Raymond William Ashwin and Others on behalf of the Wutha People v Duketon Consolidated Pty Ltd
[2014] NNTTA 22
•28 February 2014
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin and Others on behalf of the Wutha People v Duketon Consolidated Pty Ltd [2014] NNTTA 22 (28 February 2014)
Application No: WO2013/0518
IN THE MATTER of the Native Title Act 1993 (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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Duketon Consolidated Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 28 February 2014
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), s 66
Aboriginal Heritage Act 1972 (WA), s 5
Cases:Champion v Western Australia (2005) 190 FLR 362 (‘Champion v Western Australia’)
Kevin Walley on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Brosnan [2001] NNTTA 78 (‘Walley v Brosnan’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tullock v Bushwin’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little v Oriole Resources’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Ammon’)
Raymond Ashwin and Ors on behalf of the Wutha People/Western Australia/Ausnico Limited [2013] NNTTA 181 ('Ashwin v Ausnico')
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker v Western Australia No 1’)
Parker v State of Western Australia (2008) 167 FCR 340 (‘Parker v Western Australia No 2’)
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 (‘Ashwin v Doray Minerals’)
Silver v Northern Territory (2002) 169 FLR 1 (‘Silver v Northern Territory’)
Smith v Western Australia (2001) 108 FCR 442 (‘Smith v Western Australia’)
Walley v Western Australia (2002) 169 FLR 437 (‘Walley v Western Australia’)
Representative of the Mr Paul Tolcon, Mony De Kerloy Barristers & Solicitors
native title party:
Representatives of the Mr Jeff O’Halloran, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representative of the Mr Michael Giles, South Boulder Mines Ltd
grantee party:
REASONS FOR DETERMINATION
On 13 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 E36/796 (‘the proposed licence’) to Duketon Consolidated Pty 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).
According to the notice, the proposed licence comprises an area of 15 graticular blocks (approximately 42 square kilometres) located 26 kilometres southerly of Leinster in the Shire of Laverton. The proposed licence is subject to the registered native title claim of the Wutha People, which overlaps the area by 5.252 square kilometres (11.58 per cent).
On 21 May 2013, Raymond William Ashwin and others on behalf of the Wutha People (‘the native title party’) lodged an objection to the inclusion of the expedited procedure statement.
On 25 June 2013, the Tribunal convened a preliminary conference, at which the native title and grantee parties indicated their intention to negotiate a heritage protection agreement with a view to disposing of the objection by consent. At the status conference held on 30 October 2013, the grantee party informed the Tribunal that an agreement had not been reached and requested that it proceed with an inquiry into the objection. I had been appointed by President Raelene Webb QC to constitute the Tribunal for the purpose of the inquiry on 24 October 2013 and made directions for the conduct of the inquiry on 30 October 2013. These directions required each party to provide a statement of contentions and supporting documentary evidence for the purpose of determining whether the proposed licence is an act to which the expedited procedure applies.
In compliance with the directions, the Government party provided supporting documents on 2 December 2013 and the native title party provided a statement of contentions on 3 December 2013. Nothing was received from the grantee party, and it confirmed at a listing hearing on 23 January 2014 that it did not intend to make any submissions. At the listing hearing, the Government party explained it had not provided a statement of contentions as it had not received the native title party’s submissions and had not instructed solicitors, so was given a further two weeks to comply. The Government party provided its statement of contentions on 5 February 2014.
The native title party did not provide any evidence in support of its objection. Rather, the native title party’s statement of contentions simply outlines its intention to call witnesses to provide oral evidence should the inquiry be conducted by way of an on country hearing, together with some broad statements regarding the proposed licence. In relation to the oral evidence, the native title party said it intended to call Ms June Ashwin and Mr Geoff Ashwin, two of the four persons comprising the applicant in the Wutha native title claim, to give evidence on the likely effect of the grant on the carrying on of its community and social activities. Nevertheless, when the parties were asked at the listing hearing whether the inquiry should proceed on the papers, the native title party agreed that it could, though it did not expressly resile from the position it expressed in its statement of contentions.
In Ashwin v Ausnico, I observed it has become the standard practice of the native title party to say that it will rely on oral evidence without providing any further material. As in Ashwin v Ausnico, the native title party’s statement of contentions do not address why the issues for determination cannot be adequately determined in the absence of the parties (as per s 151(2) of the Act), though unlike Ashwin v Ausnico the native title party has not sought to press the case for a hearing in the present matter. In Ashwin v Ausnico, I considered the principles outlined by Member O’Dea in Ashwin v Doray Minerals (at [11]–[13]) supported my decision to proceed on the papers, and there is no reason to depart from that approach in the present case. For the avoidance of doubt, on 21 February 2014, all parties were requested to confirm whether or not they took issue with me proceeding on the papers. No party did take issue.
In its statement of contentions, the native title party submits that any portion of the evidence given by witnesses relating to the native title party’s stories or dreaming should be considered confidential due to the cultural and customary concerns of the native title party. As I have decided that the inquiry will proceed on the papers, and the native title party have provided no affidavit or statement evidence, there is no need for me to make any directions with respect to confidentiality.
On 18 February 2014, the Tribunal provided parties with a map of the proposed licence area produced by the Tribunal’s geospatial unit on the understanding that I would rely on it for the purpose of the inquiry. The map includes information from the Register of Aboriginal Sites, native title determination application boundaries and relevant tenure information. No party objected to the use of the map in my deliberations.
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 v Western Australia, 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 Tullock v Bushwin at [10]–[16].
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Parker v Ammon at [31]–[38] and [40]–[41] (see also Parker v Western Australia No 1; Parker v Western Australia No 2). I also adopt those set out by Deputy President Sosso in Silver v Northern Territory.
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 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.
·A report and plan 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 quick appraisal identifies the following as the underlying tenure within the proposed licence area:
·Pastoral Lease 3114/899 (Leinster Downs) at 60.1 per cent.
·Pastoral Lease 3114/775 (Pinnacles) at 27.9 per cent.
·Pastoral Lease 3114/1153 (Weebo) at 8.6 per cent.
·Crown Reserve 9699 (Peak Hill Stock Route) at 3.4 per cent.
The quick appraisal also shows the area has previously been subject to the following mineral tenure:
·11 exploration licences granted between 1993 and 2011, overlapping the proposed licence between 0.5 per cent and 71.8 per cent, all now surrendered or expired.
·Nine mining lease granted between 1987 and 2008, overlapping between less than 0.1 per cent and 20 per cent, all now surrendered or forfeited.
·46 mineral claims granted between 1970 and 1980, overlapping between less than 0.1 per cent and 2.7 per cent, all now surrendered.
·Two prospecting licences granted in 2008 and 2009, the first of which overlapped the proposed licence by 1.1 per cent and expired in 2012 and the second of which overlapped the proposed licence by 2.7 per cent and was surrendered in 2013.
The quick appraisal indicates that the proposed licence area is currently subject to the following live mineral tenements:
·M36/496, overlapping by 18.4 per cent.
·M36/577, overlapping by 5.6 per cent.
·M36/578, overlapping by 6.1 per cent.
·M36/579, overlapping by 6.1 per cent.
·P36/1579, overlapping by 2.2 per cent.
·P36/1580, overlapping by 1.2 per cent.
·P36/1581, overlapping by 4.2 per cent.
·P36/1582, overlapping by 3.9 per cent.
·P36/1583, overlapping by 4.0 per cent.
The quick appraisal also indicates the presence of a geodetic survey station (SSM-G 36-2), two tracks and three fence lines within the proposed licence area.
The report from the DAA Database shows there are no Aboriginal sites registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within the proposed licence. The Government party states the report indicates there are no ‘other heritage places’ within the proposed licence area. However, I note that the parameters of the report generated by the Government party did not include ‘other heritage places’. Tribunal mapping indicates there are a number of ‘DAA sites’, which I presume are ‘other heritage places’ (as they are not DAA Registered sites) on and near the proposed licence. However, no party has provided any contentions or evidence in relation to these places, or how they may relate to my consideration of the limbs of s 237 of the Act. As such, I provide no further comment about these places in this decision.
There does not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.
The Draft Tenement Endorsement and Conditions Extract indicates 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 Tullock v Bushwin at [11]–[12]). The proposed licence will also be subject to following four 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; one stipulating written notification to that holder of the grant or transfer of the licence; one prohibiting interference with and restricting mining in the vicinity of Geodetic Survey Station SSM-G 36-2; and one prohibiting exploration activities on Crown Reserve 9699 where they restrict the use of the reserve.
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 the DoW.
The Government party also states it will place a condition on the proposed licence requiring the grantee party, if requested in writing to do so by the native title party within ninety days of the grant, to execute in favour of the native title party the Goldfields Regional Standard Heritage Agreement (‘RSHA’) within thirty days of the request. I refer to this condition throughout these reasons as the RSHA Condition.
Native title party 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 proposed licence is likely to interfere directly with the carrying on of the community and social activities of the native title party (at 5).
·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 (at 5(a)).
·The exercise of the grantee party’s rights and interests will place an impediment to 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 (at 5(b)).
·The exercise of the grantee party’s rights and interests will place an impediment to 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 (at 5(c)).
·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(d)).
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 (at 6).
·There may be sites that are yet to be registered, 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 (at 6(a), 6(f)).
·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 prior to the grant of the proposed licence (at 6(b)).
·The AHA provides for a ministerial discretion to permit interference with Aboriginal sites and does not offer protection unless a site has already been recorded (at 6(c)).
·The Government party has not proposed a condition be imposed requiring the written permission of the native title party prior to the exercise of the Minister’s discretion (at 6(d)).
·The Government party has not proposed a condition be imposed requiring the grantee party to enter into the native title party’s preferred heritage protection agreement or some other site identification and protection process (at 6(e)).
·Exploration activity may destroy sites (at 6(g)).
Major Disturbance to Land or Waters (s 237(c))
·The grant of the proposed licence is likely to involve, or create rights whose exercise will involve, major disturbance to the land (at 7).
·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 (at 7(a)).
·Account needs to be taken of the community life, customs, traditions and cultural concerns of the native title party (at 7(b)).
·Unless suitable prior arrangements for consultation and access to the land are made with the native title party by way of its preferred heritage protection agreement, it cannot be said with certainty that the grant of the proposed licence is not likely to involve major disturbance to the land or create rights whose exercise is not likely to involve major disturbance to the land concerned (at 7(b)).
The native title party has not provided any evidence 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 Ashwin v Ausnico and the cases referred to at [31] of that decision.
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 10);
·the proposed licence confers the rights set out in s 66 of the Mining Act 1978 (WA) (‘Mining Act’), will be for an initial term of 5 years and is renewable (at 13-14);
·in the absence of evidence as to how the grantee party intends to exercise its rights under the proposed licence, the Tribunal must assume it intends to exercise the full suite of rights conferred by s 66 of the Mining Act (at 16);
·the Government party proposes to impose the endorsements and conditions set in the Draft Tenement Endorsement and Conditions Extract, as well as the RSHA Condition (at 17-18);
·the licence can be forfeited for any breach of statutory or imposed conditions (at 19);
·in the absence of 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 22); and
·evidence of other grantee parties contravening the law is irrelevant unless it can reasonably lead the Tribunal to conclude 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 state the grantee party has indicated its willingness to enter into an RSHA and has signed and sent a copy of the agreement to Goldfields Land and Sea Council on 17 December 2012 (at 20). There is no evidence before me that an RSHA was sent to the Goldfields Land and Sea Council, and in any event the native title party is not represented by that organisation. Though the grantee party indicated an intention to negotiate a heritage protection agreement when the matter came before the Tribunal, an agreement was not reached and there is nothing before me to suggest the grantee party is willing to enter into an RSHA, whether or not such an agreement is acceptable to the native title party. Nevertheless, the Government party will impose an RSHA condition on grant of the proposed licence, as outlined earlier in this decision, and as noted also further below.
The Government party submits that the Tribunal should determine the proposed licence is an act attracting the expedited procedure (at 80).
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 native title party has not provided any evidence the community or social activities described in the native title party’s statement of contentions are carried out within the proposed licence (at 46, 49);
·the native title party has not provided any evidence the proposed activities of the grantee party will directly interfere with the carrying out of the native title party’s community or social activities on the proposed licence (at 47, 50); and
·the following activities asserted by the native title party are not ‘activities’ to which s 237(a) applies:
oaccess to the land;
oresponsibility to protect and care for the land according to traditional law and custom;
oduties to protect and care for unspecified sites of spiritual significance and areas of particular importance;
oexercise of the right of negotiation in relation to future act proposals; and
oexercise of registered native title rights and interests in general (at 48).
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 grantee party has indicated its willingness to enter into an RSHA-type agreement with the native title party, which is a relevant factor in determining whether there is not likely to be interference with the social and community activities of the native title holders and which the native title party has the opportunity of enforcing by invoking the RSHA Condition (at 51(a)) – as noted above, there is no evidence before me that the grantee party is willing to enter into such an agreement, but nevertheless the Government party is to impose such condition on grant;
·the area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, and it is likely these activities have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area (at 51(b));
·the proposed licence is almost entirely covered by pastoral leases, some or most of which are likely to have extinguished at least any native title rights to control use of and access to the relevant land. The native title party’s community and social activities have been subject to and co-existent with the lawful activities of pastoral leaseholders for a significant period of time, and 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 (at 51(c));
·there are no Aboriginal communities within the proposed licence (at 51(d));
·the Tribunal has previously found the grant of an exploration licence is not likely to interfere with hunting activities, which are by their nature capable of coexistence with mineral exploration (at 51(f));
·the area of the proposed licence is ‘miniscule’ in the context of the total area of the native title party’s claim (approximately 32,684.5 square kilometres), reducing the possibility that the activities of the grantee party will interfere with community or social activities (at 51(g));
·it is difficult to envisage how mineral exploration activity could cause substantive interference to the ability of the native title party to access the area of the proposed licence, as the proposed licence does not carry the right to control access to the land. The risk that the grantee party, in exercising its rights under the proposed licence, may physically obstruct a member of the native title party is not substantial enough to constitute interference in the sense of s 237(a) (at 51(h)); and
·to the extent that any activities conducted by the native title party within the proposed licence consist of law ceremonies, the activities of the grantee party will only potentially intersect with the activities of the native title party in the limited period during which law business is held (at 51(i)).
The Government party also contends that the low-scale and infrequent exploration activities planned by the grantee party do not appear likely to have any real disruptive effect on activities in the proposed licence area (at 51(e)). However, no evidence was provided to the Tribunal regarding the nature of the grantee party’s exploration programme.
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 (at 60); and
·the presence of areas or sites of particular significance has not been satisfied (at 61).
The Government party further submits that even if there were areas or sites of particular significance in the area of the proposed licence:
·the grantee party’s offer to enter into an RSHA-type agreement with the native title party indicates its willingness to consult with the native title party and avoid activities likely to interfere with areas or sites of particular significance (at 62(a)) – as noted above, there is no evidence before me that such an offer was made, but an RSHA condition will be applied on grant;
·the area of the proposed licence has been subject to prior mineral exploration, pastoral and possibly mining activity, and the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area (at 62(b)); and
·the AHA and its associated processes are likely to prevent interference with any area or site of particular significance (at 62(c)).
The Government party also states (at 63) it rejects what they say is the native title party’s implicit contention that a lack of consultation with the native title holders before entering the land or doing an activity amounts to interference for the purposes of s 237(b).
Government party’s contentions in relation to s 237(c)
The Government party submits that:
·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 69 and 73);
·the assertion that the expedited procedure does 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 78);
·s 237(c) of the Act is only enlivened where there is significant, direct physical disturbance of land or waters. The qualification of ‘major’ is to be given its ordinary meaning and is not a subjective notion but is to be objectively assessed (at 71-72);
·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 72(a));
·any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following completion of exploration (at 72(b));
·the area has been the subject of prior mineral exploration, pastoral and possibly mining activity, and the activities contemplated by the grantee party in the proposed licence area would be the same as, or no more significant than, the previous and continuing use of the area (at 72(c)); and
·it does not appear the proposed licence has any particular characteristics that would likely result in ‘major disturbance’ to land and waters arising given the activities being proposed by the grantee party (at 72(d)).
The Government party further submits the grantee party has evidenced a willingness to consult with the native title party before carrying on its activities in the proposed licence area (at 75). However, there is no evidence to support that submission.
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 v Western Australia 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 v Western Australia 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 v Western Australia at [27]).
The native title party contends 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 evidence of the activities said to be carried on in the area. The native title party also argues the grant of the proposed licence will interfere with its ability to access the proposed licence, but has not provided any evidence to substantiate that claim. In any event, the relevant inquiry is whether the grant of 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. If any community or social activities are in fact carried on in the proposed licence area, the evidence before me in this matter suggests they are capable of coexisting with similar interests and uses.
As the grantee party has not provided any materials relating to its intentions, I am entitled to assume that it will fully exercise the rights conferred by the proposed licence (see Silver v Northern Territory at [30]). Nevertheless, in the absence of evidence regarding the community or social activities carried on by the native title holders, I am unable to conclude there is a real risk the grant of the proposed licence will result in direct interference with these activities, whether or not the grantee party exercises the full suite of rights conferred by the grant.
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, based on the evidence provided to me.
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 there are no registered sites located on the proposed licence, and no party has led evidence relation to any ‘other heritage places’. 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 the inquiry under s 237(b), the native title party contends it cannot be said with certainty that interference with sites or areas of particular significance is not likely until a heritage protection survey has been carried out with the native title party. The native title party suggests the likelihood of interference will not be mitigated unless the Government party imposes a condition requiring the grantee party to carry out a heritage protection survey with the native title party prior to the grant of the proposed licence. I note the Government party has undertaken to impose a condition requiring the grantee party to offer an RSHA at the request of the native title party, though my understanding is this agreement does not require a survey to be conducted prior to grant. The native title party also contends the AHA provides for the relevant Minister to permit interference with a site or sites and does not offer protection unless a site is recorded. As I observed in Ashwin v Ausnico, the AHA protects Aboriginal sites as the term is defined by s 5 of the AHA, whether registered or not.
The native title party has not provided evidence to support the existence of any sites or areas of particular significance which might be affected by the grant of the proposed licence. As Deputy President Sosso observed in Walley v Brosnan, it is a condition precedent to an inquiry under s 237(b) that an objector bring to the attention of the Tribunal an area or site which is alleged to be of particular significance to the native title holders. The native title party has not done so, and there is no evidence to establish the existence of any sites or areas of particular significance within the proposed licence.
Consequently, I find the grant of the proposed licence is not likely to cause interference of the kind contemplated by s 237(b).
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 Resources 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. Nor has the native title party pointed to the cultural concerns might support the finding that major disturbance is likely to occur. In addition, the native title party has not 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 v Western Australia at [75]–[77] and the cases cited). It is not sufficient to merely state, as the native title party does, that the rights accorded to the grantee party by the proposed licence will have a significant impact on the Aboriginal people who use the land.
The Government party has proposed conditions requiring the grantee party to rehabilitate all disturbances to the surface of the land to the satisfaction of DMP’s Environmental Officer, and prohibiting 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. There is no evidence that the grantee party will not comply with the relevant regulatory regimes. I have also taken into account the history of exploration and mining in the area.
In light of this information, I find the grant of the proposed licence is not likely to involve, or create rights whose exercise is likely to involve, 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 E36/796 to Duketon Consolidated Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
28 February 2014
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