Kevin Allen and Others (Njamal) v Gary John McCutcheon and Another

[2017] NNTTA 27

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others (Njamal) v Gary John McCutcheon and Another [2017] NNTTA 27 (25 May 2017)

Application No:                WO2016/0731

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Kevin Allen and Others (Njamal) (WC1999/008)
(native title party)

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Gary John McCutcheon
(grantee party)

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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:  25 May 2017

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 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     Ms Kate Major, Castledine Gregory

native title party:             Mr Andre Maynard, Castledine Gregory

Representatives of the     Mr Domhnall McCloskey, State Solicitor’s Office

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

Representative of the

grantee party:  Mr Gary John McCutcheon

REASONS FOR DETERMINATION

1. This is a decision about whether or not the expedited procedure applies to the grant of exploration licence E45/4714 (the licence) to Gary John McCutcheon. In their public notice, the State of Western Australia included a statement that they consider the grant is an act 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 overlaps the licence, the Njamal registered native title claimants (Njamal) had the right to lodge an objection 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. The State can grant the licence 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 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.

5. Njamal’s submissions include the affidavit of Mr Kevin Allen. Mr Allen states he is a Njamal Elder and 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.

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’s contentions do not directly or explicitly address s 237(b). Mr Allen’s affidavit refers to the Shaw River as ‘an important place of Njamal People’, including ‘Dalton Creek, which runs off the Shaw River’ (at 14). He states the places where their old people ‘camped and did traditional cultural activities’ are ‘important places’ (at 8) and ‘we would be sure to find a lot of signs of traditional Njamal use of the country’ (at 13).

7. I note Shaw River does not run through the licence, and is some distance to the east of it. Dalton Creek does appear to be on the licence, but a simple reference to it does not explain its particular or more than ordinary significance in accordance with Njamal traditions (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]). 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.

8. Njamal do not provide contentions or evidence in relation to s 237(c). Based on the limited information before me, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned.

9. 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 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 activities does Mr McCutcheon propose on the licence?

   iii)Conclusion.

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

1. What activities do Njamal undertake on the licence?

1. Njamal contend they currently carry out community and social activities on the licence area. They also contend the licence is ‘an important and unique part of the Claim area due to its connection with the Dalton Creek, and other sites’, which mean the area is used ‘intensively and frequently’ for community activities. However, the evidence provided in this respect is very general. Mr Allen states Njamal people, including his family, camp, hunt, gather bush tucker and collect medicine in the area of the licence (at 9–12). There is no specific evidence provided about particular persons, the frequency or intensity of use, or the nature or features of any unique areas on the licence which might suggest Njamal’s activities are undertaken there in such a way that exploration activities are likely to interfere with them.

1. What activities does Mr McCutcheon propose on the licence?

1. Mr McCutcheon states he is a part time prospector and his primary income does not derive from prospecting activities. He is a member of the Amalgamated Prospectors and Lease Holders Association of Western Australia. He states he will use existing tracks for light vehicle access, and proposes to undertake metal detecting by walking on foot over the ground. Soil and rock chip sampling using hand methods and recording locations via coordinates will also be undertaken. Mr McCutcheon provides photographs of tracks and previous workings, which have not been challenged by other parties. As such, I accept they are of the proposed licence in this matter. I note the State’s evidence indicates 7 tracks exist on the proposed licence.

2. Mr McCutcheon states he does not intend to exclude Njamal from accessing or conducting activities on this area. He states if activities are required which are not low impact, the Regional Standard Heritage Agreement (RSHA) he has offered to Njamal would activate, should Njamal sign the agreement.

1. Conclusion

1. 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]). I note that the terms of an RSHA are more relevant to sites under s 237(b) of the Act. However, in terms of an assessment of s 237(a), I have balanced the general and limited evidence of Njamal’s community and social activities against the activities Mr McCutcheon proposes to undertake, and those he could undertake if he exercised the full suite of rights under s 66 of the Mining Act 1978 (WA). I conclude both parties’ activities are likely to be able to coexist, and that interference with Njamal’s social or community activities on the licence is unlikely.

Determination

1. The determination is that the act, namely the grant of exploration licence E45/4714 to Gary John McCutcheon, is an act attracting the expedited procedure.

Helen Shurven
Member
25 May 2017