Kevin Allen and Others on behalf of Njamal v Warren John Ayres and Another

[2016] NNTTA 54

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others on behalf of Njamal v Warren John Ayres and Another [2016] NNTTA 54 (29 November 2016)

Application No:                WO2016/0480

IN THE MATTER of the Native Title Act1993 (Cth)

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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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The State of Western Australia

(Government party)

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Warren John Ayres

(grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms H Shurven, Member
Place:  Perth
Date:  29 November 2016

Catchwords:  Native title – future act – proposed grant of prospecting 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:Aboriginal Heritage Act 1972 (WA)

Native Title Act 1993 (Cth) ss 29, 31, 32, 44H, 237

Mining Act 1978 (WA) s 48

Mining Regulations 1981 (WA) reg 14

Cases:Barbara Sturt and Others on behalf of Jaru v Baibao Resources Ltd and Another [2015] NNTTA 38 (‘Sturt v Baibao’)

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’)

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

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

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

Representative of the     Ms Kate Major, Castledine Gregory
native title party:             

Representatives of the     Mr Greg Stockton, State Solicitor’s Office

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

Representative of the     

grantee party:                  Mr Warren John Ayres

REASONS FOR DETERMINATION

1. I must determine whether or not the expedited procedure applies to the grant of prospecting licence P46/1877 (the licence) to Warren John Ayres. The licence comprises approximately 0.5294 square kilometres, located 33 kilometres north east of Nullagine in the East Pilbara Shire. The State of Western Australia included an expedited procedure statement in their notice of the grant, and the Njamal native title claim group lodged an objection to the statement with the National Native Title Tribunal. I have been 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.

2. By including the expedited procedure statement in their notice, the State asserts the activities permitted under the licence are not likely to interfere with the native title holder’s community or social activities, their sites or areas of particular significance, or involve major disturbance to the land and waters of the licence (see s 237(a)–(c) of the Native Title Act 1993 (Cth)). The native title holders in this inquiry are Njamal, whose registered native title claim wholly overlaps the licence. In objecting to the expedited procedure statement, Njamal argues that interference or disturbance is likely. The focus of this inquiry is s 237. All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.

3. A decision that the expedited procedure applies means the State can grant the licence and Mr Ayres can proceed to prospect without negotiating with Njamal (see s 32(4)). A decision that the expedited procedure does not apply means the normal negotiation procedure is required: the State and Mr Ayres must negotiate in good faith with Njamal, with a view to reaching an agreement about the grant of the licence. Those negotiations may be done with or without mediation assistance from the Tribunal (see s 31).

4. 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.

5. The State, Njamal and Mr Ayres provided submissions to the Tribunal. At the listing hearing, all parties stated they had no further submissions and requested the matter be determined on the papers without further hearing. I consider it is appropriate to do so.

6. Njamal’s submissions include the affidavit of Mr Tony Taylor, who states he is a Njamal elder and a member of the Njamal claim group. I accept Mr Taylor has authority to speak on behalf of Njamal in this matter. The affidavit incorrectly refers to another Tribunal matter number in the header of the affidavit, defines P46/1877 as ‘the exploration licence’ (and refers to it as such throughout the remainder of the affidavit), and also incorrectly refers to another grantee party. At the listing hearing, the representative for Njamal confirmed these were inadvertent errors and the affidavit is intended as evidence in the present inquiry.

7. While Njamal’s objection application argues that interference with all three limbs of s 237 is likely to result from Mr Ayres’ proposed activities, their contentions only address sub-sections (a) and (b). As noted at [2] and [4], I must also inquire into whether the grant will be likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned. Based on the limited evidence before me on this issue, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, such major disturbance.

8. On the basis of the submissions provided by parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant of the licence:

   (a)Is the grant likely to substantially and directly interfere with the carrying on of Njamal’s community or social activities?

   i)What are Njamal’s community or social activities?

   ii)Are there any other interests effecting these activities?

   iii)What are Mr Ayres’ proposed activities?

   iv)Conclusion.

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

   i)What areas or sites are identified by Njamal as being of particular significance?

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

   iii)Conclusion.

(a)Is the grant likely to substantially and directly interfere with the carrying on of Njamal’s community or social activities?

1. In regard to s 237(a), I address the issue of whether the grant is likely to interfere with the carrying on of Njamal community or social activities. I note I may only have regard to community or social activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). In this inquiry, the relevant claimed native title rights and interests, as recorded on the Register of Native Title Claims, may be summarised as the right to: access, remain in and to use the land for any purpose; access resources and take resources in that area; engage in spiritual and cultural activities on that land; maintain and protect areas, places and objects of significance in or on that land; protect resources and the habitat of living resources in that area. While these activities can be of a small group or a collective experience, the interference must be substantial and not trivial (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]).

1. What are Njamal’s community or social activities?

1. Njamal contentions state the licence area is actively used for community and social activities. However, there is little specific evidence to support these contentions. Njamal’s contentions state that activities carried on in the licence area involve hunting, and gathering bush tucker and bush medicines. In particular, Mr Taylor’s affidavit states that when Njamal people go hunting in the licence area ‘we get kangaroo (wijunu), goanna (marandoo), bush turkey, emu, echidna (manganya)’. Mr Taylor also states that bush tucker in the licence ‘includes wild onion and blackcurrant and a good bush medicine you could find is the fruit from the red gum tree’, noting ‘Njamal People still use this medicine today’. He states that the rivers in Njamal country that run through the licence, particularly Bridget Creek, make the licence area important and unique.

1. Are there any other interests effecting these activities?

1. I may take into account other lawful activities which are likely to have already impacted on the community or social activities of the Njamal people. Evidence provided by the Department of Mines and Petroleum (DMP) for the State shows that the licence has a 75.8 per cent overlap with pastoral lease N50430 (Bonney Downs) and the remainder (24.2 per cent) is a reserve.

2. The licence has been subject to three previous exploration licences, each wholly overlapping the area and active between 1991 and 2001. It has also been subject to nine prospecting licences in operation between 1983 and 2016, overlapping the licence area between 4.1 per cent and 100 per cent. Currently, the licence is subject to two prospecting licences overlapping the area by 9.5 per cent and 23.2 per cent respectively, and which were both granted in 2011.

1. What are Mr Ayres’ proposed activities?

1. Mr Ayres’ submission indicates he intends to initially carry out basic detecting on the licence. He states that, depending on the results, there may be further activity ‘as per the clearance on the heritage survey’. In this regard, Mr Ayres notes the licence covers the exact area of one of the previous prospecting licences, P46/1746. He states he was the representative for the applicant for P46/1746, and attaches to his submission the Report of an Ethnographic and Archaeological Heritage Survey for various land, including the land subject to the proposed licence in this inquiry. I note the Tengraph provided by the State confirms P46/1746 completely overlaps the licence application in this inquiry. I also note the report states it is ‘recommended that mining exploration associated with works on…P46/1746 proceed’. The report is dated 2011, and there is no challenge to the report in Njamal’s submissions.

2. Mr Ayres states the intended works on the licence will be carried out in compliance with the DMP requirements for prospecting licences, and he will access the licence using existing tracks created by previous explorers and pastoral lease holders. He indicates that he is aware of the Aboriginal Heritage Act 1972 (WA) which would apply to the licence upon grant. He also states ‘I have no issue with the Traditional owners accessing the tenement’.

1. Conclusion

1. I must consider the activities being undertaken on the licence by Njamal, and weigh these against the activities Mr Ayres is likely to undertake if the licence is granted.

2. I accept that hunting activities and gathering of bush tucker and bush medicine occur on the licence. However, as mentioned above, there is little evidence before me to indicate the extent of these activities, including whether they can take place in other areas of the Njamal claim area. As has been indicated in previous Tribunal decisions, this type of information is in the peculiar knowledge of the native title holders (see, for example, Sturt v Baibao Resources at [27]–[28]). I agree with the State’s submission that Mr Taylor’s affidavit contains evidence of a general and unspecified nature. Njamal’s submissions argue the licence is ‘relatively rich in bush foods and medicines’. However, the general argument of ‘site rich’ or areas being ‘rich’ in some special feature or produce, without any further information, is not sufficient for me to conclude the physical activities of a native title party will be interfered with, to a substantial degree, by activity of a prospector.

3. In making my decision, I take into account that the licence area is only 0.5294 square kilometres, in the context of a Njamal claim area covering approximately 33,520 square kilometres. I agree with the Njamal submission that relative size of a licence to the claim area is not determinative. However, the factor of size, coupled with the lack of detailed information about social and community activities occurring on or near the licence, is persuasive that prospecting activity will not interfere with Njamal’s social or community activity. Njamal’s arguments in relation to the use of and importance of Bridget Creek, which runs through the licence, is limited, and there is little information on how the creek relates to social and community activities. I note the State intends to place a number of endorsements in relation to management of water on the licence. Given these factors, and the information and evidence provided in this inquiry, including that Mr Ayes has no issue with Njamal accessing the licence, I find that prospecting activities are unlikely to directly interfere with the carrying on of the community or social activities in the licence area, as described in Njamal’s submissions and affidavit.

(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 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 (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 ‘in order to satisfy the requirements of s 237(b) of the NTA in relation to the question of whether sites of particular significance exist in the area, 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 the particularity of the site or area must be capable of identification (Western Australia v McHenry). These are threshold requirements for finding that 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) showing that there are no registered sites or ‘other heritage places’ on the licence.

2. 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

3. 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.

4. In his affidavit, Mr Taylor states that ‘When Njamal People travel through and around [the licence] area today, they often find artefacts indicating traditional use in and around the country’. He adds that ‘If we went out to [the licence] area now we would be sure to find a lot of signs of traditional Njamal use of the country’. Mr Taylor also states that the ‘area near the rivers and creeks is important and my old people have spent a lot of time hunting and camping throughout this region, including [the licence] area. There would be artefacts in that area and therefore an explorer would need to be careful going in there’.

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

1. At [18] 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). The evidence provided by Njamal in relation to the sites, broadly identified at [25] of their contentions, does not explain the particular or more than ordinary significance of the areas or sites in accordance with Njamal traditions. Therefore, I find there is insufficient evidence before me to support a conclusion that the sites identified by Mr Taylor are sites of particular significance for the purposes of s 237(b).

1. Conclusion

1. As there is insufficient evidence to establish sites of particular significance on the licence, I do not need to consider whether interference is likely. I note the State proposes to impose a condition allowing Njamal to request Mr Ayres enter into a Regional Standard Heritage Agreement (RSHA) within the first 90 days of grant, and that provides for consultation to occur between Mr Ayres and Njamal regarding the protection of sites.

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 P46/1877 to Warren John Ayres, is an act attracting the expedited procedure.

Helen Shurven
Member
29 November 2016