Kevin Allen & Others on behalf of Nyamal #1 v Robert Gerard Devlin and Another
[2022] NNTTA 55
•9 August 2022
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Robert Gerard Devlin and Another [2022] NNTTA 55 (9 August 2022)
Application No: | WO2022/0104 |
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 -
Robert Gerard Devlin
(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: | Melbourne |
Date: | 9 August 2022 |
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, 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) |
| Representative of the native title party: | Tara Babu and Alissa Bishop-Thorpe, Arma Legal |
| Representative of the grantee party: | Robert Devlin |
| Representatives of the Government party: | Jake Lincoln, 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) of its intention to grant prospecting licence P46/2038-S to Robert Gerard Devlin (the grantee party). 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 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 located approximately 52 kilometres easterly of Nullagine, is approximately 0.099 square kilometres in size, and falls wholly within the area of the Nyamal #1 native title claim (WC1999/008). Mapping provided by parties shows Cookes Creek runs through the north east corner, and Skull Springs Road runs nearly adjacent to the southern boundary, of the proposed licence. Both the Creek and the Road appear to intersect just outside the south east area of the proposed licence.
The Nyamal #1 native title claimants (Nyamal) 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 the relevant 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 proposed licence 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 such places recorded on the proposed licence, although I note Nyamal evidence refers to AHIS Site 8303 Eastern Creek, Nullagine, which is approximately five to six kilometres to the north of the proposed licence.
Nyamal’s materials and assertions
Nyamal provided contentions, together with a statement from Neil William O’Connor (with map annexed), and reply materials. Mr O’Connor is a Nyamal traditional owner and has authority to speak for the country subject to the proposed licence. Mr O’Connor outlines (at 8) that the Skull Springs Road/Cookes Creek Road intersection area is like home to him, and that (at 9):
The Nullagine River is culturally very important to the Nyamal people. Nyamal people [are] River People. These rivers that come off the Nullagine and travel through the tenement areas, such as Cookes Creek, are also important tributaries of the Nullagine. These rivers were areas where we would camp, gather water and fish.
The grantee party, Mr Devlin (at 13), notes the Nullagine River/Cookes Creek junction is some 22 kilometres from the proposed licence, and this assertion has not been challenged by the native title party.The State’s materials confirm part of Cookes Creek itself intersects with the proposed licence.However, there is little information about what makes Cookes Creek (or the Nullagine River) a site of particular significance for the purposes of s 237(b).
Mr O’Connor is concerned that incidents such as fuel leaks could affect waterways in the area (at 10) and is also concerned at the ability of a prospector being able to extract up to 500 tonnes from a granted licence (at 10). However, those issues are relevant to interference with a site of particular significance in terms of this inquiry, and I only consider interference where a site of particular significance has been established. Two engraving areas are described by Mr O’Connor (at 11), and which are also referred to in the Nyamal reply (at 15), but these do not appear to be on, or relatively near the proposed licence There is little to connect them to the proposed licence or the activities of Mr Devlin, apart from general references to the Nullagine River and tributaries such as Cookes River. There is also little information to establish why they are of particular significance.
The Nyamal contentions (at 15) assert that ‘… due to the closeness of this tenement to this [AHIS] registered site, any activities undertaken on this tenement should be done with the agreement of the Native Title Holders.’ However, apart from general assertions about Cookes Creek and its connection to the Nullagine River, there is no basis on which I could conclude there are any sites of particular significance on or near to the proposed licence, or which had a nexus to the activities of a prospector on the proposed licence.
The State contentions assert and outline their reasoning (at 23-26) as to why it should be concluded it has not been established there are any sites of particular significance, including that the assertions made by the native title party are too general.
The Nyamal reply (at 12 for example), refers to the Nullagine River and its cultural importance. I have no doubt it is culturally important to Nyamal people. However, assertions that a site is culturally important, or of particular significance, are not sufficient for the purposes of a Tribunal inquiry under s 237(b) – there is little information about how and why the River (which does not intersect with the proposed licence) is of particular significance in accordance with Nyamal traditions, and less information about tributaries such as Cookes Creek (which does intersect with the proposed licence). Much of the Nyamal reply refers to concerns about interference to areas of particular significance, and I am not satisfied it has been established there is a site of particular significance.
Mr Devlin’s materials
Mr Devlin provided contentions, including photographs and mapping of the area of the proposed licence. He outlines his likely prospecting activities (at 1-4) and also asserts (at 5) that:
The tenement boundary is 22 meters back from the adjoining Cookes creek. We will not be working closer than 50 meters to the creek as per the photo below and this is only to rehabilitate the old pushings and make safe an existing costean.
Mr Devlin notes he will be accessing the proposed licence via Skull Springs Road and ‘existing tracks within the tenement’ (at 6). He confirms (at 8) that he will not be storing fuel or hydrocarbons on the proposed licence, nor will any chemicals be used in the prospecting operations. While this information goes more to interference, which I do not need to consider as I have concluded no sites of particular significance have been established, I do note this information provided by Mr Devlin has responded to concerns raised by Nyamal regarding interference.
Is the grant of the licence likely to interfere with areas or sites of particular significance to Nyamal?
Have any sites of particular significance been established?
The statement of Mr O’Connor is brief and does not provide detail of the particular significance of sites in accordance with Nyamal traditions, only asserting there are, or are likely to be, such sites on or near the proposed licence that will be interfered with.
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 the prospecting activities of Mr Devlin.
Determination
My determination is that the grant of P46/2038-S to Robert Gerard Devlin is an act which attracts the expedited procedure.
Helen Shurven
Member
9 August 2022
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