Kevin Allen and Others (Njamal) v FMG Pilbara Pty Ltd and Another

[2017] NNTTA 23

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others (Njamal) v FMG Pilbara Pty Ltd and Another [2017] NNTTA 23 (19 May 2017)

Application No:                WO2015/1000; WO2015/1001; WO2016/0330

IN THE MATTER of the Native Title Act1993 (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 -

FMG Pilbara Pty Ltd

(grantee party)

- and -

The State of Western Australia

(Government party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms H Shurven, Member

Place:  Perth

Date:  19 May 2017

Catchwords:  Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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 attracted

Legislation:Native Title Act 1993 (Cth) ss 29, 31, 32, 237

Mining Act 1978 (WA) s 66

Oaths, Affidavits and Statutory Declarations Act 2005 (WA)

Cases:Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/ Mineralogy Pty Ltd [2006] NNTTA 133 (‘Lockyer v Mineralogy’)

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     Ms Kate Major, Castledine Gregory

native title party:             Mr Andre Maynard, Castledine Gregory

Representatives of the     Ms Sarah Power, State Solicitor’s Office

Government party:          Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee party:  Ms Nerolie Nikolic, FMG Pilbara Pty Ltd

REASONS FOR DETERMINATION

1. This is a decision about whether or not the expedited procedure applies to the grants of exploration licences E45/4580, E45/4581 and E46/1085 (the licences) to FMG Pilbara Pty Ltd (FMG). In their public notices, the State of Western Australia included the statement that they consider the grants are 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.

2. Because the Njamal registered native title claim (WC1999/008) overlaps the licences, the Njamal registered native title claimants (Njamal) had the right to lodge objections against the State’s assertion that the expedited procedure applies (s 32). Njamal 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.

3. For the reasons below, I determine the expedited procedure applies to the grant of the licences. The State can grant the licences without any requirement for negotiations with Njamal under s 31.

4. My decision must be based on the criteria set out in s 237. Specifically, I must determine whether the grant of the licences 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.

5. All parties lodged contentions. Njamal also submitted the affidavits of Mr Kevin Allen and Mr Tony Taylor, as well as an unwitnessed statement signed by Mr Taylor. The Tribunal is not bound by the rules of evidence (s 109) and so I accept the latter document even though it does not meet the requirements of an affidavit under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). Mr Allen and Mr Taylor both state they are Njamal Elders and members of the Njamal Native Title Claimant group. I accept they have authority to speak for the area of the licences on behalf of Njamal.

6. 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’. Njamal do not provide contentions or evidence in relation to s 237(c). Therefore, based on the limited evidence before me, I find the grants of the licences are not likely to involve major disturbance to the land or waters concerned.

7. On the basis of the evidence provided, I focus on ss 237(a) and (b) 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 licences?

   ii)What are FMG’s proposed activities?

   iii)Conclusion.

   (b)Is there a real risk of interference with areas or sites of particular significance to Njamal?

   i)Are there areas or sites of particular significance to Njamal for the purposes of s 237(b)?

   ii)Conclusion.

(a)Is there likely to be direct interference with Njamal’s community or social activities?

1. What activities do Njamal undertake on the licences?

1. Njamal contend that members of Njamal currently carry out community and social activities related to their claimed native title rights and interests. However, the affidavit and statement evidence on which this contention relies are broad. Mr Allen and Mr Taylor state Njamal people, including their families, use the licences to hunt, gather bush tucker, collect medicine, camp and fish (in those areas containing rivers). However, this evidence is very general. There is no specific evidence provided about the frequency or location of the activities undertaken. For example, in relation to E45/4580, Mr Allen highlights the importance of the Nullagine River to his family as Njamal People, and states ‘When my family are out camping we use both tracks that come off Warrawagine Road and follow Nullagine River. We use these tracks to access Nullagine River for our fishing and camping ... I still got visit that area to look after Njamal country’. While some social and community activities may be conducted in proximity to the Nullagine River, according to mapping provided by Njamal only part of that river travels through the north of E45/4580. It is not clear what role that part of the River has in relation to the community or social activities.

1. Njamal contend FMG’s activities will interfere with activities of Njamal people. For example, they state that allowing FMG to access the area and use their exploration equipment will impact on Njamal’s ability to conduct community and social activities. They also contend the licences are ‘rich in a number of different types of bush tucker and bush medicines, which ‘is one of the reasons why the Exploration Licence areas are used so intensively and frequently for community activities.’ Both Mr Allen and Mr Taylor outline that they gather bush tucker and bush medicine on the licences, and identify some specific examples. However, they also indicate this activity occurs all around the licence areas and the surrounding area.

2. What are FMG’s proposed activities?

1. In the statement in support of their application for the licences (provided in the State’s evidence), FMG outline the initial exploration phase will include non-ground disturbing activities, including but not limited to, ‘geological mapping and rock chip sampling’. FMG note that further phases will depend on the results obtained in the initial phase, but may include, reverse circulation and diamond drilling and metallurgical testing.

2. I note it would be open for FMG to use the full suite of rights available to them under the grant of the licences following the initial phase (see s 66 of the Mining Act 1978 (WA)).

1. Conclusion

1. There is insufficient evidence to establish there are areas on the licences where Njamal’s social or community activities are undertaken with such intensity that they may be interfered with by activities of the explorer.

2. 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 FMG could undertake if they exercised their full suite of rights under s 66 of the Mining Act 1978 (WA). 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 licences is not likely.

(b)Is there a real risk of interference with areas or sites of particular significance to Njamal?

1. 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 requirements for 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 proceed with the next step of the inquiry to look at the question of interference (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).

1. Are there areas or sites of particular significance to Njamal for the purposes of s 237(b)?

1. In relation to E45/4580, Mr Allen states the ‘area around the Nullagine River is really important to my family as Njamal People’ (at 9). He states there is ‘a men’s story that follows the whole of the Nullagine river’ and that Pinjian Pool (which I note is located on or very near to E45/4580) ‘is a significant site for Njamal People, including my family’. He also states ‘we might find grinding patches, and camping places’. However, no further information is provided in relation to why these areas are significant.

2. In relation to E45/4581, Mr Taylor states the ‘area around Oakover River is very significant to Njamal People’ and the ‘area of Oakover River nearby to Mingengadge Creek … is my responsibility’. The Oakover River travels through E45/4581 and, from mapping attached to the statement, it appears a place called Midgengadge Pool is slightly outside the licence, with a place called Midgengadge being on the licence. I take it the pool is the same place as referred to by Mr Taylor, albeit with slightly different spelling. However, no further information is provided in relation to why these areas are significant.

3. In relation to both E45/4581 and E46/1085, Mr Taylor asserts ‘we would be sure to find a lot of signs of traditional Njamal use of the country’. Again, his evidence is broad and does not assist me to draw conclusions regarding why sites are of particular significance to Njamal.

4. Njamal contend the area of the licences is site rich, and so the State’s regulatory regime would be insufficient to protect sites of particular significance. They also contend mere entry onto certain parts of the licence would be sufficient for interference to occur. My view is that the evidence does not support these arguments. I adopt the reasoning of the Tribunal in Lockyer v Mineralogy (at [18]): Assertions that an area is site rich or is of particular significance are insufficient without the production of evidence to support the assertions (and the best evidence is affidavit material from members of the native title claim group).

5. 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 traditions.

1. Conclusion

1. 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). Therefore, I do not need to consider whether interference is likely. Nonetheless, I note the State proposes to impose a condition allowing Njamal to request FMG enter into a Regional Standard Heritage Agreement (RSHA) within the first 90 days of the grant of each licence. If Njamal choose to request the condition, then consultation could occur between FMG and Njamal prior to any ground disturbing activities. Njamal contend the RSHA is deficient in many respects for protecting the rights and interests of Njamal. However, in the absence of evidence of any sites of particular significance, and in the absence of evidence of the actual effects of non-ground disturbing activities on such sites, I cannot conclude the RSHA will be deficient in this inquiry.

Determination

1. The determination is that the acts, namely the grants of exploration licences E45/4580, E45/4581 and E46/1085 to FMG Pilbara Pty Ltd, are acts attracting the expedited procedure.

Helen Shurven
Member
19 May 2017