Kevin Allen & Others on behalf of Nyamal #1 v Norbert Boege & Another
[2020] NNTTA 62
•22 October 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Norbert Boege & Another [2020] NNTTA 62 (22 October 2020)
Application No: | WO2020/0032 |
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 -
Norbert Boege
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 22 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) ss 29, 32, 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 Others on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti) Little v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FCR 576 (Little v Oriole) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17 (WF v Emergent Resources) Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Freddie v Asia Investment Corporation) |
| Representative of the native title party: | John Edwards, Arma Legal |
| Representative of the grantee party: | Norbert Boege |
| Representatives of the Government party: | Reywin Rico, 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) of its intention to grant P46/1954 to Norbert Boege. This proposed prospecting licence is 8.85 hectares in size, and is 3 kilometres easterly of Nullagine.
The notice for the proposed 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 proposed 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 Nyamal #1 native title claim overlaps the licence, which is located near 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). The Nyamal #1 native title claimants (Nyamal) lodged an application with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the proposed licence. Nyamal argue the expedited procedure should not apply on the basis that the grant will likely cause the interference contemplated in sections 237(a), (b) and (c) of the Act.
Submissions
Nyamal provided contentions. No affidavit or statement material was provided in support of the contentions, and no reply was provided to the other parties materials.
Mr Boege did not provide any materials.
The State provided their contentions, mapping, and other materials from the State’s databases. Their 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 show there is a registered site within the licence area – Nullagine Binmal ID 11960.
Determination to be made on the papers
All parties were advised the matter would be determined on the papers. No party took issue with that approach.
Consideration and conclusions in relation to each limb of s 237
Section 237(a)
I must make a predictive assessment of whether the grant of a proposed licence and activities undertaken pursuant to that grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see (Smith v Western Australia at 449-450)). 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 an explorer’s or prospector’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].)
In this inquiry, Nyamal contentions argue (at 5) the Tribunal must take into consideration portions of the decision in Allen v Western Australia regarding Nyamal people maintaining their connection to the determination area and camping, fishing, hunting and gathering on the determination area. Nyamal also make general assertions (at 6) that Nyamal people have maintained community and social activities in the form of gathering and hunting in the Nyamal determination area.
While they assert a link between the proposed licence area and the determined area, that link is not explained, nor are the social and community activities described in such a way to allow me to conclude such would be disturbed or interfered with by activities of Mr Boege associated with the grant of this licence. The contentions of the State raise issues with the lack of information and evidence to support the Nyamal assertions.
Nyamal merely state that the native title community conduct community and social activities that the proposed prospecting activities will interfere with. On the basis of that information, without further explanation or evidence beyond the proximity of the proposed licence to the determined area, I cannot conclude that community and social activities of Nyamal will be interfered with by the prospecting activities of Mr Boege.
Section 237(b)
Nyamal assert the site of Nullagine Binmal on the proposed licence is one of particular significance to the native title party. Nyamal contentions assert (at 14) ‘the site is an artefacts, scatter, repository-cache with no gender restrictions indicating that it’s accessible and important to all Nyamal people and acknowledged as an important site by neighbouring tribes’. That the site is an artefacts, scatter, repository-cache with no gender restrictions is information contained in the States AHIS report provided for this inquiry. No information is provided by Nyamal about why the site is important, or of particular significance to the Nyamal community.
As I have noted in previous decision, 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], for example). This approach is further outlined in 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…let alone a finding that the area in which the tenement is located is…imbued with a pervasive spirituality such that any unauthorised entry on the tenement area would constitute relevant interference.
As with the argument made for s 237(a), Nyamal refer to the decision in Allen v Western Australia, but do not point to any reference in that decision to Nullagine Binmal, or any reason why that area would be of particular significance to Nyamal. On the basis of the brief information provided, I could not conclude Nullagine Binmal, or any other area on or near this proposed prospecting licence, is of particular significance to Nyamal. As I have not concluded there are any sites or areas of particular significance, I do not need to consider whether or not such would be subject to interference for the purposes of my consideration of s 237(b).
Section 237(c)
The State contends (at 48) ‘there is no basis on which the Tribunal could be satisfied that the proposed tenement is likely to involve a major disturbance to land and waters’. I agree with this contention, as no evidence has been presented for Nyamal to enable me to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense there is a real risk of it) (see Little v Oriole Resources at [39]-[50]).
My conclusion in relation to s 237(c), based on the available information and evidence presented in this inquiry, is that there is no likelihood of major disturbance to land or waters associated with the proposed licence and the activities of Mr Boege.
Determination
My determination is the grant of P46/1954 to Norbert Boege is an act that attracts the expedited procedure.
Helen Shurven
Member
22 October 2020
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