Raymond William Ashwin (dec) and Others on behalf of Wutha v Poz Minerals Ltd and Another
[2018] NNTTA 45
•31 July 2018
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin (dec) and Others on behalf of Wutha v POZ Minerals Ltd and Another [2018] NNTTA 45 (31 July 2018)
Application No: | WO2017/0286 |
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 -
POZ Minerals 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: | 31 July 2018 |
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 or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 31, 32, 38, 151, 155, 237 Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) Gooniyandi Aboriginal Corporation RNTBC v Kimberley Granite Quarries Pty Ltd and Another [2016] NNTTA 1(Gooniyandi v Kimberley Granite Quarries) Hale v Western Australia (2015) 233 FCR 96; [2015] FCA 560 (Hale v Western Australia) 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’) |
| Representatives of the native title party: | Mr Ron Harrington-Smith |
| Representative of the grantee party: | Ms Claudia Bertone & Ms April French, Austwide Legal Pty Ltd |
| Representatives of the Government party: | Ms Emily O’Keeffe, State Solicitor’s Office Mr Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether the expedited procedure applies to the proposed grant of exploration licence E20/908 (the licence) to POZ Minerals Ltd (POZ Minerals). In its public notice for the licence, the State of Western Australia included a statement that it considers the grant is an act attracting the expedited procedure under the Native Title Act 1993 (Cth) (the Act). That is, the State asserts it will be a low impact act for the purposes of s 237 of the Act.
The licence covers an area of 51.69 square kilometres and is located approximately 22 kilometres south east of Cue. I note not all of the area applied for by POZ is available on grant, as there is a live prospecting and a live mining licence overlapping E20/908, as well as two prospecting licences which have first in time priority over E20/908. This reduces the area for grant to approximately 36 square kilometres.
The licence in this inquiry sits within an area over which both the Wutha native title claim (WC1999/010) and the Yugunga-Nya native title claim (WC1999/046) have been registered. As such, the Wutha registered native title claimants (Wutha) and the Yugunga-Nya registered native title claimants (Yugunga-Nya) both had the right to object to the State’s assertion that the expedited procedure applies to the grant of this licence. Both Wutha and Yugunga-Nya lodged objections with the National Native Title Tribunal. Yugunga-Nya subsequently withdrew its objection, and POZ notes this was on the basis of a negotiated agreement. Wutha’s objection argues the expedited procedure should not apply, as interference or disturbance with the elements of one or more of the criteria in s 237 of the Act is likely. POZ Minerals and the State argue the expedited procedure should apply.
Following lodgement of Wutha’s objection, the then President of the Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies to the grant of the licence.
Based on the material before me, 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 likely to interfere directly with Wutha’s community or social activities?
(b)Is the grant likely to interfere with areas or sites of particular significance to Wutha?
(c)Is the grant likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters?
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 POZ Minerals without the normal requirement for negotiations between parties (ss 32(4), 31 of the Act).
Preliminary matters
Wutha’s request for conditions to be imposed
I will address at this point a number of instances in which Wutha, through its contentions, seeks certain conditions be placed on the grant. For example, Wutha has stated:
·the licence ‘should be the subject of the condition requiring a site heritage clearance survey conducted with the Wutha People…’ (Wutha Contentions, at 8);
·that Wutha ‘seeks a condition that the Grantee Party comply with the Wutha Heritage Protection Agreement prior to any exploration’ (Wutha Contentions, at 4); and
·that Wutha ‘seek a condition that they have access to the subject area at all times…’ (Wutha Contentions, at 7(iv)).
It is not clear from these statements whether Wutha is seeking the Tribunal to make this determination subject to the proposed conditions, or for the State to impose these as conditions of grant. There is nothing further in the papers on this issue. It is possible Wutha has conflated the powers held by the Tribunal to make a future act determination subject to conditions under s 38 of the Act, with the inquiry powers under the expedited procedure inquiry process. Section 32 describes the expedited procedure, including that, should a native title party object to the inclusion of the expedited procedure statement in the notice (s 32(3)), the Tribunal must determine whether the act is an act attracting the expedited procedure or whether the act is not an act attracting the expedited procedure.
The issue of whether or not the Tribunal can impose conditions as part of an expedited procedure inquiry was referred to in Gooniyandi v Kimberley Granite Quarries (at [87]-[89]). Similarly to that matter, evidence to justify consideration of imposing any conditions has not been provided in this present inquiry, setting aside the question of whether or not the Tribunal has power to impose such conditions in an expedited procedure inquiry. In Hale v Western Australia, the Federal Court (at [117]-[118]) touched on the issue of whether the Tribunal would be entitled to make a determination that the act is an act attracting the expedited procedure subject to certain conditions. However, as the question was not in issue in those proceedings, the Court did not attempt to answer it.
POZ Minerals statement of contentions and evidence
The statement of contentions lodged on behalf of POZ Minerals states it is the registered applicant of the licence but it has entered into a sale agreement with Accelerate Resources Ltd (Accelerate) in respect of a tenement package that includes this licence. The contentions state the transfer is currently being completed through the Office of State Revenue and documents annexed to the contentions support this. The contentions state they have been submitted on behalf of POZ Minerals and Accelerate.
Throughout this determination I will continue to refer to the grantee party as POZ Minerals. However, I acknowledge that some of the information may have been provided by or on behalf of Accelerate, and that where it refers to future work to be conducted over the licence, it will likely be conducted by Accelerate.
Conduct of inquiry
Under s 151(2) of the Act, 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.
On 22 June 2018, I conducted a listing hearing at which Wutha made some further submissions in addition to their written contentions. At the listing hearing, Wutha’s representative stated the area of the licence is important to Wutha due to the presence of mallee fowl as well as flood plains and tributaries. He also requested POZ Minerals commit to conducting a heritage survey over the area. All of this information was cast in very broad terms. The State’s representative submitted that no evidence had been provided by Wutha in regards to these points. At the conclusion of the listing hearing, all parties, including Wutha, agreed I could determine the matter ‘on the papers’ (s 151(2) of the Act). I consider it is appropriate to do so.
(a) Is the grant of the licence likely to interfere directly with Wutha’s community or social activities?
Wutha’s contentions broadly assert the grant of the licence will directly interfere with the Wutha People’s community and social activities. It states physical connection to the land will be severed by lack of access, and spiritual connection will be affected due to Wutha’s inability to exercise its native title rights and interests.
Wutha’s contentions state the grant of the licence will impede community activities such as hunting, gathering, conduct of religious ceremonies, extraction of flora, and the use of other resources in the licence area. However, Wutha has provided no evidence in support of these statements. Its contentions state (at 7(a)(v)(B)) ‘[s]ome evidence of said activities is contained in the native title application for [the Wutha claim] determination and subsequent determination hearing before the Federal Court in 2017 and the evidence contained in the registration test application.’ Wutha contends much of the information that would be relied upon in this instance is subject to confidentiality orders, and other confidentialities in accordance with the traditional native title laws and customs of the Wutha People.
There is no onus of proof imposed on any party in an expedited procedure inquiry, and the Tribunal is required to take a common sense approach to the receipt of evidence. However, if the facts of a particular issue are peculiarly within the knowledge of a party and no evidence is provided by that party, an adverse inference may be drawn by the Tribunal (see Ward v Western Australia). In regards to confidential material, the Tribunal has broad discretion to make orders under s 155 of the Act that prohibits or restricts the disclosure of evidence that is before it. A request for s 155 orders was not raised by Wutha in relation to the provision of confidential material for this inquiry, nor were any documents provided by Wutha in addition to the contentions.
POZ Minerals has provided some information on the proposed exploration activities for the licence area. It states the proposed program will have minimal ground disturbing activity and is of very low impact. It also states, due to previous historical data and geological investigations, a number of target areas have been delineated. Therefore, the exploration activities will be carried out over confined and specific targeted areas. I note from the State’s material there are approximately 13 open pit or shaft mine areas on this licence which are recorded as being either now shut, or under care and maintenance. There is also at least one processing plant, now shut, on the licence. This accords with information provided by POZ, outlining previous expenditure and operations by other explorers and miners, all being information which is in the public domain. The information provided by the State and POZ also indicates the area of the licence has been subject to exploration since the early 1900’s and ongoing.
Annexed to the contentions is a copy of the statement required under s 50(1)(b) of the Mining Act, which accompanied the exploration licence application, specifying the proposed method of exploration and detailing the proposed programme of work. Under the heading ‘Year 1’ the statement lists such activities as: acquisition and assessment of past exploration data; interpretation of available aeromagnetic data and false colour photography; geological mapping and interpretation; rock chip sampling; and soil sampling and analysis. Under the heading ‘Year 2’ the statement lists the following activities: follow up and infill soil sampling and analysis; geophysical surveys and interpretation of results; drilling of anomalies; and assaying.
POZ Minerals has provided evidence in support of its contentions that there has been extensive historical exploration conducted over the licence. Evidence shows the underlying tenure of the licence to be largely pastoral lease. POZ Minerals argues the ongoing activities of these other lawful interests are likely to have already impacted on the community and social activities of Wutha, therefore, the grant of the licence is not likely to have any, or any greater, impact.
There is no evidence before me to support a finding that Wutha carry on any community or social activities in the area of the licence. As such, I cannot find the grant of the licence, and the activities carried out pursuant to that licence, are likely to interfere with Wutha’s community and social activities.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to Wutha?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at [34–35]). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
The evidence must positively identify an area or site that exists on the licence; explain its significance and distinguish it from other areas within the licence; and, show it is of more than ordinary significance to the native title holders in accordance with their traditions. These are threshold mattes that must be established in order to then address the question of whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17], [125]).
Wutha’s contentions are broad and make no reference to specific sites. Wutha maintains it may be the case that not all areas and sites of significance have been identified or recorded. It states until such time as a Wutha Heritage Protection Survey has been undertaken it is impossible to say with certainty that the licence is not likely to interfere with area or sites of significance. It is not clear how the Wutha Heritage Protection Survey differs from the Regional Standard Heritage Agreement (RSHA). A set of agreed facts between the State and POZ Minerals, and material provided by POZ Minerals, indicate that POZ Minerals has executed and sent a copy of an RSHA for Wutha’s consideration. In addition, the State intends imposing an RSHA condition on the grant of the licence, which allows Wutha to request, and POZ Minerals to execute, an RSHA, within certain timeframes.
Wutha’s contentions note there are Aboriginal sites recorded on the Department of Indigenous Affairs’ Aboriginal Heritage Inquiry System (AHIS), however, these sites are not discussed in any detail in the contentions. Documents lodged by the State show three ‘Other Heritage Places’ recorded on the AHIS within the licence area (one of which is not in the area available for grant (see [2])). However, in the absence of any evidence explaining their significance to Wutha, I cannot rely on AHIS records alone to conclude these are sites of significance for the purposes of s 237(b).
POZ Minerals has stated it is aware of the existence and location of the Other Heritage Places and will avoid these sites during its exploration program. It states it is willing to enter into an RSHA with Wutha and, under the terms of the RSHA, participate in a heritage survey upon grant of the licence.
Based on the material before me, I find there is insufficient evidence to conclude sites of particular significance per s 237(b) exist within the licence. In the absence of any sites of particular significance, it is not necessary for me to consider whether interference is likely.
(c) Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Wutha’s statements in relation to s 237(c) are brief and very broad. They do not provide any specific 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.
In considering this criteria, POZ Minerals asks that I have regard to the conditions to be imposed on the licence upon grant by the State, the provisions of the Aboriginal Heritage Act, and the history of previously granted mining tenements over the licence area. The State has provided a draft copy of the proposed endorsements and conditions to be placed on the grant of the licence. A number of these relate directly to the activities POZ Minerals may or may not do on the land or waters within the licence.
I do not consider there to be 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.
Determination
My determination is that the grant of E20/908 to POZ Minerals Ltd is an act that attracts the expedited procedure.
Helen Shurven
Member
31 July 2018
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