Kevin Allen and Others (Njamal) v Oakover Gold Pty Ltd and Another

[2017] NNTTA 24

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others (Njamal) v Oakover Gold Pty Ltd and Another [2017] NNTTA 24 (19 May 2017)

Application No:                WO2016/0204

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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Oakover Gold Pty Ltd

(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:  19 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’)

Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)

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 Jeff O’Halloran, State Solicitor’s Office

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

Representative of the

grantee party:  Mr Martin Wiedemann, MKII Consulting Pty Ltd

REASONS FOR DETERMINATION

1. This is a decision about whether or not the expedited procedure applies to the grant of exploration licence E46/1092 (the licence) to Oakover Gold Pty Ltd (Oakover). 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, therefore, 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 Tony Taylor. Mr Taylor states he is a Njamal Elder and member of the Njamal Native Title Claimant group. I accept Mr Taylor 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 do not provide contentions or evidence in relation to s 237(c). Therefore, based on the limited evidence before me, I find the grant of the licence is 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 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 Oakover’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 licence?

1. Njamal contend they currently carry out community and social activities on the licence area. They also contend the licence is ‘rich in a number of different types of bush tucker and bush medicines’, which is one reason why the area is used ‘intensively and frequently for community activities.’ However, the evidence provided in this respect is very general. Mr Taylor states Njamal people, including his family, hunt, gather bush tucker and collect bush medicine in the area of the licence and surrounds. He also indicates this activity occurs in areas surrounding and nearby the licence. There is no specific evidence about the specific nature of the activities, particular persons, the frequency of use, or any unique aspects of the licence which might suggest Njamal’s activities are undertaken with more intensity than other parts of their claim area.

2. Njamal also contend the licence area is ‘an important and unique part’ of Njamal’s claim area. In support, they refer to Mr Taylor’s reference to a place called ‘Woodie Woodie’, where Njamal People collect ochre and which Mr Taylor states is very significant and sacred site. I note that place has the same name as a place recorded on the Department of Aboriginal Affairs (DAA) register, and which is described as a rockshelter/ochre place.  I accept it is likely that these are the same place, and that social or community activities occur at Woodie Woodie.

1. What are Oakover’s proposed activities?

1. Oakover provide general information about their familiarity with the State’s regulatory regime and that the activities of the Njamal people as outlined would not be incompatible with exploration activities, subject to safety requirements of any exploration site.

1. Conclusion

1. Njamal contend that allowing Oakover to access and conduct exploration activities will interfere with Njamal’s social and community activities on the licence, however, there is no evidence – further to the broad statements outlined above – provided in support of this contention.

2. Woodie Woodie is recorded on the DAA register and Oakover have clear obligations under the State’s regulatory regime in respect of such sites. Njamal contend the State’s regulatory regime does not make adequate provision for the protection of community and social activities under s 237(a) from the effect of exploration activities. They outline a number of Tribunal and Federal Court decisions which they say support an argument that areas which are used or occupied by Njamal people and where community or social activities are conducted, will not be adequately protected. However, the issue to be determined is whether the factual circumstances disclosed give rise to any likelihood of relevant interference within the meaning of s 237(a).

3. 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 have balanced the general and limited evidence of Njamal’s community and social activities against the activities Oakover could undertake if they exercised their full suite of rights under s 66 of the Mining Act 1978 (WA). President Webb summaries previous Tribunal decisions, and the approach of the Tribunal and Federal Court in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16]), and notes ‘the level of interference with community and social activities must be substantial rather than trivial’.

4. I conclude the level of social or community activities outlined by Njamal is not such that it is likely Oakover’s exploration activities will substantially interfere with them.  Both parties’ activities are likely to be able to coexist, and interference with social or community activities on the licence is unlikely.

(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. Njamal contend the licence contains sites and areas of particular significance, and identify a rockshelter in the area known as Woodie Woodie and ‘a large artefact scatter’ known as ‘Eastern Creek, Nullagine’. I have already commented on Woodie Woodie in my consideration of s 237(a). There is also an artefact/scatter site registered with the DAA called Eastern Creek, Nullagine, which overlaps a very small portion of the northern most boundary of the licence.

2. As noted above, Mr Taylor states the ‘area around Woodie Woodie is very significant to Njamal People’, as is in particular, a rockshelter ‘where we, as Njamal People, get our ochre to paint ourselves for ceremony. Our old people would use this ochre for law business and ochre is still used today for law business’ (at 11). Mr Taylor also states there is an artefact scatter within the licence and ‘we would be sure to find a lot of signs of traditional Njamal use of the country’ (at 12).   I am unclear as to whether the artefact scatter site is the DAA Eastern Creek, Nullagine site, or another similar site.

3. The evidence is broad and does not assist me to draw conclusions regarding why the identified sites are of particular significance to Njamal.  For example, it is said that Woodie Woodie and the rockshelter is sacred, implicitly because of its link to ceremony and ochre collection related to that ceremony, but there is no information explaining that implicit connection.  When looking at Western Australia v McHenry the Tribunal considered, among other issues, the interface between the Aboriginal Heritage Act1972 (WA) (AHA) and s 237(b), the Tribunal stated:

   It is clear from those sections [of the AHA] that there may be registered Aboriginal sites which have no current significance to Aboriginal people and other sites, even of a sacred, ritual or ceremonial nature, which have importance and significance, but not necessarily "special significance", to persons of Aboriginal descent. S 237 (b) is concerned with sites of "particular significance in accordance with their tradition to the holders of native title". In Jack Dann and ors (No2) State of WA, v GPA Distributors Pty Ltd (Supra), the Honourable C J Sumner held that the word “particular” there used means “special or more than ordinary”. I would add to that the further qualification that the particularity of the significance be capable of identification. This I think follows from the ordinary and usual meaning of the word ‘particular’ which, having regard to the context in which it is used in the subsection, is in my opinion identified in The Macquarie Dictionary (2^nd edition) as:

   “pertaining to one rather than to the other or all; a definitive one or considered separately; distinguished or different from others; noteworthy, marked, unusual, exceptional or special;”

   The word “special” is there defined as: “of a distinct and particular character; having a particular function, purpose or application”.

4. References to signs of traditional Njamal use of the country, or statements that sites or areas are important or sacred, do not explain their particular or more than ordinary significance in accordance with Njamal traditions.

1. Conclusion

1. I have no doubt that areas such as Woodie Woodie are important to Njamal.  However, I find there is insufficient evidence before me to support a conclusion that there are areas of particular significance for the purposes of s 237(b) on the licence. Because of this finding, I do not need to consider whether interference is likely.

Determination

1. The determination is that the act, namely the grant of exploration licence E46/1092 to Oakover Gold Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
19 May 2017