Raymond William Ashwin (dec) and Others on behalf of Wutha v Iluka Resources Limited and Another
[2015] NNTTA 45
•21 September 2015
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin (dec) and Others on behalf of Wutha v Iluka Resources Limited and Another [2015] NNTTA 45 (21 September 2015)
Application No: WO2014/0840
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 (dec) and others on behalf of Wutha (WC1999/010) (native title party)
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Iluka Resources Limited (grantee party)
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The State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 21 September 2015
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, 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) ALR 21; [1997] FCA 1147 (‘Cheinmora v Striker Resources’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNNTA 18 (‘Silver v Northern Territory’)
Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley 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 Mr Ron Harrington-Smith
native title party
Representative of the Ms Sally Carlin, Hunt & Humphry
grantee party
Representatives of the Mr Warren Fitt, State Solicitor’s Office
Government party Mr Michael McMahon, Department of Mines and Petroleum
REASONS FOR DETERMINATION
This decision must answer the question of whether the State Government of Western Australia can grant exploration licence E38/2954 to Iluka Resources Limited, without the normal requirement for negotiations with native title claimants whose registered claim overlaps the licence. In the notice to grant, issued under s 29 of the Native Title Act 1993 (Cth) (the Act), the State has asserted an expedited procedure should apply.
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) persons who hold or claim native title to the area, and whose names are entered on the Register of Native Title Claims or the National Native Title Register, object; and b) if the objection is not withdrawn or dismissed, I determine the grant of the licence is not an act attracting the expedited procedure.
The licence covers an area of approximately 149.9 square kilometres, about 132 kilometres east of Wiluna in the Laverton and Wiluna Shires. Both the Wutha native title claim (WC1999/10) and the Mantjintjarra Ngalia #2 native title claim (WC2006/006) wholly overlap the licence.
The persons whose names appear in the entry on the Register of Native Title Claims for the Wutha native title claim objected to the application of the expedited procedure to grant of the licence on 28 October 2014. The Wutha native title claim encompasses an area approximately 32,590.82 square kilometres. The licence is located in the north eastern portion of the claim. Iluka indicated they have been in negotiations with the Wutha native title claimant representatives, but these parties have not been able to reach an agreement with respect to the heritage protection of the licence.
The Mantjintjarra Ngalia #2 native title claimants objected to the application of the expedited procedure to the grant of the licence on 9 January 2015. However, Iluka and Mantjintjarra Ngalia #2 then negotiated an agreement with respect to the licence, which included a heritage protection regime, and Mantjintjarra Ngalia #2 withdrew their objection on this basis on 27 May 2015.
To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry. While Wutha contentions requested an oral hearing, I am satisfied the matter can be determined on the basis of the written materials provided by the parties. I will expand upon that issue later in this decision.
A decision that the expedited procedure should apply to a grant means Iluka can proceed to explore on the licence without negotiating with the Wutha native title claimants. A decision that the expedited procedure does not apply means Iluka must negotiate in good faith with the Wutha native title claimants prior to the grant. Those negotiations may be done with or without the assistance of the Tribunal.
I must determine whether the grant of the licence is an act attracting the expedited procedure by reference to the following criteria as outlined in s 237 of the Act:
(a)Is the grant likely to interfere directly with the community or social activities of the Wutha native title claimants?
(b)Is the grant likely to interfere with areas or sites of particular significance according to the traditions of the Wutha native title claimants?
(c)Is the grant likely to 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 of whether the grant of the licence is likely to have those effects. 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]).
What evidence has been proved by the Wutha native title claimants?
On 20 May 2015, I made various directions, including that the Wutha native title claimants provide:
·a statement of contentions including:
o the nature and location of any sites or areas of significance on or adjacent to the licence, identifying in each case the particular significance of the site or area; and
o 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 licence;
·a copy of each document relevant to the inquiry, with any confidential documents to be so marked; and
·a statement of the evidence to be given by any witnesses for the native title 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.
The Tribunal received the Wutha native title claimants’ Statement of Contentions within time, on 1 July 2015. I refer to my decision in Ashwin v Gianni (at [26]-[32]) where the Wutha native title claimant contentions are almost identical to this matter, and adopt those paragraphs for the purpose of this matter rather than re-stating them. In summary, the contentions alleged the grant of the licence: will interfere directly with the social or community activities carried on in the area by Wutha native title claimants; will be likely to interfere with sites of particular significance to Wutha native title claimants; and is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters. Wutha also proposed to call nine witnesses to provide oral evidence in this inquiry.
The State wrote to the Tribunal on 12 August 2015, objecting to the calling of witnesses to give oral evidence on the basis that the Wutha native title claimants provided no compelling grounds as to why this matter ought to proceed on the basis of oral evidence, rather than ‘on the papers’, as permitted by s 151 of the Act.
On 13 August 2015, Iluka wrote to the Tribunal and outlined their opposition to the calling of witnesses to give oral evidence on country, on similar grounds to those provided by the State. Iluka also argued this matter should proceed to be determined ‘on the papers’, as permitted by s 151 of the Act.
Directions were vacated in this matter on 17 August 2015 and a directions hearing was called to consider the native title party’s request to give oral evidence during an on country hearing. At the directions hearing, the representative of the Wutha native title claimants provided no compelling grounds as to why leave should be given for the Wutha native title claimants to provide oral evidence. After hearing from all parties to this matter at the directions hearing, the Wutha native title claimants were given the opportunity to provide evidence in the form of signed written statements, and I made new directions requiring they do so on or before 2 September 2015.
The representative of the Wutha native title party contacted the Tribunal on 2 September 2015 and confirmed they would not be providing any further submissions.
Iluka provided their contentions and evidence to the Tribunal on 8 September 2015 and the State provided their contentions on 16 September 2015 (having already provided the bulk of their evidence on 2 June 2015).
I have determined the inquiry in this matter should proceed on the basis of the papers provided to the Tribunal by the parties, in accordance with s 151 of the Act.
Is the grant of the licence likely to interfere directly with community or social activities?
The first thing I must determine is what community and social activities take place on the licence. The Wutha native title claimants’ contentions make the broad assertion that the grant of the licence will directly interfere with their community and social activities. However, the Wutha native title claimants provide no specific information as to what community and social activities they carry out on the licence, and have provided no evidence to assist the Tribunal. I also note the contentions appear to be based on a pro forma document submitted in previous expedited procedure matters which have been before the Tribunal. As with previous matters, no material was provided in support of the contentions, and their contentions state witnesses will be called to give evidence in support. I have already addressed at [10]-[14] that no compelling argument to conduct an oral hearing was made, and written evidence was not provided.
I see no evidence to support a finding that Wutha native title claimants carry out any community or social activities on the licence which are likely to be directly interfered with by exploration activities of Iluka on grant of the licence.
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]).
The State has indicated it will place a number of endorsements and conditions on the grant of the licence, including a Regional Standard Heritage Condition. The RSHA condition will enable Wutha native title claimants to request of Iluka, not more than 90 day after the grant of the licence, an RSHA from one of the representative regions to be executed in favour of Wutha. The State also provided copies of searches of the Register of Aboriginal Sites, which is maintained by the Department of Aboriginal Affairs in relation to the licence. Those searches show there are no registered sites recorded on the Register as being located on the licence. The Register shows there is one ‘other heritage place’ on the licence (Collurabbie Stones 2 – Site ID 23662, man-made structure, open access, no gender restrictions). No evidence has been provided in this matter by the Wutha native title claimants in relation to this ‘other heritage place’ to identify it or provide any information as to its significance to the Wutha native title claimants. In any event, co-ordinates are contained on the Register to identify the approximate location of the Collurabbie Stones 2 which will enable Iluka to avoid this ‘other heritage place’. No evidence has been provided by the Wutha native title claimants to show why the current statutory heritage regime will be inadequate to protect the Collurabbie Stones 2 ‘other heritage place’.
I also note the affidavit sworn by Mr Martin Moloney, Principal Geologist of Iluka. Mr Moloney deposes Iluka is aware of its obligations under the Mining Act 1978 (WA) and the Aboriginal Heritage Act 1972 (WA), as well as the 'Guidelines for Aboriginal Consultation by Mineral Explorers' published by the Department of Mines and Petroleum in July 2004, and will comply with all its obligations under the statutes and the Guidelines (at 53). Mr Moloney also deposes Iluka are aware of the Collurabbie Stones 2 and they are aware there may be other unregistered sites within the licence (at 54).
Sites of particular significance to the Wutha native title claimants may exist on the licence - no party bears an onus of proof and I am required to adopt a commonsense approach to the receipt of evidence. This commonsense approach means I expect parties to produce evidence to support their contentions, particularly where the facts are peculiarly within their knowledge (Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [15] and [77])).
The Wutha native title claimants have not identified any sites that may exist within the licence, nor do they explain why any sites are of particular significance.
I find it has not been established there are sites of particular significance to Wutha native title claimants on the licence. As the existence of such sites is a precondition to the question of whether the sites will be interfered with (Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [125]), I will not inquire further regarding the likelihood of interference.
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 native title claimants have only made general statements in relation to this criterion of s 237 of the Act, and have made no specific contentions nor provided any evidence that raises a question of whether 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 four conditions will be placed on grant of the licence. At least seven of these in total relate directly to the activities Iluka may or may not do to the land or waters on the licence.
The question must, therefore, be answered in the negative. I 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 any specific contentions or any evidence, Wutha native title claimants have been unable to satisfy any of the criteria of s 237 of the Act. I am not satisfied the grant of the licence is likely to:
(a)directly interfere with their community or social activities;
(b)interfere with areas or sites or particular significance to Wutha native title claimants; or
(c)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 38/2954 to Iluka Resources Limited, is an act attracting the expedited procedure.
Helen Shurven
Member
21 September 2015
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