Kevin Allen and Others on behalf of Njamal v Gijsbertus Marinus John Merks and Another
[2017] NNTTA 41
•13 July 2017
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others on behalf of Njamal v Gijsbertus Marinus John Merks and Another [2017] NNTTA 41 (13 July 2017)
Application No: | WO2016/0479 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kevin Allen and Others on behalf of Njamal People (WC1999/008)
(native title party)
- and -
Gijsbertus Marinus John Merks
(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: | 13 July 2017 |
Catchwords: | Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – whether act is likely to directly interfere 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 native title party: | Ms Kate Major, Castledine Gregory Mr Andre Maynard, Castledine Gregory |
| Representative of the grantee party: | Mr Warren John Ayres |
| Representatives of the Government party: | Ms Bethany Conway, Department of Mines and Petroleum (now the Department of Mines, Industry Regulation and Safety) Ms Sarah Power, State Solicitor’s Office |
REASONS FOR DETERMINATION
This decision considers whether the expedited procedure applies to the grant of prospecting licence P46/1873 (the licence) to Mr Gijsbertus Marinus John Merks. In their public notice of the licence, 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.
The Njamal registered native title claimants’ (Njamal) native title claim (WC1999/008) overlaps the licence, and they had the right to lodge an objection under s 32 against the State’s assertion the expedited procedure applies. Njamal exercised that right, and the President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry to determine whether or not the expedited procedure applies to the grant of the licence.
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 Njamal traditions; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
For the reasons detailed below, I determine the expedited procedure applies to the grant of the licence. The effect of this is the State can grant the licence without the usual requirement for negotiations between Njamal, Mr Merks and the State in accordance with s 31.
All parties lodged contentions and supporting material. Njamal’s included an affidavit of Mr Kevin Allen. Mr Allen states he is a Njamal Elder, law man 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. Mr Merks authorised Mr Warren John Ayres to act as his agent in relation to this matter. Mr Ayres submitted contentions on behalf of Mr Merks.
Section 237(b)
Njamal do not make submissions explicitly addressing s 237(b), and provide very limited evidence that might be considered in relation to this criterion. Mr Allen states the Nullagine River and its creeks, including Bridget and Mosquito Creeks, are ‘very sacred to Njamal people and my family’ with ‘traditional stories associated’. He states the licence contains ‘hilly country through which Mosquito Creek and Bridget Creek run’, which ‘has been used by Njamal People a lot’ and as such, a visit to the area ‘would locate artefacts’. I note the mapping provided by parties shows Bridget Creek and Mosquito Creek run through the licence. Nullagine River lies approximately ten kilometres north of the licence. Evidence provided in relation to the creeks and river is very broad and does not identify why the identified areas are of particular significance to Njamal.
Simple references to important sites or areas do not explain their particular or more than ordinary significance in accordance with Njamal traditions for the purpose of s 237(b) (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]). 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’. I find there is insufficient evidence to conclude there are areas of particular significance for the purposes of s 237(b) and so there is no need to consider the likelihood of interference under this section.
Section 237(c)
Njamal do not provide contentions or evidence for 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.
Section 237(a)
On the basis of the evidence provided, I focus on s 237(a) and address the following issues to determine whether 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 Merks’ proposed activities?
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 currently carry out community and social activities on the licence. They submit the licence is ‘rich in a number of different types of bush tucker and bush medicines’, which means the area is used ‘intensively and frequently for community and social activities.’ They also submit the location of the licence in relation to the Bridget Creek Track supports a conclusion that Njamal conducts social and community activities in the area.
Mr Allen states, ‘Our old people travelled all through this area [the land around the Nullagine River] and as such there are important places, where they camped and did cultural activities’. He states Njamal people ‘have a responsibility to look after their country’ and as such currently hunt, camp, travel through, gather bush tucker and collect bush medicine ‘in and around the Prospecting Licence area’. He states ‘the Bridget Creek and Mosquito Creek, which both come from the Nullagine River run through the Prospecting Licences’ and there is ‘a track that runs right through the Prospecting Licence (Bridget Creek Track) that Njamal people use to access this area for hunting, fishing and camping’ (emphasis in the original).
Mr Allen adds, ‘As the Bridget Creek Track allows travel from the north down to the old Billjim Mine and through to Skull Springs Road, Njamal People use the Bridget Creek Track regularly’. Mr Allen states ‘I go camping, fishing and hunting with my family during school holidays around the Nullagine River’ and that Njamal People use the Bridget Creek track even more regularly during the wet season, ‘especially during the November to March period’. State documentation shows one track that overlaps the licence. It is not clear whether this is the Bridget Creek Track.
Njamal contend the grant of the licence, which would allow Mr Merks to access and use vehicles and other machinery on the area, would impact Njamal’s ability to access the licence and conduct community and social activities there. I accept Njamal may undertake some social and community activities in the area around Bridget Creek, Mosquito Creek and Bridget Creek Track. However, I note Njamal provide no further specific evidence about the nature of these social and community activities, or the frequency or intensity with which they are undertaken.
What are Mr Merks’ proposed activities?
Mr Ayres, providing contentions on behalf of Mr Merks, states ‘the intended works would be carried out in compliance with the DMP requirements pertaining to Prospecting Licences’, using existing roads and tracks ‘for approximately 4 months of the cooler part of the year’. By the ‘cooler months’ I assume the activities will likely be conducted in the middle or winter months of the year. I note it would be open for Mr Merks use the full suite of rights available under the grant of the licence, and it appears he intends to do so ‘depending on the results’ of initial prospecting works (see s 48 of the Mining Act 1978 (WA)).
Mr Ayres states he was the applicant for a previous prospecting licence P46/1745, which covered ‘the exact area’ of the licence. Government party documentation verifies P46/1745 completely overlapped the licence in this current inquiry. Mr Ayres attaches an Ethnographic and Archaeological Heritage Survey for P46/1745 and states ‘this land was cleared for work with no heritage issues’. He states Mr Merks is ‘aware’ of the Aboriginal Heritage Act 1972 (WA) and he states his ‘commitment to Njamal heritage’ is demonstrated by the fact he has offered the Regional Standard Heritage Agreement (RSHA) to Njamal. While no evidence has been provided that the RSHA was offered to Njamal, there is nothing to the contrary in Njamal submissions and in any event the State intends to impose an RSHA condition on the grant of the licence.
Conclusion
I find Njamal undertake social or community activities on the licence area, particularly around Bridget Creek, Mosquito Creek and Bridget Creek Track. However, there is insufficient evidence to establish these activities are undertaken to such an extent or in such a manner that they may be interfered with by Mr Merks’ activities. Notably, Mr Allen indicates Njamal people use the area most regularly during the wet season from ‘roughly November to March’, while Mr Merks indicates his activities will occur during the cooler months.
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 or prospecting activities and has concluded these 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 of Njamal’s community and social activities against the activities Mr Merks could undertake if he exercised the full suite of rights under s 48 of the Mining Act 1978 (WA). In Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16]), President Webb summarised the approach of the Tribunal and Federal Court, and noted ‘the level of interference with community and social activities must be substantial rather than trivial’.
On the basis of the material before me, I conclude both parties’ activities are likely to be able to coexist, and that substantial or direct interference with social or community activities on the licence is not likely.
Determination
The grant of prospecting licence P46/1873 to Mr Gijsbertus Marinus John Merks is an act attracting the expedited procedure.
Helen Shurven
Member
13 July 2017
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