Kevin Allen and Others on behalf of Nyamal #1 v David John Taylor
[2020] NNTTA 79
•17 December 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others on behalf of Nyamal #1 v David John Taylor [2020] NNTTA 79 (17 December 2020)
Application No: | WO2020/0534 |
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 Nyamal #1 (WC1999/008)
(native title party)
- and -
David John Taylor
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | The Hon J.A. Dowsett, AM, QC |
Place: | Brisbane |
Date: | 17 December 2020 |
Catchwords: | Native title – future act – proposed grant of special prospecting licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) s 70 Native Title Act 1993 (Cth) ss 29, 30, 30A, 31, 32, 237 |
Cases: | Allen on behalf of the Nyamal People #1 v State ofWestern Australia [2019] FCA 1570 Seven Star Investments Group Pty Ltd v Western Australia (2011) 257 FLR 175; [2011] NNTTA 53 Nyamal Palyku Proceeding [2020] FCA 428 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara and Another [2014] NNTTA 8 |
| Representative of the native title party: | John Edwards, Arma Legal |
| Representative of the grantee party: | David John Taylor |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety, and Wanjie Song, State Solicitor’s Office |
REASONS FOR DETERMINATION
INTRODUCTION
Kevin Allen, Willie Jumbo, Alice Mitchell, Tony Taylor and Jean Walker claim, in the Federal Court, on behalf of the Nyamal People (the “Native Title Party”), a determination as to the existence of native title pursuant to the Native Title Act 1993 (Cth) (the “Native Title Act”). The proceedings have the Federal Court number WAD20/2019. On 3 June 1999, the claim was entered on the Register of Native Title Claims. It has a complex history, to some extent explained by Reeves J in Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 and in Nyamal Palyku Proceeding [2020] FCA 42. In the former decision, his Honour made a determination as to the existence of native title over part of the claim area (the “determination area”). The Native Title Party’s claim also includes an adjoining area to the south of the determination area, which claim remains undetermined (the “undetermined area”).
On 3 April 2020 the Government of Western Australia, Department of Mines, Industry Regulation and Safety (the “State”) gave notice of its intention to grant (the “proposed grant”) a special prospecting licence P45/3141-S (the “proposed tenement”) to David John Taylor, (the “Proposed Grantee”). The proposed grant is to be made pursuant to s 70 of the Mining Act 1978 (WA) (the “Mining Act”). The notice was given pursuant to s 29 of the Native Title Act. For the purposes of s 29(4) of the Native Title Act the notification day was 8 April 2020. The notice contained a statement to the effect that the State considers that the proposed grant attracts the expedited procedure (the “expedited procedure statement”). Section 29(7) of the Native Title Act contemplates the inclusion of such a statement. Its inclusion engages s 32 of the Native Title Act.
Sections 30, 30A, 31 and 32 of the Native Title Act establish a system for negotiation in good faith in connection with the proposed grant of a mining interest such as the proposed tenement. If a notice pursuant to s 29 contains an expedited procedure statement then, subject to s 32, the State may make the proposed grant without the parties engaging in such negotiation. However if, pursuant to s 32(3), the Native Title Party lodges an objection to the expedited procedure statement, then the parties identified in s 30A must negotiate, unless this Tribunal (the “Tribunal”) determines that the proposed grant is an act attracting the expedited procedure. See s 32(5). The term, “act attracting the expedited procedure”, is defined in s 237 of the Native Title Act as follows:
A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
THE PROPOSED TENEMENT
The proposed tenement lies to the south of the southern boundary of the determination area. It is entirely within the undetermined area. It is a small area of about 0.099 km². It also lies wholly within a current exploration licence (E45/4236) held by Keras (Pilbara) Gold Pty Ltd. Section 70 of the Mining Act permits the grant of a special prospecting licence within an existing exploration licence. Section 70(1) of the Mining Act limits such licence to an area not exceeding 10 hectares and authorizes only prospecting for gold. The Proposed Grantee will not be permitted to excavate, extract or remove a total amount of earth, soil, rock, stone, fluid or mineral bearing substances in excess of “500 t”, unless the Minister permits. See s 70(6)(d).
The proposed grant will be subject to, among others, the following conditions:
1 All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines, Industry Regulation and Safety. Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, Department of Mines, Industry Regulation and Safety.
2 All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
3 Unless the written approval of the Environmental Officer, Department of Mines, Industry Regulation and Safety is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
CLAIMED NATIVE TITLE RIGHTS AND INTERESTS
The rights and interests claimed by the Native Title Party are set out in the Register of Native Title Claims as follows:
The applicants claim native title to the area covered by the application. The native title rights and interests claimed which are derived from that native title include, but are not limited to, the following rights and interests:
(1)Over areas where a claim to exclusive possession can be recognised, the applicants claims (sic):
(a) except as stated in Schedule P, the right to possess the land and waters claimed;
(b) the right to be asked, and the enforceable right to say no, with respect to any proposed activity by any person not part of the native title claim group within or affecting the determination area;
(c) except as stated in schedule P, the right to occupy the land and waters claimed;
(d) except as stated in schedule P, the right to use and enjoy the land and waters claimed;
(e) except as stated in schedule P, the right to make decisions about the use and enjoyment of the land and waters claimed;
(f) except as stated in schedule P, the right to control the access of others to the land and waters claimed;
(g) except as stated in Schedule Q, the right to control the use and enjoyment of others of the resources of the land and waters claimed;
(h) except as stated in Schedule Q, the right to receive a portion of any resources taken by others from the land or waters claimed;
(i) the rights and interests listed in 2 below.
(2)Over areas where a claim to exclusive possession cannot be recognised, the applicant claims:
(j) the right to maintain and protect places of importance on the land and in the waters claimed;
(k) except as stated in Schedule P, the right of free access to the land and waters claimed;
(l) except as stated in Schedule Q, the right to use and enjoy the resources of the land and waters claimed;
(m) except as stated in Schedule Q, the right to trade in the resources of the land and waters claimed;
(n) the right to carry out the activities set out in Schedule G(a)-(d)
Schedule G states
Members of the native title claim group have continuously carried out activities on the land and waters within the claim area. These activities are:
(a) residing on and travelling over the area;
(b) making use of the resources of the area through activities including, but not limited to, hunting, fishing, gathering bush tucker and bush medicine, camping, extracting ochre and other materials, building dwellings and making ceremonial artefacts and implements;
(c) exercising the responsibility for looking after the area in accordance with their traditional laws and customs, including exercising native title rights;
(d) passing on knowledge of the area;
in accordance with custom and tradition.
Schedule P states:
To the extent that the native title rights and interests claimed may relate to waters in an offshore place, those rights and interests are not to the exclusion of other rights and interests validly created by a law of the Commonwealth or the State of Western Australia or accorded under International Law in relation to the whole or any part of the offshore place.
Schedule Q states:
To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in rights of the Commonwealth or the State of Western Australia, they are not claimed by the applicants.
THE OBJECTION
The grounds of the Native Title Party’s objection appear in para 7 as follows:
The [Native Title Party has] connections to all the country which includes P45/3141-S. These connections include those maintained through hunting game, collecting food and natural resources and medicines, as well as visiting and looking after sites of significance. Going on country to educate the younger generations in relation to native title rights and interests.
Exploration activity will directly impact flora and fauna and may have ongoing indirect impacts by having altered the environment and habitat for native species that the native title holders continue to hunt and use. Drilling activity and costeaning will also destroy plants and habitats the [Native Title Party uses] use for food and medicines and may also destroy or impact on sites. Europeans tend to view sites as specific limited areas; however, the native title holders view many sites more as landscapes that will be impacted upon if the landscape is altered or partly destroyed or modified by machinery and equipment.
The Exploration activities will have significant impacts on the water and waterways in and around the exploration area. This could have impacts on the wildlife and flora in the area which may have an adverse effect on the native title holder’s (sic) ability to exercise their native title rights and interests in the future, (sic)
The grant of P45/3141-S will significantly impact on the objecting community’s conduct and enjoyment of these activities and the [Native Title Party’s] spiritual connection with the land.
We consider there are highly likely to be: artefact scatters, scarred trees, if there are escarpments on the area there are likely to be rock shelters in the area of P45/3141-S left by … ancestors. These artefacts are not recorded sites and can only be found by close examination of the area in question. These sites are particularly significant because they record the activities and movements of … ancestors. The sites are not easily identifiable and require specialist expertise to identify them. The action of driving across country to get to an area of proposed exploration activity as well as the proposed exploration activity itself is likely to destroy these artefact scatters and other sites unless they are properly identified, recorded and protected. There are no recorded sites in the area of this exploration permit, this should not be considered as meaning there are not significant sites on the exploration area and the presence of a recorded site nearby is indicative of the high use of this area by Nyamal people.
The [Native Title Party] believes the grant of P45/3141-S over the area of ground applied for will create rights, the exercise of which will involve major disturbance to the land. Specifically, the land in question is as delineated in the map provided from the State in its original notice.
[original emphasis removed]
EVIDENCE
Neither the Native Title Party nor the Proposed Grantee has led any evidence in this matter, although both make assertions of fact in their contentions. This has been done without objection. I must give such “evidence” the weight which I consider to be appropriate. The State has provided a substantial amount of information. I need not summarize that information, save to the extent that it is referred to by the parties in their contentions, or is otherwise of particular importance.
NATIVE TITLE PARTY’S CONTENTIONS
The Native Title Party contends that the proposed grant is not an act attracting the expedited procedure pursuant to the criteria outline in s 237(a), (b) and (c) of the Native Title Act. It contends that for present purposes, it should be treated as having the rights and interests, as set out in its native title claim, in connection with the proposed tenement, and the surrounding areas which, “might be used for access to the proposed tenement”. With regard to its claimed rights and interests, the Native Title Party relies upon the decision of Member Sumner in Seven Star Investments Group Pty Ltd v Western Australia (2011) 257 FLR 175 at [38] where it is said that:
For the purposes of the right to negotiate provisions of the Act, determined and registered claimed native title rights and interests are treated as being on the same footing. Registered claimed native title rights are assumed to exist as if they had been determined. However, there is still a need under s 39(1)(a)(i) of the Act for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a) … . In other words, a determination is not based on a worst case scenario where all the registered native title rights and interests are assumed to exist and be exercised or enjoyed equally over the whole claim area just by virtue of their registration.
Although that decision relates to proceedings pursuant to s 39, the propositions are equally applicable to the operation of s 237 in the context of ss 29-32. The above extract supports the Native Title Party’s submission that its claimed native title rights and interests should be accepted at face value. However, the extract makes it clear that the Native Title Party must provide information concerning the practical exercise of such rights and interests. The Native Title Party has not provided any such information. It points to the reasons given by Reeves J in his Honour’s determination decision. In particular the Native Title Party purports to refer to paragraphs 54, 58 and 59 of that decision as follows:
[54]The Nyamal People have maintained their connection [to] the Nyamal Determination Area since the assertion of sovereignty. It is evident from the archaeological and historical record that Aboriginal people have occupied and used the resources of the land in the Nyamal Determination Area since well before first contact.
…
[58]Today, whilst some Nyamal People still live permanently in the Nyamal Determination Area at Marble Bar, a majority of Nyamal People now reside in Port Hedland whilst some remain at Yandeyarra. However, those Nyamal People who reside outside the Nyamal Determination Area continue to camp, fish, hunt and gather on their country on weekends and during holidays.
[59]Accordingly, the Nyamal People continue to have a rich knowledge of the natural environment and particular sites in the Nyamal Determination Area (including mythological sites, dangerous, restricted, ceremonial, totemic and historical sites). Native game and plant foods continue to be important to Nyamal People and Nyamal People actively engage in hunting and gathering techniques and use traditional natural resources in accordance with a system of traditional laws and customs. The Nyamal People are also mindful of their responsibility to ensure that such knowledge is passed down to younger generations.
However those paragraphs are, in fact, part of an extract from the joint submissions made by the parties to Reeves J. The extract appears in his Honour’s reasons at [35]. However Reeves J says, concerning those submissions, only that the paragraphs summarize the Nyamal traditional laws and customs and their connection to the determination area. His Honour appears to have treated the entire extract as going, “some way to explaining why the parties came to the agreement that this determination … should be made”. Whilst his Honour may have been willing to act upon the joint submissions of the parties in the case before him, it does not follow that the Native Title Party can simply assert that the agreed submissions have some wider operation, extending to the undetermined area, particularly the proposed tenement.
Even accepting paragraphs 54, 58 and 59 of the joint submissions at face value, they relate only to the connection between the Native Title Party and the determination area. It does not follow that the same relationship exists between the Native Title Party and the undetermined area or the proposed tenement. Further, in para 8 of the Native Title Party’s submissions, it incorrectly asserts that the determination area is overlapped by the proposed tenement. The proposed tenement lies outside the boundaries of the determination area.
At para 9 of the Native Title Party’s submissions it asserts that common law native title holders conduct community and social activities (within the meaning of s 237(a) of the Native Title Act) in “the area”, and that the proposed grant would interfere directly with the conduct of such activities. The Native Title Party then asserts that the Nyamal native title holders, “carry out”, “their determined native title rights”, in the proposed tenement. These assertions are unaccompanied by any particulars of the activities in question. Nor are there particulars as to when, how or by whom such activities are conducted. At para 10 the Native Title Party asserts that, since significant rain earlier this year, social and community activities have occurred more frequently. Again, the assertion is unparticularized.
As to s 237(b), at para 12 the Native Title Party identifies the requirements of s 237(b) as set out in Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara and Another [2014] NNTTA 8. It is said that:
(i) [t]he area or site must be of special or more than ordinary significance to the native title holders, in accordance with their traditions;
(ii) [a]n area or site must be well known and able to be located, and the nature of its significance explained;
(iii) [e]ven slight interference may be unacceptable in the context of s 237(b), but the interference must involve actual physical intervention;
(iv) [g]enerally, the area or site must be located within the proposed licence. An area or site outside the licence area may be taken into account, where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the site and that activities off-site are in fact an integral part of activities on site (examples include the construction of roads, or truck movements, to and from the proposed licence area); and
(v) [t]here must be a real chance or risk of interference with the area or site.
At para 13, the Native Title Party again refers to the extract from the joint submissions made to Reeves J, set out above. However, as I have said, those paragraphs relate only to the determination area. Further, his Honour was citing an agreed submission, not making a finding. In paragraph 59, various types of site are identified. However there is no indication that any such site is to be found within the undetermined area or, more particularly, within the proposed tenement. There are no identified areas or sites for the purposes of s 237(b), either within the proposed tenement or the wider undetermined area. There is thus no basis for inferring that it is likely that there will be interference with areas or sites of particular significance in accordance with the traditions of the Native Title Party.
At para 14, the Native Title Party suggests that there may be substantial interference to “these areas” if the Grantee Party’s travel route to the tenement is not discussed. Even if any such areas were identified in the proposed tenement, there is no explanation as to why access should be a particular problem. The Proposed Grantee has concrete proposals with respect to access. I set them out below.
As to s 237(c), the Native Title Party submits at para 16 that, “disturbance to land and waters is too much disturbance which will need to be negotiated with the [Native Title Party] to avoid such disturbance.” In other words, the Native Title Party declines to engage with s 237(c), which provision clearly requires that a distinction be drawn between disturbance to any land or waters and major disturbance. Further there is no attempt to identify any relevant land or waters which may be disturbed, or how such disturbance may occur.
In effect, the Native Title Party has made little, if any, attempt to relate the considerations identified in s 237 to the particular circumstances of this case and, in particular, to relate them to the undetermined area, including the proposed tenement.
PROPOSED GRANTEE’S CONTENTIONS
The Proposed Grantee has worked and lived in the vicinity of Nullagine/Marble Bar for over 30 years. He knows many of the knowledge-holders who can speak for the heritage of the area. He knows of many heritage sites in the area but is aware of none lying within the proposed tenement. He speaks regularly to local knowledge-holders to confirm that no heritage sites are in the areas within which he works. He understands that all heritage sites are protected under the Aboriginal Heritage Act 1972 (WA) (the “AH Act”).
The area within the proposed tenement has been previously worked. Mr Taylor proposes to work it with a small machine, prospecting along a hill which has previously been explored. He proposes progressively to rehabilitate the area as he works. Access will be by existing 4 x 4 tracks created by station owners, previous miners and explorers, and government agencies. All work will be carried out in compliance with the State’s environmental requirements. The work will be of relatively short duration, extending over approximately two months per year in winter, for four years. The tenement is approximately 55 km from the closest towns, Nullagine and Marble Bar. Some of the roads between those towns and the proposed tenement can only be traversed by a 4 x 4 vehicle in good weather conditions. The closest water to the proposed tenement is in Sandy Creek, several kilometres to the west. On the proposed tenement there are no trees or creeks of any significance. Mr Taylor asserts that no fuel will be stored on site. No chemicals will be used in his exploration activities.
The Proposed Grantee says that he would not, under any circumstance, knowingly interfere with any site of Aboriginal cultural or heritage significance, and that he will consult with local knowledge holders to confirm that no Aboriginal heritage exists in the areas that he works. He also confirms that, “no Heritage sites or Other Heritage Places is (sic) recorded on the Aboriginal Heritage Enquiry system maintained by [the State]”. He has consulted a respected local knowledge-holder, Mr Stream, who is familiar with this area. He believes that there would be no detrimental impact as the result of work being carried out on the proposed tenement. The Proposed Grantee is aware of the AH Act and understands that he must comply with it. He has offered to enter into a Regional Standard Heritage Agreement.
The Proposed Grantee considers that there will be negligible, if any, effect on flora or fauna within the proposed tenement. Nor will there be any impediment to the ability to practise traditional Aboriginal customs. He considers that it is extremely unlikely that the proposed grant will cause any interference to sites or areas of Aboriginal significance. I treat the Proposed Grantee’s opinions as being of limited value, although they at least demonstrate his awareness of, and sensitivity to Aboriginal concerns.
It is unfortunate that, as with the material submitted by the Native Title Party, the Proposed Grantee’s contentions assert matters of fact not otherwise in evidence. For present purposes, however, it seems to me that the Proposed Grantee’s response is adequate, having regard to the very limited nature of the assertions made by the Native Title Party.
STATE’S CONTENTIONS
The State asserts that the area of the proposed tenement has previously been the subject of numerous exploration licences and prospecting licences, some of which overlap the entire tenement area. It further asserts that there are no Aboriginal communities on the proposed tenement. The State contends that, given the very small area involved, it is unlikely that the proposed exploration will cause substantial further interference. I am not sure that I follow the logic of that proposition.
The State advises that there is no Registered Aboriginal Site (“RAS”) nor any Other Heritage Place (“OHP”) registered under the AH Act within the area of the proposed tenement. The State intends to impose standard conditions as to environmental rehabilitation, and to require environmental approval before any ground-disturbing activities are conducted. Breach of statutory conditions or conditions imposed by the Minister would leave the licence liable to forfeiture.
Concerning s 237(a), the State contends that the Tribunal must determine, by way of predictive assessment, whether there is a real chance or risk that the proposed grant will interfere directly with the conduct of the community or social activities of the native title holders. Any interference must be substantial in its impact upon such activities. The State further submits that it is not sufficient for the Native Title Party simply to provide evidence of a general nature, or to assert that a certain activity takes place. It contends that specific evidence is required about the location, intensity and frequency of the activity, and how the proposed grant would interfere with the activity. Those propositions may be a little too prescriptive. However, in this case, the Native Title Party has failed to identify any risk of direct interference with the conduct of community or social activities. In particular, the State points out that the findings made by Reeves J in Allen, concerning the relationship between the Nyamal people and the determination area, cannot readily be applied to the proposed tenement. The Native Title Party’s contentions do not address how its community or social activities might be interfered with by the proposed grant.
As to s 237(b) the State submits that knowledge of the particular significance of any area or site is something which is likely to be that of the Native Title Party. As a matter of practice, the Tribunal will generally be assisted by evidence from the Native Title Party in that regard. The State, again, contends that the Native Title Party simply refers to the determination in Allen, without offering evidence as to the areas or sites of particular significance within the proposed tenement or near to it.
As to s 237(c), the State submits that the Native Title Party asserts that any disturbance is “too much disturbance”. The State points out that the term “major disturbance” is an ordinary English term and should be given its ordinary meaning, as understood by the whole Australian community, including Aboriginal people. It further submits that there is no requirement that the extent of any disturbance be assessed according to a relevant Native Title Party’s traditions. The cultural concerns of Aboriginal people may be taken into account, but it does not follow that the term “major” must reflect only the opinions of the Native Title Party. Again, the State asserts that the evidence is insufficient. I agree.
CONCLUSION
In the circumstances I am satisfied that the proposed grant will not interfere directly with the conduct of the community or social activities of the Native Title Party. I am also satisfied that the proposed grant is not likely to interfere with areas or sites of particular significance in accordance with the traditions of the Native Title Party. Further, I am satisfied that the proposed grant is not likely to result in major disturbance to any land or waters or to create rights, the exercise of which is likely to involve major disturbance to such land or waters.
I conclude that the expedited procedure applies to the proposed grant.
The Hon John Dowsett AM, QC
President
17 December 2020
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