Kevin Allen and Others on behalf of Njamal v Wrasse Resources Pty Ltd and Another

[2017] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others on behalf of Njamal v Wrasse Resources Pty Ltd and Another [2017] NNTTA 30 (1 June 2017)

Application No: WO2016/0482

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 (WC1999/008)

(native title party)

- and -

Wrasse 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:	1 June 2017

Catchwords:

Native title – future act – proposed grant of exploration 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 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 native title party:

Ms Kate Major, Castledine Gregory
Mr Andre Maynard, Castledine Gregory

Representative of the grantee party: Ms Janet Procak, All Mining Legal Pty Ltd

Representatives of the Government party: Ms Bethany Conway, Department of Mines and Petroleum
Mr Jeff O’Halloran, State Solicitor’s Office

REASONS FOR DETERMINATION

1. This decision considers whether the expedited procedure applies to the grant of exploration licence E45/4651 (the licence) to Wrasse Resources Pty Ltd (Wrasse Resources). 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 People registered native title claimants’ native title claim overlaps the licence. The claimants (Njamal) therefore had the right to lodge an objection against the State’s assertion that the expedited procedure applies (s 32). They 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. 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 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 this is that the State can grant the licence without the usual requirement for negotiations between Njamal, Wrasse Resources and the State (s 31).

5. All parties lodged contentions. Njamal also lodged the affidavit of Mr Kevin Allen. Mr Allen states he is a Njamal Elder 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.

6. Njamal do not explicitly address 237(b) in their contentions. In his affidavit, Mr Allen states the Coongan River is ‘sacred to Njamal People’ and the land near it ‘is also very important to Njamal’. I note the Coongan River runs near, but not through the licence. Mr Allen also states ‘if you went out on the Exploration Licence you would be sure to find grinding patches and camping places’. Statements such as these are general references and do not sufficiently identify or explain why a site or area is of particular or more than ordinary significance for the purposes of s 237(b) (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).

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’. I find there is insufficient evidence before me to support a conclusion that there are areas of particular significance for the purposes of s 237(b). Because I find there is insufficient evidence to establish areas or sites of particular significance on the licence, I do not need to consider whether interference is likely.

8. Njamal do not provide contentions or evidence to address 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.

9. 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 Wrasse Resources’ 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.’ However, the evidence provided in support of this contention is very general. Mr Allen states Marble Bar is less than seven kilometres from the licence and the Marble Bar road runs through the licence. He states ‘lots of Njamal People use this road’ and the licence area for ‘camping, fishing and hunting, especially during the November to March period each year’. Mr Allen also states bush tucker is gathered in the licence area as well as ‘all around Njamal country’. However, there is no specific evidence about the frequency or intensity of these activities. Nor is there evidence to suggest the activities are undertaken there in such a way that exploration activities are likely to interfere with them.  

1. What are Wrasse Resources’ proposed activities?

1. Wrasse Resources do not provide any statements about their proposed activities. I note it would be open for them to use the full suite of rights available under the grant of the licence (see s 66 of the Mining Act 1978 (WA)). They state they ‘will not exclude any community or social activities … unless that activity is to be conducted in an area that is unsafe’. If that occurs, Wrasse Resources state they ‘will consult with the Native Title Party in order to seek an arrangement agreeable to both parties’. They also state they ‘will notify the Native Title Party prior to any exploration 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.’ Wrasse Resources also provide general information about their familiarity with the State’s regulatory regime.

1. Conclusion

1. 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 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]).

2. In this inquiry, I have balanced the general and limited evidence of Njamal’s community and social activities against the activities Wrasse 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.

Determination

1. The grant of exploration licence E45/4651 to Wrasse Resources Pty Ltd is an act attracting the expedited procedure.

Helen Shurven
Member
1 June 2017