Raymond William Ashwin (dec) and Others on behalf of Wutha v Melville Raymond Dalla-Costa and Another

[2017] NNTTA 48

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Melville Raymond Dalla-Costa and Another [2017] NNTTA 48 (8 August 2017)

Application No: WO2016/0453

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)

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Melville Raymond Dalla-Costa

(grantee party)

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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:	8 August 2017

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] 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 Sarah Power, State Solicitor’s Office
Ms Bethany Conway, Department of Mines and Petroleum (now Department of Mines, Industry Regulation and Safety)

REASONS FOR DETERMINATION

1. This is a decision about whether or not the expedited procedure applies to the grant of exploration licence E30/485 (the licence) to Melville Raymond Dalla-Costa. 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.

2. The licence covers an area of approximately 107.34 square kilometres, and is located about 85 kilometres west of Menzies. The Wutha native title claim (WC1999/010) overlaps the licence by approximately 1.59 per cent, which is an area of approximately 1.71 square kilometres. The Wutha registered native title claimants (Wutha) therefore had the right to lodge an objection under s 32 against the State’s assertion that the expedited procedure applies. 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.

3. 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. Specifically, I must answer the following questions:

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

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

   (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?

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

Wutha’s statement of contentions and evidence

1. On 19 April 2017, I issued directions to parties, including the direction that Wutha was to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 31 May 2017.

2. Wutha submitted a statement of contentions approximately four weeks prior to their compliance date. In summary, the contentions submit 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 proposed to call three witnesses to provide oral evidence at a hearing for 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

1. Pursuant to s 151, the Tribunal must hold a hearing if it appears the issues for determination cannot be adequately determined in the absence of the parties, though it may otherwise make a determination ‘on the papers’.

2. On 12 May 2017, I held a directions hearing, which all parties attended, to discuss various matters, including Wutha’s evidentiary material in this inquiry. At that hearing, I asked Wutha’s representative whether he maintained his request for an oral hearing for witnesses to provide oral evidence. Wutha’s representative indicated the inquiry could proceed on the papers, and that he may proceed to submit further evidentiary material. As Wutha had submitted their contentions 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 31 May 2017. Wutha did not submit any further material by 31 May 2017, nor make any request for an extension of that compliance date.

3. The State submitted that Wutha did not provide compelling evidence as to why this matter required the hearing of oral evidence, rather than proceeding ‘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?

1. 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 provided 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 [7]–[8]) that Wutha provided no reason as to why an oral hearing was required.

2. Mr Dalla-Costa’s contentions indicate he intends to undertake ‘the usual activities associated with exploration licences’, including field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling and surveys. He states, the ‘work that is ground disturbing will be broad based and would be considered minor disturbance’. Mr Dalla-Costa’s contentions submit, ‘Given the low-level, temporary nature of any exploration work … any interference with community or social activities will not be substantial’. He also notes relatively small size of the licence area in relation to Wutha’s total claim area.

3. 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 area of the licence, which are likely to be directly interfered with by Mr Dalla-Costa’s exploration activities upon grant of the licence.

(b)      Is the grant of the licence 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 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]).

2. 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]).

3. 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.

4. 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?

1. 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.

2. The State contentions indicate nine endorsements and four conditions will be placed on the grant of the licence. At least seven of these relate directly to the activities Mr Dalla-Costa may or may not do on the land or waters on the licence.

3. 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

1. Wutha have not established why the expedited procedure should not apply on the basis of the s 237 criteria. 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

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E30/485 to Melville Raymond Dalla-Costa, is an act attracting the expedited procedure.

Helen Shurven
Member
8 August 2017