Kevin Allen & Ors on behalf of Nyamal #1 v John William Young & Another

[2019] NNTTA 85

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Ors on behalf of Nyamal #1 v John William Young & Another [2019] NNTTA 85 (18 October 2019)

Application No: WO2019/0075

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 of Nyamal #1 (WC1999/008)

(native title party)

- and -

John William Young

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms Nerida Cooley, Member
Place:	Brisbane
Date:	18 October 2019

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, 31, 32, 151, 155, 237

Mining Act 1978 (WA) ss 40, 45, 48, 57

Aboriginal Heritage Act1972 (WA)

Cases:

Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (Little v Lake Moore Gypsum)

Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391

Little v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (Little v Oriole Resources)

Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)

Representatives(s) of the native title party:

Ashley Truscott, Arma Legal

Representative(s) of the grantee party: John William Young

Representatives(s) of the Government party: Caitlin Gilchrist, State Solicitor’s Office
Matthew Smith, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

1. This is a decision about whether the expedited procedure under the Native Title Act1993 (Cth) (NTA) applies to the grant of prospecting licence P46/1939 (licence) to John William Young (Young).

2. In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licence, with a notification day of 19 September 2018.

3. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure, which would, subject to any successful objection, allow the licence to be granted without negotiation under s 31 of the NTA.

4. The area of the proposed licence is situated in the East Pilbara shire, wholly within the area of a native title determination application made by the Nyamal #1 native title claim group.  On 19 January 2019, the registered native title claimant for the Nyamal #1 claim (Nyamal) lodged an objection against the State’s inclusion of the expedited procedure statement.

5. The President of the Tribunal, the Honourable John Dowsett AM, was previously the presiding member for this application and made directions for the conduct of the inquiry. On 13 August 2019, the President directed me to constitute the Tribunal for the purposes of determining, under s 32(4) of the NTA, whether the grant of the licence is an act attracting the expedited procedure.

6. For the reasons outlined below, my determination is that the licence is an act attracting the expedited procedure.

Issues and approach

1. Under s 237 of the NTA, the grant of the licence will only be an act attracting the expedited procedure if it 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 native title 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)).

2. The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. My task, in considering whether the expedited procedure applies, is to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.

3. There is no determination of native title in relation to the area of the licence. However, Nyamal is the registered native title claimant for the area and, I accept for the purposes of this inquiry, that Nyamal is the appropriate party to provide evidence and contentions for the purpose of the Tribunal’s predictive assessment for ss 237(a) and (b).

4. In this application, Nyamal contends that the grant of the licence will result in interference within the meaning of both ss 237(a) and 237(b), and also involve major disturbance as contemplated by s 237(c). I have considered each of these issues in turn below.

Determination on the papers

1. All parties have provided contentions in accordance with the Tribunal’s directions and Nyamal also provided a reply.  During the course of my consideration of this matter, I identified that Young’s contentions had not been provided to Nyamal as required by the directions.  I therefore allowed Nyamal a short period to provide any additional contentions by way of reply to Young’s contentions, which it did on 4 October 2019. 

2. The State provided evidence including mapping, a Tengraph Quick Appraisal form, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), the licence application and details of proposed endorsements and conditions to be imposed on the grant of the licence.

3. Nyamal’s evidence comprised an affidavit of Mr Kevin Edward Allen dated 24 May 2019.  Mr Allen is a member of the applicant for the Nyamal #1 claim.  Mr Allen says that he has authority to speak on behalf of his nephew, Travis McPhee (a member of the Nyamal claim group) in relation to the licence area.  Mr Allen says that his evidence is from his own personal knowledge and I accept that he has authority to speak on behalf of Nyamal for the licence area.

4. Young has not provided an affidavit with his contentions, but has attached two maps, one being hand-drawn, intended to show the relative location of the licence to nearby features.

5. All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA and, having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.

The licence and proposed prospecting activities

1. The licence is a prospecting licence proposed to be granted under s 40 of the Mining Act 1978 (WA) (Mining Act). Under s 45 of the Mining Act prospecting licences are granted for four years, although they may be extended on application in certain circumstances. Section 48 of the Mining Act prescribes the activities which may be undertaken by the holder of a prospecting licence. Young has not provided any information in relation to his intended activities, and therefore I find that he may exercise all of the rights available under the licence.

2. According to the Tengraph Quick Appraisal form lodged by the State:

   (a)the area of the proposed licence is 6.36 hectares;

   (b)the land tenure is C Class Reserve Common; and

   (c)the whole of the licence area is subject to a number of other special category land designations including notification under s 57(4) of the Mining Act as an area where, due to extensive mining is being carried on, no application for an exploration licence may be made or granted.

Predictive assessment

Section 237(a): is the grant of the licence likely to interfere directly with Nyamal’s community or social activities?

What community or social activities do Nyamal carry out on the licence area?

1. Nyamal contends that the grant of the licence is likely to interfere with its community or social activities.

2. In particular, Mr Allen states that Nyamal continue to hunt and gather resources and practice ceremonies in the area.  He also notes that significant sites and breeding grounds for birds, fish and animals with waterholes in the area “enlivened by the rain from the tropical cyclone” (Allen affidavit paragraph 5).

3. Mr Allen does not give any details of these hunting and gathering activities on the licence area, but does refer to them occurring in the country surrounding the licence and Skull Springs Road.  He says that:

   …women and children enjoy the produce from the land after the cyclone weather has gone through, particularly fishing, black berries from Jima trees, little peaches that grow through the rocks known as Juu Barri: medicine and food plants will all be blooming and ready for Nyamal people to pick and use for traditional purposes (Allen affidavit paragraph 12).

4. Mr Allen says that the tenement is near to Skull Springs Road “which has been made lively due to the rain”.  He explains that Skull Springs is an underground water reservoir area where water springs up, and is an area where the dreamtime story Walla Wallung runs through this area from the De Grey River (Allen affidavit paragraph 6). However, it is not clear from Mr Allen’s evidence where Skull Springs is in relation to the licence area or Skull Springs Road.

5. Mr Allen’s evidence is that as a result of the rain, the land around Skull Springs Road is now a tropical paradise and cultural practices and activities are due to take place.  He says that the cultural activities include “law, cultural ceremonies and initiation which is part of the story of the dreamtime track”.  The cultural ceremonies and initiations were scheduled to occur in late September.  (Allen affidavit paragraphs 8 - 10).  No further detail is provided about these activities.

6. Mr Allen says that he understands that “in the Western law system details are required for evidence to be accepted, such as place, time and location”.  However, he says that in his culture and traditional law, it is culturally inappropriate for him to talk about it.  He says he can’t tell people sacred Nyamal information. (Allen affidavit paragraph 11).

7. The State notes, in its contentions, that Mr Allen has not elaborated on the occurrence of hunting and gathering activities within the licence area, nor are they referred to in Nyamal’s contentions.  In relation to the law, cultural ceremonies and initiation activities referred to by Mr Allen, the State submits that it is insufficient for Nyamal to provide evidence of a general nature or to simply assert that an activity takes place.  Specifically, the State contends that Nyamal has provided insufficient evidence regarding the location, duration, frequency and number of participants in these cultural activities.

8. Young disputes that he would interfere with any cultural or community activities, stating that he has no history of such interference.  He also states that the licence area is near 20 Mile Sandy Creek which does not hold water, and is a long way from Skull Springs. The State’s evidence includes a plan of the former mining lease M46/119 (which appears to be attached to Young’s licence application) which covered the same area as the licence.  This plan shows ‘Twenty Mile Sandy Creek’ traversing the lease area.

9. In its reply to Young’s contentions, Nyamal argues that unilateral statements by Young should be given little weight and notes that there is no evidence or plan proposed by Young as to how interference would be avoided.  Nyamal’s reply does not address Young’s contentions about the location of Skull Springs Road and Skull Springs in relation to the licence area.

Will the grant of the licence interfere directly with the carrying out of Nyamal’s activities?

1. The accepted approach to the application of s 237(a) is summarised in Yindjibarndi v FMG at [16]. The interference contemplated by s 237(a) must be direct. This requires an evaluative judgment that the grant of the licence is likely to be the proximate cause of the interference. The interference must also be substantial, rather than trivial.

2. The Tribunal has previously accepted that interference under s 237(a) may extend to community or social activities outside the relevant licence area, but there must be a ‘clear nexus between those activities and issues being considered under s 237’ (see Silver v Northern Territory at [35]).

3. Against these tests, the difficulty for Nyamal is that there is insufficient evidence for me to draw any conclusion in relation to whether direct and substantial interference will result from the grant of the licence.  This is in part because of the very general nature of the evidence of the activities mentioned, but also because the location of the activities is unclear.  While Mr Allen asserts that activities occur on the licence area, the specific areas mentioned are Skull Springs and Skull Springs Road.  All Mr Allen says about these locations is that the licence is near to Skull Springs Road.  There is no suggestion or evidence that Skull Springs is located on the licence area.  Young states Skull Springs is ‘a long way’ from 20 Mile Sandy Creek. Nyamal has not made any contention nor provided any evidence in relation to the location of Skull Springs relative to the licence area and it does not appear on any of the maps or plans provided by the State.

4. Based on the evidence provided, there is no basis to conclude that the licence area or the part of Skull Springs Road near the licence area, is the area where the proposed activities will occur. This is particularly so, given the small size of the licence area.

5. Further, Nyamal does not explain how or why activities under the licence will interfere with any of the proposed activities.  Nyamal points out that Young has not provided any evidence or plan as to how he would avoid interference, yet there is insufficient information provided by Nyamal about the activities to be avoided.

6. I appreciate Mr Allen’s concerns with respect to the disclosure of Nyamal’s sacred information, but I am only able to determine this matter on the basis of the evidence. In this respect, it was open to Nyamal to seek non-disclosure directions under s 155 of the NTA, to restrict the disclosure of any culturally sensitive information.

7. On the evidence provided, I am not satisfied that the activities referred to in Mr Allen’s affidavit occur on the licence area or are otherwise likely to be subject to interference from the grant of the licence.  I find that the grant of the licence is unlikely to interfere directly with Nyamal’s community and social activities.

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Nyamal?

What areas or sites are identified by Nyamal on the licence area?

1. According to the AHIS Searches there are no sites registered under the Aboriginal Heritage Act 1972 (WA), and no other heritage places, in the licence area. However, sites do not need to be registered to be of particular significance (see Little v Lake Moore Gypsum at [67]).

2. Mr Allen’s evidence in this respect again refers to the licence area’s proximity to Skull Springs Road, which he says is “a very significant area for the Nyamal people”.  Mr Allen refers to the “country surrounding the tenement” and Skull Springs Road as being a “continuing part of Nyamal traditional culture and part of an interconnected landscape through the dreaming of the Walla Wallung”.  Mr Allen says this is a men’s story and women are only allowed to know the name.  No further detail of the dreaming story is provided. Reference is also made to “likely sites” arising following the rains. (Allen affidavit paragraphs 6, 12(b), 12(d) and 14).

3. At paragraph 12(e) of his evidence, Mr Allen discusses the significance of the De Grey River as a site for all Nyamal people, but Nyamal does not contend that the De Grey River is an area of significance on or near the licence area. 

4. At paragraph 21 of its contentions, Nyamal refers to the summary of s 237(b) in Yindjibarndi v FMG at [17] – [18], including the requirement that the area or site must be known and able to be located, and be of special or more than ordinary significance to the native title holders in accordance with their traditions. Nyamal further acknowledges that generally, the area or site in question must be located within the licence area, although areas or sites outside the area may be taken into account where there is evidence regarding how the activities under the grant would directly and physically affect the site.

5. However, in this case, Nyamal’s evidence lacks the required specificity with respect to both the identification and the explanation of particular significance of any sites on the licence area. Mr Allen’s evidence that further sites are “likely” to have been exposed following the rains and the general references to Skull Springs Road and “country surrounding the tenement”, do not meet the requirements of s 237(b) as outlined in Nyamal’s contentions. Further, there is no evidence of how the activities under the licence would directly and physically affect Skull Springs Road and the country surrounding the licence.

6. Nyamal also refers to Mr Allen’s evidence about the inappropriateness of disclosing sensitive, cultural and heritage information in the context of s 237(b). Again, the NTA does provide a mechanism in s 155 to mitigate these sorts of concerns, yet still allow sufficient evidence to be provided.

7. It follows that, having regard to the evidence provided, I am not satisfied that the areas and sites referred to by Nyamal are areas or sites of particular significance within the meaning of s 237(b). It is therefore not necessary for me to further consider the issue of interference from the grant of the licence.

Section 237(c): is the grant of the licence likely to involve major disturbance to any land or waters concerned?

1. Considering whether major disturbance under s 237(c) is likely requires an evaluative judgment as to whether there is a real risk of major disturbance from the grant of the licence. In this context ‘major disturbance’ is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. There is nothing to preclude Nyamal repeating here matters already considered in relation to s 237(a) and (b) (see Little v Oriole Resources at [39]-[54]; Dann v Western Australia at 395, 401 and 413)

2. Nyamal’s submissions in relation to s 237(c) are brief. Nyamal relies on Mr Allen’s evidence that there is “the potential for major disturbance to land and waters, given the tenement is near Skull Springs Road, an area for underground waters and reservoirs that spring up.” In its reply, Nyamal also refers to Mr Allen’s evidence with respect to Bubarinnya Nyawarda (De Grey River), but as noted, that river does not traverse the licence area. 

3. A key element of Nyamal’s contentions is based on Mr Allen’s evidence that “any disturbance to water, waterways, creeks and creek beds is too much disturbance”.  Nyamal argues that the only way to ensure there is no interference is by a comprehensive survey being undertaken by Nyamal people.

4. The State contends that Nyamal has provided insufficient evidence of the likelihood of major disturbance and says it is unlikely because of the State’s regulatory regimes, the proposed conditions and endorsements on the licence and because the level of activity under the licence would be the same as, or no more significant than, the previous use of the area. 

5. I agree with the State that Nyamal has provided insufficient evidence in relation to the matter of major disturbance.  Nyamal has raised concerns relating to water and waterways, creeks and creek beds.  However, the creeks and rivers of concern identified by Nyamal are not in the licence area and, in part, the concerns raised are based on the possibility of sites of significance having been exposed by the rain. Otherwise, Nyamal’s concern is generally expressed as a view that any disturbance without Nyamal’s agreement, is too much disturbance. 

1. I have also taken into account the nature of the licence as a prospecting licence, granted in an area where extensive mining has been carried on (as reflected by notification under s 57(4) of the Mining Act), as well as the conditions and endorsements to be imposed on the licence.

2. Based on the evidence before me, I find that the grant of the licence is not likely to involve major disturbance to the land and waters concerned within the meaning of s 237(c).

Determination

1. I determine that the grant of prospecting licence P46/1939 to John William Young is an act attracting the expedited procedure.

Ms Nerida Cooley

Member
18 October 2019