Kevin Allen and Others (Njamal) v Phillip John Nowland and Another
[2017] NNTTA 26
•25 May 2017
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others (Njamal) v Phillip John Nowland and Another [2017] NNTTA 26 (25 May 2017)
Application No: WO2016/0392
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)
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Phillip John Nowland
(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 prospecting licence – expedited procedure objection application – whether act is likely to interfere directly 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 48
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 Phillip John Nowland
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the grant of prospecting licence P45/3009 (the licence) to Phillip John Nowland. 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.
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.
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.
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.
Njamal’s submissions include the affidavit of Ms Alice Mitchell. Ms Mitchell states she is a Njamal Elder and member of the Njamal Native Title Claimant group. I accept she 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’.
Njamal’s contentions do not present any information regarding s 237(b). Ms Mitchell’s affidavit states the area ‘in and around Marble Bar … is an important place to me, my family and the Njamal People’ (at 8). She also states ‘we would [be] likely to find signs of traditional Njamal use of the country’ (at 14). While it is not made clear whether this statement is related to s 237(b), it is outlined under a heading ‘areas and sites of significance’. Having weighed this very brief evidence, I conclude it has not been established that there are any sites of particular significance on the licence. 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 into s 237(b) to look at the question of interference (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).
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.
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 will Mr Nowland undertake on the licence?
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 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. Ms Mitchell states Njamal people, including her family, hunt, camp, gather bush tucker and collect medicine in the area of the licence and areas outside the licence (at 10–12). Ms Mitchell also refers to the importance of the area around the licence and of Marble Bar to the Njamal people. I note Marble Bar is approximately one kilometre from the licence. However, there is no specific evidence about particular persons, the frequency of use, or any unique areas on the licence which might suggest Njamal’s activities are undertaken with such intensity so that interference from prospecting activities would be likely to occur.
What activities will Mr Nowland undertake on the licence?
Mr Nowland indicated he intended to metal detect using hand held tools and panning in his capacity as a retiree and part time prospector. He states access to the licence will be via existing tracks. He also included photos and maps of the area, which have not been challenged by Njamal, which show over a dozen abandoned mine shafts and various dump areas on the proposed licence.
Conclusion
On numerous occasions, the Tribunal has balanced a native title party’s evidence of social or community activities against a grantee party’s proposed activities and has concluded both activities can coexist without direct or substantial interference (see, for example, Rosas v Northern Territory at [71]). In this inquiry, the explorer intends to prospect on the licence, which is low impact in comparison to exploration or mining activities. I have balanced the general and limited evidence of Njamal’s community and social activities against the activities Mr Nowland could undertake if he exercised the full suite of prospecting rights under s 48 of the Mining Act 1978 (WA). 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 from prospecting activities.
Determination
The determination is that the act, namely the grant of prospecting licence P45/3009 to Phillip John Nowland, is an act attracting the expedited procedure.
Helen Shurven
Member
25 May 2017
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