Kevin Allen and Others (Njamal) v Abeh Pty Ltd and Another
[2016] NNTTA 53
•21 November 2016
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others (Njamal) v Abeh Pty Ltd and Another [2016] NNTTA 53 (21 November 2016)
Application No: WO2016/0336
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Kevin Allen and Others (Njamal) (WC1999/008) (native title party)
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The State of Western Australia (Government party)
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Abeh Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms H Shurven, Member
Place: Perth
Date: 21 November 2016
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere substantially with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure applies – expedited procedure is attracted |
Legislation:Native Title Act 1993 (Cth) s 237
Mining Act 1978 (WA)
Cases:Keith Narrier and Others on behalf of Tjiwarl v Sammy Resources Pty Ltd and Another [2015] NNTTA 14 (‘Tjiwarl v Sammy Resources’)
Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’)
State of Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
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 Andre Maynard, Castledine Gregory
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Ms Lauren Pike, Department of Mines and Petroleum
Representative of the
grantee party: Mr Maxwell Strindberg, Abeh Pty Ltd
REASONS FOR DETERMINATION
This decision is about whether or not the grant of exploration licence E45/4601 (the licence) to Abeh Pty Ltd (Abeh) attracts the expedited procedure. The State of Western Australia included in its public notice for the grant, a statement that it considers the grant to be an act attracting the expedited procedure. The Njamal native title claimants lodged an objection to the statement with the National Native Title Tribunal. The Njamal registered native title claim overlaps 91.6 per cent of the licence. The Palyku native title claimants (whose registered claim overlaps the remaining portion of the licence) did not lodge an objection.
By including the expedited procedure statement in their notice, the State asserts the activities permitted under the licence are not likely to (pursuant to s 237 of the Native Title Act 1993 (Cth)):
(a)interfere directly with community or social activities carried on by Njamal;
(b)interfere with areas or sites of particular significance in accordance with Njamal’s traditions; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
All subsequent references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.
In objecting to the State’s assertion the expedited procedure applies, Njamal argue that interference or disturbance with each of the s 237 elements is likely. My decision is based on an assessment of these three criteria set out in s 237.
I was appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies. A decision that the expedited procedure applies means the normal negotiation procedure is not required: the State can grant the licence and Abeh can proceed with their activities without negotiating in good faith with Njamal (see s 31(1)(b)). A decision that the expedited procedure does not apply means Abeh, Njamal and the State must negotiate in good faith with a view to reaching agreement about the grant of the licence. For the reasons outlined below, I find the expedited procedure applies.
The licence is approximately 8,600 hectares and partially overlaps Hillside pastoral lease and Crown Reserve Lease K298954. The Tribunal’s geospatial unit provided mapping to assist me in the inquiry. The mapping was circulated to the parties and none took issue with its accuracy.
The State, Njamal and Abeh have provided submissions to the Tribunal for this inquiry and I have considered all of that material. Njamal’s submissions include the affidavit of Mr Terry Rastus, who states ‘I am a Njamal Elder and member of the Claimant Group of the Njamal Native Title Claim’. I accept Mr Rastus has authority to speak for the area of the licence on behalf of Njamal.
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’. In this matter, Njamal made a broad statement in their contentions that flora and fauna is likely to be disturbed in respect of s 237(c) of the Act, however, they do not provide evidence to support this submission. Based on the limited evidence before me, I find the licence is not likely to involve major disturbance to the land or waters concerned.
On the basis of the evidence provided, I focus on sections 237(a) and (b) and address the following issues to determine whether the expedited procedure applies to the grant of the licence:
(a)Is there likely to be direct interference with Njamal’s community or social activities?
i)What activities do Njamal undertake on the licence?
ii)What are Abeh’s proposed activities upon the grant of the licence?
iii)Conclusion
(b)Is there a real risk of interference with areas or sites of particular significance to Njamal?
i)What areas or sites are identified by Njamal on the licence?
ii)Are these areas or sites of particular significance to Njamal for the purposes s 237(b)?
iii)Conclusion
(a)Is there likely to be direct interference with Njamal’s community or social activities?
What activities do Njamal undertake on the licence?
In his affidavit (at 9–12), Mr Rastus states the Njamal people who live in the Woodstock Community (approximately 50 kilometres west-north-west of the licence) ‘travel along the track that runs through the southern part of the Exploration Licence area when travelling to Newman or Marble Bar’. He states they ‘go hunting along the way and gather bush tucker and bush medicine’, including kangaroo (wijunu), bush turkey, goanna (marandoo), echidna (manganya), emu (karlaya), mungulkar, honey, gum (minta) and jarntal (a bush medicine).
The Njamal contentions focus on what is characterised as frequent and intensive use of the licence area for Njamal activities and traditions, but there is little specific evidence to support these contentions.
What are Abeh’s proposed activities upon the grant of the licence?
Mr Strindberg provided an email statement for Abeh, noting he is the sole director, he is a full time prospector, and he intends to use existing tracks to explore. He also stated:
I welcome the Njamal People to hunt and gather on Exploration Licence E45/4601 and communicate with me as to the areas that are sacred and are of concern, so that we can respect and protect their cultural heritage.
I look forward to meeting the Njamal People in the coming months.
The State contend Abeh’s statement ‘is evidence of the intention of the [grantee party] to carry out work with proper regard for the concerns of the [native title party]’ (at 23). They state there ‘is no basis for concluding that the [grantee party] will not act in accordance with those stated intentions’ (at 24). They also note Abeh’s initial work program ‘suggests the work ... will be relatively modest and more limited than that permitted’ by the terms of the licence (at 20). They attach the initial work program which includes 10 days of detecting, 20 days of sampling, dollying and panning, and 300 metres of Auger drilling. They argue Njamal’s ‘general’ activities and Abeh’s ‘limited range of activities’ suggests there is ‘no real likelihood’ of interference (at 27 and 29). I note there are 8 historic mine sites, two closed open pit sites and one shallow workings site on the licence. There are also 27 tracks and 8 minor roads, suggesting the use of existing tracks could access a large part of the licence.
Conclusion
There is no evidence that Njamal undertake their hunting and gathering activities exclusively or intensively on the area of the licence. Rather, Mr Rastus states the activities are undertaken by Njamal people ‘when travelling through the area including the Exploration Licence’ (at 12). Additionally, Mr Strindberg states he is the sole director of Abeh, and he is a full time prospector. There is little other information about what will be done on the licence if it is granted, apart from existing tracks being used. He states he welcomes the Njamal people to hunt and gather on the licence. I do note he has applied for an exploration licence, rather than a prospecting licence, and under s 66 of the Mining Act, Abeh can remove up to 1,000 tonnes of material during the course of the licence. Given the lack of detail provided, it is open for me to conclude Abeh may use the full suite of rights available to it under the grant of the licence
On numerous occasions, the Tribunal has balanced a native title party’s evidence of hunting and gathering activities against a grantee party’s proposed exploration activities and has concluded both activities can coexist without direct interference (see, for example, Rosas v Northern Territory at [71]). I have balanced the evidence provided in this matter and had regard to the nature of Njamal’s community and social activities as outlined in the evidence. Taking into account Abeh exercising their full suite of rights, the size of the licence, and the proposed use of existing tracks, I conclude the community and social activities of Njamal as conducted on the licence are likely able to coexist and interference is, therefore, unlikely.
(b)Is there a real risk of interference with areas or sites of particular significance to Njamal?
A native title party must provide sufficient evidence to: show that an area or site exists on the 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 (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17]). As President Webb QC noted (at [130], emphasis in original), s 237(b) requires the Tribunal to distinguish ‘between areas and sites which are generally culturally significant and specific culturally significant areas and sites which are of particular significance’, and that ‘in order to satisfy the requirements of s 237(b) of the NTA in relation to the question of whether sites of particular significance exist in the area, the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance’.
The word ‘particular’ in s 237(b) means not only ‘special or more than ordinary’, but the particularity of the site or area must be capable of identification (Western Australia v McHenry). These are threshold requirements for finding that the grant of a licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). If there is no evidence that areas or sites of particular significance exist on the licence, I do not need to proceed with the next step of the inquiry to look at the question of interference.
What areas or sites are identified by Njamal on the licence?
The State provided reports from the Department of Aboriginal Affairs’ Register of Aboriginal Sites (DAA Register) showing four ‘Engraving’ sites and ten ‘Grinding patches/Grooves, Camp’ heritage places within the licence. None of the sites or places is noted as being restricted.
In Tjiwarl v Sammy Resources (at [49]) the Tribunal noted the numerous occasions in which it has held the DAA Register:
... does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters
In other words, regardless of whether or not a site is administratively identified on the DAA Register (by virtue of being assessed as meeting s 4 or s 5 of the Aboriginal Heritage Act 1972 (WA)), a native title party may establish there are one or more ‘areas or sites of particular significance’ to them ‘in accordance with their traditions’ (per s 237(b)) if they provide sufficient evidence.
In his affidavit, Mr Rastus notes the following unrestricted sites in the licence:
·‘There used to be an old tin mine out there. Our old people used to camp out there near the Boothana Soak’ (at 6);
·‘There was a camp of my old people at Boothana soak and there are grinding patches all through that country’ (at 15); and
·‘We would be sure to find a lot of signs of traditional Njamal use of that country, because there are creeks running through the Exploration area. That type of country has been used for thousands of years by Njamal People’ (at 16).
The above sites identified by Mr Rastus appear to correspond with some of the DAA registered sites and heritage places that are located on the licence. Seven of the ten ‘Grinding patches/Grooves, Camp’ heritage places are named ‘Boothana Soak’ and are located north of Boothana Soak along Long Tin Creek near the abandoned Hillside and Cley Mines. The four ‘Engraving’ sites and two of the remaining heritage places are located alongside or near two of the eleven waterways that run through the licence (as recorded in the State’s DAA Register reports and Tengraph Quick Appraisal). I note Boothana Soak itself is approximately one kilometre south of the licence.
Mr Rastus also states there are ‘men’s sites in and around that [licence] area. I don’t want to talk about these sites because they are sacred. Women can’t go near those sites’ (at 13).
Are these areas or sites of particular significance to Njamal for the purposes of s 237(b)?
At [15] above, I outlined the Tribunal’s well established principles regarding the type of evidence that must be provided by a native title party to satisfy the threshold requirements of s 237(b). The evidence provided by the native title party in relation to the sites broadly identified at [20], do not explain the particular or more than ordinary significance of the areas in accordance with Njamal traditions. I, therefore, find there is insufficient evidence before me to support a conclusion that the unrestricted sites identified by Mr Rastus are sites of particular significance for the purposes of s 237(b).
In relation to the men’s sites identified at [22] above, Mr Rastus explains the impact of interference:
If people from an exploration company, like Abeh, went travelling through and around the Exploration licence without talking to me or my family it would make me sad and upset. It would not be good for such people, especially women, if they went through that Exploration licence without avoiding those sacred sites. They would get sick for sure.
I appreciate Mr Rastus might not ‘want to talk about these sites’ (or may not be permitted to under customary law), though I note Njamal could have sought non-disclosure directions in relation to the material, if that was appropriate. While Mr Rastus touches on the significance of the men’s sites by reference to the consequences of interference, the evidence provided is not specific enough to establish with any certainty the location of the sites or why the sites are of particular significance as required under s 237(b). In the absence of sufficient evidence in relation to these sites, I cannot find they are of particular significance.
Conclusion
Because there is insufficient evidence to establish sites of particular significance on the licence, I do not need to consider whether interference is likely. Mr Strindberg has provided a statutory declaration dated 1 February 2016 confirming Abeh has offered to enter into an RSHA with Njamal. I do note, however, the State proposes to impose a condition allowing Njamal to request Abeh enter into Regional Standard Heritage Agreement (RSHA) within the first 90 days of grant (State Contentions at 16). If Njamal activate that condition, consultation could occur between Abeh and Njamal regarding the protection of sites. The State also intends to place other conditions, and endorsements, on the grant of the licence (as outlined at Appendix A).
Conclusion
On the evidence before me, I find the grant of the licence is unlikely to interfere with the carrying on of Njamal’s community or social activities, or sites or areas of particular significance, or involve major disturbance to the land and waters concerned.
Determination
The determination is that the act, namely the grant of exploration licence E45/4601 to Abeh Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
21 November 2016
Appendix A: Endorsements and Conditions State intends to impose on grant of licence
ENDORSEMENTS
The Licensee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The Licensee's attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
The Licensee attention is drawn to the provisions of the:
• Waterways Conservation Act, 1976
• Rights in Water and Irrigation Act, 1914
• Metropolitan Water Supply, Sewerage and Drainage Act, 1909
• Country Areas Water Supply Act, 1947
• Water Agencies (Powers) Act 1984
• Water Resources Legislation Amendment Act 2007
The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
• 50 metres from the outer-most water dependent vegetation of any perennial waterway, and
• 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:
The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
All activities to be undertaken with minimal disturbance to riparian vegetation. Draft
No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
CONDITIONS
All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
• the grant of the Licence; or
• registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
No interference with Geodetic Survey Station NMF 466, B 1 and ZK54 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
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