Kevin Allen & Ors on behalf Nyamal #1 v David John Taylor and Another
[2021] NNTTA 38
•13 July 2021
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Ors on behalf Nyamal #1 v David John Taylor and Another [2021] NNTTA 38 (13 July 2021)
Application No: | WO2021/0516 |
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 & Ors on behalf 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: | Ms Helen Shurven |
Place: | Perth |
Date: | 13 July 2021 |
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: | Native Title Act 1993 (Cth) ss 29, 32, 237 Aboriginal Heritage Act 1972 (WA) |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Kevin Allen and Others (Nyamal #1) v Bushwin Pty Ltd and Another [2019] NNTTA 75 (Allen v Bushwin) Kevin Allen & Ors on behalf of Nyamal #1 v John William Young & Another [2019] NNTTA 85 (Allen v Young) Nyamal Aboriginal Corporation v Abeh Pty Ltd & Another [2019] NNTTA 90 (Nyamal v Abeh) Nyamal Aboriginal Corporation v Onanong Perkin & Others [2020] NNTTA 10 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 |
| Representatives of the native title party: | Tara Babu and Grace Manning-Davis, Arma Legal |
| Representatives of the grantee party: | David John Taylor and Peter Wiltshire |
| Representatives of the Government party: | Reywin Rico, Stewart Palmer and Anthony Civiello, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant prospecting licence P46/1978 to David John Taylor (the grantee).
The notice for the licence included a statement that the grant is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts the grant of the licence is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The proposed licence is approximately 38 kilometres from Nullagine. The Nyamal #1 native title claim overlaps the licence, which is located near the area where native title has been determined by the Federal Court to be held by the Nyamal People (WCD2019/010 - see Allen v Western Australia (at [3])). The Nyamal #1 native title claimants (Nyamal) lodged an application with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence. Nyamal argue the expedited procedure should not apply to the licence on the basis that the grant will likely cause the interference contemplated in sections 237(a), (b) and (c) of the Act.
I adopt the principles and reasoning in [4]-[8] of Nyamal Aboriginal Corporation v Onanong Perkin & Others [2020] NNTTA 10. I also note, as explained by Carr J in Ward (at 26):
In administrative matters such as these, any party (not just the native title party) has what might be termed an evidentiary choice. They might choose not to lead any evidence on a particular issue. But that does not necessarily mean that they must fail on that issue ie that they have an evidential onus of proof… where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the common sense approach to evidence.
Preliminary Matters
Submissions
Nyamal provided contentions, but no reply to the State or Mr Taylor’s contentions. No affidavit or statement material was provided in support of the Nyamal contentions.
Mr Taylor provided contentions, together with a series of photographs – no party took exception to the contention the photographs were of the proposed licence area, and I accept they are recent photographs of the area.
The State provided their contentions, mapping, and other materials from the State’s databases. The material includes a quick appraisal outlining the underlying tenure and searches of the Aboriginal Heritage and Inquiry System, held under the Aboriginal Heritage Act 1972 (WA) (AHA). The searches showed no sites or areas as being recorded on the licence under the AHA.
Determination to be made on the papers
All parties were advised I would determine this inquiry on the basis of the papers that had been submitted, and all parties were content to proceed with that approach.
Party submissions
The grantees’ argument
Mr Taylor outlines that his proposed prospecting activities will focus on historical exploration areas (in which activity has occurred since approximately 1899). He notes the work will be conducted for approximately two months per year in winter, for four years, with rehabilitation occurring as he goes. He states no fuel will be stored on site and no chemicals will be used during the work program. Mr Taylor notes he has offered to protect heritage by executing the Regional Standard Heritage Agreement.
The State’s argument
The State relies on reference to cases, and argument, which assert Nyamal have not provided sufficient evidence for me to draw a conclusion that there is likely to be interference with community or social activities of the native title holders (at 18-25), or with any sites or areas of particular significance to the native title holders (at 28-31). The State also provides argument as to why I could not conclude land or waters are likely to be interfered with in accordance with s 237(c) of the Act (at 32-34). The State outline they will apply a number of conditions and endorsements on the grant of the licence.
Nyamal’s argument
The Nyamal submissions refer to sections from the Federal Court decision in Allen v Western Australia, which they argue support their assertion that the expedited procedure should not apply. The evidence provided is broad and refers to the Nyamal area as a whole, without providing support as to why the information specifically applies to the licence areas and to the limbs of s 237.
Section 237(a)
Nyamal do not provide information about specific social or community activities related to the licence. Nyamal assert that the Nyamal people carry out their community and social activities throughout their claimed and determined area. However, no specificity has been provided as to what activities are carried out on this proposed licence, or when. There is little on which I can base an assessment of how any prospecting activities by the grantee will be likely to substantially interfere with Nyamal community or social activities.
Nyamal (at 9), refer to my decision in Allen v Bushwin, which they summarise as ‘where the Tribunal found that the act was not an act attracting the expedited procedure, of the history of ceremonial activities after periods of significant rain’. In that inquiry, I held the expedited procedure did not apply because there was a site of particular significance (Woodie Woodie) which was likely to be interfered with by exploration activity – not because social and community activities were likely to be interfered with. Woodie Woodie is some distance from the prospecting licence in this inquiry and I agree with the State contentions (at 21) that Woodie Woodie is not relevant to this inquiry – no information has been provided by Nyamal as to any nexus between the prospecting licence and Woodie Woodie.
The materials Nyamal provided for s 237(a) in Allen v Bushwin were more detailed than provided in this inquiry. Nevertheless, in that inquiry I held that the social and community activities were unlikely to be substantially interfered with by the grantee party activities. Even allowing for the influence of rain periods, which are said in this current inquiry to increase social and community activity of Nyamal people, I draw the same conclusion. That is, I determine there is unlikely to be substantial interference with social and community activities given what is outlined in the contentions provided by Nyamal.
Section 237(b)
In support of their argument that sites or areas of particular significance exist on this licence, Nyamal contentions again refer to Allen v Western Australia. However, they provide no information about sites or areas existing on the licence.
There is insufficient evidence to conclude sites or areas of particular significance exist in relation to this licence. As such, I cannot examine the question of interference with such sites or areas.
Section 237(c)
Nyamal provide brief contentions in relation to s 237(c). They assert (at 17) that ‘any disturbance to land and waters is too much disturbance’. As I have noted in other Nyamal expedited procedure decisions (see Nyamal v Abeh at [39] and Allen v Young at [45])), s 237(c) refers only to ‘major disturbance’ and not ‘any disturbance’ as Nyamal contend. There is also no requirement for ‘major disturbance’ to be assessed according to a native title party’s traditions (unlike s 237(b)). Based on the limited evidence before me, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned.
Conclusion in relation to my assessment of s 237 as applied to this inquiry
The statements Nyamal provide in support of their objection to the expedited procedure in this inquiry are too broad to be applied specifically to this licence – the jurisprudence attached to an analysis of s 237 is such that I must consider the particular licence specifically, rather than the application of previous Federal Court or Tribunal decisions generally. If parts of Federal Court or Tribunal decisions are to be used in support of an expedited procedure inquiry, the particular parts of those decisions should be referred to.
In addition, it should be explained how those parts are relevant in terms of specifically applying to the licence under consideration in the inquiry. This has not been done in relation to the material provided in support of this expedited procedure objection application.
Determination
My determination is that the grant of P46/1978 to David John Taylor is an act which attracts the expedited procedure.
Helen Shurven
Member
13 July 2021
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