Kevin Allen & Others on behalf of Nyamal #1 v Kevin Wayne Pearce and Another
[2021] NNTTA 72
•6 December 2021
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Kevin Wayne Pearce and Another [2021] NNTTA 72 (6 December 2021)
Application No: | WO2021/1293; WO2021/1294 |
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 -
Kevin Wayne Pearce
(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: | 6 December 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 |
Cases: | Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Yindjibarndi Aboriginal Corporation RNTBC and FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara) |
| Representatives of the native title party: | Grace Manning-Davis and Tara Babu, Arma Legal |
| Representative of the grantee party: | Kevin Pearce |
| Representatives of the Government party: | Domhnall McCloskey and Stewart Palmer, State Solicitor’s Office Bethany Conway and Michael McMahon, Department of Mines, Industry Regulation and 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/NTA) of its intention to grant prospecting licences P46/2025-S and P46/2026-S to Kevin Wayne Pearce (the grantee party). The notice for each 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 each 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 licences are located approximately 51 kilometres east of Nullagine and fall wholly within the area of the Nyamal #1 native title claim (WC1999/008). The Nyamal #1 native title claimants (Nyamal/NTP) objected to the expedited procedure statement, 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 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. The focus of my decision is s 237(b).
The requirements of s 237(b)
The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be interference (in the sense of a real risk) with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. For an area or site to be of ‘particular significance’ it needs to be of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at 34–35). The area needs to be known, able to be located and the nature of its significance explained (see Silver v Northern Territory at [91]). If there is evidence that areas or sites of particular significance exist on or in relation to a licence, I must proceed to consider whether interference is likely. If there is no such evidence about particular significance, I do not need to undertake consideration of interference in the inquiry (Yindjibarndi Aboriginal Corporation v FMG at [17] and [125]).
The decision is made in the context of what the grant entitles a prospector to do on the proposed licence (see s 48 of the Mining Act 1978 (WA)), having regard to the evidence about what they are likely to do, and in consideration of any sites of particular significance established by the evidence of the native title party.
Contentions and evidence
The State’s materials
The State provided contentions and materials, including proposed endorsements and conditions they intend to impose on the licences on grant, mapping, tenure information, and information from the Aboriginal Heritage Inquiry System (AHIS), which records Aboriginal heritage places in Western Australia, as assessed under the Aboriginal Heritage Act 1972 (WA) (AHA). There are no places recorded on the AHIS for either licence.
Nyamal’s materials
Nyamal provided contentions, together with a statement from Kevin Allen, and reply materials. Mr Allen is a Nyamal elder and has authority to speak for the country subject to these proposed licences. Nyamal contentions (at 8) and Mr Allen’s affidavit (at 8-9) note that the site registered on the AHIS as Eastern Creek Nullagine (site ID 8303) is located approximately 6 kilometres to the north of the proposed licences. The file, location and boundary of this site are restricted. Mr Allen asserts (at 9) that the existence of this site means others are likely to exist in the area and that not all sites are registered on the AHIS (at 12). While I accept that might be the case, evidence is needed to establish such sites exist (as outlined at [3] above).
Mr Pearce’s materials
Mr Pearce provided contentions, including photographs of an access track and the area of the proposed licences. He notes he intends to work previously disturbed areas within the proposed licences by scraping and detecting (with a metal detector) and then dry-blowing the material – he has provided images which are stated (at 4) to be of worked areas on these proposed licences. No party has contended any of the images are to the contrary and I accept the images are as stated.
Mr Pearce asserts (at 5) that access to the proposed licences is from Old Skull Springs Road onto an existing track (of which an image is also provided). Mapping shows an access way called Skull Springs Road is just south of the proposed licences. He states all work will be carried out in compliance with all State requirements, and that work will be undertaken approximately 6 months of the year, with rehabilitation of previously disturbed ground. He states (at 7) that no fuel will be stored on site and no chemicals will be used during the scrape and detect work program.
Is the grant of the licences likely to interfere with areas or sites of particular significance to Nyamal?
Have any sites of particular significance been established?
Mr Allen (at 6) asserts the proposed licences are located off Skull Springs Road which ‘is a very important area to Nyamal’. They are located between Nullagine in the south and De Grey River in the north. I note that Nullagine is approximately 60 kilometres from the proposed licences, and the De Grey River is many kilometres to the north. Mr Allen states the location of the proposed licences is ‘right through a Nyamal dreaming story that travels along Nyamal Country and through to the desert’. I appreciate there are dreaming stories which are important to Nyamal, however, the description of the pathway of the dreaming is very broad, and there is no information provided about why this dreaming is of particular significance to Nyamal in accordance with Nyamal traditions, or in relation to the location of these licences.
Mr Allen also asserts (at 7-8) there is a women’s site ‘along Skull Springs Road’ which is an important women’s area. He provides a location for the women’s site, however, it is not clear whether or not this is near the proposed licences, as the road runs for many kilometres. Mr Allen asserts that only an agreement with the prospector will avoid damaging this site.
The Nyamal reply (at 4-11) focuses on the question of interference (including the grantee party’s execution of the Regional Standard Heritage Agreement and that it is not accepted by Nyamal as a meaningful mechanism to mitigate interference). However, unless a site of particular significance has been established by the evidence, I cannot turn my consideration to the interference of such a site. The Nyamal reply (at 8) also notes that because the site referred to as being off Skull Springs Road is not located on the proposed licences, does not mean it can be subject to interference (as is argued by the State). I agree with this proposition, however, once again, a site of particular significance must be established to exist, in accordance with the native title party traditions, before I can consider the question of interference with such a site.
Mr Pearce notes he lives approximately 1 kilometre from the proposed licences (at 1), and ‘I know there are areas, particularly around the hills that have sites and I'm aware of the women's sites that he [Mr Allen] speaks of’ (at 11). Mr Pearce states they are approximately 30 kilometres by road ‘from my tenement and not accessible with a vehicle’ (at 11). He also states (at 10) that he has executed the Regional Standard Heritage Agreement as a method by which heritage could be protected.
The State contentions accept the Eastern Creek Nullagine site is not on either of the proposed licences, and assert (at 30) that Nyamal have not explained ‘the importance of the site or how the grant of the proposed tenements will cause interference of the kind described in section 237(b)’. The State also assert (at 21) that Mr Allen’s description of the location is ‘too general for the purpose of this inquiry’, and that the location of the dreaming story is similarly general in terms of its location and significance (at 22-23, 25-26). The State assert (at 33) with respect to the area located at Skull Springs Road, as it is not located on the proposed licences, it is unlikely to suffer from interference.
Conclusion
The statement of Mr Allen is brief and does not provide detail of the significance of sites in accordance with Nyamal traditions, only asserting there are, or are likely to be, such sites on or near the proposed licences that will be interfered with. In addition, the location of the sites are described in broad terms, so even if information about the significance of sites was provided, it is not clear whether or not the proposed prospecting activities of Mr Pearce would cause the type of interference as contemplated in s 237(b).
I cannot conclude sites of particular significance have been established and as such, I do not need to turn my consideration to whether or not such would be subject to interference by prospecting activities.
Determination
My determination is that the grant of P46/2025-S and P46/2026-S to Kevin Wayne Pearce are acts which attract the expedited procedure.
Helen Shurven
Member
6 December 2021
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