Kevin Allen & Others on behalf of Nyamal #1 v Robert Gerard Devlin & Another
[2020] NNTTA 64
•28 October 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Robert Gerard Devlin & Another [2020] NNTTA 64 (28 October 2020)
Application No: | WO2020/0030 |
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: | Perth |
Date: | 28 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, 151, 237 |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) Kevin Allen & Others on behalf of Nyamal #1 v Giralia Resources Pty Ltd & Others [2020] NNTTA 16 (Nyamal v Giralia) Kevin Allen & Others on behalf of Nyamal #1 v Keelan Brettner/Bevon Wally/Robert Dann/Robert West & Another [2020] NNTTA 63 (Nyamal v Brettner) Little v Oriole Resources Pty Ltd [2005] FCA 506; (2001) 108 FCR 442 (Little v Oriole Resources) Moses Silver & Ors/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Nyamal Aboriginal Corporation v Tristin Cole & Another [2020] NNTTA 61 (Nyamal v Cole) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) 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: | Robert Gerard Devlin |
| Representatives of the Government party: | Ellise O’Sullivan, State Solicitor’s Office Michael McMahon, 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 prospecting licence P45/3132 to Robert Gerard Devlin. The proposed licence is approximately 0.0981 square kilometres in size, approximately 49 kilometres north-west of Nullagine and is on land subject to the Nyamal #1 registered native title claim (WC1999/008) (Nyamal).
The State considered the grant is an act attracting the expedited procedure (see s 32 of the Act). In determining whether the expedited procedure applies, the National Native Title Tribunal (the Tribunal) must assess whether the grant of the proposed 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)).
Nyamal, as the native title party in this inquiry, lodged an objection application with the Tribunal against the expedited procedure applying to the proposed licence. Nyamal argue the expedited procedure should apply on the basis the grant will likely cause interference as contemplated in ss 237(a), (b) and (c) of the Act. In support of this assertion, Nyamal have relied on the Federal Court’s decision in Allen v Western Australia.
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, it was appropriate to determine the matter on the papers (as permitted by s 151 of the Act). No party expressed any concerns with this approach.
For the reasons outlined below, I find the expedited procedure applies to the grant of the proposed licence.
Submissions
Each party provided contentions: in support of their assertions that the expedited procedure should not apply (from Nyamal), and arguing that the expedited procedure should apply (from Mr Devlin and the State). Nyamal indicated they did not intend to provide a reply to the other parties’ contentions.
Nyamal contentions
Nyamal contend (at 6, for example) that sections from Allen v Western Australia support their assertion that the expedited procedure should not apply. Nyamal contentions argue (at 7, for example) that the native title holders and Nyamal are ‘one and the same’ and, therefore, the observations of Reeves J in Allen v Western Australia apply to the proposed licence area.
For the avoidance of doubt, Tribunal records indicate the proposed licence is within the Nyamal registered claim and is not within the area subject to Allen v Western Australia. At its closest point, the proposed licence is approximately 50 kilometres from the area which is the subject of Allen v Western Australia. 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). As mentioned above, the test I must consider is whether the grant of the proposed licence and the activities of the prospector (in this inquiry), will likely result in the interference contemplated by s 237 of the Act.
No affidavit or statement material was provided by Nyamal in support of their objection application during the inquiry.
Mr Devlin’s contentions
Mr Devlin’s contentions outline (at 1) a 30 year history of exploration or prospecting activities in and around the Nullagine area, which I note is consistent with information provided by the State. Mr Devlin states (at 3) he lives in the area, and submits he knows many of the knowledge holders that can speak to and for the heritage of the proposed licence area.
Mr Devlin outlines his activities are low impact – he states he intends to flatten existing piles of dirt, detecting and rehabilitating as he goes (at 4). Mr Devlin’s contentions (at 5) state he will use existing tracks and will be working the area for approximately two months per year in the winter. Mr Devlin’s contentions (at 12 and 14) assert there will be no impediment to the ongoing practice of traditional Nyamal customs, and his activities are unlikely to interfere with sites or areas of Aboriginal significance.
The State’s contentions
The State provided contentions and materials including the prospecting licence application, mapping, a Tengraph ‘quick appraisal’ of the area, and the draft conditions and endorsements to be imposed on the proposed licence on grant. Material provided by the State indicates there are no sites or areas on the proposed licence which have been recorded on the Aboriginal Heritage Inquiry System under the Aboriginal Heritage Act 1972 (WA).
Section 237(a) - Is there likely to be direct interference with Nyamal’s community or social activities?
I must balance Nyamal’s evidence of community or social activities with Mr Devlin’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference (see for example, Yindjibarndi v FMG at [16]). The test is outlined in Smith v Western Australia, where French J made these observations (at [26]):
The criterion of direct interference in par [237](a) may be thought of more fruitfully as functional than as definitional. That is to say, it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure…The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities.
Nyamal do not, in effect, provide any evidence and rely on Reeves J determination in Allen v Western Australia to assert in their contentions (at 5) that:
(a)the Nyamal People ‘continue to camp, fish, hunt and gather on their country on weekends and during holidays’; and
(b)‘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’.
The State contentions argue (at 28-29), that Nyamal have provided insufficient evidence regarding its activities, and particularly regarding the location, intensity or frequency of any such activities. I accept that argument.
Further, I note Nyamal raised the same argument as made in Nyamal v Brettner, which I recently decided, and I adopt paragraph [15] of that decision in response to this argument, which concludes there is no evidence to support the assertion that social and community activities of Nyamal occur on this licence.
I find in this inquiry the evidence about any social or community activities is sparse, and what has been presented is general and not specific to this proposed licence and the intended grant to Mr Devlin. I conclude there is unlikely to be direct interference with Nyamal community or social activities.
Section 237(b) - Is there a real risk of interference with areas or sites of particular significance to Nyamal?
In considering s 237(b), I note the following relevant principles, which apply in this inquiry:
a)a site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at 34-35); and
b)for a site or area to be of particular significance, it must be capable of being identified and its significance explained (Silver v Northern Territory at [91]).
As was the approach taken in Nyamal v Brettner, Nyamal contentions argue (at 13) that Allen v Western Australia establishes:
…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 State contentions have argued (at 36-39), no specific evidence has been provided – no sites have been identified, significance explained or evidence provided. The State also argues (at 41-43) that Nyamal have not demonstrated there is a real chance or risk of interference with sites or areas of particular significance associated with the proposed licence.
In this inquiry, I make the same conclusion as I made in Nyamal v Brettner (at [21]), namely, that no sites or areas of particular significance have been established for the purpose of this inquiry, and I do not, therefore, need to consider interference.
Section 237(c) - Is there likely to be major disturbance to land and waters?
I must make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it). This evaluation is taken from the point of view of the entire Australia community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little v Oriole Resources at [39]-[50]).
Nyamal provide broad arguments in relation to s 237(c), submitting, for example (at 16-17) that the activities of Mr Devlin will significantly disturb Nyamal land as well as surface and subterranean waters, and that any disturbance is major disturbance. Nyamal submit (at 17) that management of disturbance needs to be negotiated, but they do not put forward the nature or extent of such disturbance.
On the basis of a lack of evidence in relation to s 237(c), I conclude the prospecting activities of Mr Devlin are not likely to cause major disturbance to the relevant land or waters.
Determination
I find that the grant of P45/3132 Robert Gerard Devlin is an act attracting the expedited procedure.
Helen Shurven
Member
28 October 2020
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