Kevin Allen and others on behalf of Nyamal #1 v Rocklea Gold Pty Ltd
[2020] NNTTA 81
•23 December 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and others on behalf of Nyamal #1 v Rocklea Gold Pty Ltd [2020] NNTTA 81 (23 December 2020)
Application No: | WO2020/0536 |
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 -
Rocklea Gold Pty Ltd
(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: | 23 December 2020 |
Catchwords: | Native title – future act – proposed grant of 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) ss 40, 46, 46A 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 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: | Jacob Loveland, All Mining Legal |
| 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 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 over an adjoining area to the south of the determination area 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 of its intention to grant (the “proposed grant”) a prospecting licence (P46/1974) (the “proposed tenement”) to Rocklea Gold Pty Ltd, (the “Proposed Grantee”). The proposed grant is to be made pursuant to s 40 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 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 in the southern part of the undetermined area, about 10 km north of the southern boundary. It contains about 0.4248 km2. Sections 46 and 46A of the Mining Act impose the following conditions on the proposed grant:
46 Conditions attached to every prospecting licence
In addition to any conditions that may be prescribed or imposed with respect to a prospecting licence, every prospecting licence shall be deemed to be granted subject to the condition that the holder of the licence will prospect for minerals and to the following conditions —
(a)that all minerals of economic interest discovered in or on the land the subject of the prospecting licence be promptly reported in writing by the holder to the Minister;
(aa)that no ground disturbing equipment will be used by the holder when prospecting on the land the subject of the prospecting licence unless —
(i)the holder has lodged in the prescribed manner a programme of work in respect of that use; and
(iia)the holder has paid the prescribed assessment fee in respect of the programme of work; and
(ii)the programme of work has been approved in writing by the Minister or a prescribed official;
(b)that all holes, pits, trenches and other disturbances to the surface of the land the subject of the prospecting licence which are —
(i)made while prospecting; and
(ii)in the opinion of a prescribed official, likely to endanger the safety of any person or animal,
will be filled in or otherwise made safe to the satisfaction of the prescribed official;
(c)that all necessary steps are taken by the holder to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise.
46A Conditions for prevention or reduction of injury to land
(1)Reasonable conditions may be imposed on the holder of a prospecting licence for the purpose of preventing or reducing, or making good, injury to the land in respect of which the licence is sought or was granted, or injury to anything on or below the natural surface of that land or consequential damage to any other land.
(2)A condition may be imposed under this section —
(a)by the mining registrar, the warden or the Minister on the granting of the licence; or
(b)by the Minister at any subsequent time.
(3)A condition imposed under this section may be cancelled or varied by the Minister at any time.
(4)A condition imposed in relation to a licence under this section —
(a)may, either in full or with sufficient particularity as to identify the recommendation or other source from which it derives, be endorsed on the licence, for which purpose the holder of the licence shall produce the licence on demand; and
(b)whether or not so endorsed, on notice of the imposition of the condition being given in writing to the holder of the licence shall for all purposes have effect as a condition to which the licence is subject.
The proposed grant will be subject to the following conditions, amongst others:
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 P46/1974. 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] 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 P46/1974 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 P46/1974 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 P46/1974 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 uncontested 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 outlined 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 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. Nonetheless, 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 rely upon paragraphs which it describes as “[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 for the purposes of 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, where, 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 paragraph 59 of the extract from the joint submissions made to Reeves J. However, as I have said, those submissions 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 evidence that any such site is to be found within the undetermined area or, more particularly, within the proposed tenement. 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.
As to s 237(c) the Native Title Party submits only 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 the requirements of s 237(c). The section clearly requires that a distinction be drawn between disturbance to any land or waters and major disturbance. Further, there has been 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
Concerning s 237(a), the Proposed Grantee submits that community or social activities are those which arise from registered native title rights and interests. The question is whether the proposed grant is likely, directly to interfere with the Native Title Party’s community or social activities. The Tribunal must consider whether the proposed grant is likely to be a proximate cause of substantial, and not trivial interference with such activities. It submits that the Tribunal must balance the Native Title Party’s evidence of community or social activities against the Proposed Grantee’s intended exploration activities, in order to determine whether they can co-exist without direct interference. General and unspecified evidence is insufficient to find that the proposed grant will create such direct interference.
For the purposes of s 237(b) it is submitted that a site is of particular significance if it is, “special or more than ordinarily significant to the native title holders in accordance with their traditions …”. There is a distinction between areas and sites which are culturally significant and those which are of particular significance. The Proposed Grantee submits that the impact must be substantial or non-trivial. However, as I understand it, the cases suggest that the impact may be trivial for the purposes of s 237(a) but non-trivial for the purposes of s 237(b). An area or site must be geographically located before it can be accepted as an area or site of particular significance. This proposition should not be taken too literally. The Tribunal may be satisfied that there is a particular site within a specified area, although it cannot be precisely located. The important thing is that there be identifiable areas or sites upon which the enquiry contemplated by s 237(b) can be focussed.
It is submitted that dreaming tracks may be significant but that not all dreaming tracks are of equal importance. Nor will all places along a track be of equal significance. Native title parties must explain why the particular dreaming sites are of particular significance, providing evidence, having sufficient detail and specificity in order to establish the particular significance of the site in accordance with traditional law and custom, and to allow the Tribunal to make the required predictive assessment. These submissions must be understood as being subject to the well-known proposition that in the current proceedings, no party bears any burden of proof.
As to s 237(c), it is submitted that exploration activities will not ordinarily constitute a “major disturbance”. Again, it may be unwise to take this proposition too literally, at least to the extent that it seeks to narrow or expand the ambit of s 237(c). The Tribunal must make an evaluative judgment as to whether major disturbance to land or waters is likely to occur as the result of the proposed grant, having regard to the views of the Australian community, including the Aboriginal community. The Proposed Grantee submits that one would ordinarily expect evidence concerning the particular characteristics of the land or waters within the proposed tenement, which characteristics might cause such land or waters to be at greater risk of major disturbance than might otherwise have been expected. Again, I doubt whether it is wise so to paraphrase the wording of s 237(c).
The Proposed Grantee submits that the Native Title Party does not identify any community or social activities which are carried out within the area of the proposed tenement, nor how the proposed grant will directly interfere with such activities. There is no evidence identifying any areas or sites of particular significance within the proposed tenement, nor is there evidence as to the how the proposed grant may interfere with such areas or sites. Finally, the Proposed Grantee submits that the Native Title Party does not identify any land or waters which would be subject to major disturbance as the result of the proposed grant. As a result the Proposed Grantee submits that the Tribunal is unable to conduct the required assessment prescribed by each of the paragraphs of s 237. It is difficult to disagree with any of these propositions. The Proposed Grantee then deals with the Aboriginal Heritage Act 1972 (WA) (the “AH Act”). The Proposed Grantee notes that there is neither a Registered Aboriginal Site (“RAS”) nor an Other Heritage Place (“OHP”) within the proposed tenement.
The Proposed Grantee submits that the Native Title Party has not identified any areas or sites located, within the proposed tenement, which may be impacted by the proposed grant. As a result the Proposed Grantee cannot readily identify potential adverse impacts on any particular areas or sites. It submits that it is therefore unlikely that any adverse impact of the kind contemplated by s 237(b) will occur.
The Proposed Grantee claims that it is familiar with, and understands its obligations to comply with the requirements set out in the AH Act. It will report any potential site identified during the course of its activities in compliance with its obligations under the AH Act.
In summary the Proposed Grantee submits that the Native Title Party has not established that the proposed grant will directly interfere with the carrying on of the community or social activities of the Native Title Party, interfere with areas or sites of particular significance in accordance with the Native Title Party’s traditions or involve major disturbance to any land or waters.
THE STATE’S CONTENTIONS
The State contends that the area of the proposed tenement has previously been the subject of numerous exploration licences and prospecting licences, some of which have overlapped the entire area in question. It asserts that there are no Aboriginal communities on the proposed tenement, and that it contains neither an RAS nor an OHP.
The State intends to impose the endorsements and conditions which are attached at Annexure 4 to its submissions. These include standard conditions as to environmental rehabilitation, and as to the requirement that there be environmental approval before any ground-disturbing activities are conducted. A breach of a statutory condition, or condition imposed by the Minister leaves the licence liable to forfeiture. For present purposes, the relevant endorsements and conditions are those identified at [5] of these reasons.
The State notes that the Proposed Grantee has confirmed that it is committed to complying with its obligations under the AH Act, and that it will not restrict the Native Title Party’s access to the proposed tenement, except where safety concerns must prevail. As much appears in the Proposed Grantee’s submissions.
Concerning the Native Title Party’s contentions and evidence, the State contends that, in determining whether an act is one which attracts the expedited procedure, the Tribunal must conduct a predictive assessment as to whether it is “not likely” that the proposed grant will have any of the identified consequences. Such assessment is not confined to a consideration of the legal rights conferred by the relevant legislation. Factors such as the Proposed Grantee’s intentions and the existence and nature of any regulatory regimes are also relevant and important.
Concerning s 237(a) the State submits that the Tribunal must determine whether there is a real chance or risk that the proposed grant will interfere directly with the carrying on of the community or social activities of the native title holders. It is insufficient for the Native Title Party to provide evidence of a general nature, or simply to assert that a certain activity takes places. Specific evidence is required about the location, intensity and frequency of the activity and how the grant of the proposed tenement might interfere with that activity. The State contends that the Native Title Party has not provided evidence of this kind. It is difficult to disagree with that proposition.
Concerning the determination in Allen, the State submits that the fact that the Native Title Party carries out community and social activities on the determination area does not lead to the conclusion that those activities are undertaken within the area of the proposed tenement or in its vicinity, particularly having regard to its relatively small area. There is no evidence as to the nature of such activities or as to the location, intensity and frequency with which they are conducted, nor as to how the proposed grant may interfere with them.
As to s 237(b), the State identifies the “principles” to be taken into account as set out at [14] above. The State submits that the circumstances giving rise to an area or site having particular significance will generally be within the knowledge of the Native Title Party so that one would expect evidence of such matters to come from that party.
As I have said, whilst the Native Title Party relies on paragraph 59 of the joint submissions cited by Reeves J at [35] in Allen, that paragraph relates only to the relationship between the Native Title Party and the determination area, not to any relationship with the undetermined area or, in particular, with the proposed tenement. No relevant areas or sites have been identified. No explanation has been given as to the “sacredness” of any area or site. Of course s 237(b) does not require “sacredness”. However not infrequently, particular significance will arise out of sacred concepts. Again it is submitted that the Native Title Party’s contentions are factually too broad to satisfy the requirements of s 237(b).
As to s 237(c), the State notes that the Native Title Party submits that, “any disturbance to land and waters is too much disturbance which will need to be negotiated with the Native Title Party to avoid such disturbance.” As I have previously observed this proposition simply avoids consideration and application of the test prescribed in s 237(c). It is submitted that the term “major disturbance” is an ordinary English expression and has the ordinary meaning which it has in the Australian community, including Aboriginal members of that community. It is not a matter to be assessed solely having regard to the Native Title Party’s traditions, although Aboriginal people’s concerns may be taken into account. Finally, it is submitted that the state of the evidence is such that I should conclude that the proposed grant is unlikely to involve major disturbance to land or waters.
CONCLUSION
The Native Title Party has failed to identify any basis for inferring that the proposed grant will cause interference or disturbance of the kinds prescribed in s 237. In those circumstances I am satisfied that such consequences are unlikely. In particular, I am satisfied that it is not likely that:
·the proposed grant will interfere with the conduct of community or social activities of the Native Title Party; or
·the proposed grant will interfere with areas or sites of particular significance in accordance with the traditions of the Native Title Party; or
·the proposed grant will involve major disturbance to any land or waters concerned, or create rights the exercise of which is likely to involve major disturbance to any land or waters.
I conclude that the expedited procedure applies to the proposed grant.
The Hon John Dowsett AM, QC
President
23 December 2020
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