Kevin Allen and Others (Njamal) v Raymond John Masini and John Samuel Potts and Another

[2016] NNTTA 57

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others (Njamal) v Raymond John Masini and John Samuel Potts and Another [2016] NNTTA 57 (9 December 2016)

Application No:                WO2016/0483

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Kevin Allen and Others (Njamal) (WC1999/008)

(native title party)

- and -

The State of Western Australia

(Government party)

- and -

Raymond John Masini and John Samuel Potts

(grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms H Shurven, Member

Place:  Perth

Date:  9 December 2016 (Corrigendum dated 12 December 2016)

CORRIGENDUM

Correction to the Expedited Procedure Determination made on 9 December 2016 at page 3 on the basis that certain words were included in error.  Paragraph 3, line 6 is corrected to read “…procedure does apply. The reasons for my decision are outlined in more detail…”

Helen Shurven
Member
12 December 2016

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others (Njamal) v Raymond John Masini and John Samuel Potts and Another [2016] NNTTA 57 (9 December 2016)

Application No:                WO2016/0483

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Kevin Allen and Others (Njamal) (WC1999/008)

(native title party)

- and -

The State of Western Australia

(Government party)

- and -

Raymond John Masini and John Samuel Potts

(grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms H Shurven, Member

Place:  Perth

Date:  9 December 2016

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 applies

Legislation:Native Title Act 1993 (Cth)

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA)

Cases:Kevin Allen and Others (Njamal) v Abeh Pty Ltd and Another [2016] NNTTA 53 (‘Njamal v Abeh’)

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’)

Keith Narrier and Others on behalf of Tjiwarl v Sammy Resources Pty Ltd and Another [2015] NNTTA 14 (‘Tjiwarl v Sammy Resources’)

Mark Lockyer and Others on behalf of Kuruma Marthudunera (Combined)/Western Australia/Iron Duyfken Pty Ltd [2012] NNTTA 1 (‘Lockyer v Iron Duyfken’)

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

Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representative of the     
native title party:             Mr Andre Maynard, Castledine Gregory

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

Government party:          Ms Lauren Pike, Department of Mines and Petroleum

Representatives of the     Mr Raymond John Masini

grantee party:                  Mr John Samuel Potts

REASONS FOR DETERMINATION

1. This decision is about whether or not the grant of exploration licence E45/4685 (the licence) to Raymond John Masini and John Samuel Potts (Mr Masini and Mr Potts) attracts the expedited procedure. In its public notice for the grant, the State of Western Australia included a statement that it considers the grant to be an act attracting the expedited procedure. The Njamal native title claimants lodged an objection to the statement with the National Native Title Tribunal. The Njamal registered native title claim overlaps 59 per cent of the licence. The remaining area is not subject to any registered native title claim or determination.

2. By including the expedited procedure statement in their notice, the State asserts the activities permitted under the licence are not (pursuant to s 237 of the Native Title Act 1993 (Cth)) likely to:

   (a)interfere directly with community or social activities carried on by Njamal;

   (b)interfere with areas or sites of particular significance in accordance with Njamal’s traditions; or

   (c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

   All subsequent references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.

3. In objecting to the State’s assertion the expedited procedure applies, Njamal argue that interference or disturbance with one or all of the s 237 elements is likely. My decision is based on an assessment of all three s 237 elements, and I have concluded that there is unlikely to be interference with community or social activities, with sites of particular significance, or to the relevant land and waters. As such, the expedited procedure does not apply. The reasons for my decision are outlined in more detail below.

4. I was appointed by the President of the Tribunal, Raelene Webb QC, to conduct the inquiry to determine whether or not the expedited procedure applies. A decision that the expedited procedure applies means the normal negotiation procedure between parties is not required: the State can grant the licence and Mr Masini and Mr Potts can proceed with their activities without negotiating in good faith with Njamal (see          s 31(1)(b)). A decision that the expedited procedure does not apply means Mr Masini and Mr Potts, Njamal and the State must negotiate in good faith with a view to reaching agreement about the grant of the licence. For the reasons outlined below, I find the expedited procedure applies.

5. The licence is approximately 3,503 hectares situated entirely within the Panorama pastoral lease, in the Shire of East Pilbara. Other tenure overlapping the licence includes Timber Reserve 13685, Water Reserve 12194 and two proposed railway corridors (File Notation Areas 10120 and 11568). The licence is situated approximately 200 kilometres east of E45/4601, an exploration licence that was the subject of a recent objection lodged by Njamal. In that matter, I determined the expedited procedure applied (Njamal v Abeh). While each inquiry must be determined on its own facts, I refer to Njamal v Abeh as there are submissions and evidence in that matter which are similar to this current inquiry.

6. The State, Njamal and Mr Masini and Mr Potts have provided contentions and evidence to the Tribunal for this inquiry and I have considered all of that material. Njamal’s submissions include the affidavit of Mr Terry Rastus, who states ‘I am a Njamal Elder and member of the Claimant Group of the Njamal Native Title Claim’. I accept Mr Rastus has authority to speak for the area of the licence on behalf of Njamal. I note the affidavit is in very similar terms to that provided in Njamal v Abeh.

7. 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 does not provide contentions in relation to s 237(c). Therefore, based on the limited evidence before me, I find the licence is not likely to involve major disturbance to the land or waters concerned.

8. 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 Mr Masini and Mr Potts’ proposed activities upon the grant of the licence?

   iii)Conclusion.

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

   i)What areas or sites are identified by Njamal on the licence?

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

   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. In his affidavit (at 9–12), Mr Rastus states the Njamal people who live in Woodstock Community (approximately 250 kilometres west-north-west of the licence) ‘travel along the track that runs through the southern part of the Exploration Licence area when travelling to Newman or Marble Bar’. He states they ‘go hunting along the way and gather bush tucker and bush medicine’, including kangaroo (wijunu), bush turkey (parturra), goanna (marandoo), echidna (manganya), emu (karlaya), mungulkar, honey, gum (minta) and jarntal (a bush medicine).

1. What are Mr Masini and Mr Potts’ proposed activities upon the grant of the licence?

1. In their contentions, Mr Masini and Mr Potts state they ‘are part-time prospectors and the duration of the field exploration program(s) in any year will be short (weeks) and will involve no more than a few people’. They state:

   our intended exploration work will be extremely low impact and will predominately involve metal detecting, and some limited soil and rock chip sampling. All metal detecting will be undertaken on foot. Soil and rock chip sampling will be undertaken using hand-operated tools. We intend to focus our activities, at least initially, on the prospective areas identified as a result of previous exploration work programs. We will access and move around within the Tenement in light vehicles utilising existing tracks created by previous mineral and pastoral leaseholders. By the nature of exploration, any subsequent activity will depend on the findings of the initial exploration work.

   Any activities ... which do not fall within the category of “low impact” (i.e. ground disturbing), will be done in consultation ... as per the terms of the Regional Standard Heritage Agreement (RSHA) … [Contentions at 6–7]

2. Mr Masini and Mr Potts also state:

   the nearest ‘through access’ tracks that could be readily used to travel between Woodstock and Newman or Marble Bar are the Bonney Downs Hillside Road some 15 km southwest of the northern portion on the Tenement and the Hillside Marble Bar Road (and some smaller tracks that loop onto it) located in the northwest. It would appear these tracks collectively are called the ‘Woodstock track’ in the Native Title Party’s Statement of Contentions and the TR [Terry Rastus] Affidavit ...

   [I]t is our view that the lack of tracks that can be readily used to travel to, and through, the portion of Exploration Licence E45/4685 that overlaps the Njamal native title claim area, its distance from Woodstock community and its distance from the Woodstock track, coupled with the rough nature of the intervening country, would make the likelihood of frequent use ... relatively low. Furthermore, the relatively small scale and primarily low impact nature, and short duration, of our proposed exploration activities in any year, and small number of people involved, would further reduce the likelihood of any interaction occurring temporally or spatially. [Contentions at 20-22]

3. Mr Masini and Mr Potts also note ‘the tenement is long and narrow which provides considerable scope to move the location of our activities in the unlikely event there was some interference’ (contentions at 26). An affidavit has also been provided by Mr Potts, which outlines evidence of previous mining and exploration activity on the licence, including that portion which overlaps the Njamal native title claim. He also refers to the cattle which are on and around the licence, and various tracks which are often impassable. I note the DMP Tengraph confirms at least eight tracks exist on the licence, as well as some shallow mine workings, and many previous overlapping mining and exploration tenements.

1. Conclusion

1. Mr Rastus states the Njamal people hunt and gather ‘when travelling through the area including the Exploration Licence’ (at 12). However, there is no evidence that Njamal undertake their hunting and gathering activities exclusively or intensively on the area of the licence. Additionally, Mr Masini and Mr Potts state they are part time prospectors and their initial low impact program is unlikely to interfere with Njamal’s activities given: the limited evidence about what occurs on the licence, by whom and how frequently; and the duration of the proposed exploration program. However, I note Mr Masini and Mr Potts have applied for an exploration licence, rather than a prospecting licence, and under s 66 of the Mining Act 1978 (WA) they can remove up to 1,000 tonnes of material during the course of the licence. I also note that any subsequent programs will depend on the findings of the initial program and it is open for Mr Masini and Mr Potts to use the full suite of rights available to them under the grant of the licence.

2. On numerous occasions, the Tribunal has balanced a native title party’s evidence of hunting and gathering activities against a grantee party’s proposed exploration activities and has concluded both activities can coexist without direct or substantial interference (see, for example, Rosas v Northern Territory at [71]). I have balanced the evidence provided in this matter, having regard to the limited evidence on the nature of Njamal’s community and social activities and the activities Mr Masini and Mr Potts could undertake if exercising their full suite of rights. 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.

(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 to: show that an area or site exists on the proposed tenement; explain its significance and distinguish it from other areas within the tenement; and demonstrate it is of more than ordinary significance to them in accordance with their traditions (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17]). As President Webb QC noted (at [130], emphasis in original), s 237(b) requires the Tribunal to distinguish ‘between areas and sites which are generally culturally significant and specific culturally significant areas and sites which are of particular significance’, and that ‘the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance’.

2. The word ‘particular’ in s 237(b) means not only ‘special or more than ordinary’, but that the particularity of the site or area must be capable of identification (Western Australia v McHenry). These are threshold requirements for finding the grant of a licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). If there is no evidence that areas or sites of particular significance exist on the licence, I do not need to proceed with the next step of the inquiry to look at the question of interference.

1. What areas or sites are identified by Njamal on the licence?

1. The State provided reports from the Department of Aboriginal Affairs’ Register of Aboriginal Sites (DAA Register), which show no sites or heritage places exist within the licence. However, in Tjiwarl v Sammy Resources (at [49]) the Tribunal noted the numerous occasions in which it has held the DAA Register:

   does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters

2. In other words, regardless of whether or not a site is administratively identified on the DAA Register (by virtue of being assessed as meeting s 4 or s 5 of the Aboriginal Heritage Act 1972 (WA)), a native title party may establish there are one or more ‘areas or sites of particular significance’ to them ‘in accordance with their traditions’ (per s 237(b)) if they provide sufficient evidence.

3. The Njamal contentions refer to Lockyer v Iron Duyfken and the examples of sites in that decision which can be of particular significance. In that matter, I decided the expedited procedure did not apply. However, in that matter, two very detailed statements were provided by the native title party, which outlined the importance of the sites, why they were important, where they were, and other features which distinguished them from other sites or areas on or near the tenement in that matter.  The general contentions and general evidence provided in support in the current inquiry do not greatly assist in the decision making process, as it is the site or area relevant to the specific tenement and the traditional laws and customs of the particular native title party that are important. 

4. Mr Rastus’ affidavit notes the following sites on the licence:

   ·there ‘are men’s sites in and around that [licence] area. I don’t want to talk about these sites because they are sacred. Women can’t go near those sites... They would get sick for sure’ (at 13).

   ·‘we would be sure to find a lot of signs of traditional Njamal use of the country, because there are creeks running through the Exploration Licence area. That type of country – near creeks and rivers – has been used for thousands of years by Njamal People’ (at 16).

5. While Njamal’s contentions provide much detail in relation to the general principles which should be applied to s 237(b), they provide little further detail in relation to the men’s sites referred to by Mr Rastus, or to the signs of traditional use of the country. While I appreciate Mr Rastus may not want to disclose culturally sensitive information in relation to the men’s sites or signs of traditional use, the Tribunal requires information about why he cannot talk about them, a general indication of where they are and why they are of particular significance. Njamal provided no such information in their contentions. In addition, I note it was open for Njamal to have made a request for s 155 non-disclosure orders to cover information about sensitive areas or activities of particular significance as part of an inquiry process.

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

1. At [15] and [16] above, I outlined the Tribunal’s well established principles regarding the type of evidence that must be provided by a native title party to satisfy the threshold requirements of s 237(b).

2. I appreciate Mr Rastus might not want to disclose details about the men’s sites (or may not be permitted to under customary law), however, it is open to Njamal to request non-disclosure directions if that was appropriate, or explain further any difficulties in doing so. While Mr Rastus touches on the significance of the men’s sites by reference to the consequences of interference, the evidence provided is not specific enough to establish with any certainty the location of the sites or why the sites are of particular significance, as is required under s 237(b).

3. The reference to ‘signs of traditional Njamal use of the country’, does not explain the particular or more than ordinary significance of these areas in accordance with Njamal traditions. Therefore, 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).

1. Conclusion

1. Because there is insufficient evidence to establish sites of particular significance on the licence, I do not need to consider whether interference is likely. However, I do note the State proposes to impose a condition allowing Njamal to request Mr Masini and Mr Potts enter into Regional Standard Heritage Agreement (RSHA) within the first 90 days of grant. If Njamal choose to request the condition, consultation could occur between Mr Masini and Mr Potts and Njamal prior to any ground disturbing activities. I note Njamal’s contentions outline their view of the RSHA – that is, that it 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. The State also intends to place other conditions, and endorsements, on the grant of the licence (as outlined at Appendix A).

Overall conclusions

1. On the evidence before me, I find the grant of the licence is unlikely to interfere with the carrying on of Njamal’s community or social activities, or sites or areas of particular significance, or involve major disturbance to the land and waters concerned.

Determination

1. The determination is that the act, namely the grant of exploration licence E45/4685 to Raymond John Masini and John Samuel Potts, is an act attracting the expedited procedure.

Helen Shurven
Member
9 December 2016

Appendix A: Endorsements and Conditions State intends to impose on grant of licence

ENDORSEMENTS

1. The Licensee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

2. The Licensee's attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

1. The Licensee attention is drawn to the provisions of the:

   • Waterways Conservation Act, 1976
   • Rights in Water and Irrigation Act, 1914
   • Metropolitan Water Supply, Sewerage and Drainage Act, 1909
   • Country Areas Water Supply Act, 1947
   • Water Agencies (Powers) Act 1984
   • Water Resources Legislation Amendment Act 2007

1. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

2. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

1. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:

1. Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:

   • 50 metres from the outer-most water dependent vegetation of any perennial waterway, and
   • 30 metres from the outer-most water dependent vegetation of any seasonal waterway.

In respect to Proclaimed Surface Water Areas (SW 30) the following endorsements apply:

1. The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.

2. All activities to be undertaken with minimal disturbance to riparian vegetation. Draft

3. No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.

4. Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

In respect to Proclaimed Ground Water Areas (GW 32) the following endorsement applies:

1. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.

CONDITIONS

1. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.

2. Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.

3. The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.

4. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

   • the grant of the Licence; or
   • registration of a transfer introducing a new Licensee;

advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

1. The rights of ingress to and egress from Miscellaneous Licences 46/117 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.

2. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Timber Reserve 13685 and Water Reserve 12194.

3. No activities being carried out within the proposed railway corridor (designated FNA 10120 and FNA 11568) that interfere with or restrict any rail route investigation activities being undertaken by the rail line proponent.