Kevin Allen and Others (Njamal) v Exterra Resources Limited and Another
[2017] NNTTA 32
•2 June 2017
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others (Njamal) v Exterra Resources Limited and Another [2017] NNTTA 32 (2 June 2017)
Application No: | WO2016/0942 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kevin Allen and Others (Njamal) (WC1999/008)
(native title party)
- and -
Exterra Resource Limited
(grantee party)
- and -
The 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: | 2 June 2017 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to directly interfere 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 attracted |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 237 Mining Act 1978 (WA) s 66 |
Cases: | Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas 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: | Ms Kate Major, Castledine Gregory |
| Representatives of the grantee party: | Ms Sara Winton, McMahon Mining Title Services Pty Ltd |
| Representatives of the Government party: | Ms Bethany Conway, Department of Mines and Petroleum |
REASONS FOR DETERMINATION
This decision considers whether or not the expedited procedure applies to the grant of exploration licence E45/4766 (the licence) to Exterra Resources Limited (Exterra Resources). In their public notice of the licence, the State of Western Australia included a statement that they consider the grants to be 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 Njamal registered native title claimants’ (Njamal) native title claim overlaps the licence, and therefore had the right to lodge an objection under s 32 against the State’s assertion that the expedited procedure applies. Njamal exercised that right, and the President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry to determine whether or not the expedited procedure applies to the grant of the licence.
My decision must be based on the criteria set out in s 237. Specifically, I must determine whether the grant of the licence is likely to:
(a)directly interfere with community or social activities carried on by Njamal;
(b)interfere with areas or sites of particular significance in accordance with the traditions of Njamal; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
For the reasons detailed below, I determine the expedited procedure applies to the grant of the licence. The effect of this is that the State can grant the licence without the usual requirement for negotiations between Njamal, Exterra Resources and the State in accordance with s 31.
All parties lodged contentions. Njamal submissions attached the affidavit of Mr Kevin Allen. Mr Allen states he is a Njamal Elder and a member of the Njamal native title claimant group. I accept he has authority to speak for the area of the licence on behalf of Njamal. Exterra Resources provided affidavits from Ms Sara Winton (the party representative), and Mr Maxwell Davis (Executive Chairman of Exterra Resources). Ms Winton attached mapping of the licence and relevant features, and Mr Davis outlined information about the exploration plan of the company, which he had been involved in preparing. I accept these affidavits as part of this inquiry process.
Njamal’s contentions do not make submissions explicitly addressing s 237(b). Mr Allen states, ‘If my family members or other Njamal People went travelling through the Exploration Licence area, we would locate artefacts that have traditionally been used in Njamal country. We might find grinding patches, and camping places. There are lots of signs Njamal have used [the licence area]’. He states, ‘These artefacts and camping places are sites of significance to Njamal People’. Yet he does not identify any specific sites or areas. Further, references to signs of traditional Njamal use of the country, or statements that sites or areas are important, do not explain their particular or more than ordinary significance in accordance with Njamal’s traditions for the purposes of s 237(b) (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).
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’. I find there is insufficient evidence before me to support a conclusion that these areas are of particular significance for the purposes of s 237(b). Because I find there is insufficient evidence to establish there are sites or areas of particular significance on the licence, I do not need to consider whether interference is likely.
Njamal do not provide contentions or evidence in relation to s 237(c). Based on the limited information before me, I thus find the grant of 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 s 237(a) and address the following issues to determine whether or not the expedited procedure applies to the grant of each 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 Exterra Resources’ proposed activities?
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?
Njamal contend they currently carry out community and social activities on the licence area. They submit the licence is ‘rich in a number of different types of bush tucker and bush medicines’, which means the area is used ‘intensively and frequently for community and social activities.’ However, the evidence provided in this respect is very general. Mr Allen states Njamal people, including his family, hunt, travel through, gather bush tucker and collect bush medicine in the licence area and the surrounding areas.
Mr Allen also identifies ‘a track that comes off the Marble Bar Road and goes through the Exploration Licence Area and ends up at Brockman Creek near Narpy Well (Brockman Creek Track)’. He states that track is used by Njamal ‘to access Brockman Creek for camping and hunting on most weekend. During the wet season, which is roughly November to March, you will find Njamal People out using the Brockman Creek Track for camping, hunting and fishing even more regularly’.
Mapping provided by parties shows a track running through the licence as outlined by Mr Allen, and I assume this is the Brockman Creek Track. I note Brockman Creek is some 2.5 kilometres to the west of the licence. I accept that Njamal camp, hunt and fish on and around the licence area. However, Njamal provide little specific evidence in regards to the nature of these social and community activities, or information which might suggest the activities are undertaken there in such a way that exploration activities are likely to interfere with them.
Njamal’s contentions state the grant of the licence, which would allow Exterra Resources to access and use its vehicles and other machinery on the area, would impact Njamal’s ability to access the licence and conduct community and social activities there.
What are Exterra Resources’ proposed activities?
Exterra Resources’ contentions state it ‘proposes to conduct exploration for lithium’ and that while ‘an exploration plan is not yet finalised, the exploration is anticipated to involve a staged approach which comprises initially of field reconnaissance and mapping, and sampling of soils for geochemical analysis’. The contentions also state the exploration activities are ‘unlikely to be frequent or cover large portions of the area so as to directly and physically interfere with the Native Title Party’s activities’. I note it would be open for Exterra Resources to use the full suite of rights available to them under the grant of the licence (see s 66 of the Mining Act 1978 (WA)).
These contentions are supported by the affidavit evidence of Mr Davis and Ms Winton. Exterra Resources notes it signed and forwarded a Regional Standard Heritage Agreement (RSHA) to Njamal in August 2016 for the licence area, and that its attendance on the licence is likely to be ‘temporary, intermittent and localised’.
Conclusion
I accept Njamal undertake some hunting, fishing and camping in the area on and around the licence and that Njamal undertake camping, hunting and fishing activities around the Brockman Creek Track. However, I find there is insufficient evidence to establish these social or community activities are undertaken to such an extent or in such a manner on the licence that they may be interfered with by activities of the explorer.
On numerous occasions, the Tribunal has balanced a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities and has concluded exploration and social or community activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]). In this inquiry, I have balanced the general and limited evidence provided in relation to Njamal’s community and social activities against the activities Exterra Resources could undertake if they exercised their full suite of rights under s 66 of the Mining Act 1978 (WA). In Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16]), President Webb summarises previous Tribunal decisions, and the approach of the Tribunal and Federal Court and notes ‘the level of interference with community and social activities must be substantial rather than trivial’.
On the basis of the material before me, I conclude both parties’ activities are likely to be able to coexist, and that interference with social or community activities on the licence is not likely.
Determination
The grant of exploration licence E45/4766 to Exterra Resources Limited is an act attracting the expedited procedure.
Helen Shurven
Member
2 June 2017
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