Raymond William Ashwin (dec) and Others on behalf of Wutha v Evolution Mining (Mungari) Pty Ltd and Another

[2017] NNTTA 50

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Evolution Mining (Mungari) Pty Ltd and Another [2017] NNTTA 50 (25 August 2017)

Application No: WO2017/0112

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 -

Evolution Mining (Mungari) 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:	25 August 2017

Catchwords:

Native title – future act – proposed grant of amalgamation 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, 151, 237

Mining Act 1978 (WA)

Aboriginal Heritage Act 1972 (WA)

Cases:

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’)

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: Mr Eamon Cornelius, Western Tenement Services

Representatives of the Government party: Ms Sarah Power, State Solicitor’s Office
Mr Michael McMahon, Department of Mines and Petroleum (now Department of Mines, Industry Regulation and Safety)

REASONS FOR DETERMINATION

1. This is a decision about whether the expedited procedure applies to the grant of amalgamation AM0497553 of exploration licence E57/1027 (the amalgamation) to Evolution Mining (Mungari) Pty Ltd (Evolution Mining). In their public notice of the amalgamation, 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.

2. The amalgamation covers an area of approximately 69.73 hectares, located about 67 kilometres southwest of Sandstone. It is completely overlapped by the Wutha registered native title claim (WC1999/010). Therefore, the Wutha registered native title claimants (Wutha) had the right to lodge an objection under s 32 against the State’s assertion that the expedited procedure applies to the grant of the amalgamation. Wutha exercised that right and the President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry to determine whether the expedited procedure applies.

3. I must determine whether the grant of the amalgamation is an act attracting the expedited procedure as per the criteria outlined in s 237. I must answer the following questions:

   (a)Is the grant of the amalgamation likely to interfere directly with community or social activities?

   (b)Is the grant of the amalgamation likely to interfere with areas or sites of particular significance to Wutha?

   (c)Will the grant of the amalgamation be likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters?

4. For the reasons detailed below, I determine the expedited procedure applies. The effect of my determination is that the State can grant the amalgamation to Evolution Mining without the usual requirement for negotiations between Wutha, Evolution Mining and the State in accordance with s 31.

Wutha’s submissions

1. At the start of proceedings, I set directions requiring each party to provide submissions by certain dates. However, Wutha did not provide their submissions by their due date of 8 June. By way of background, Wutha is self-represented by Mr Ron Harrington-Smith, a member of the Wutha native title claim group. Both the State and Evolution Mining requested I dismiss Wutha’s objection for failure to comply with the direction (per             s 148(b)).

2. On 26 June, Mr Harrington-Smith emailed the Tribunal and the parties the following statement:

   … all the area of E57/1027 and in respect to Amalgamation no 497553 is subject to aboriginal dreaming tracks on country and must be protected we want an aboriginal heritage survey conducted by the grantee party as soon as possible.

3. Because Wutha is self-represented, I considered it fair to accept Mr Harrington-Smith’s email statement, late as it was, as Wutha’s submissions for the objection inquiry. I advised all parties I would not dismiss the objection because Wutha had failed to comply with the directions.  The Tribunal is not bound by technicalities, legal forms or rules of evidence and it must pursue the following objective: to carry out its functions in a fair, just, economical, informal and prompt way (s 109).

4. The State and Evolution Mining provided their written submissions and it is appropriate to determine the matter based on the parties’ written submissions (that is, ‘on the papers’ as allowed by s 151).

(a)     Is the grant of the amalgamation likely to interfere directly with community or social activities?

1. Wutha do not make any submission that the grant of the amalgamation will directly interfere with their community and social activities. 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’s community or social activities are likely to be directly interfered by Evolution Mining’s activities on the amalgamation.

(b)      Is the grant of the amalgamation likely to interfere with areas or sites of particular significance to Wutha?

1. An area or site of particular significance is one of special or more than ordinary significance to the native title claimants (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]). These are threshold matters, which must be established before considering whether a grant 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, I do not need to undertake this next step of the inquiry (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).

2. Wutha submit the area of the amalgamation contains dreaming tracks, but do not explain why these tracks are of particular significance to them. As such, there is insufficient evidence to establish there are sites of particular significance on the amalgamation. Therefore, I do not need to consider the question of interference.

(c)       Will the grant of the amalgamation be likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters?

1. Wutha made no statements in relation to s 237(c). The State submits nine endorsements and four conditions will be placed on the grant of the amalgamation. At least seven of these relate directly to the activities Evolution Mining may or may not do on the land or waters on the amalgamation.

2. I find the grant of the amalgamation is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.

Conclusion

1. I am not satisfied the grant of the amalgamation is likely to: directly interfere with community or social activities; interfere with areas or sites or particular significance; or involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

Determination

1. The determination of the Tribunal is that the act, namely the grant of amalgamation AM0497553 of exploration licence E57/1027 to Evolution Mining (Mungari) Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
25 August 2017