Raymond William Ashwin (dec) and Others on behalf of Wutha v Beacon Mining Pty Ltd and Another
[2017] NNTTA 43
•21 July 2017
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin (dec) and Others on behalf of Wutha v Beacon Mining Pty Ltd and Another [2017] NNTTA 43 (21 July 2017)
Application No: | WO2016/0452 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Raymond William Ashwin (dec) and Others on behalf of Wutha (WC1999/010)
(native title party)
- and -
Beacon Mining Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 21 July 2017 |
Catchwords: | Native title – future act – proposed grant of exploration licence amalgamation – 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, 151, 237 Mining Act 1978 (WA) Aboriginal Heritage Act 1972 (WA) |
Cases: | Ashwin and Others on behalf of the Wutha People v Peter Romeo Gianni and Another [2014] NNTTA 23 (‘Ashwin v Gianni’) Cheinmora v Striker Resources NL & Ors; Dann v Western Australia [1996] FCA 1147; (1996) ALR 21 (‘Cheinmora v Striker Resources’) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley v Western Australia’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representative of the native title party: | Mr Ron Harrington-Smith |
| Representative of the grantee party: | Ms Ellise O’Sullivan, McMahon Mining Title Services |
| Representatives of the Government party: | Ms Belinda Loftus, State Solicitor’s Office Mr Matthew Smith, Department of Mines and Petroleum (now Department of Mines, Industry Regulation and Safety) |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the grant of exploration licence amalgamation AM-E57/961 (the licence) to Beacon Mining Pty Ltd (Beacon Mining). In their public notice of the licence, the State of Western Australia included a statement that they consider the grant is an act attracting the expedited procedure under the Native Title Act 1993 (Cth). All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.
The inclusion of the expedited procedure statement means the licence can be granted without going through the normal negotiation procedure required under the Act unless: (a) one or more native title holders or registered native tile claimants object; and (b) I determine the grant of the licence is not an act attracting the expedited procedure.
The licence covers an area of approximately 0.74 square kilometres, located about 8 kilometres south-west of Sandstone in the Shire of Sandstone. The Wutha native title claim (WC1999/010) wholly overlaps the licence. The Wutha registered native title claimants (Wutha), therefore, had the right to lodge an objection against the State’s assertion that the expedited procedure applies (s 32). Wutha exercised that right and I was appointed by the President of the National Native Title Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies to the grant of the licence.
A decision that the expedited procedure should apply to the grant, would mean Beacon Mining could proceed to explore on the licence without negotiating with Wutha. A decision that the expedited procedure does not apply would mean Beacon Mining and the State must negotiate in good faith with Wutha with a view to reaching an agreement about the grant of the licence.
I must determine whether the grant of the licence is an act attracting the expedited procedure by reference to the criteria outlined in s 237. That is, whether the grant of the licence is likely to:
(a)interfere directly with the community or social activities of Wutha?
(b)interfere with areas or sites of particular significance according to the traditions of Wutha?
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
I must answer these questions by making a predictive assessment. In performing this assessment, I must look at what is likely to occur as a result of the grant and decide whether there is a real chance or risk of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8] – [9]).
Wutha’s statement of contentions and evidence
On 12 April 2017, I issued directions to parties, including that Wutha provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 24 May 2017.
Wutha submitted a statement of contentions approximately two weeks prior to their compliance date. In summary, the contentions allege the grant of the licence is likely to: interfere directly with the social or community activities carried on in the area by Wutha; interfere with sites of particular significance to Wutha; and involve, or create rights whose exercise is likely to involve, major disturbance to land or waters. Wutha provided no evidence, statements or documents in support of these submissions, though their contentions requested an oral hearing and proposed to call three witnesses to provide oral evidence in this inquiry. In relation to these matters, I note and adopt my statements in paragraphs [26] – [32] of my decision in Ashwin v Gianni, in which Wutha submitted contentions that were almost identical to those submitted in the current matter.
Conduct of inquiry
Pursuant to s 151, the Tribunal may make a determination ‘on the papers’, though it must hold a hearing if it appears the issues for determination cannot be adequately determined in the absence of the parties.
On 12 May 2017, I held a directions hearing, which the State, Wutha and Beacon Mining attended, to discuss matters, including Wutha’s evidence. At that hearing, I asked Wutha’s representative the status of the request to provide oral evidence, and whether that request was maintained. Wutha’s representative indicated the inquiry could proceed on the papers, and he may present evidence for an on the papers inquiry once he had reviewed the area. As Wutha’s contentions were submitted early, they were given the opportunity to provide evidence in the form of written statements or digitally recorded oral witness statements on or by their compliance date of 24 May 2017.
All parties subsequently confirmed they were content the inquiry could proceed on the papers. I am satisfied the matter can be determined on the basis of the written contentions and evidence provided to the Tribunal by the parties, in accordance with s 151.
(a) Is the grant of the licence likely to interfere directly with community or social activities?
In answering this question, the first thing I must determine is what community and social activities take place on the licence. Wutha’s contentions broadly assert that the grant of the licence will directly interfere with their community and social activities. However, Wutha provide no specific information as to what community or social activities they carry out on the licence, and have provided no evidence to assist the Tribunal make a finding in this regard. I note the contentions appear to be based on a pro forma document submitted in previous expedited procedure matters before the Tribunal. I have already noted (at [9] – [11]) that Wutha provided no reason as to why an oral hearing was required in this matter.
Beacon Mining state in their contentions that the amalgamation is over a relatively small area, proposed to be included in the already granted tenement E57/961. They indicate they intend to undertake activities including: conducting field reconnaissance; geological mapping; surface geophysics; low impact broad spaced hand auger drilling; collection of samples for core assays; soil sampling; and surveys. Given the low-level, temporary nature of any exploration work to be conducted on the amalgamation, Beacon Mining submit that any interference with community or social activities will not be substantial.
As stated in Ward v Western Australia at [26], ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. Given the lack of evidence before me, I cannot find that Wutha carries out any community or social activities on the licence which are likely to be directly interfered with by Beacon Mining’s exploration activities on grant of the licence.
(b) Are there any areas or sites of particular significance that may be affected by the grant of the licence?
An area or site of particular significance is one of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at 34–35). If an area or site is significant, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
A native title party must provide sufficient evidence about an area or site to: show it exists on a licence; explain its significance and distinguish it from other areas within the licence; and demonstrate it is of more than ordinary significance to them in accordance with their traditions. These are threshold matters which must be established for a finding the grant of a licence is likely to cause interference with areas or sites of particular significance. If there is no evidence that areas or sites of particular significance exist on a licence, I do not need to undertake this next step of the inquiry (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).
While no party bears an onus of proof, I am required to adopt a common sense approach to the receipt of evidence. This common sense approach means I expect parties to produce evidence to support their contentions, particularly where the facts are peculiarly within their knowledge (see above at [17] and Yindjibarndi Aboriginal Corporation v FMG Pilbara at [15] and [77]). In this inquiry, Wutha have not identified any sites or areas that may exist within the licence, nor do they explain why any sites are of particular significance.
I find it has not been established that there are sites of particular significance to Wutha on the licence. I do not, therefore, need to consider the question of interference.
(c) Will the grant of the licence be likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters?
Wutha have only made general statements in relation to s 237(c). Their contentions are not specific and do not provide any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
The State contentions indicate eight endorsements and six conditions will be placed on the grant of the licence. At least seven of these relate directly to the activities Beacon Mining may or may not do on the land or waters on the licence.
I, therefore, find the grant of the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Conclusion
By failing to provide specific contentions or any evidence, Wutha have been unable to satisfy the criteria of s 237. I am not satisfied the grant of the licence is likely to: directly interfere with their community or social activities; interfere with areas or sites or particular significance to Wutha; or involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence amalgamation AM-E57/961 to Beacon Mining, is an act attracting the expedited procedure.
Helen Shurven
Member
21 July 2017
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