Kevin Allen and Others (Njamal) v State Resources Pty Ltd and Another
[2017] NNTTA 19
•12 May 2017
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others (Njamal) v State Resources Pty Ltd and Another [2017] NNTTA 19 (12 May 2017)
Application No: WO2016/0062
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 -
State Resources Pty Ltd
(grantee party)
- and -
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: 12 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 Matthew Clohessy, Emerald Tenement Services
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the grant of exploration licence E45/4611 (the licence) to State Resources Pty Ltd (State Resources). 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 (WC1999/008) 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 Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies to the grant of the licence.
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.
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.
All parties lodged contentions. Njamal also submitted an 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 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. It also appears Njamal do not provide specific and explicit contentions in relation to s 237(b). However, the evidence does refer to a place which is said to be of importance to the Njamal people, so I have implied that it relates to s 237(b).
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 State Resource’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?
What activities do Njamal undertake on the licence?
Njamal’s contentions state the group has ‘strong traditional and historical connections’ to the licence area, and that Njamal currently carry out community and social activities related to their native title rights and interest on the licence. However, the affidavit evidence on which these contentions are based is broad. Ms Mitchell states Njamal people and her family hunt, fish, camp, gather bush tucker and collect medicine in the area of the licence (at 10–13). However, this evidence is very general. There is no specific evidence provided about particular persons who undertake the activities, the frequency or location of the activities, including any unique areas on the licence which might suggest Njamal’s social or community activities are undertaken there with particular intensity as compared to other parts of their claim area.
For example, while there is some evidence Njamal undertake fishing, hunting and camping around Shaw River, part of which travels through the licence, it is also indicated that these activities are conducted outside the licence in the wider claim area. Additionally, while it is stated ‘some of the best bush medicine’ found in the licence includes jantal (a red gum used for sickness), there is no further information provided about whether the medicine is concentrated in the licence area.
What are State Resource’s proposed activities?
In its contentions, State Resources outlines its proposed activities, including that it ‘intends to conduct initial exploration over the surface area consisting of soil sampling and ground geophysics’ and that ‘access to the exploration targets will be via the existing tracks’.
I note it would be open for State Resources to use the full suite of rights available to them under the grant of the licence were further activities to occur, based on the findings of the initial exploration or otherwise (see s 66 of the Mining Act 1978 (WA)).
Conclusion
On numerous occasions, the Tribunal has balanced evidence of a native title party’s 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 State Resources 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 licence is not likely.
(b)Is there a real risk of interference with areas or sites of particular significance to Njamal?
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]).
Are there areas or sites of particular significance to Njamal for the purposes of s 237(b)?
In their contentions, Njamal do not make any specific submissions in relation to s 237(b). Nonetheless, I consider this criterion on the basis Ms Mitchell states the Shaw River ‘is such an important place’ and refers to ‘a camp near Shaw River where my old people used to spend lots of time’ (at 8). As noted above, part of Shaw River travels through the licence. However, it is not clear where in the licence the camp is located, or what the particular features are of the camp that make it a site of particular significance for the purpose of this inquiry.
Ms Mitchell also states ‘we would be sure to find a lot of signs of traditional Njamal use of the country’ (at 15). 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. 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).
Conclusion
Because I find there is insufficient evidence to establish there are sites or areas of particular significance to Njamal for the purposes of s 237(b) on the licence, I do not need to consider whether interference is likely. Nonetheless, I note the State proposes to impose a condition allowing Njamal to request State Resources enter into a Regional Standard Heritage Agreement (RSHA) within the first 90 days of the grant. If Njamal choose to request the condition, then consultation could occur between State Resources 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
The determination is that the act, namely the grant of exploration licence E45/4611 to State Resources Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
12 May 2017
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