Nyamal Aboriginal Corporation v Mark Richard Mischke/Adam Fletcher-Murtha

[2020] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Nyamal Aboriginal Corporation v Mark Richard Mischke/Adam Fletcher-Murtha & Others [2020] NNTTA 30 (10 March 2020)

Application No: WO2019/0993

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Nyamal Aboriginal Corporation (WCD2019/010)

(native title party)

- and -

Mark Richard Mischke/Adam Fletcher-Murtha

(grantee parties)

- 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:

10 March 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 – the act is an  act attracting the expedited procedure

Legislation:

Native Title Act 1993 (Cth) ss 29, 32, 146, 151(2), 237

Cases:

Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia)

Nyamal Aboriginal Corporation v Peter Romeo Gianni & Another [2020] NNTTA 20 (Nyamal v Gianni)

Representative of the native title party:

Ashley Truscott, Arma Legal

Representative of the grantee party: Self represented (Mark Richard Mischke/Adam Fletcher)

Representatives of the Government party:

Ellise O'Sullivan, State Solicitor’s Office

Michael McMahon and Bethany Conway, Department of Mines, Industry Regulation & Safety

REASONS FOR DETERMINATION

1. 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 P45/3070 (the licence) to Mark Richard Mischke and Adam Fletcher-Murtha. The notice for the 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 (as per s 237 of the Act) that the grant of the licence is not likely to, in summary:

   a)interfere directly with Nyamal’s community or social activities;

   b)interfere with areas or sites of particular significance to Nyamal in accordance with their traditions;

   c)involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.

2. As a result of the Federal Court determination Allen v Western Australia, the Nyamal Aboriginal Corporation (Nyamal) holds non-exclusive native title in trust for the Nyamal people over the licence.  

3. Nyamal lodged an objection 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 licence.  The President of the Tribunal appointed me to make a determination about whether the expedited procedure applies (s 32(4)). 

4. Nyamal argue the expedited procedure should not apply because the grant will likely cause the interference contemplated in sections 237(a), (b) and (c) of the Act. The arguments in the Nyamal contentions and reply were similar to those filed in the inquiry of Nyamal v Gianni, with no supporting evidence apart from references to Allen v Western Australia.  As such, having considered the relevant evidence and information from all parties, I adopt my approach and reasoning from Nyamal v Gianni (as per s 146 of the Act).

5. The parties indicated they did not seek a hearing in this inquiry. I was satisfied the issues for determination can be adequately determined on the papers (s 151(2)).

6. The grantee’s and the State provided contentions in this present inquiry. The State also provided mapping and other materials from the State’s databases. The materials include 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 showed no recorded sites or other heritage places on the licence nor within its vicinity, however, the tengraph and mapping show the Shaw River encroaches over the licence.

7. Nyamal outline in their reply (at 17-18), which reiterates their contentions, ‘that the Nyamal Connection Report has identified the Shaw River as significant with numerous sites of cultural significance deposited along the Shaw River which must remain undisturbed’.   It is acceptable to use a wide variety of evidence in support of contentions and submissions in inquiry matters, including Connection Reports.  However, little indication has been provided as to where in the Connection Report the Shaw River was referred to, nor in relation to community and social activities associated with the river      (s 237(a)), its particular significance to Nyamal (s 237(b)), or how it could suffer from major disturbance (s 237(c)).  No extracts of the material has been provided, nor have they been paraphrased or in any other way identified.

8. The Nyamal reply in this matter differs from that in Nyamal v Gianni in that there is further detail provided in this matter about Nyamal’s view and attitude regarding interference with social or community activities and with sites of particular significance (for example, at 11-13). However, it is important to note that it must be first established that social or community activities are conducted on a licence (for s 237(a)), or that sites of particular significance exist (for s 237(b)), before issues relating to interference in relation to those sub-sections of the Act need to be examined and assessed.

9. As per s 146 of the Act, I adopt the following paragraphs from Nyamal v Gianni:

   (a)My general approach ([4]-[7])

   (b)Information from Nyamal, my approach regarding s 237(a), and my conclusion that there was no evidence of social or community activities, or interference with same ([11]-[12])

   (c)Information from Nyamal, my approach regarding s 237(b), and my conclusion that there was no evidence of any sites or areas of particular significance ([13]-[14])

   (d)Information from Nyamal, my approach regarding s 237(c), and my conclusion that there was no evidence the grant of the licence is likely to involve major disturbance to the land or waters concerned ([15])

Determination

1. The grant of P45/3070 to Mark Richard Mischke and Adam Fletcher-Murtha is an act attracting the expedited procedure.

Helen Shurven
Member
10 March 2020