Raymond William Ashwin (dec) and Others on behalf of Wutha v K2 Advisory Partners Pty Ltd and Another
[2017] NNTTA 45
•26 July 2017
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin (dec) and Others on behalf of Wutha v K2 Advisory Partners Pty Ltd and Another [2017] NNTTA 45 (26 July 2017)
Application No: | WO2016/0516; WO2016/0517; WO2016/0519 |
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 -
K2 Advisory Partners 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: | 26 July 2017 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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) s 66 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 Sara Winton, Mining Access Legal |
| Representatives of the Government party: | Ms Rebecca Davey, 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 licences E29/975, E29/976 and E29/977 (the licences) to K2 Advisory Partners Pty Ltd (K2 Advisory Partners). In their public notice of the licences, the State of Western Australia included a statement that they consider the grants are acts 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 licences 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 licences is not an act attracting the expedited procedure.
The licences are located in the Shire of Menzies, and are each overlapped by the Wutha native title claim (WC1999/010), as follows:
| Licence | Total size of licence (approx.) | Overlap with Wutha claim (approx. percentage / square km) | Location |
| E29/975 | 3 km2 | 100% / 3 km2 | 101 km west of Leonora |
| E29/976 | 6 km2 | 4% / 0.231 km2 | 100 km west of Leonora |
| E29/977 | 84 km2 | 22% / 18.48 km2 | 99 km south west of Leinster |
The Wutha registered native title claimants (Wutha), therefore, had the right to lodge an objection against the State’s assertion, for each licence, 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 grants of the licences.
A decision that the expedited procedure should apply to the grants, would mean K2 Advisory Partners could proceed to explore on the licences without negotiating with Wutha. A decision that the expedited procedure does not apply would mean K2 Advisory Partners and the State must negotiate in good faith with Wutha with a view to reaching an agreement about the grant of the licences.
I must determine whether the grant of the licences is an act attracting the expedited procedure by reference to the criteria outlined in s 237. That is, whether the grants of the licences are 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 licences, 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 three weeks prior to their compliance date. In summary, the contentions allege the grants of the licences are 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, all parties attended a directions hearing 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 areas. 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.
As outlined in s 109(3), the Tribunal is not bound by technicalities, legal forms or rules of evidence, so I can be flexible in terms of the form of evidence received. That flexibility must be balanced with ss 109(2) and 142, which (broadly speaking) allow me to take into account the cultural and customary concerns of Aboriginal and Torres Strait Islander peoples, but not so as to unduly prejudice any party to proceedings. At the directions hearing on 12 May 2017, I laid out and discussed with parties these evidentiary considerations in conducting an inquiry.
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 licences 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 licences. Wutha’s contentions broadly assert that the grants of the licences 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 licences, 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.
K2 Advisory Partners provide detailed contentions, which outline the activities they intend to undertake, such as: conducting field reconnaissance; geological mapping; surface geophysics; low impact broad spaced hand auger drilling; collecting samples for core assays; soil sampling; and surveys. Given the low-level and temporary nature of any exploration work to be conducted on the amalgamation, K2 Advisory Partners submit that any interference with community or social activities will not be substantial. I note it would be open to K2 Advisory Partners to exercise the full suite of rights available to them under s 66 of the Mining Act 1978 (WA).
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’. Having considered the material before me, given the lack of evidence provided by Wutha, I cannot find that Wutha carries out any community or social activities on the licences which are likely to be substantially or directly interfered with by K2 Advisory Partners’ exploration activities.
(b) Are there any areas or sites of particular significance that may be affected by the grant of the licences?
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]). It may assist if I quote that passage in full, to outline the difficulties with the information provided by Wutha in this inquiry, and in other inquiries where the same material has been provided:
The native title party [in that inquiry] also suggested that, in addition to these areas or sites of suggested particular significance, it is likely that others also exist in the area of the proposed tenement ... If an area or site of particular significance is claimed, then it must be capable of identification. A bald assertion in the abstract … without any supporting material is not sufficient. Clearly the best evidence about such areas or sites if they are of particular significance to native title holders is from those native title holders. It is clearly incongruous to claim that areas or sites are of particular significance to objectors and then imply that the objectors either won’t or can’t identify them, or possibly don’t even know anything about them. If an area or site is significant it must be known and must be able to be located and the nature of its significance explained to the Tribunal.
In summary, 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 relating to whether interference with sites is likely (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 evidence. This 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’s contentions broadly assert the grants of the licences would likely interfere with sites or areas of particular significance. However, they do not identify any particular sites or areas that may exist within the licences, nor do they explain why any sites are of particular significance to Wutha. As I highlighted at the directions hearing for these inquiries, such identification and explanations could be provided by way of written statements or digitally recorded oral statements (see [11] above).
I find it has not been established that there are sites of particular significance to Wutha on the licences. I do not, therefore, need to consider the question of interference.
(c) Will the grant of the licences 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 licences are likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
The State contentions indicate nine endorsements and four conditions (eight conditions for E29/977) will be placed on the grant of the licences. At least seven of these relate directly to the activities K2 Advisory Partners may or may not do on the land or waters on each of the licences.
I, therefore, find the grant of the licences is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Conclusion
Wutha have not provided specific contentions or any evidence, and given the material which has been provided, I determine that interference or disturbance in line with the criteria of s 237 is unlikely. As noted earlier in this decision, this is not because Wutha has an onus of proof, but because of a common sense approach to the material provided. I am not satisfied the grant of the licences 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 grants of exploration licences E29/975, E29/976 and E29/977 to K2 Advisory Partners, are acts attracting the expedited procedure.
Helen Shurven
Member
26 July 2017
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