Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Peter Romeo Gianni

[2013] NNTTA 88

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Peter Romeo Gianni [2013] NNTTA 88 (15 July 2013)

Application No:                WO2012/1270

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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Peter Romeo Gianni (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  15 July 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’)

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 Caitlin Martin, State Solicitor’s Office
Government party:          Ms Bethany Conway, Department of Mines and Petroleum

Representative of the     Mr Peter Gianni
grantee party:                  

REASONS FOR DETERMINATION

1. On 5 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 E20/810 (‘the proposed licence’) to Peter Romeo Gianni (‘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).

2. The notice describes the proposed licence as comprising an area of 20 graticular blocks (approximately 60.92 square kilometres) located 82 kilometres north-west of Sandstone in the Shires of Meekatharra and Sandstone. The entire area within the proposed licence is subject to the following registered native title claims:

   ·Wutha (WC1999/010 – registered from 15 June 1999)

   ·Yugunga-Nya People (WC1999/046 – registered from 12 June 2000)

3. On 27 November 2012, Raymond William Ashwin, June Rose Ashwin, Geoffrey Alfred Ashwin and Ralph Edward Ashwin on behalf of the Wutha People (‘the native title party’) made an expedited procedure objection application with the Tribunal in respect of the proposed license (designated by the Tribunal as WO2012/1270).  

4. 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 (in this case, 7 January 2013) 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 stated that he had already entered into an agreement with the Yugunga-nya people and wanted to proceed to the inquiry. Consequently, directions were programmed for inquiry.

The inquiry

1. The directions for the inquiry required, among other things, that:

   (1)the native title party provide by 6 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 13 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 20 March 2013.

1. On 13 February 2013, the Government party provided documents relating to the proposed licence. The native title party provided a statement of contentions on 2 May 2013, and the Government party provided its contentions in reply on 20 May 2013. The grantee party did not provide any contentions or other supporting documents.

2. The native title party did not provide any 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 Gaye Noo-tha-ma Harris and June Rose 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.

3. The native title party’s contentions also stated that Ms Harris and Ms 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.

4. 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, particular 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.

5. The native title party’s contentions do not state the qualifications of the proposed witnesses, though I do note that Ms Ashwin is a registered claimant.

6. At a listing hearing convened on 6 June 2013, the native title party’s representative informed the Tribunal that it had no further submissions and did not now intend to provide any affidavit evidence or seek to call witnesses. The native title party’s representative agreed that the matter should proceed without a formal hearing and be dealt with on the papers. The other perties agreed. The circumstances of this matter are identical to those recently dealt with by the Tribunal in Doray Minerals Limited. Accordingly, I adopt the principles outlined in [11]-[13] of that decision and have decided to proceed on the papers.

Legal principles

1. Section 237 of the Act provides:

237     Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

1. 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.

2. In relation to s 237(a), I adopt the legal principles identified in Tarlpa at [10]-[16].

3. 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.

4. 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 Resources, especially [41]-[57]).

Evidence in relation to the proposed acts

1. 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.

   ·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.

2. The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be as follows:

   ·Pastoral Lease I3114/744 (Indigenous Held) (Cogla Downs) at 72.1 per cent.  

   ·Historical Lease 394/516 at 72.2 per cent.

   ·Pastoral Lease 3114/898 at 27.9 per cent.

3. The quick appraisal establishes that an existing miscellaneous licence covers the entire area of the proposed licence. The quick appraisal also shows that the proposed licence area has previously been subject to the following mineral tenure:

   ·six exploration licences granted between 1997 and 2011, overlapping the proposed licence between less than 0.1 per cent and 30 per cent.

   ·45 mineral claims granted between 1971 and 1976, overlapping the proposed licence between 0.2 and 2 per cent.

4. The report from the DAA Database indicates there are no registered sites or ‘other heritage places’ within the proposed licence. There does not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.

5. 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 the miscellaneous licence and prohibiting interference with the purpose or installations connection to the licence.

6. 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 water.

   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.

Native title party contentions

1. The native title party’s contentions may be 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

   ·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 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 heritage protection agreement with the native title party: paragraph 6(e).

   ·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.

2. 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 identical to those it made in Doray Minerals Limited.

Interference with community or social activities – s 237(a)

1. 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].

2. 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.

3. In reaching this conclusion, I have also had regard to the following factors:     

   ·The area within the proposed licence is already subject 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.

4. 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 by the native title holders.

Interference with sites or areas of particular significance – s 237(b)

1. 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. As stated above at [20], the DAA Database shows there are no registered sites or ‘other heritage places’ within the proposed licence. However, this does not mean there are no sites or areas of particular significance to the native title party with 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.

2. The native title party has not provided any evidence about the existence of areas or sites of particular significance within the proposed licence or adjacent areas. The native title party argues that it has not recorded every site of particular significance to the native title party. However, that argument cannot support a finding that the proposed licence is likely to interfere with sites or areas of particular significance. 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].

3. 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]. As with that matter, the grantee party has already entered into a heritage protection agreement with the Yugunga-nya people, and I am satisfied it will contribute to the protection already afforded under the State’s regulatory regimes.

4. In conclusion, 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)

1. 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]).

2. 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.

3. In considering whether or not the proposed licence is likely to involve major disturbance, I have also had regard to the following factors:

   ·The 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.

4. 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

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E20/810 to Peter Romeo Gianni, is an act attracting the expedited procedure. 

Daniel O’Dea
Member

15 July 2013