Kevin Allen and Others on behalf of Njamal v Grant Fitton and Another

[2017] NNTTA 40

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others on behalf of Njamal v Grant Fitton and Another [2017] NNTTA 40 (13 July 2017)

Application No: WO2016/0138

IN THE MATTER of the Native Title Act 1993 (Cth)

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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)

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Grant Fitton

(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:	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: All Mining Legal Pty Ltd

Representatives of the Government party: Ms Amanda Kickett, Department of Mines and Petroleum (now the Department of Mines, Industry Regulation and Safety)
Mr Jeff O’Halloran, State Solicitor’s Office

REASONS FOR DETERMINATION

1. This decision considers whether the expedited procedure applies to the grant of prospecting licence P45/3000 (the licence) to Mr Grant Fitton. 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.

2. 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 the expedited procedure applies to the grant of the licence.

3. 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.

4. For the reasons detailed below, I determine the expedited procedure applies to the grant of the licence. The effect of my determination is the State can grant the licence without the usual requirement for negotiations between Njamal, Mr Fitton and the State in accordance with s 31.

5. All parties lodged contentions. Njamal included 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.

Section 237(b)

1. Njamal do not make submissions explicitly addressing s 237(b), and provide very limited evidence that might be considered in relation to this criterion. Ms Mitchell states when ‘Njamal People travel through and around the Prospecting Licence area today, they find artefacts everywhere indicating traditional use in and around that country’. She also notes the ‘Coongan River means a lot to Njamal and to my family’ and states the licence ‘has important places that need to be looked after by me and other Njamal People’. I note this evidence is very broad, and neither the mapping provided by Ms Mitchell nor the State shows Coongan River on the licence.

2. 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)

1. 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)

1. 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 Fitton’s proposed activities?

   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. 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 that the location of the licence in relation to the Coongan River and Marble Bar supports a conclusion that Njamal conducts social and community activities in the area. However, the evidence provided in relation to these submissions is very general. Ms Mitchell states her family and other Njamal people fish, hunt, camp, travel, gather bush tucker and collect bush medicine ‘through and nearby the Prospecting Licence area’. Marble Bar does not appear on any of the maps provided by parties, however the State’s public notice describes the licence as located seven kilometres south of the town.

2. Ms Mitchell states, ‘When Njamal people go hunting around Marble Bar, including in the Prospecting Licence area, we get bush turkey (parturra or ‘dadjiki’), kangaroo (wijunu), emu (karlaya), goanna (marandoo) and other animals’. This suggests hunting is not only done on the licence. Similar information is provided in relation to collecting bush tucker, fishing and camping, to suggest they are conducted over a broader area than the licence.

3. Njamal contend the grant of the licence, which would allow Mr Fitton 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. Ms Mitchell states she would be worried Mr Fitton would ‘interfere with our traditional hunting, fishing, bush tucker and bush medicine collecting’. She states. ‘Prospecting for minerals can interfere with our plants and trees. As we still collect seed and other bush medicine we need to go out there and make sure the company will not interfere with our important bush medicine supplies.’

4. 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.

1. What are Mr Fitton’s proposed activities?

1. Mr Fitton does not provide any details about intended works and as such I assume he will exercise the full suite of rights available under the grant of the licence (see s 48 of the Mining Act 1978 (WA)).

2. Mr Fitton’s contentions state he ‘will not exclude any community or social activities the Native Title Party intends to carry out on the Prospecting Licence unless … unsafe’, and if that occurs he ‘will consult with the Native Title Party in order to seek an arrangement agreeable to both parties’. Mr Fitton also states he ‘will notify the Native Title Party prior to any prospecting activity that is likely to restrict the gathering of bush tucker, medicines and hunting of game and will consult with the Native Title party on ways of minimising any disturbance.

1. Conclusion

1. I find there is insufficient evidence to establish Njamal undertake social or community activities on the licence to such an extent or in such a manner that they may be interfered with by Mr Fitton’s activities.

2. 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 Fitton 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’.

3. 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

1. The grant of prospecting licence P45/3000 to Mr Grant Fitton is an act attracting the expedited procedure.

Helen Shurven
Member
13 July 2017