Kevin Allen & Others on behalf of Nyamal #1 v Jason Andrew Gill and Another
[2022] NNTTA 58
•26 August 2022
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Jason Andrew Gill and Another [2022] NNTTA 58 (26 August 2022)
Application No: | WO2021/1685; WO2021/1686; WO2021/1687 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Kevin Allen & Others on behalf of Nyamal #1 (WC1999/008)
(native title party)
- and -
Jason Andrew Gill
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 26 August 2022 |
Catchwords: | Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – whether acts likely to interfere with sites or areas of particular significance – acts are acts attracting the expedited procedure |
Legislation: | Mining Act 1978 (WA) ss 45, 48 Native Title Act 1993 (Cth) ss 29, 31, 151, 237 |
Cases: | Kevin Allen & Others on behalf Nyamal #1 v Brand New Ventures Pty Ltd and Another [2021] NNTTA 49 (‘Brand New Ventures’) Silver and Others v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representative of the native title party: | Alissa Bishop-Thorpe, Arma Legal |
| Representative of the grantee party: | Jason Gill |
| Representatives of the Government party: | Stewart Palmer, State Solicitor’s Office; Andrea Wyles and Jake Lincoln, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of prospecting licences P46/2029, P46/2030 and P46/2031 (licences) to Jason Andrew Gill.
The State of Western Australia (State) considers the grant of each licence is an act attracting the expedited procedure under the NTA, and included a statement to that effect in a notice given under s 29 of the NTA. If the expedited procedure applies, the licences may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA.
Each of the licences is located wholly within the area of the Nyamal #1 native title determination application (WAD20/2019) (Nyamal Claim) and the registered native title claimant for the Nyamal Claim (Nyamal) has objected to the application of the expedited procedure to the grant of the licences.
I have been directed by the President of the Tribunal to constitute the Tribunal to determine whether or not the expedited procedure applies to the grant of each licence. For the reasons given below, I have concluded that the grant of each licence is an act attracting the expedited procedure.
My determination is made without the need for a hearing
All parties provided material for the inquiry in accordance with the Tribunal’s directions.
The State provided contentions together with mapping, a Quick Appraisal for each licence containing key tenement information, Aboriginal Heritage Inquiry System (AHIS) searches, a copy of each licence application under the Mining Act 1978 (WA) (Mining Act) and the proposed endorsements and conditions to be imposed upon the grant of the licences.
Nyamal provided contentions (including contentions in reply) and a statement of Mr Neil William O’Connor. Mr O’Connor says, and I accept, that he is a Nyamal traditional owner and has authority to speak on behalf of Nyamal People for the area of the licences, which is his family’s country.
Mr Gill has provided contentions including certain maps of the licences and surrounds. He has also provided a statutory declaration swearing that the information in his contentions is true and correct.
All of the parties indicated that they are agreeable to the matters being determined on the papers as is permitted by s 151(2). Having reviewed the material, I am satisfied that I can adequately determine the matters without a hearing.
What do I need to consider to determine whether the expedited procedure applies?
Under s 237 of the NTA, a 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)).
I am required 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 each licence (see overview of approach in Yindjibarndi v FMG at [15]).
In this case, Nyamal does not make any contentions in relation to direct interference with community or social activities within the meaning of s 237(a) or major disturbance under s 237(c). In the absence of any evidence as to those matters, there is no basis to conclude such interference or major disturbance is likely. Accordingly, my detailed consideration of the issues is limited to s 237(b).
Details about the licences and the activities proposed by Mr Gill
The licences are prospecting licences that would be granted under the Mining Act. Under s 45 of the Mining Act, prospecting licences are granted for four years, although the term 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.
From the mapping provided, P46/2029 and P46/2030 are located near each other, about two and three kilometres respectively, from the town of Nullagine. According to the Tribunal’s online mapping tool, Native Title Vision, P46/2031 is located approximately 28 kilometres from the other licences.
The Quick Appraisal provided by the State contains the following key information about the area of each licence:
Licence
Area
Underlying tenure
P46/2029
62.96 hectares
· C Class Common Reserve
· Pastoral Lease
· Unallocated Crown Land
P46/2030
173.13 hectares
· C Class Reserve
· Pastoral Lease
· Unallocated Crown Land
· Road reserves
P46/2031
163.98 hectares
· Pastoral Lease
Mr Gill says that his intended work programme “will be low impact and will involve metal detecting and some soil sampling by hand”. He says that he will access the licences using existing tracks. Mr Gill acknowledges that, by its nature, the scope of further activity will depend on the results of his initial exploration.
Is the grant of any of the licences likely to interfere with any areas or sites of particular significance to Nyamal?
Areas or sites identified by Nyamal in the areas of P46/2029 and P46/2030
Nyamal identifies a number of areas or sites in the vicinity of these licences which it says are of particular significance. These are:
(a)burial sites, specifically the registered sites Nullagine Burial 1 (Registered Site ID 6828) and Nullagine Burial 2 (Registered Site ID 6829) which Nyamal says are within five kilometres of these licences. Mr O’Connor also says there are “lots of old burial sites in this area” but he does not identify any other sites in particular;
(b)Irrungadji (Registered Site ID 6636) which Nyamal says is described as “Artefacts/Scatter, Ceremonial, Historical, Camp” and is within 2.5 kilometres of P46/2030 and less than one kilometre of P46/2029. Mr O’Connor does not mention this site and there is no evidence as to why it is said to be of particular significance to Nyamal in accordance with tradition;
(c)historic law ground located adjacent to P46/2029 which Mr O’Connor has marked on the map attached to his statement. Mr O’Connor expresses concern about the close proximity of the licence to this site;
(d)an active law ground being Nullagine Binmal (Registered Site ID 11960) said to be within three kilometres of these licences. Mr O’Connor also says that this site extends beyond the recorded location and “should include more of the creek”, which I understand from his evidence to be a reference to One Mile Creek (also known as Cajuput Creek);
(e)a Seven Sisters Dreaming site located near to Nullagine shown on the map at Annexure NO-1 some distance from the licences; and
(f)a sensitive women’s law ground (called Kadjiba or Paijiga pool) located near to the Seven Sisters Dreaming site.
Nyamal has not provided AHIS searches with respect to the registered sites mentioned. However, the State’s AHIS searches show the location of Irrungadji and Nullagine Binmal outside the licences, and the relative location of all of the registered sites is shown on the mapping provided by Mr Gill. Further, although they are not labelled, the registered sites are also shown on Annexure NO-1 to Mr O’Connor’s statement. As Nyamal itself identifies, none of the registered sites are located within the area of the licences.
Similarly, it is also clear from Mr O’Connor’s evidence that none of the other areas or sites identified by Nyamal are located within the area of either licence, although the historic law ground is in close proximity.
Both the State and Mr Gill question the likelihood of interference with any of the areas or sites identified by Nyamal given they are not within the licence areas. In reply (at pages 6–7), Nyamal cites the recent decision in Brand New Ventures which confirmed that a site does not need to be within a tenement area to be subject to interference.
That is the case. However, as noted in the passage quoted by Nyamal, “[i]t is the factual circumstances which guide the decision maker”. In such cases there must be a basis upon which to conclude that the grant of the tenement is likely to cause interference. For example, as discussed in Silver v Northern Territory (at [89]), interference may arise from a grantee party’s proposed access to the tenement. In this case there is no evidence of any activities proposed by Mr Gill outside the licence areas and nothing to suggest the grant of the licences will cause interference with the areas or sites identified. The concerns expressed by Nyamal in that regard appear speculative.
Further, as identified in Mr Gill’s material, there are active mining leases adjoining parts of P46/2029, including the area where Irrungadji and the old law ground (being the areas or sites closest to either licence) are situated. That evidence has not been disputed by any party and is consistent with the tenement layer shown in Native Title Vision. It is not apparent how Mr Gill would be entitled to undertake any activities in those areas, such that he could interfere with the areas or sites identified.
Nyamal argues in reply (at page 7) that, based on its evidence and contentions, the Tribunal “cannot exclude a real risk of interference with significant sites and their associated dreaming stories”. However, that is to misstate the Tribunal’s task. What I must be satisfied of, as outlined above, is that there is a real, not remote, chance of interference with an area or site of particular significance in accordance with Nyamal tradition.
The evidence with respect to the particular significance of the areas or sites identified is limited, although I can accept that, by their nature, certain sites such as the burial sites and the active law ground are likely to be of particular significance. As I have already noted, there is no evidence as to the particular significance of Irrungadji, which is not mentioned by Mr O’Connor. However, even assuming all of the identified areas and sites are of particular significance for the purpose of s 237(b), there is no basis on which to conclude that the grant of either of these licences is likely to cause interference within the meaning of s 237(b).
Areas or sites identified by Nyamal in the area of P46/2031
Mr O’Connor identifies Bridget Creek as being within the area of P46/2031, which is clear from the mapping provided by the parties. Mr O’Connor states that water is important to Nyamal and says there may be evidence of activity along the creek which has not been recorded. He points out the difficulty in identifying the sites simply on the basis of the mapping and without the opportunity to access the country or conduct a survey.
While I acknowledge and appreciate those concerns, this information is not sufficient for me to find there is an area or site of particular significance within the scope of s 237(b) either within the licence area or which might otherwise be subject to interference from the grant of the licence.
Determination
I determine that the grant of each of the prospecting licences P46/2029, P46/2030 and P46/2031 is an act attracting the expedited procedure.
Nerida Cooley
Member
26 August 2022
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