Raymond William Ashwin (dec) and Others on behalf of Wutha v Piper Preston Pty Ltd and Another

[2018] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Piper Preston Pty Ltd and Another [2018] NNTTA 43 (17 July 2018)

Application Nos: WO2017/0223, WO2017/0225, WO2017/0227, WO2017/0228 and WO2017/0458

IN THE MATTER of the Native Title Act 1993 (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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Piper Preston Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	17 July 2018

Catchwords:

Native title – future acts – proposed grants of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites of particular significance – whether acts likely to involve major disturbance to land or waters – expedited procedure attracted – expedited procedure applies

Legislation:

Native Title Act 1993 (Cth) ss 31, 32, 151, 237

Aboriginal Heritage Act 1972 (WA) ss 4, 16, 17, 18

Cases:

Cheinmora v Striker Resources NL & Ors; Dann v Western Australia [1996] FCA 1147; (1996) 142 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: Ms Janet Procak, All Mining Legal Pty Ltd

Representatives of the Government party: Ms Emily Negus, State Solicitor’s Office
Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. This is a decision about whether the expedited procedure applies to the grants of exploration licences E57/1062, E57/1063, E57/1064, E57/1065 and E30/495 (the licences) to Piper Preston Pty Ltd (Piper Preston). In their public notices 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) (the Act). That is, the State asserts they will be low impact acts for the purposes of s 237 of the Act.

2. Because the licences are within the Wutha registered native title claim area (WC1999/010), the Wutha registered native title claimants (Wutha) had the right to lodge objections against the State’s assertion that the expedited procedure applies       (s 32). Wutha exercised that right. The then President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry to determine whether the expedited procedure applies to the grant of each licence. All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth), unless otherwise stated.

3. The number, size, location and percentage of overlap of each licence with the Wutha native title claim are as follows:

Licence No.	Size (graticular blocks)	Location	Percentage overlapped by Wutha
E57/1062	70	61km south east of Sandstone	100%
E57/1063	70	70km south of Sandstone	100%
E57/1064	18	79km south of Sandstone	100%
E57/1065	39	70km south east of Sandstone	86.1%
E30/495	70	139km west of Menzies	28.4%

1. I must determine whether the grant of each licence are acts attracting the expedited procedure by reference to the criteria outlined in s 237. Specifically, I must answer the following questions:

   (a)Are the grants likely to interfere directly with Wutha’s community or social activities?

   (b)Are the grants likely to interfere with areas or sites of particular significance to Wutha?

   (c)Are the grants likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters?

2. For the reasons detailed below, I determine the expedited procedure applies to the grants of the licences. The effect of my determination is that the State can grant the licences to Piper Preston without the normal requirement for negotiations between Wutha, Piper Preston and the State (ss 32(4), 31).

Wutha’s statement of contentions and evidence

1. In accordance with my directions, Wutha submitted a statement of contentions. In summary, the contentions argue the grant of the licences is likely to: interfere directly with Wutha’s community or social activities carried on in the area; 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 contentions, though they note two witnesses ‘may be able to give oral evidence if required’.  Those persons are named as Ms June Harrington-Smith (also known as June Ashwin, one of the Wutha registered applicants) and Mr Ron Harrington-Smith (Wutha’s representative).  

Conduct of inquiry

1. Under s 151(2), the Tribunal may make a determination ‘on the papers’ but must hold a hearing if it appears the issues for determination cannot be adequately determined in the absence of the parties.

2. On 22 June 2018, I conducted a listing hearing which allowed Wutha to make further submissions in addition to their written contentions, at their request and with no opposition from the other parties. I allowed the listing hearing as Wutha is effectively self-represented in this inquiry, and given the nature of the request, I could not be satisfied on the face of the materials before me, that the issues could adequately be determined.  At the hearing, Wutha’s representative stated Lake Noondie overlapped some of the licences, and he expressed concern about effects on Lake Noondie by exploration activities.  He also expressed Wutha’s desire to enter into a heritage agreement with Piper Preston. All of this information was cast in very broad terms.  At the conclusion of the hearing, all parties, including Wutha, agreed I could determine the matter ‘on the papers’ (s 151(2)). I consider it is appropriate to do so.

3. In looking at the written materials, I note that E57/1062, E57/1063, E57/1064 and E57/1065 all are substantially, if not wholly, overlapped by Lake Noondie.  The Lake is registered as site 19515 on the Aboriginal Heritage Inquiry System (AHIS), a database maintained by the Department of Planning, Lands and Heritage.  The site is categorised as ‘mythological’ by the department.  E30/495 is not overlapped by any AHIS registered or recorded site.

(a)      Are the grants likely to interfere directly with Wutha’s community or social activities?

1. Wutha’s contentions broadly assert the grant of the licences 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 licences, and have provided no evidence to assist the Tribunal to make a finding in this regard.

2. Piper Preston’s supporting affidavit indicates they intend to explore for salt lake potash and brine using auger and core drilling, monitoring of test wells, field reconnaissance, pump testing and ground water monitoring, and laboratory analysis (at 30 and 32). Work will include pitting and digging trenches 4 metres deep, 2 metres wide and 3 metres long (at 41). If warranted, the next phase will include creating a series of 100 to 200 metre long trenches ‘which are then pumped and monitored weekly for 90 days (at 41).

3. The grantee have provided much detail on the type of exploration activity they intend to conduct, as well as their understanding of the State’s heritage requirements.

4. 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 licences which are likely to be directly interfered with by Piper Preston’s exploration activities.

(b)      Are the grants 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]). These are threshold matters which must be established for a finding that 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]).

2. While no party bears an onus of proof, I am required to adopt a common sense approach to the evidence. This common sense approach means parties need to produce evidence to support their contentions, particularly where the facts are peculiarly within their knowledge (see above at [13] and Yindjibarndi Aboriginal Corporation v FMG Pilbara at [15] and [77]). Wutha have identified Lake Noondie as a site of significance on the licences, but they have not explained why it is so.

3. Without evidence explaining its significance to Wutha, I cannot find Lake Noondie is a site of particular significance to Wutha for the purpose of s 237(b). If there are no sites per s 237(b), then I do not need to consider the question of interference.

4. The State’s documentation shows Lake Noondie, as site 19515, is registered under the Aboriginal Heritage Act 1972 (WA). The State’s mapping show licences E57/1062, E57/1063, E57/1064 and E57/1065 lie almost entirely within the Lake. Under s 17 of the Aboriginal Heritage Act (AHA) it is an offence (amongst other things) to excavate or alter an Aboriginal Site without appropriate authorisation under s 16 of the AHA or without the Minister’s consent under s 18 of the AHA. Therefore, Piper Preston’s ground disturbing exploration activities (such as trenching) will be subject to those provisions in respect of those licences which overlap Lake Noondie. In addition, the AHA protects ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. As such, should any such sites be found to exist on any of the licences during the course of the exploration, or should any further sites be found on those licences which overlap Lake Noondie, Piper Preston will need to comply with the AHA. They have indicated their intention to do so.

5. Piper Preston’s affidavit material and supporting documents include that they do ‘not intend to affect any Aboriginal sites or areas of cultural significance without first conducting heritage surveys and appropriate heritage protocols’ (at 39).   They go on to say that Piper Preston ‘has previous exploration experience in the area and are aware that Lake Noondie is an Aboriginal site of significance’ (at 42).  They will also notify Wutha of planned work activities within any of the exploration licences, and they are willing to enter into a Regional Standard Heritage Agreement (RSHA) with Wutha, in regards to all of the licences.  The State will also impose a condition on the grant of each licence whereby Piper Preston must execute an RSHA in favour of Wutha, if requested to do so by Wutha not more than 90 days after the grant of each licence.

6. Wutha have argued that the Tribunal should impose conditions on the grant, including that Piper Preston comply with the Wutha Heritage Protection Agreement.  Even if I had the power to impose conditions in an expedited procedure process, there is nothing in the materials provided by Wutha, or stated in the listing hearing, which would lead me to consider doing so.  There is also nothing in the materials to indicate how the RSHA and the Wutha Heritage Protection Agreement differ.

7. Wutha addresses s 39 of the Native Title Act in relation to its statement of effect on the grant of the licences. That section goes to a future act determination application (in the right to negotiate), rather than to an inquiry in an expedited procedure objection application. Nevertheless, I have applied the information given, to the expedited procedure inquiry, and find it very broad and does not establish any sites of particular significance on any of the licences, for the purposes of s 237(b).

(c)       Are the grants likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters?

1. Wutha have 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 grants of the licences are likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.

2. The State’s contentions indicate certain endorsements and conditions will be placed on the grant of the licences. A number of these relate directly to the activities Piper Preston may or may not do on the land or waters within the licences.  I find the grants of the licences are 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 grants of the licences are likely to: directly interfere with Wutha’s community or social activities; interfere with areas or sites or particular significance to them; 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 acts, namely the grant of exploration licences E57/1062, E57/1063, E57/1064, E57/1065 and E30/495 to Piper Preston Pty Ltd, are acts attracting the expedited procedure.

Helen Shurven
Member
17 July 2018