Kevin Allen & Others on behalf of Nyamal #1 v Keelan Brettner/Bevon Wally/Robert Dann/Robert West & Another
[2020] NNTTA 63
•26 October 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Keelan Brettner/Bevon Wally/Robert Dann/Robert West & Another [2020] NNTTA 63 (26 October 2020)
Application No: | WO2020/0031 |
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 -
Keelan Brettner/Bevon Wally/Robert Dann/Robert West
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 26 October 2020 |
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: | Aboriginal Heritage Act 1972 (WA) Native Title Act 1993 (Cth) s 29, 32, 151, 237 |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Cyril Barnes and Ors on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti) Kevin Allen and Others (Nyamal #1) v Bushwin Pty Ltd and Another [2019] NNTTA 75 (Nyamal #1 v Bushwin) Kevin Allen & Others on behalf of Nyamal #1 v Giralia Resources Pty Ltd & Others [2020] NNTTA 16 (Nyamal #1 v Giralia Resources) Nyamal Aboriginal Corporation v Tristin Cole &Another [2020] NNTTA 61 (Nyamal v Cole) WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2002] NNTTA 17 (WF v Emergent Resources) Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Freddie v Asia Investment) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Ashley Truscott and John Edwards, Arma Legal |
| Representative of the grantee party: | Keelan Brettner |
| Representatives of the Government party: | Ellise O’Sullivan, State Solicitor’s Office Lauren Pike, 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 special prospecting licence P45/3100-S to Keelan Brettner, Bevon Wally, Robert Dann and Robert West (collectively, the grantee party). The notice for the proposed licence included a statement that the State considers the grant is an act attracting the expedited procedure (see s 32 of the Act).
The proposed licence is approximately 0.0899 square kilometres in size, approximately 20 kilometres south east of Marble Bar, and is on land subject to the Nyamal #1 registered native title claim (WC1999/0008). The native title party (Nyamal) lodged an objection with the National Native Title Tribunal (the Tribunal) against the expedited procedure applying to the proposed licence.
In determining whether the expedited procedure applies, the Tribunal must assess whether the grant of the licence is 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)).
While it is difficult to discern from the original objection application the grounds on which Nyamal base their application, I conclude the application rested on at least s 237(a) and (b). The contentions Nyamal have provided in this inquiry argue the expedited procedure should not apply to the proposed licence on the basis that the grant will likely cause interference as contemplated in ss 237(a), (b) and (c).
Having been appointed to determine this matter, I must look at what is likely to result from the grant of the proposed licence and decide whether there is a real chance or risk of interference outlined in s 237 (see Yindjibarndi v FMG at [15]). Based on the materials before me, I considered it appropriate to determine the matter on the papers (as permitted by s 151 of the Act). The parties expressed no concerns with this approach.
For the reasons outlined below, I find the expedited procedure does apply to the grant of the licence.
Submissions
Nyamal provided contentions referring to sections from Allen v Western Australia, in which the Nyamal People’s native title rights and interests have been recognised and determined. At its closest point, the proposed licence is approximately 1.65 kilometres from the area the subject of Allen v Western Australia. Nyamal argue that decision supports their assertion that the expedited procedure should not apply. Nyamal contentions submit (at 6) it is the same native title party determined to be the ‘common law native title holders for that native title determination area’, and they argue the observations of Reeves J in Allen v Western Australia also apply the proposed licence area.
As the Tribunal has recently noted in a number of decisions, the decision in Allen v Western Australia relates to a large area and contains broad references to Nyamal People’s country generally, not to the specific licence in question (see, for example, Nyamal v Cole and Nyamal #1 v Giralia Resources). No affidavit or statement material was provided in support of Nyamal’s objection application.
None of the individuals who comprise the grantee party provided submissions in this inquiry.
The State provided contentions and materials, including searches of the Aboriginal Heritage and Inquiry System. Those searches indicate the proposed licence area contains no sites or other heritage places registered under the Aboriginal Heritage Act 1972 (WA).
Nyamal did not provide a reply to the State’s contentions.
Section 237(a)
The Nyamal contentions (at 5, for example) rely on Reeves’ J decision in Allen v Western Australia (at [58]), asserting that the Nyamal People ‘continue to camp, fish, hunt and gather on their country on weekends and during holidays’.
Further, Nyamal contentions (at 5) note that:
Native game and plant foods continue to be important to Nyamal People and Nyamal People actively engage in hunting and gathering techniques and use traditional natural resources in accordance with a system of traditional laws and customs [referring to Allen v Western Australia at [59]] .
Nyamal contentions (at 6) submit that the native title party which has been determined is one and the same for the area of the proposed licence. Nyamal also assert (at 7):
…that Nyamal people have maintained native title, community and social activities in the form of hunting, gathering and conducting ceremony in the Nyamal Determination Area since before first contact also applies to the tenement area which is approximately 2-4 kilometres from the determination area.
Nyamal contentions (at 9) rely on Nyamal v Bushwin (at [21]), where the act was found to be one which did not attract the expedited procedure, and Nyamal go on to assert that activities occur more frequently especially during law time, and are related to significant periods of rainfall. In Nyamal v Bushwin, I did conclude the expedited procedure should not apply. However, that was on the basis of a site of particular significance having been established on the licence area that would be subject to interference, rather than because of interference with social and community activities. In addition, there is no supporting evidence of the role rainfall has in any social or community activities associated with this proposed licence. It is important to note that if a party is to rely on previous decisions to make a point, or support an argument, the case or extract from the case should relate specifically to the point or argument being made.
The State contentions outline (at 27-28) that Nyamal have not provided sufficient evidence regarding the location, intensity or frequency of the social or community activities, or sufficient information in relation to where on the proposed licence such occur, and who participates in same. While Nyamal contentions (at 8) assert the proposed activities of the grantee party will interfere directly with their social or community activities, the State contentions assert (at 33-35) that Nyamal do not address how the activities may be interfered with. The State notes that general assertions are not sufficient.
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that a grantee party’s activities will directly interfere with social or community activities in a substantial or more than trivial way (see Freddie v Asia Investment Corporation at [14]).
My conclusion in relation to s 237(a) is that social and community activities of Nyamal, as described in this inquiry, are not likely to be interfered with by the grant of the proposed licence.
Section 237(b)
Nyamal contentions (at 13) cite Allen v Western Australia (at [59]) arguing that ‘the Nyamal People continue to have a rich knowledge of the natural environment and particular sites in the Nyamal Determination Area (including mythological sites, dangerous, restricted, ceremonial, totemic and historical sites)’.
The Tribunal ‘has repeatedly found that… the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance’ (see Barnes v AngloGold Ashanti at [49]). This approach is further outlined in decisions such as WF v Emergent Resources (at [45]):
Mere reference to the existence of a…place without identifying the nature of its significance or its location does not provide an adequate basis for the Tribunal to make a finding about the existence of sites or areas of particular significance on the proposed licence…
The State contentions argue (at 40-42) that no specific evidence has been provided – no sites have been identified, significance explained or evidence provided. I agree with the State’s view and conclude no sites of particular significance, in accordance with s 237(b), have been established to exist on the proposed licence. On that basis, I do not need to turn my mind to whether or not such sites would be subject to interference.
Section 237(c)
The argument made by Nyamal in relation to this limb of s 237 is sparse, even compared with the arguments raised in relation to s 237(a) and s 237(b). Nyamal contentions simply submit (at 16-17) that the activities of the grantee party will significantly disturb Nyamal land, surface and subterranean waters and that any disturbance is major disturbance. There is nothing in such an argument which is compelling.
As such, I conclude that it is unlikely major disturbance to land and waters will be caused by prospecting activity associated with the grant of this licence.
Determination
I find that the grant of P45/3100-S to Keelan Brettner, Bevon Wally, Robert Dann and Robert West is an act attracting the expedited procedure.
Helen Shurven
Member
26 October 2020
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