Kevin Allen & Others on behalf Nyamal #1 v Brand New Ventures Pty Ltd and Another
[2021] NNTTA 49
•22 September 2021
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf Nyamal #1 v Brand New Ventures Pty Ltd and Another [2021] NNTTA 49 (22 September 2021)
Application No: | WO2021/0514; WO2021/0515 |
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 & Others on behalf Nyamal #1 (WC1999/008)
(native title party)
- and -
Brand New Ventures Pty Ltd
(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: | Melbourne |
Date: | 22 September 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 (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 (Nyamal v Perkin) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Ward v CRA & Ors [1996] NNTTA 9 (Ward v CRA) |
| Representatives of the native title party: | Grace Manning-Davis and Tara Babu, Arma Legal |
| Representative of the grantee party: | Darren McAulay, Datum Peg Mining Titles Solutions |
| Representatives of the Government party: | Stewart Palmer, State Solicitor’s Office Matthew Smith and Bethany Conway, 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 licences P46/1975 and P46/1976 to Brand New Ventures Pty Ltd.
The notice for the licences 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 licences 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 licences are approximately 24 and 26 kilometres easterly of Nullagine. The Nyamal #1 native title claim (WC1999/008) wholly overlaps the licences, which are located approximately 20 kilometres from 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])). I note this as the Nyamal # 1 submissions for this inquiry rely on parts of that determination.
The Nyamal #1 native title claimants (Nyamal/NTP) lodged an application with the National Native Title Tribunal (the Tribunal), arguing the expedited procedure should not apply to the proposed licences on the basis that the grant will likely cause the interference contemplated in sections 237(a), (b) and (c) of the Act.
For this inquiry, I adopt the principles and reasoning I outlined in Nyamal v Perkin (at [4]-[8]). I also note, as explained by Carr J in Ward v Western Australia (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.
Nyamal raise arguments about the relevance of rain, the decision in Allen v Bushwin, and the site of Woodie Woodie. In relation to those issues, Brand New Ventures provided some supplementary mapping and Nyamal adjusted their reply documents. I adopt my reasoning in Nyamal v Perkin (at [20]-[21]) in relation to those issues.
Determination to be made on the papers
Parties had indicated since at least July 2021 that they were hopeful agreement was imminent. Ultimately, the inquiry was not resolved by agreement or with the objections to the expedited procedure being withdrawn. Parties were given a number of extensions to their compliance directions, however, the Tribunal is unable to extend an inquiry timeline indefinitely.
While endeavours toward agreement was not specifically referenced in Brand New Ventures’ contentions, their representative, Mr McAulay noted in emails to the Tribunal and all parties that he was ‘Still pushing toward getting an agreement executed – which would prove of benefit regardless of outcome…’ (for example, on 31 August 2021). Parties are certainly at liberty to push on with their agreement execution, and nothing in this expedited procedure decision serves to displace any such bilateral negotiations or agreements.
All parties were advised I would determine this inquiry on the basis of the papers that had been submitted, and no party took issue with that approach. All parties lodged contentions for me to consider for this inquiry.
Section 237(a) – interference with social or community activities of Nyamal
Nyamal contentions (at 5) refer very broadly to three paragraphs of the Federal Court decision in Allen v Western Australia. The Nyamal contentions (at 6) go on to outline that ‘The NTP have been determined to be the common law native title holders for the Nyamal Determination area. We submit, the NTP and their native title rights and interests are the same and should apply to the tenements’. However, no information is provided apart from assertions that community and social activities are conducted on the licences, and that such would be interfered with.
The contentions provided by the State (at 21-26) and Brand New Ventures (at 7-8) both note the lack of further information that has been provided or which is relevant to the licences in this inquiry. Brand New Ventures outline (at 8, emphasis in original) that ‘The NTP attempts to draw a nexus between the Determination Area and the Claim Area and expects the National Native Title Tribunal (Tribunal) to conclude that because certain activities were determined to be carried out within the Determination Area that those activities also are carried out in the Claim Area’. Brand New Ventures (at 18) goes on to outline that ‘The NTP attempts to draw a nexus between the Claim Area and the Determination Area which cannot be supported or sustained, at this time, for the purposes of determining whether the Tenements ought to attract the expedited procedure’.
On the basis of the limited information provided by Nyamal, I cannot conclude social or community activities either occur on the proposed licences, or would be likely to be interfered with by activities of a prospector.
Section 237(b) – sites of particular significance and interference with such sites
The State contentions included searches of the Aboriginal Heritage and Inquiry System (AHIS) held under the Aboriginal Heritage Act (AHA). Nyamal also provided AHIS information, and assert the AHIS recorded engraving sites of Nullagine East and Black Granite Boss exist within 15 kilometres from the licences are of particular significance (at 13-15). Nyamal maintain the same argument in relation to the AHIS artefacts/scatter site named NJA 13-03, which is three kilometres from the licences (at 16). Nyamal annex the AHIS reports for each site to their contentions.
Nyamal assert that these AHIS sites will likely be interfered with by the activities of the prospector (at 16). However, there is no evidence or information outlining the nature of the particular significance of these sites. Nor is there evidence or information about the likely interference (particularly given the distance of the sites from the proposed licences).
The State notes this lack of information (at 29-32), including that ‘the Native Title Party has not otherwise identified the location or explained the sacredness of any such alleged sites by means of evidence adduced from persons with the authority to speak in relation to such sites, or any evidence’. Brand New Ventures assert (at 28-30) there is little information provided in support of the Nyamal contentions in relation to s 237(b).
Brand New Ventures (at 25) also assert the sites Nyamal refer to ‘are proximate to but not within the land of the tenements’. As noted by the Tribunal as early as 1996, a site of particular significance does not necessarily need to be on the relevant licence (see Ward v CRA). It is not essential for a native title party to prove that a site is actually within the area of the relevant licence for there to be a finding of interference. Section 237(b) refers to interference with sites of particular significance ‘in accordance with their [the native title parties] traditions’, and it has long been held that interference for the purposes of s 237(b) can be found to be likely to occur to a site outside the relevant licence. It is the factual circumstances which guide the decision maker.
Taking a common sense approach to the information provided, I cannot conclude as a matter of fact that there are sites of particular significance on or proximate to the proposed licences for the purposes of s 237(b) in this inquiry, and so I do not need to turn my mind to the issue of interference. There simply is insufficient evidence to conclude the AHIS sites referred to are sites of particular significance.
Section 237(c) – major disturbance to land or waters
Nyamal provide brief contentions in relation to s 237(c) (at 18-19). They assert (at 19) 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 licences is not likely to involve major disturbance to the land or waters concerned.
Determination
My determination is that the grant of P46/1975 and P46/1976 to Brand New Ventures Pty Ltd are acts which attract the expedited procedure.
Helen Shurven
Member
22 September 2021
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