38 of the document traces Ms Ashwin’s genealogical history generally, while pages 39-105 contains a general chronology of Australia’s indigenous history traced from ancient times to the present.

Grantee party evidence

The grantee party submitted contentions on 13 November 2012, which state that the grantee forwarded a signed Regional Standard Heritage Agreement (RSHA) for the relevant tenement to the native title party on 27 June 2011, and noted that this offer remains open (at paragraph 3-4). The proposed exploration activities are stated as the usual activities associated with exploration licences, including 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 (at paragraph 28). The grantee party indicates its awareness that the tenement does not accord rights of production or resource development, and that such measures would require more extensive consultation with the native title party (at paragraph 29).

The grantee party states that it will comply with all legislative requirements including but not limited to the Aboriginal Heritage Act and the Mining Act, and all its subsidiary legislation (at paragraph 32). The grantee party further notes that it has never been prosecuted under the Aboriginal Heritage Act, that its attitude to heritage protection and the steps it is prepared to take to minimise the likelihood of interference with sites should be taken into consideration (at paragraph 9-11), and that compliance with the conditions and endorsements for the tenement under the Mining Act is relevant to the question of whether the grant of the proposed licence is likely to interfere with sites of particular significance to the native title party (at paragraphs 18-21).

The grantee party also submitted an affidavit of Shannon McMahon affirmed 31 January 2013, made in the following terms:

I, Shannon Terence McMahon, of 28/168 Guildford Road, Maylands, in the State of Western Australia, principal, do solemnly and sincerely affirm:

1.   I am the principal of McMahon Mining Title Services Pty Ltd (MMTS), the agents for the Grantee Party in this matter and am duly authorised to swear this affidavit on the Grantee Party’s behalf.
2. I make this affidavit in support of the inclusion of the Grantee Party’s application for Exploration Licence 29/816 (Tenement) in the expedited procedure under the Native Title Act 1993 (Cth), and in opposition to the Objector’s application to have objection WO12/533 heard on country.
3.   Except where I state otherwise, I make this affidavit from facts within my own knowledge and, where I have relied on facts outside my personal knowledge, I am informed by the stated source of those facts and believe those facts to be true.
4.   On 15 January 2013 I reviewed the report (Report) in Annexure JRA-1 to the Affidavit of June Rose Ashwin sworn on 10 January 2013 (Ashwin Affidavit).
5.   Page 22 of 105 of the Report (or page 26 of the Ashwin Affidavit) refers to “Mt Ida – Women’s Site 0236412E 6785371N”.
6.   On 15 January 2013 I plotted, on the Tengraph mapping database maintained by the Department of Mines and Petroleum:
·The Tenement, and shaded it; and
·The co-ordinated referred to in paragraph 5 above.

7. Attached and marked “STM 1” is a Tengraph generated plan showing the items referred to in paragraphs 6 (a) and 6 (b) above.

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 [37]) 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. The Government party contends (at paragraph 26) that the relevant statements are not evidence but assertions unsupported by any evidence and should not be relied upon, and further or in the alternative, that the statements are too general to be given any or any significant weight. 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]).
Pursuant to the Tribunal’s directions of 14 January 2013, affidavit evidence was submitted by the native title party. In Ms Harris’ affidavit, she says she tries to go to ‘areas of our country including the proposed tenement area regularly’ with her children and grandchildren ‘to take care of it and make sure it is (especially the water sources) healthy’ (at paragraph 8). She states that she goes hunting for kangaroo and bungarra emu, picks wild berries, quandong, silky pear and collects honey ants, seeds for grinding into flour and bush medicine (at paragraph 8). Ms Harris also deposes to telling stories and dreaming to her family to continue the oral tradition about the relationship of the Wutha people to the land (at paragraph 9).
Ms Ashwin states in her affidavit (at 9-10) that ‘[t]he proposed mining activities in the proposed tenement will interfere with our community and social activities such as camping and catching animals like kangaroos and emus by traditional methods along with our use of the natural environment for bush medicine, jewellery and making boomerangs, spears and throwing sticks’. She deposes that members of the Wutha people ‘still make those weapons and try to care for their country today’ and that she tries ‘to go to areas of country including the areas of the proposed tenement regularly’ with her children and grandchildren, to ‘clean soaks, springs and other waterways and remove rubbish’ (at paragraph 11).
The evidence provided by the native title party in relation to its community and social activities in the proposed tenement areas is general and non-specific. The evidence of both Ms Harris and Ms Ashwin is that they conduct a range of activities within their own country including the tenement area on a regular basis. There is no specific reference in any of the evidence provided to any specific area within the proposed tenement in which any of those activities are conducted.
Further, I accept, as outlined by the Government party (at paragraph 44), that the proposed tenement area is almost entirely covered by a pastoral lease, and this interest has extinguished at least any native title rights to control use of and access to the relevant land (if native title had not been previously extinguished), and in any event, the carrying on of the community or social activities of the native title party has been subject to, or co-existent with, this activity for a significant period of time. Further, as outlined by the Government party (at paragraph 44), there are no Aboriginal communities within the area of the proposed tenement, the activities planned by the grantee party do not appear likely to any real disruptive effect upon community or social activities in the proposed tenement area, particularly given the intentions of the grantee party to conduct those activities with cultural sensitivity and to maintain good relations with the native title party, and hunting and mineral exploration activity are, by their nature, inherently capable of coexistence, and to the extent that the activities conducted by the native title party consist of law ceremonies, the activity of exploration and ceremony will only potentially intersect in the limited period during which law business is held.
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. As noted, it is established in DIA documentation that there are no sites within the proposed tenement. 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.
Ms Harris states in her affidavit that the proposed tenement contains significant sites, for example, it is ‘very near an important women’s site’, and that ‘[t]hat site is in the proposed tenement’ (at paragraph 12). Ms Harris states that the area ‘in and around the proposed tenement’ contain sites of the native title party’s stories and Dreaming. She notes that there are also dreaming tracks of the Porcupine, Mountain Devil, Malee Fowl, The Owl, The Woman, and the Seven Sisters, which are ‘near Lake Barlee, Perinvale Road and the turn off road to Mt Ida and Mt Mason’ (at paragraph 7).
Ms Ashwin deposes in her affidavit that some of the area in the proposed tenement contains sites or the native title party’s stories and Dreaming (at paragraph 8), and that there are dreaming tracks in the area. She notes that some of the sites mentioned in the Connection to Country report are Wingarra Soak, Wrungall Soak and Ularring (at paragraph 7). I note that the Ularring site is referred to in the Connection to Country report, where it states that the site has been used by tribal women from the area for hundreds of years and that knowledge of the site has been passed down through the maternal ancestry to generation of today (pages 12-13 of report). Ms Ashwin further states in her affidavit that whilst there are currently no sites recorded as being of significance to Wutha people in the proposed tenement, this does not mean that there are none, as a full heritage consultation has not been undertaken (at paragraph 11), and that if there are resting places of her ancestors in the area, disturbance of their spirits could make her and other Wutha people sick (at paragraph 12).
The site which Ms Harris refers to in paragraph 12 of her affidavit, a photograph of which is annexed at annexure one, is according to Ms Harris an example of the fact that the proposed tenement contains significant sites. The second sentence says “for example, it is very near an important women’s site”. The third sentence says “that site is in the proposed tenement’. The statements on their face appear to be contradictory. Nevertheless, for the purposes of this decision, I’ll assume that Ms Harris is indicating that the site pictured in annexure one is within the proposed tenement area. Notably, Ms Harris states that the photograph was taken by Kymberley Russell in late 2012, as part of her preparation of the connection report which was referred to in paragraph six of Ms Harris’ affidavit and annexed to the affidavit of Ms Ashwin. In the grantee party’s reply to the native title party’s application for an on-country hearing dated 4 February 2003, it is asserted that the site referred to in paragraph 12 and pictured at annexure one is the same site as that pictured at page 22 of the report annexed to Ms Ashwin’s affidavit. Page 22 consists of two photographs which are different from, but strikingly similar to the photograph which is annexure one to Ms Harris’ affidavit. The photographs are taken from different angles and different perspective and it cannot definitively be said that they are photographs of the same site as that which is annexure one to Ms Harris’ affidavit. The photographs at page 22 of the report which are identified as being Mt Ida Women’s site give coordinates for the location of that site. Mr McMahon in his affidavit has plotted those coordinates and come to the conclusion that the site depicted on page 22 of the report is in fact located some six kilometres away from the proposed tenement, in the vicinity of Mt Ida which is a similar distance from the proposed tenement. The native title party’s further statement of contentions in reply at paragraph five states:
“Paragraph 3 of the reply is incorrect in that: a) there are two photographs on page 22 of the report. The reply does not state to which photograph it refers; b) neither of the photographs on page 22 of the report are the same photograph as that at GH1, annexure 1 to the affidavit of Ms Harris. This is clear from the composition; and c) the photograph at GH1 is not referenced to any map or coordinates in Ms Harris’ affidavit”.
The native title party say that the photograph of the site annexed to Ms Harris’ affidavit is part of an important women’s site that is in the proposed tenement. The native title party reiterates that they can only provide further details to identify and explain the women’s site, including its exact location, under a confidentiality order, but do not ask for one.
In my opinion it is notable that the native title party in its submissions does not deny that the sites pictured at annexure one of Ms Harris’ affidavit and page 22 of the report, are the same site. It rightly asserts that the photograph that is annexure one to Ms Harris’ affidavit is not the same photograph as either of the photographs on page 22 of the report. Secondly it is correct to say that the photograph that is annexed in Mr Harris’ affidavit contains no coordinates and thirdly that the grantee party in its submissions does not specify which of the photographs at page 22 it claims is the same one as referred to in annexure one of Ms Harris’ affidavit. It is impossible on the evidence presented to the Tribunal on this matter to definitively determine the question of whether the sites are the same. On the face of it, it would appear that the site in the photograph annexed to Ms Harris’ affidavit is very similar in structure to those depicted on page 22 of the report, particularly number 42 being the upper of the two photographs. I accept the submission of the native title party as far as it goes, but as I have mentioned I am somewhat concerned that there has not been an explicit denial that the photographs are of the same site. The significance of the lack of such a denial is that assuming the coordinates provided on page 22 of the report are correct, if the photographs were in fact of the same site; they would be located six kilometres outside of the proposed tenement. As I indicated in paragraph [18] above I have assumed for the purposes of this determination that the site pictured at annexure one is within the area of the proposed tenement despite the inconsistencies in the evidence. In any event, in the absence of any specific evidence about the significance of that site to the native title party, I am unable to conclude that it is a site of particular significance. Having said that I accept that evidence may exist which could be adduced that would demonstrate that it is of significance to the native title party.
Ms Harris in her affidavit at paragraph 7 also makes reference to a number of dreaming tracks, which she deposes are “in and around” the proposed tenement. The way the paragraph is expressed, may suggest that there are “some sites of our stories and dreaming” in and around the tenement and that there are other sites including those specified being Porcupine, Mountain Devil, Malee Fowl, The Owl, The Woman and the Seven Sisters which are near Lake Barlee, Perinvale Road and the turn off road to Mt Ida and Mt Mason. From the map that has been provided to the Tribunal, it would appear the Lake Barlee is directly to the northwest of the tenement area, Perinvale Road is to the north and Mt Ida and Mt Mason are to the east. In any event in my opinion there is insufficient evidence for the Tribunal to be satisfied that there are in fact any areas or sites including dreaming tracks which pass through the area of the proposed tenement on the basis of the evidence provided by Ms Harris.
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]). I accept the native title party’s general contentions that there may be sites of significance to the native title party existing within the proposed licences. However, there is no evidence before me to disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or the likelihood of interference.
The references in Ms Ashwin’s Affidavit to Wingarra Soak, Wrungall Soak and Ularring do not suggest that they are within the area of the proposed tenement. Rather that they are important women’s sites within the area of the native title party’s claim. At paragraph 8, Ms Ashwin makes reference to the fact that some of the area in the proposed tenement contains sites or stories and dreaming. She also says “we also believe that rocks and hills that are created by or connected by spirits (sic)”. Again none of this evidence suggests that there does in fact exist within the area of the proposed tenement or indeed even within its vicinity, areas of particular significance to the native title party. In relation to the connection to country report, which is annexure one to the affidavit of Ms Ashwin, while I can see the relevance of the first part of the report to the question of the connection of the members of the native title claimant group, and Ms Ashwin’s in particular connection to the country under claim, I am at a loss to understand the relevance of those that part of the report from page 39 to the end.
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 normally necessary for the Tribunal to address the question of the adequacy or otherwise of the regulatory regime. However in these circumstances there remains a question as to whether or not there has been an identified, although not specifically located site, somewhere within the area of the proposed tenement. If the site is the same site referred to on page 22 of the report it is clearly not within the tenement area. However should it be within the tenement area, it appears likely that it may be of particular significance to the native title party. The Tribunal has often found that the site protective regime based on the AHA is sufficient to ensure that any interference to sites of particular significance is unlikely, however each matter should be considered on its own facts, see Butcher Cherel and Ors/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at 81-91. As outlined above at [45], the grantee party states that it is aware of its obligation under the Aboriginal Heritage Act and intends to conduct its work in a way which does not adversely impact on heritage sites. The Government party also refers to the grantee party’s contentions in this respect, including the offer to enter into the RSHA (at paragraph 15), noting that in general the RSHA provides, amongst other things, that the grantee party must notify the native title party about proposed on-ground works (whether ground-disturbing or not) and provide detailed information about those works before commencing them, consult with the native title party about surveys of the land in relation to ground-disturbing works before carrying out those works, carry out surveys with the participation of the native title party prior to commencing ground-disturbing works in some circumstances, and consult the native title party before applying for any consent under s 18 of the Aboriginal Heritage Act (at para 21). In this matter, I am satisfied that given those arrangements, that notwithstanding my finding on the evidence that there it has not been established that there are sites of particular significance within the area of the proposed tenement, the site pictured at annexure 1 of Ms Harris’ affidavit, if it is in fact within the proposed tenement area should be protected. 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 state 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’ (at paragraph 7).
The Government party contend (at paragraph 65) that the grant of the proposed tenement is not likely to involve major disturbance to the land or create rights, the exercise of which is likely to involve major disturbance to the land because the grantee party has stated that any ground disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect Aboriginal cultural concerns, the exercise of the rights conferred by the exploration licence will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment and the proposed tenement is largely covered by a pastoral lease and has been subject to prior mineral exploration.
Taking into account all of these considerations, 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 exploration licence E29/816 to West Coast Geoscience Pty Ltd is an act attracting the expedited procedure.

Daniel O’Dea
Member
4 April 2013