Kevin Allen and Others on behalf of Nyamal #1 v Mining Equities Pty Ltd
[2020] NNTTA 78
•16 December 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others on behalf of Nyamal #1 v Mining Equities Pty Ltd [2020] NNTTA 78 (16 December 2020)
Application No: | WO2020/0533 |
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 -
Mining Equities Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | The Hon J.A. Dowsett, AM, QC |
Place: | Brisbane |
Date: | 16 December 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 66 Native Title Act 1993 (Cth) ss 29, 30, 30A, 31, 32, 39, 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 |
| Representative of the native title party: | John Edwards, Arma Legal |
| Representative of the grantee party: | Peter Gianni, Mining Equities |
| 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 have claimed, 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 428. In the former matter, 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 20 March 2020 the Government of Western Australia, Department of Mines, Industry Regulation and Safety (the “State”) gave notice (the “notice”) of its intention to grant (the “proposed grant”) to Mining Equities Pty Ltd (the “Proposed Grantee”) exploration licence 46/1294 (the “proposed tenement”). The proposed grant is to be made pursuant to s 57 of the Mining Act 1978 (WA) (the “Mining Act”). The proposed tenement will lie within the boundaries of the undetermined area. 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 25 March 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 an exploration licence. 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.
A REGISTERED ABORIGINAL SITE
The proposed tenement lies in the north-east of the undetermined area and contains slightly in excess of 35km². The undetermined area contains 9,238.913 km2. Within the proposed tenement, there is one Registered Aboriginal Site (“RAS”). It is located in the north-east of the proposed tenement and is about 2¼ km2. The State has provided a certain amount of information concerning the RAS. There are no gender restrictions in connection with it. Its significance is described as “Artefacts, Scatter, Repository/Cache”. It is said that relevant registered knowledge holders are “known”.
THE PROPOSED TENEMENT
The northern part of the proposed tenement lies within a “File Notation Area”, apparently an area earmarked for amalgamation with nearby pastoral tenements. The RAS lies in that area. Overlapping the western boundary of that site is an area of unallocated Crown land which contains two “C” class water reserves and one “C” class timber reserve. The southern part of the proposed tenement lies within a pastoral lease. There are five live mining leases which lie wholly within the proposed tenement. They mostly lie within the area of the timber reserve, to the west of the RAS.
The rights conferred by an exploration licence are prescribed by s 66 of the Mining Act as follows:
An exploration licence, while it remains in force, authorises the holders thereof, subject to this Act, in accordance with any conditions to which the licence may be subject –
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the [Rights in Water and Irrigation Act 1914 (WA)], or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.
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 E46/1294. 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] 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 E46/1294 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 E46/1294 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 E46/1294 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 submitted any evidence in this matter. The State has provided a substantial degree of material. However I need refer to it only in connection with the parties’ contentions. Given the limited nature of the Native Title Party’s contentions, it will be convenient if I first summarize those of the Proposed Grantee and the State.
PROPOSED GRANTEE’S CONTENTIONS
The Proposed Grantee has offered to execute a Regional Standard Heritage Agreement (“RSHA”) with the Native Title Party. It seems that the Native Title Party has not yet accepted that offer. The Proposed Grantee asserts that it is fully aware of the operation of the Aboriginal Heritage Act 1972 (WA) (The “AH Act”), and that it is obliged to refrain from disturbing Aboriginal sites, registered or otherwise. The Proposed Grantee contends that the Native Title Party has not specifically identified the locations of “significant areas of importance”. It contends that the ground to be included in the proposed tenement has previously been a very active mining area, and has been included in approximately 140 tenements, including past mining leases. There have been previous drilling operations. It is said that during such operations all Aboriginal heritage and culture was respectfully observed. I give little weight to this assertion as there is no identified basis for it. The Proposed Grantee identifies the RAS to which I have referred, asserting that only its general location has been indicated. It also contends that to some extent, it will be effectively reduced in area by virtue of the timber and water reserves. I do not know whether this is so or not.
The Proposed Grantee also contends that its proposed exploration activities are presently in their infancy and that, if no early favourable indications emerge, the proposed tenement will be relinquished. The initial work to be performed consists of:
· a review of historical exploration undertaken on the proposed tenement and recovery of the open file literature;
· determination as to whether geophysical surveys have been previously undertaken on the area in question and if so, recovery and reprocessing of available data;
· if needed, and after consultation with the Native Title Party, collection of additional geophysical data, perhaps in the form of an electro-magnetic survey on the surface; and
· assuming that worthy exploration targets are generated from the survey, identification of proposed drill sites and the undertaking of heritage surveys, prior to commencement of any exploration drilling or major ground work.
Concerning s 237(a), the Proposed Grantee is willing to consult with the Native Title Party and to schedule its exploration so as best to avoid interfering in any community or social activities, including “fishing, game hunting or food/plant gathering”. To the extent that the Native Title Party’s community and social activities occur after significant rain, the Proposed Grantee says it will not undertake exploration during wet/rainy periods. This proposition responds to an assertion by the Native Title Party that its community and social activities have been occurring more frequently since significant rainfall earlier in the year. The Proposed Grantee appears to assert that because its activities will not occur during periods of rainfall, such activity will not occur at the same time as the Native Title Party’s community and social activities. Obviously, that proposition is misconceived.
The Proposed Grantee believes that the proposed grant is highly unlikely to interfere with the conduct of the Native Title Party’s community or social activities, or those of any other party claiming native title rights and interests. The Proposed Grantee says that it will consult with the Native Title Party and conduct its exploration in such a way as best to avoid, and not interfere with any community or social activity. It will ensure that any requests by the Native Title Party are complied with, so ensuring that there will be no interference.
As to s 237(b), the Proposed Grantee asserts that the proposed grant is unlikely to interfere with any place of particular significance to the Native Title Party. It is willing to conduct a clearance and heritage survey in order to identify and protect any Aboriginal sites which remain within the proposed tenement (excluding the mining leases and timber reserve mentioned above). It asserts that the exact locations of Aboriginal “sites” have not been established, but that they can be protected under an RSHA, accompanied by a ground inspection or heritage survey. The Proposed Grantee is willing to give immediate notice to the Native Title Party of its intention to conduct any exploration.
Concerning s 237(c), at para 12 of its contentions, the Proposed Grantee states that it is, “fully aware of the responsibilities that any major disturbances to the land and the waters are to be keep (sic) to a minimum”, and that it “will always make full disclosure of this to the [Native Title Party]”.
Section 237(c) requires that I determine whether or not it is likely that the proposed grant will involve major disturbance to any land or waters concerned or create rights, the exercise of which is likely to involve such major disturbance. In para 12, the Proposed Grantee seems to assert that any major disturbance is to be kept to a minimum. In other words, the Proposed Grantee appears to anticipate major disturbance, which major disturbance it will keep to a minimum.
STATE’S CONTENTIONS
The State intends to impose endorsements and conditions upon the proposed grant, including standard conditions requiring environmental rehabilitation and environmental approval prior to any ground-disturbing activities. Breach of a statutory condition or conditions imposed by the Minister on an exploration licence leaves the licence liable to forfeiture. The State notes that the Proposed Grantee intends to undertake Aboriginal heritage surveys for ground-disturbing activities, “where required”, and is willing to enter into an RSHA on terms that it considers acceptable. It is also aware of its obligation not to disturb sites, registered or otherwise, under the AH Act.
The State notes that the Tribunal must conduct an assessment as to whether or not it is likely that interference or major disturbance will occur. Such assessment is not confined to a consideration of legal rights. Factors such as the Proposed Grantee’s intentions and the existence and nature of any regulatory regimes are also relevant. Likelihood of interference or major disturbance need not be established on the balance of probabilities. Further, the State notes that it is a question of whether there is a real, and not a remote chance or possibility of such an outcome.
Concerning community or social activities, the State contends that, for the purposes of s 237(a) it is not sufficient for the Native Title Party to provide evidence of a general nature, or simply assert that certain community or social activities take place. Specific evidence is required concerning the location, intensity and frequency of the activities in question, and the ways in which the proposed grant might interfere with such activities.
The State contends that the Native Title Party has not provided sufficient evidence with respect to its community or social activities within the area of the proposed tenement. It contends that although, as the Native Title Party asserts, Reeves J held that the Native Title Party was engaged in hunting, fishing, camping and gathering on the determination area, that finding does not lead to the conclusion that those activities are also being undertaken within the proposed tenement or in the wider, undetermined area. The Native Title Party provides no information in this regard. The Native Title Party also contends that the Proposed Grantee will interfere directly with the conduct of “native title activities”. However the State submits that the Native Title Party does not address how this will occur and that, in effect, the Native Title Party’s submissions are merely assertions in the broadest of terms.
As to s 237(b) the State submits that evidence of the particular significance of an area or site is generally within the knowledge of the traditional owners. Hence the best evidence as to the existence of such areas or sites, and of their particular significance will generally come from the Native Title Party.
The State contends that although the Native Title Party refers to areas and sites within the determination area, it has not identified, or provided any evidence concerning any sites or areas of particular significance within the proposed tenement or the wider undetermined area. Nor has it explained the sacredness of any sites by means of evidence adduced from persons who have the authority to speak in relation to such sites. The use of the word “sacredness” may unduly narrow the operation of s 237(b). However, the State’s use of that word probably only reflects the fact that the particular significance of areas or sites is frequently associated with spiritual matters.
Concerning s 237(c) the State contends that the Native Title Party does not elaborate upon the general proposition that any disturbance to land and waters is “too much disturbance”. The State submits that the expression “major disturbance” should be given its ordinary meaning. Whilst an assessment of any disturbance may involve some consideration of the perceptions and concerns of Aboriginal people, such assessment is not to be determined only by reference to such perceptions and concerns. Again, the State contends that there is no evidence with respect to possible disturbance of land or waters, and that there is no basis upon which the Tribunal could be satisfied that the proposed grant is likely to lead to any such major disturbance.
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 it’s 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 single RAS as supporting its case, as well as to “findings” allegedly made by Reeves J in his 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.
Those paragraphs are, in fact, an extract from the joint submissions presented to his Honour by the parties. 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 submission 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. In particular, the reference in the last sentence of paragraph 58 to “their country” must relate to the land to which the determination relates. The Native Title Party apparently invites me to infer that the extracted paragraphs of the joint submissions are also relevant to the relationship between the Native Title Party and the undetermined area, particularly the proposed tenement. I see no basis for doing so.
The Seven Star decision recognizes the need for evidence concerning the enjoyment or exercise of native title rights and interests. In my view there should be evidence of community or social activities for the purposes of s 237(a), of areas or sites of particular significance pursuant to s 237(b) and as to anticipated major disturbance for the purposes of s 237(c).
Concerning s 237(a), the Native Title Party seems to submit, at para 8 of its contentions, that paragraphs 54, 58 and 59 of the joint submissions demonstrate that “Nyamal People have maintained community and social activities in the form of gathering and hunting in the Nyamal Determination Area since before first contact”. It seems also to assert that the proposed tenement overlaps the determination area. In fact, the proposed tenement does not overlap the determination area. It lies within the undetermined area, about which there is no evidence. I have otherwise dealt with those submissions.
At para 9 of its contentions, the Native Title Party asserts that it conducts community and social activities “in the area”, without identifying that area. As I have said, evidence as to activities on the determination area says little or nothing about the undetermined area, in particular the proposed tenement. A subsequent assertion that native title holders carry out their determined native title rights in the proposed tenement is unsupported by any evidence. It is also said that after significant rain earlier this year, such activities have been more common. However again, there is no evidence as to the activities in question.
As to s 237(b) the Native Title Party relies on paragraph 59 of the joint submissions set out above. As I have said, the paragraph is an extract from joint submissions, which cannot be treated as applying to the undetermined area nor to the proposed tenement. Although there is reference to “particular sites”, none is identified, even within the determination area, let alone within the proposed tenement.
At paras 14 of its contentions, the Native Title Party submits that the location of the RAS is, “clear and unambiguous evidence”, that the proposed tenement is of more than ordinary and substantial significance to the Native Title Party. At para 15 it contends that “these areas” are of more than ordinary and particular significance, and that the activities permitted by the grant of an exploration licence would lead to relevant interference. It further submits that in those circumstances the Native Title Party needs the protection of the right to negotiate to preserve its cultural heritage. That submission seeks to avoid application of the s 237 requirements.
The Native Title Party’s assertion concerning the evidentiary value of the RAS is misconceived. Its only significance is that it is a place of the kind contemplated by the AH Act. It does not follow that it is an area or site of particular significance in accordance with the traditions of the traditional owners. To the extent that we know anything about its nature, it is that artefacts were located there.Nothing is said about the site, itself. Nor do we know whether the artefacts are still located there. Although the word “areas” is used in para 15 of the submissions, the only identified site within the proposed tenement is the RAS. The use of the word “area” seems to reflect the areas within the determination area, referred to by Reeves J in citing the joint submissions.
As to s 237(c), the Native Title Party simply asserts that, “disturbance to land and waters is too much disturbance”. In other words, the Native Title Party seeks only to engage in a semantic exercise, ignoring the requirements of s 237(c). The Native Title Party effectively dismisses the statutory test.
CONCLUSION
The Native Title Party’s failure to lead any evidence concerning the matters identified in s 237 would ordinarily lead to a conclusion that the expedited procedure applies to the proposed grant. However the assertion made by the Proposed Grantee at para 12 of its contentions that major disturbance will be kept to a minimum complicates the position. One might suspect that the Proposed Grantee intended to assert that it would minimize the extent of any disturbance, so that it would not be “major”. However, it has not said so. It has rather asserted that it will minimize any major disturbance. At the very least, this statement seems to reflect a misunderstanding of s 237(c). If the Native Title Party bore any burden of proof, such statement might not make up for any deficiency in the Native Title Party’s evidence. However it has no such burden. It is my duty to consider the likelihood or otherwise of each of the three matters identified in s 237. I am satisfied that it is not likely that the proposed grant will interfere directly with the conduct of the Native Title Party’s community or social activities. I am similarly of the view that it is not likely that the proposed grant will interfere with areas or sites of particular significance in accordance with the Native Title Party’s traditions.
As to the question of major disturbance to land or waters, nothing in the Proposed Grantee’s submissions suggests major disturbance. The Native Title Party has not asserted any such likelihood, other than the rather Delphic assertion that disturbance is too much disturbance. Hence the only suggestion that there may be major disturbance is that found in para 12 of the Proposed Grantee’s contentions. Whilst I am tempted to say that the Proposed Grantee cannot have meant that it expected there to be major disturbance to land or waters, it has said that it understands that such major disturbance must be kept to a minimum, and that it must make full disclosure “of this” to the Native Title Party. To that extent, it seems to assert a right to cause major disturbance, provided that it is kept to a minimum. In the face of such an assertion, I cannot but conclude that it is not unlikely that there will be such disturbance to land or waters.
I conclude that the expedited procedure does not apply to the proposed grant.
The Hon John Dowsett AM, QC
President
16 December 2020
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