Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Ausnico Ltd
[2013] NNTTA 181
•20 December 2013
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Ausnico Ltd [2013] NNTTA 181 (20 December 2013)
Application No: WO2013/0592
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Raymond William Ashwin, June Rose Ashwin, Geoffrey Alfred Ashwin and Ralph Edward Ashwin on behalf of the Wutha People (WC1999/010) (native title party)
- and -
The State of Western Australia (Government party)
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Ausnico Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 20 December 2013
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to involve major disturbance to land or waters - expedited procedure attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Cases:Champion v Western Australia (2005) 190 FLR 362 (‘Champion’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’)
Little v Oriole Resources Pty Ltd (2005) 146 FLR 576 (‘Little’)
| Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) |
| Mantjintjarra Ngalia 2/Western Australia/Ausnico Limited [2013] NNTTA 172 ('Ausnico') |
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker 1’)
Parker v State of Western Australia (2008) 167 FCR 340 (‘Parker 2’)
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Cliffs Asia Pacific Iron Ore Pty Ltd [2013] NNTTA 122 (‘Cliffs Asia Pacific’)
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 (‘Doray Minerals Limited’)
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Peter Romeo Gianni [2013] NNTTA 88 (‘Gianni’)
Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’)
Smith v Western Australia (2001) 108 FCR 442 (‘Smith’)
Walley v Western Australia (2002) 169 FLR 437 (‘Walley’)
WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (‘Wiluna’)
Representative of the Mr Paul Tolcon, Mony De Kerloy Barristers & Solicitors
native title party:
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the Mr Paul Williams, Ausnico Ltd
grantee party:
REASONS FOR DETERMINATION
On 27 February 2013, the Government party gave notice (‘the notice’) under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E38/2792-1 (‘the proposed licence’) to Ausnico Ltd (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
The notice describes the proposed licence as comprising an area of 18 graticular blocks (approximately 55.1 square kilometres), located 130 kilometres east of Wiluna in the Wiluna shire. The four month close of notification was 27 June 2013.
Native title party
At the close of the notification period the proposed licence was subject to three native title determination applications:
- Wutha (WAD6064/1998): registered from 15 June 1999 and overlapping approximately 86 per cent of the proposed licence;
- Mantjintjarra Ngalia #2 People (WAD372/2006): registered from 1 April 2009 and overlapping approximately 86 per cent of the proposed licence; and
- Wiluna #3 (WAD181/2012): not registered and overlapping approximately 13.2 per cent of the proposed licence.
I note that the Mantjintjarra Ngalia #2 People (MN#2) and Wutha claims partly overlap each other. The majority of the proposed licence falls within that area of overlap, with the remaining small northern portion of the proposed licence subject to the unregistered Wiluna #3 claim.
On 5 June 2013, the Wutha registered native title claimant lodged an expedited procedure objection application with the Tribunal in respect of the proposed licence. Wutha is the native title party for the purposes of this inquiry.
The registered native title claimant for MN#2 also lodged an objection to the assertion of the expedited procedure statement in relation to this proposed licence on 24 June 2013 (WO2013/0663). The objection was dismissed on 10 December 2013 (see Ausnico).
The Wiluna #3 application was not on the Register of Native Title Claims (the Register) at the four month close of the notification period. I note, however, that on 29 July 2013 it was the subject of a conditional determination along with WAD 6164/1998 (Wiluna) and WAD 248/2007 (Tarlpa) (see Wiluna). Section 30(1)(c) of the Act provides that if three months after the notification day there is a registered native title body corporate, it will be a native title party if the details of the claim were entered on the Register before the end of that period of three months (subparagraph (ii)). As the Wiluna #3 application was not on the Register at that time, nor at the four month close of the notification period, they are not a registered native title claimant in respect of any of the land and waters covered by the proposed licence.
The registered native title claimant for the Wutha application remains the only relevant native title party in respect of the proposed licence.
Background
On lodgement of the native title party’s expedited procedure objection application, in accordance with standard practice, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the proposed licence attracts the expedited procedure. The directions allowed a period after the closing date for the lodgement of objections for parties to discuss the possibility of reaching an agreement, which could lead to the disposal of the objection by consent. The grantee party advised at the first preliminary conference held in relation to the matter on 16 July 2013 that an agreement had been forwarded to the representative for MN #2, that it did not propose to enter into a second agreement with the Wutha native title party, and that its preference was for the matter to proceed to inquiry. Directions for the inquiry were set with a listing hearing scheduled for 26 September 2013.
In compliance with these directions, the parties provided submissions and evidence: the Government party on 13 August 2013, the native title party on 19 August 2013 and the grantee party on 3 September 2013. The Government party provided its statement of contentions on 9 September 2013.
At the listing hearing, the native title party raised the possibility of a request for an oral hearing and the matter was adjourned for a further listing hearing on 3 October 2013 to allow for the native title party to make submissions in respect of its request for an oral hearing. In its August 2013 statement of contentions, the native title party expressed its intention to call witnesses to give oral evidence, and outlined the evidence to be given, if the matter were to be decided otherwise than ‘on the papers’ pursuant to s 151(2) of the Act. Specifically, the native title party stated (at (11)) that it intended to call Ms June Ashwin and Mr Geoff Ashwin to give evidence of:
the likelihood of direct interference to the carrying on of the community and social activities of the native title party if the proposed licence is granted;
the native title party’s traditional relationship with the land;
the stories and dreamings told by the Wutha people from generation to generation since time began; and
the relationship between the community and social activities of the native title party and the Wutha people’s relationship with the land and the stories and dreamings told by the Wutha people.
The native title party’s contentions do not state the qualifications of the proposed witnesses, though I do note that Ms Ashwin and Mr Ashwin are registered claimants - they are two of the four named persons who comprise the Applicant for the Wutha native title determination application. At the listing hearing on 3 October 2013, the native title party advised that it would not be providing affidavits for the purposes of the inquiry. The grantee and Government parties agreed the matter could proceed to be heard on the papers and the matter was referred to me to conduct the inquiry. I was appointed as the Member to conduct the inquiry by President Raelene Webb QC on 28 October 2013.
The Tribunal did not receive anything definitive from the native title party that it had conclusively abandoned its request for an oral hearing and the native title party’s contentions did not specifically address why, in its view, the issues for determination cannot be adequately determined in the absence of the parties (as per s 151 of the Act). In order to avoid any doubt, I caused an email to be forwarded to all of the parties on 30 October 2013, directing that if the native title party maintained its request for an oral hearing, it was to provide such supporting information by 7 November 2013. I further directed that if such information was provided, the other parties had leave to reply to that information only, within 7 calendar days of them receiving the native title party information. By 8 November 2013, no affidavit evidence or any other communication had been received from the native title party. In the absence of any communication from the native title party, the Tribunal emailed the parties stating that the matter would proceed to inquiry on the papers. Again, no response was received from the native title party.
The circumstances of this matter, in terms of the native title party not providing evidence to support its contentions, are very similar to a number of previous expedited procedure determinations made by the Tribunal involving the native title party. It appears that the native title party may have developed a standard practice of stating in their contentions that they will provide oral evidence. Then, at the stage when all submissions are with the Tribunal and the matter is ready to proceed to inquiry, they do not provide any further material, even when given the express opportunity to do so. Some recent determinations with similar circumstances involving the native title party are Doray Minerals Limited, Gianni and Cliffs Asia Pacific.
The Government party has included in its submissions (at (25)–(32)) that in its view, the issues for determination in these proceedings can be adequately determined in the absence of the parties and do not require an oral hearing. Taking into account the principles outlined at [11]–[13] by Member O’Dea in the Doray Minerals Limited decision I have decided to proceed with this matter on the papers. There was simply no support from the native title party that the issues cannot be adequately determined in the absence of the parties (as per s 151 of the Act). On 30 October 2013, the Tribunal also provided parties with a map of the area of the proposed licence (dated 15 October 2013) stating I would rely on it for the purposes of this inquiry. The topographic map includes information from the Register of Aboriginal Sites, native title determination application boundaries and relevant tenure information. No objections to the use of the map in my deliberations were received from the parties.
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, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act).
In relation to s 237(a), I adopt the legal principles identified in Tarlpa at [10]–[16].
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker at [31]–[38] and [40]–[41] (see also Parker 1; Parker 2). I also adopt those set out by Deputy President Sosso in Silver.
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little, especially [41]–[57]).
Evidence in relation to the proposed act
The Government party provided the following documents in relation to the proposed licence:
·A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’).
·A copy of the tenement application and a Draft Tenement Endorsements and Conditions Extract.
·A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.
The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be as follows:
·Pastoral Lease 3114/1065 (Indigenous Held) (Windidda) at 13.2 per cent (although this portion of the proposed licence appears to be that which falls within the area covered by the Wiluna #3 claim and outside that of the Wutha claim); and
·Unallocated Crown Land at 86.8% (wholly subject to the Wutha and MN #2 claims)
The quick appraisal shows that the proposed licence area has previously been subject to the following mineral tenure:
·four exploration licences granted between 1994 and 2005, overlapping the proposed licence between 1.0 per cent and 99 per cent, all now surrendered or expired;
·two prospecting licences granted in 2008 overlapping at 1.5 per cent or less each, now surrendered; and
·one temporary reserve granted in 1959 and cancelled in 1964.
The quick appraisal outlines the following services located on the proposed licence:
·15 cliffs/breakaways/rockridges;
·one lake (not permanent); and
·nine non-perennial watercourses.
The report from the DAA Database shows that there are no Aboriginal sites located on the proposed licence which have been registered with the DAA. The map produced by the Tribunal’s Geospatial Services confirms there are no registered sites located on the proposed licence. However, it shows that there are a number of registered sites located 10–20 kilometres south-east of the proposed licence, in the area covered by the Wutha claim. A further registered site overlaps a small proportion of the proposed licence to the north-west, but this is wholly outside of the area covered by the Wutha claim.
There do not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.
The Draft Tenement Endorsement and Conditions Extract indicates that the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tarlpa at [11]–[12]). The proposed licence will also be subject to two conditions: one requiring the licensee to notify the holder of any underlying pastoral or grazing lease prior to undertaking airborne geophysical surveys or ground disturbing activities utilizing mechanised equipment; and one stipulating written notification to that holder of the grant or transfer of the licence.
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
3. 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 Proclaimed Ground Water Areas the following endorsement applies:
4. 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.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
5. The Licensee’s attention is drawn to the provisions of the:
· Water Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
6. 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.
7. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
8. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.
In respect to Waterways the following endorsement applies:
9. Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
Native title party’s statement of contentions
The native title party’s contentions are summarised as follows:
Interference with Community or Social Activities (s 237(a))
·The grant of the tenement is likely to interfere directly with the carrying on of the community and social activities of the Wutha people.
·The grantee party will be able to exercise rights and interests in the land that will interfere with the native title party’s ability to access the land.
·The exercise of the grantee party’s rights and interests will interfere with the carrying on of community activities of the native title party, such as hunting, gathering, extraction of flora, the use of other resources of the land, and any religious, ceremonial and other activities.
·The exercise of the grantee party’s rights and interests will interfere with the carrying on of social activities such as the telling of stories and dreamings and the continuation of oral traditions about the relationship of the native title party to the land.
·Exploration activity: will scare away bush animals, especially when drilling is conducted and bulldozers are used; will destroy plants the native title party uses for bush tucker and medicine; and thereby impact on the community’s conduct and enjoyment of these activities and the objectors’ spiritual connection to the land (at 5).
Interference with Areas or Sites of Particular Significance (s 237(b))
·The grant of the tenement is likely to interfere directly with areas or sites of particular significance.
·Not all sites of particular significance to the native title party in relation to the land concerned have been recorded, and it cannot be said with any certainty that the grant of the proposed licence is not likely to interfere with sites or areas of particular significance until an approved heritage protection survey has been undertaken with the native title party.
·The Government party has not proposed that a condition be imposed requiring the carrying out of an approved heritage protection survey with the native title party.
·The provisions of the Aboriginal Heritage Act 1972 (WA) (the ‘AHA’) provide for a ministerial discretion to permit interference with Aboriginal sites.
·The Government party has not proposed that a condition be imposed requiring the written permission of the native title party prior to the exercise of the Minister’s discretion.
·The Government party has not proposed a condition be imposed requiring the grantee party to enter into a Wutha Heritage Protection Agreement or for the grantee party to enter into some form of site identification and protection process.
·Exploration activity may destroy sites (at 6).
Major Disturbance to Land or Waters (s 237(c))
·The grant of the tenement is likely to involve, or create rights whose exercise will involve, major disturbance to the land.
·It cannot be said with certainty that the rights accorded to the grantee party under the proposed licence will not have a significant impact on Aboriginal people who use the land.
·Account needs to be taken of the community life, customs, traditions and cultural concerns of the native title party (at 7).
The native title party has not provided any material in support of its contentions.
I note that the native title party’s contentions in this matter are largely identical to those it made in Doray Minerals Limited, Gianni and Cliffs Asia Pacific.
Grantee party statement of contentions
The grantee party’s contentions are summarised as follows:
·The grantee party has elected to execute a heritage agreement with the other registered native title claimant (the MN#2 People), and in doing so will be bound to ensure the proper identification, management and preservation of Aboriginal Sites within the Tenement;
·The grantee party is bound by the Conditions of Exploration Licence to the provisions of a number of pieces of legislation, including the AHA, the Mining Act 1978, various environmental protection Acts and Regulations as well as water resource and infrastructure Acts;
·The grantee party’s intention in the first two years is to undertake only minor ground disturbance activities including, but not limited, to reconnaissance and 4-wheel drive rig mounted drilling; and
·The grantee party will consult with the MN#2 people prior to the commencement of any exploration activities to ensure that impact on community and social activities are minimised (at 4–7).
Government party contentions and evidence
The Government party contends (among other things) that:
·there are no sites registered under the AHA within the area of the proposed licence (at 9);
·the rights which will be conferred by the grant of the proposed licence are set out in s 66 of the Mining Act (and includes an extract), that the exploration licence is for an initial term of 5 years and is renewable; and refers to the grantee party’s contentions as to how it intends to conduct its exploration activities (at 14–16);
·in the absence of any evidence to the contrary, the Tribunal should give significant weight to the way in which the grantee party intends to exercise its rights under the exploration licence (at 17).
·the Government party proposes to impose the endorsements and conditions set out Draft Tenement Endorsement and Conditions Extract (referred to above) (at 18);
·the licence can be forfeited for any breach of statutory or imposed conditions (at 19);
·in the absence of any evidence to the contrary, the Tribunal should assume that a grantee party will not act in breach of the relevant statute law, regulations and conditions imposed on them (at 23);
·evidence of other grantee parties contravening the law is irrelevant unless that can reasonably lead the Tribunal to conclude that the grantee party in this matter will do the same, of which there is no evidence in this case (at 24).
The Government party’s contentions also refer to the heritage agreement the grantee party has indicated it will enter into with the MN#2 claimants, and sets out the general terms of heritage agreements in respect of notifying and consulting with native title party in relation to proposed works. The contentions state (similar to those of the grantee party) that the grantee party will be bound by its heritage agreement with the MN#2 claimants to ensure proper identification, management and preservation of Aboriginal sites within the area of the proposed licence (at 20–22).
The Government party submits the Tribunal should determine that the grant of the proposed licence to the grantee party is an act attracting the expedited procedure (at 79).
Government party’s contentions in relation to s 237(a)
The Government party contends the grant of the proposed licence will not interfere with the native title party’s community and social activities. This contention is based on the following reasons:
·the Government party does not accept that the duties and responsibilities set out in the native title party’s contentions (at 15) are community or social activities for the purposes of s 237(a) (which include protecting and caring for all the country, those areas surrounding and including sites of spiritual significance, and areas used for hunting and gathering) or that exercising the right to negotiate in relation to future act proposals or the exercise of registered native title rights and interests are necessarily community or social activities for the purposes of s 237(a) (at 48);
·the Tribunal has been provided with insufficient evidence to enable it to make a finding that the activities asserted by the native title party are carried out, or to make a finding that the grantee party’s proposed activities on the area of the proposed licence will directly interfere with the asserted community and social activities (at 49–50);
The Government party submits that even if the asserted activities are carried out, there is not likely to be direct interference with those activities because:
·the native title party’s community and social activities have been subject to and co-existent with mining and pastoral activities for a significant period of time and that any intersection between the grant of the proposed licence and the native title party’s current activities would be the same as or not more significant than previous and continuing use of the area – a context the Tribunal is entitled to consider in its deliberations;
·there are no Aboriginal communities within the area of the proposed licence;
·the intentions and exploration plans of the grantee party are relevant –
othe Government party states the grantee party has indicated that it will not exclude community or social activities except for safety reasons – however, I note this was not part of the grantee party contentions so I am unsure as to where the Government party has taken this information from;
oits willingness to enter into a heritage agreement with the overlapping MN#2 claimant is relevant to the contention that there is not likely to be direct interference with social and community activities – I do, however, note that the MN#2 objection application was dismissed and it is not clear what happened in relation to the heritage agreement;
othe Tribunal has previously found the grant of an exploration licence is not likely to interfere with hunting and gathering type activities, which are by their nature capable of coexistence with mineral exploration;
othe planned exploration activities do not appear likely to have any real disruptive effect and if the activities of the two parties intersect, this does not necessarily mean there is a real chance of substantial interference; and
oan explorer does not carry a right to control access to land and the area of the proposed licence is small in the context of the Wutha claim, thus reducing the possibility that the grantee party’s activities will interfere with the native title party’s community and social activities (at 51).
Government party’s contentions in relation to s 237(b)
The Government party contends that:
·the native title party has not adduced any evidence regarding areas or sites of significance and their contentions do not address the issue with any substance other than to submit it is possible that some unidentified and unknown sites exist in the area of the proposed licence (at 60);
·there is insufficient information in relation to areas or sites of significance required of s 237(b) to enable the Tribunal to undertake the relevant qualitative or comparative assessment (at 62);
·there is no evidence to support or establish the significance and distribution of sites in the area of the proposed licence, and as a result of all of the above, the condition precedent for an inquiry under s 237(b) is not satisfied (at 63–64).
The Government party further submits that even if there were areas or sites of particular significance in the area of the proposed licence:
·the area has been the subject of prior mineral exploration and is also partially covered by a pastoral lease, and the activities contemplated by the grantee party would be the same as or no more, significant that the previous or continuing use of the area - however, I do note that the lease does not appear to cover the area subject to the Wutha claim;
·the grantee party has indicated it will comply with the AHA, is aware of breach penalties and will report any sites it identifies;
·its willingness to enter into a heritage agreement with the overlapping MN#2 claimant is relevant to the contention that there is not likely to be direct interference with areas or sites of particular significance - As noted (at [37] above), the MN#2 objection application was dismissed and it is not clear what happened in relation to the heritage agreement; and
·the AHA and its associated processes are likely to prevent interference with any area or site of particular significance (at 65).
Government party’s contentions in relation to s 237(c)
The Government party contends that:
·it understands the native title party’s core contention is that any entry or activity on the land by the grantee party occurring without permission (that is without the ‘Wutha Heritage Agreement’) may constitute ‘major disturbance of land or waters’ and for this reason the expedited procedure should not apply (at 71–73);
·the assertion that the expedited procedure not apply in the absence of negotiations with a mining company would mean that the expedited procedure would have little or no application anywhere (a point recognised by the Tribunal in previous determinations) (at 74);
·s 237(c) of the NTA is only enlivened where there is significant, direct physical disturbance of land or waters and the qualification of ‘major’ is to be given its ordinary meaning and is not a subjective notion but is to be objectively assessed (at 75–76);
·the exercise of rights conferred by the proposed licence will be subject to the State’s mining, Aboriginal heritage and environmental regulatory regimes, which together or separately are likely to avoid any major disturbance (at 77); and
·the area has been the subject of prior exploration and is also partially covered by a pastoral lease, and the area of proposed licence does not appear to have any particular characteristics that would likely result in major disturbance, as noted earlier, the lease does not appear to fall on the area subject to the Wutha claim – As noted (at [39] above), the pastoral lease does not appear to cover the area subject to the Wutha claim.
Considering the Evidence in context of s 237 of the Act
Interference with community or social activities – s 237(a)
The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). The notion of direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at [26]). The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at [27]).
The native title party contends that the grant of the proposed licence will interfere with a range of community and social activities, including hunting and gathering, religious or ceremonial activities, and other activities associated with the continuation of the native title party’s traditions. However, the native title party has not provided any evidence that the activities described are performed in the proposed licence. The native title party argues that the grant of the proposed licence will interfere with its ability to access the proposed licence. However, the relevant inquiry is whether the proposed licence is likely to directly interfere with activities, rather than the apprehended effect on the theoretical exercise or enjoyment of registered native title rights and interests. There is no evidence that the grant of the proposed licence involves a real risk of interference with any community or social activities carried on by the native title party in the relevant area.
The grantee party provides limited information in relation to its intended activities, but states it will be low impact in the first two years and that they will abide by the State’s regulatory regime. I note also there has been prior exploration activity on up to 99 per cent of the proposed licence since at least 1994.
The Government party contends that there is no evidence social and community activities occur on the proposed licence and, that if such did occur, they coexist with other uses of the area, and exploration does not carry a right to control access to the land.
Taking these matters into account, and in particular the limited information provided by the native title party, I find that the grant of the proposed licence is not likely to directly interfere with community or social activities carried on by the native title holders.
Interference with sites or areas of particular significance – s 237(b)
In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. The DAA Database shows that there are no recorded sites located on the proposed licence. I note that the Register of Aboriginal Sites 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.
In relation to s 237(b) of the Act, the native title party contends that it cannot be said with certainty that interference with sites or areas of particular significance is not likely until a Wutha heritage protection survey has been carried out. The native title party goes on to state that the Government party has not imposed a condition requiring a heritage protection process. The native title party contends that the AHA provides for Ministerial direction to permit interference with a site or sites and also, incorrectly, that it does not offer protection unless a site is recorded. The AHA protects Aboriginal sites, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’.
However, the native title party does not contend that there are any sites or areas of particular significance located on the proposed licence, nor is any evidence of this nature provided.
As there is no evidence to establish that there are any sites or areas of particular significance on the proposed licence, I find that the grant of the proposed licence is not likely to lead to interference of the kind contemplated by s 237(b) of the Act.
Major disturbance to land or waters – s 237(c)
The Tribunal is required to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]–[57]).
The native title party contends that, in determining whether major disturbance is likely to occur, account needs to be taken of the community life, customs, traditions and cultural concerns of the native title party. However, the native title party has not identified which aspects of the native title party’s community life, customs and traditions might affect the Tribunal’s assessment of the likelihood of major disturbance as per s 237(c) of the Act, and has not pointed to the cultural concerns that might support the finding that major disturbance is likely to occur. Nor has it identified any special topographical, geological or environmental factors that might suggest a greater likelihood of major disturbance than might otherwise be the case (see Champion at [75]–[77] and the cases cited).
The Government party has proposed conditions which require the grantee party to rehabilitate all disturbances to the surface of the land to the satisfaction of the Department of Mines and Petroleum’s Environmental Officer, and prohibits certain ground disturbing activities unless written approval is obtained. In addition, endorsements proposed by the Government party direct the grantee party’s attention to environmental protection and water management legislation and responsibilities. I note there is no evidence that the grantee party will not comply with the relevant regulatory regimes.
In light of these matters, I do not consider it likely that the grant of the proposed licence will result in major disturbance to the land and waters concerned as per s 237(c) of the Act.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E38/2792-1 to Ausnico Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
20 December 2013
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