Kevin Allen & Others on behalf of Nyamal #1 v John Humphrey Plummer
[2021] NNTTA 70
•19 November 2021
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v John Humphrey Plummer [2021] NNTTA 70 (19 November 2021)
Application No: | WO2021/1232 |
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 of Nyamal #1 (WC1999/008)
(native title party)
- and -
John Humphrey Plummer
(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: | 19 November 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, 151(2), 237 Aboriginal Heritage Act 1972 (WA) |
Cases: | Kevin Allen & Others on behalf Nyamal #1 v Brand New Ventures Pty Ltd and Another [2021] NNTTA 49 (Nyamal v Brand New Ventures) 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: | Grace Manning-Davis and Tara Babu, Arma Legal |
| Representative of the grantee party: | Warren Ayres |
| Representatives of the Government party: | Matthew Smith and Bethany Conway, Department of Mines, Industry Regulation & Safety Stewart Palmer, 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/NTA) of its intention to grant prospecting licence P46/2023 to John Humphrey Plummer (the grantee party). 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 33 kilometres north-easterly of Nullagine. The Nyamal #1 native title claim (WC1999/008) wholly overlaps the licence. The Nyamal #1 native title claimants (Nyamal/NTP) objected to the application of the expedited procedure, and lodged an application with the National Native Title Tribunal (the Tribunal), asserting that the grant will likely cause the interference contemplated in s 237(b) of the Act. There is no evidence provided in relation to sections 237(a) or 237(c), and on a common sense basis, I conclude there is unlikely to be interference in accordance with those limbs.
Limited submissions from Nyamal
Nyamal provided contentions and a reply to the State and grantee party contentions. No statement or affidavit evidence was provided in support of the Nyamal contentions.
The grantee party provided a statement of contentions and a heritage survey report, conducted in 2011 for the purposes of a previous tenement which overlaps P46/2023. The contentions note Mr Plummer will undertake ‘basic detecting’ and ‘Depending on the results, there may be further activity as per the clearance on the heritage survey’ referring to the previous heritage survey performed over an area which includes this licence. The grantee outlines he will be accessing the area by existing tracks, and states that traditional owners will be able to access the licence.
The State provided their contentions, as well as 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 (AHIS), held under the Aboriginal Heritage Act 1972 (WA) (AHA). The searches showed no sites or areas recorded on the licence under the AHA. Nyamal contentions agree there are no recorded sites within the proposed licence areas (at 7). In their contentions, Nyamal submit that ‘Registered Site ID 8303 – Eastern Creek Nullagine is located within 25km of the Tenement. The file, location and boundary are restricted’ (at 7). Nyamal go on to say (at 8):
The NTP submits that there are sites adjacent to the Tenement Area, which are of significance to the NTP. Registered Aboriginal Site 8303 ‘Eastern Creek, Nullagine’ is within 25km of the Tenement area and is registered as an artefacts/scatter, repository/cache site.
The State argue (at 20) that:
General evidence, let alone an implied claim, that there are or may be a place on or near a tenement that is "important," "special" or "significant" to a particular native title party claim group is not sufficient to establish that an area or site is of "particular significance" under s 237(b) of the NTA.
I concur with that argument – while there is brief information about these AHIS areas, there is no information about how they relate to the proposed licence, or the nature and extent of the significance of the sites in accordance with Nyamal traditions. There is also no information about other sites or areas on or near the proposed licence. In respect of such sites, I adopt my comments from Nyamal v Brand New Ventures (at [16]-[17]).
Determination to be made on the papers
Having read party materials, I confirmed I would make the inquiry decision on the papers (see s 151(2) of the Act). No party took issue with that approach. For this inquiry, I adopt the principles and reasoning I outlined in Nyamal v Perkin in relation to s 237(b) (at [5]). 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.
Conclusion
The heritage survey report provided by the grantee party, which indicated an area including the ground covered by the proposed licence had been ‘cleared’ for works to proceed. The Nyamal reply (at 2-3) argued I should not accept the argument the area has been ‘cleared’. The reply also argues (at 5) that because of recent significant rains, sites of particular significance may become apparent from a further heritage survey, and much of the reply focuses on the issues of interference. However, as I have concluded no sites of particular significance have been established for the purposes of this inquiry, and I do not need to turn my mind to the subject of interference, I say nothing further about that survey report.
On the basis of the limited information provided by Nyamal about any sites or areas of particular significance in relation to the proposed licence, I find there is unlikely to be interference for the purposes of s 237(b).
Determination
My determination is that the grant of P46/2023 to John Humphrey Plummer is an act which attracts the expedited procedure.
Helen Shurven
Member
19 November 2021
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