Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Cliffs Asia Pacific Iron Ore Pty Ltd
[2013] NNTTA 122
•21 August 2013
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Cliffs Asia Pacific Iron Ore Pty Ltd [2013] NNTTA 122 (21 August 2013)
Application No: WO2012/1267
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Raymond William Ashwin, June Rose Ashwin, Geoffrey Alfred Ashwin and Ralph Edward Ashwin on behalf of the Wutha People (WC1999/010) (native title party)
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The State of Western Australia (Government party)
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Cliffs Asia Pacific Iron Ore Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 21 August 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 v Oriole’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’)
Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd [2001] NNTTA 42 (‘Maureen Young’)
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/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’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Winnie McHenry’)
Representative of the Mr Paul Tolcon, Mony De Kerloy Barristers & Solicitors
native title party:
Representatives of the Mr Jesse Winton, State Solicitor’s Office
Government party: Mr Phillip Nell, Department of Mines and Petroleum
Representative of the Mr Peter Brammall, Cliffs Asia Pacific Iron Ore Pty Ltd
grantee party:
REASONS FOR DETERMINATION
On 19 September 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E57/917-I (‘the proposed licence’) to the grantee party. The notice includes a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
The notice describes the proposed licence as comprising an area of 8 graticular blocks (approximately 24.12 square kilometres) located 71 kilometres south-east of Sandstone in the Sandstone shire. The entire area within the proposed licence is subject to the registered native title claim of Wutha (WC1999/010 – registered from 15 June 1999).
On 27 November 2012 the native title party made an expedited procedure objection application with the Tribunal in respect of the proposed licence (designated by the Tribunal as WO2012/1267).
In accordance with what was then standard practice for expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the proposed licence attracts the expedited procedure. These directions allowed a four month 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. In the present matter, the grantee party at the first preliminary conference on 15 January 2013 requested that the matter proceed to an inquiry. Consequently, directions were programmed for inquiry.
The inquiry
The directions for the inquiry required, among other things, that:
(1)the native title party provide by 20 May 2013:
(a)a statement of contentions, including
i.a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
ii.a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement;
(b)a copy of each document relevant to the inquiry (including any affidavit to be relied on);
(c)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposed that the evidence be heard if the matter is not to be heard on the papers;
(2)the grantee party provide by 27 May 2013:
(a)a statement of contentions;
(b)a copy of each document relevant to the inquiry; and
(c)a statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers; and
(3)the Government party provide a statement of contentions in reply by 4 June 2013.
On 15 January 2013, the Government party provided documents relating to the proposed licence. The native title party provided a statement of contentions on 4 June 2013, the grantee provided a statement of contentions and supporting documents on 12 June 2013, and the Government party, after being granted an extension of time to comply, due to the late provision of the other parties’ contentions, provided its contentions in reply and supporting documents on 25 June 2013.
The native title party did not provide any evidence, statements or documents in support of its contentions. However, in its 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 that it intended to call June Ashwin and 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 stated that Ms Ashwin and Mr Ashwin would give evidence that the native title party’s community and social activities include:
·the responsibility, according to traditional Aboriginal law and custom, to protect and care for all the country (including the areas of the proposed licence) for which the Wutha people hold registered native title rights and interests;
·the duty to protect and care for those areas surrounding and including sites of spiritual significance, which are fundamental to Aboriginal customary law and sites of particular significance to the Wutha people;
·the duty to protect and care for areas of particular importance such as those used for hunting and gathering; and
·the activity of exercising the right to negotiate future act proposals on land located within the area of the Wutha people’s native title determination application.
Furthermore, the native title party’s contentions stated that the witnesses would also give evidence that the grant of the proposed licence is likely to interfere with the native title party’s community and social activities associated with the exercise of its registered native title rights and interests, and in particular:
·access rights to land and the right to control the access of others to the tenement areas;
·the right to use and enjoy resources, particularly as regards hunting and collection of flora;
·the right to maintain and protect places of importance under traditional laws, customs and practices; and
·the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area.
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 and named persons comprising the Applicant.
At a listing hearing convened on 27 June 2013, the native title party’s representative agreed with the other parties that the matter should be determined ‘on the papers’ (that is, without a hearing). This position was adopted despite the fact the native title party had previously indicated its intention to rely on the oral testimony of Ms and Mr Ashwin and in circumstances where no other documentary or affidavit evidence had been filed. The circumstances of this matter are identical to those recently dealt with by the Tribunal in Doray Minerals Limited and the later matter of Gianni. Accordingly, I adopt the principles outlined in [11]-[13] of the Doray Minerals Limited decision and have decided to proceed 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, 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), while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.
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 v Oriole, 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 Indigenous Affairs (‘DIA Database’).
·A copy of the tenement application and a Draft Tenement Endorsements and Conditions Extract.
·An instrument of licence and first schedule listing land included and excluded from the grant.
·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:
·Historical Lease 395/496 at 95.8 per cent.
·Pastoral Lease 3114/1054 (Dandaraga) at 4.2 per cent.
·Pastoral Lease 3114/8939 (Bulga Downs) at 95.8 per cent.
The quick appraisal shows that the proposed licence area has previously been subject to the following mineral tenure:
·Five exploration licences granted between 1993 and 2008, overlapping the proposed licence between 2 per cent and 100 per cent and all now expired, surrendered or withdrawn.
·11 mineral claims granted between 1968 and 1970, overlapping the proposed licence between 0.1 and 5 per cent.
The report from the DIA Database shows that there is one registered Aboriginal site, which covers approximately 40 per cent of the proposed licence (Lake Noondie, site ID 19515, open access, no gender restrictions, mythological). The map produced by the Tribunal’s Geospatial Services, dated 1 July 2013, shows that the DIA registered site, Lake Noondie, covers the northern part of the tenement and covers a large area running west to east to the north of the tenement. The map does not show where the eastern and western boundaries of the site conclude. The map also shows that there is another DIA registered site (site ID 5685) located approximately 2.5 kilometres from the south-west corner of the tenement. The map shows that there is a further site (site ID 19490) located approximately six kilometres from the north-west corner of the tenement, on the other side of Lake Noondie.
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 requiring the licensee to notify the holder of any underlying pastoral or grazing lease of the grant or transfer of the licence and of certain activities carried out under the licence, and a further condition preserving the access rights of the holder of miscellaneous licence 57/38 and prohibiting interference with the purpose or installations connected to the licence, however, miscellaneous licence 57/38 is not shown on the Tengraph quick appraisal as overlapping the proposed 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’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3. The Licensee’s attention is drawn to the provisions of the:
· Water Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
4. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances in accordance with the current published version of the 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:
6. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.
In respect to Waterways the following endorsement applies:
7. Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
8. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by DoW.
9. 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.
Native title party contentions
The native title party’s contentions are summarised as follows:
Interference with Community or Social Activities
·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 dreaming 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, and will destroy plants the native title party uses for bush tucker and medicine.
Interference with Areas or Sites of Particular Significance
·The DIA Database confirms that there is a mythological site (site ID 19515) over Lake Noondie, which overlaps the proposed licence.
·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) (‘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.
Major Disturbance to Land or Waters
·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.
As stated above, the native title party has not provided any material in support of its contentions. I also note that the native title party’s contentions in this matter are largely identical to those it made in Doray Minerals Limited and Gianni.
Grantee party contentions and evidence
The grantee party has submitted contentions addressing the s 237 criteria and supporting documents comprising of:
·Statutory declaration of Kelly Halford, Tenement Officer for the grantee party, deposing to the grantee party executing the State’s standard Agreement for Heritage Protection over Tenure (‘RSHA’) and sending it to the native title party for execution.
·A copy of the grantee party’s Aboriginal Heritage Operating Procedure.
·A copy of the grantee party’s Environmental Policy.
·Copies of policies for the grantee party’s Koolyanobbing Project relating to Exploration Clearing, Exploration Botanical Surveys and Exploration Rehabilitation.
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 oral traditions. However, the native title party has not provided any evidence that the activities described are carried on 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 notes that it operates under strict environmental conditions, has comprehensive procedures for conducting activities and will use every effort to access the proposed licence via existing tracks.
In reaching this conclusion, I have also had regard to the following factors:
·The area within the proposed licence is already subject to existing pastoral leases, and has a history of mineral exploration.
·The effect of the grant on any community or social activities carried on by the native title party is unlikely to be any more significant than the previous and continuing use of the area.
·The proposed licence only covers a small percentage of the total claim area.
Taking these matters into account, 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 DIA Database shows that there is one registered site (Lake Noondie) which overlaps the proposed licence. There may also be other sites or areas of particular significance to the native title party within the proposed licence area or in the vicinity. 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. The AHA protects all Aboriginal sites, whether on the Register or not.
The native title party notes in its contentions that the Lake Noondie site overlaps the proposed licence. Despite this, the native title party has provided no evidence whatsoever as to whether this site might be interfered with or in relation to the existence of any other sites on or in the vicinity of the proposed licence. The Lake Noondie site may be a site of particular significance to the native title party. However, in the absence of any evidence from the native title party I am not able to reach such a conclusion. Mere reference to the possible existence of sites or areas of particular significance within a given area does not provide a sufficient basis for concluding that interference of the kind contemplated by s 237(b) is likely. The location and significance of the area or site in question must be capable of identification on the evidence before the Tribunal: Winnie McHenry; Maureen Young at [36]-[38].
In relation to the native title party’s submissions regarding the AHA or the adequacy of conditions proposed by the Government party, I repeat the comments I made in Doray Minerals Limited at [38].
The grantee party, in its statement of contentions, acknowledges that the Lake Noondie site overlaps the proposed licence and notes that access to that area is governed by the AHA. The grantee party also acknowledges that other sites of significance may exist on the remaining part of the proposed licence and says that these can be identified by heritage surveys and in consultation with the native title party.
As I have not been able to establish the presence of any sites of particular significance to the native title party the question of potential interference does not arise. However I note that the grantee party and the Government party make similar contentions as to the operation of the AHA and the grantee party’s willingness to enter the RSHA.
I find that the grant of the proposed licence is not likely to interfere with sites or areas of particular significance to the persons who hold the native title to the land and waters concerned.
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 v Oriole 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, 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.
In considering whether or not the proposed licence is likely to involve major disturbance, I have also had regard to the following factors:
·Almost entire area is subject to pastoral leasehold, and has a history of exploration activity. It is therefore likely that some level of disturbance has already occurred and, in the case of the pastoral leases, will continue to occur.
·The proposed conditions 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 prohibit certain ground disturbing activities unless written approval is obtained.
·The proposed endorsements direct the grantee party’s attention to environmental protection and water management legislation.
·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.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E57/917-I to Cliffs Asia Pacific Iron Ore Pty Ltd, is an act attracting the expedited procedure.
Daniel O’Dea
Member
21 August 2013
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