Kevin Allen & Ors on behalf Nyamal #1 v Kevin Wayne Pearce and Another
[2021] NNTTA 37
•12 July 2021
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Ors on behalf Nyamal #1 v Kevin Wayne Pearce and Another [2021] NNTTA 37 (12 July 2021)
Application Nos: | WO2021/0517; WO2021/0518 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Kevin Allen & Ors on behalf Nyamal #1 (WC1999/008)
(native title party)
- and -
Kevin Wayne Pearce
(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: | 12 July 2021 |
Catchwords: | Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – 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 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 (Nyamal v Perkin) 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 |
| Representative of the grantee party: | Kevin Pearce |
| Representatives of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety Reywin Rico and Anthony Civiello, State Solicitor’s Office |
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 P46/2010-S and P46/2011-S to Kevin Wayne Pearce.
The notice for each licence included a statement that their grant is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts the grant of each 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)).
Each proposed licence is approximately 51 kilometres from Nullagine. Both fall wholly within the Nyamal #1 native title claim, 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])). These proposed licences are approximately 30 kilometres from the determined area.
The Nyamal #1 native title claimants (Nyamal) lodged an objection 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 these licences. Nyamal argue the expedited procedure should not apply to each 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 I outlined in [4]-[8] of Nyamal v Perkin. I also note each case must be considered on its own facts, and that, 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 contentions provided by Mr Pearce or the State. No affidavit or statement material was provided in support of the Nyamal contentions.
Mr Pearce provided a statement of contentions supported by photographs and a list of previously granted tenements over the inquiry area.
The State provided their contentions, mapping, and other materials from the States 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 are 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. The State and Nyamal confirmed their support of that approach, and Mr Pearce was supportive of a prompt outcome to the inquiry.
Party submissions
The grantees’ argument
Mr Pearce’s contentions outline he prospects for gold as a hobby (at 3) and intends to scrape and detect with a metal detector and then dry blow the material (at 4). Access is via an existing track, and he states he will be rehabilitating ground as he goes (at 5). He also outlines (at 7) that ‘No fuel will be stored on site and no chemicals will be used during my scrape and detect work program’, and that he has offered to enter into the Regional Standard Heritage Agreement with Nyamal (at 10). Mr Pearce provided photographs of the access track and previously disturbed land which he will be working on and rehabilitating, which no party took issue with. I accept these are photographs of the proposed licences in this inquiry.
The State’s argument
The State relies on reference to cases and argument, and the facts and information as provided by Nyamal, to 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 Nyamal (at 30-35), or with any sites or areas of particular significance to Nyamal (39-42). 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 46-49). The State outline they will apply a number of conditions and endorsements on the grant of each licence.
Nyamal’s argument
The Nyamal contentions 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 licences. Nyamal assert that Nyamal people do 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 these proposed licences, or when. There is little on which I can base an assessment of how any prospecting activities by Mr Pearce will be likely to substantially interfere with Nyamal community or social activities, on either licence.
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. As the State contentions have noted (at 29), Woodie Woodie is some distance from the prospecting licence in this inquiry. In addition, Mr Pearce outlines (at 12) that ‘The closest water to the tenement would be 5 kms away in Cooks creek during rain events’.
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 explorer’s 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 these licences, Nyamal contentions again refer to Allen v Western Australia. However, they provide no information about sites or areas existing on these licences.
There is insufficient evidence to conclude sites or areas of particular significance exist in relation to these licences. 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 a native title party’s traditions (unlike s 237(b)). Based on the limited evidence before me, I find the grant of the licences 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 contentions Nyamal provide in support of their objections to the expedited procedure statement are too broad to be applied specifically to these licences – the jurisprudence attached to an analysis of s 237 is such that I must consider the particular licences 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 arguments in an expedited procedure objection inquiry, the particular parts of those decisions should be referred to in context of the relevant licences and the limbs of s 237 as they apply to those licences. This has not been done in relation to the material provided in support of these expedited procedure objection applications.
Determination
My determination is that the grant of P46/2010-S and P46/2011-S to Kevin Wayne Pearce are both acts that attract the expedited procedure.
Helen Shurven
Member
12 July 2021
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