Nyamal Aboriginal Corporation v Onanong Perkin & Others
[2020] NNTTA 10
•6 February 2020
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation v Onanong Perkin & Others [2020] NNTTA 10 (6 February 2020)
Application Nos: | WO2019/0891; WO2019/0892 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Nyamal #1 (WC1999/008)
(native title party)
- and -
Onanong Perkin and David Alan Perkin
(grantee parties)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 6 February 2020 |
Catchwords: | Native title – future act – proposed grant of special 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 acts are acts attracting the expedited procedure |
Legislation: | 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) Kevin Allen and Others (Nyamal #1) v Bushwin Pty Ltd and Another [2019] NNTTA 75 (Allen v Bushwin) Kevin Allen & Ors on behalf of Nyamal #1 v John William Young & Another [2019] NNTTA 85 (Allen v Young) Little v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FCR 576 (Little v Oriole) Nyamal Aboriginal Corporation v Abeh Pty Ltd & Another [2019] NNTTA 90 (Nyamal v Abeh) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Freddie v Asia Investment) WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17 (WF v Emergent Resources) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Ashley Truscott, Arma Legal |
| Representative of the grantee parties: | David Perkin |
| 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
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 P46/1947-S to Onanong Perkin and P46/1948-S to David Alan Perkin (the grantees).
The notice for the licence’s included a statement that their 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)).
Each licence is approximately 50 kilometres from Nullagine. The Nyamal #1 native title claim overlaps each licence, which are located near the area where native title was recently determined by the Federal Court to be held by the Nyamal People (WCD2019/010 - see Allen v Western Australia (at [3])). 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 each licence. Nyamal argue the expedited procedure should not apply to each licence on the basis that the grants will likely cause the interference contemplated in sections 237(a), (b) and (c) of the Act.
For my consideration of s 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].)
For my consideration of s 237(b), I note 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.
For my consideration of s 237(c), I am required 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). This evaluation is taken from the point of view of the entire Australian 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]).
Having been appointed to determine this matter, I must look at what is likely to result from the grant of each licence and decide whether there is material to support a real chance or risk of the interference outlined in s 237 (see Yindjibarndi v FMG at [15]). I must have regard to the rights conferred by the grants, the nature of the proposed grants and the applicable regulatory regime (see Walley v Western Australia). Much of the information provided by Nyamal in this inquiry turned on the proximity of these licences to the determined area where the Nyamal People hold native title. However, little to no information was provided by Nyamal which related directly to the licences themselves.
It is important for the assessment under s 237 that parties provide the Tribunal with a clear expression of the nature and extent of any social and community activities, or sites and areas of particular significance. If parties do not provide such clarity, I must take a common sense approach to the materials (as outlined by Carr J in Ward v Western Australia (at [26]-[28])).
For the reasons below, I find the expedited procedure applies to the grant of both licences.
Preliminary Matters
Submissions
Nyamal provided contentions and a reply to the State and grantee contentions. No affidavit or statement material was provided in support of the contentions.
The grantees provided contentions, together with mapping and photographs. The grantees also provided a brief response to Nyamal’s reply.
The State provided their contentions, mapping, and other materials from the States databases. The material includes a quick appraisal outlining the underlying tenure and searches of the Aboriginal Heritage and Inquiry System, held under the Aboriginal Heritage Act 1972 (WA) (AHA). The searches showed no sites or areas as being recorded on either licence under the AHA.
Determination to be made on the papers
All parties were advised I would determine this inquiry on the papers. No party took issue with that approach.
Party submissions
The grantees’ argument
Mr Perkin, as representative for both licences, gave a response to the Nyamal reply. He summarised and re-iterated the original grantee parties’ contentions with respect to both licences. As such, it is convenient for me to copy that information below, as follows:
(a) Although there are no heritage sites close to the proposed licenses, I will inform any visitors to the area of the location and importance of protecting and preserving any such sites.
(b) The two licenses applied for are within and adjacent to, my other two licenses, and in total, the four licenses will be under 40Ha.
(c) There is very little significant vegetation, being mainly spinifex plain, but any substantial vegetation will be preserved.
(d) There are no permanent water holes within the licenses and existing drainage channels would only flow during heavy rain.
(e) There is very little evidence of native game due to the lack of vegetation and water.
(f) I am happy for the NTP to have unrestricted access to and across the licenses should they wish to exercise their Native Title rights
(g) I will only be working there for about four months of the year.
(h) I do not intend to create any new roads, mainly using the gazetted road that runs parallel with the licenses, with a short existing track into the licenses.
(i) The area of the proposed licenses is extremely remote, being approximately 70 km East of Nullagine and over 400 km to Port Hedland.
(j) Any intended work carried out on the licenses will be fairly low impact, mainly scraping small areas on the licenses, detecting, and hand digging.
(k) All works on the licenses will be done in accordance with all DMIRS and Environmental requirements.
(l) I am aware of the Aboriginal Heritage Act 1972 and understand that the conditions of the act must be complied with by the Grantee Party.
(m) I have offered to protect Aboriginal Heritage by executing the RSHA, and the two existing license were granted using this agreement.
(n) I have the utmost respect for the NYAMAL people and their culture.
The State’s argument
The State relies on reference to cases and argument which assert Nyamal have not provided sufficient evidence for me to draw a conclusion that there is likely to be interference with community or social activities of the native title holders, or with any sites or areas of particular significance to the native title holders. The State also provides argument as to why I could not conclude land or waters are likely to be interfered with in accordance with s 237(c) of the Act. The State outline they will apply a number of conditions and endorsements on the grant of each licence, as well as a condition allowing for a Regional Standard Heritage Agreement to be applied to each licence if Nyamal request it within the relevant timeframe.
Nyamal’s argument
The Nyamal submissions refer to sections from the Federal Court decision in Allen v Western Australia, which they argue support their assertion that the expedited procedure should not apply. The submissions note the licences are near to the determined area, however, the evidence provided is broad and refers to the Nyamal area as a whole, without providing support as to why the information specifically applies to the licence areas and to the limbs of s 237.
Section 237(a)
Nyamal do not provide information about specific social or community activities related to the licences. The emphasis in their submissions is on the fact that some of the lands in the area of the licences have been determined. For example, the Nyamal reply states (at 7):
We reiterate, the NTP’s contentions, that… the references to the Federal Court of Australia passages in Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (24 September 2019), by Reeves J that Nyamal people have maintained community and social activities in the form of gathering and hunting in the Nyamal Determination Area since before first contact, should be considered to apply to the tenement area, and that the expedited procedure does not apply to the grant of the tenement.
This information was provided in support of arguments regarding s 237(a), and the Federal Court decision is used as support that Nyamal camp, fish, hunt and gather on the licences. Nyamal refers briefly to hunting and gathering (for example, the initial submissions at 58 and their reply at 18), but do not say where on the licences any such social and community activities are conducted, by whom or when.
Nyamal assert that the Nyamal people do carry out their community and social activities throughout their claimed and determined area. However, again no specificity has been provided as to what activities are carried out on which licences, and when. There is little on which I can base an assessment of how any activities by the grantees will be likely to substantially interfere with Nyamal community or social activities, on either licence.
Nyamal use their reply (at 14) to reiterate their initial contentions, referring to my decision in Allen v Bushwin, which they summarise as ‘where the Tribunal found that the act was not an act attracting the expedited procedure, of the history of ceremonial activities after periods of significant rain’. In that inquiry, I held the expedited procedure did not apply because there was a site of particular significance (Woodie Woodie) which was likely to be interfered with by exploration activity – not because social and community activities were likely to be interfered with.
I note that Woodie Woodie is some kilometres from the prospecting licences in this inquiry. The materials Nyamal provided for s 237(a) in Allen v Bushwin were more detailed than provided in this inquiry. Nevertheless, in that inquiry I held that the social and community activities were unlikely to be substantially interfered with by the explorer’s activities. Even allowing for the influence of rain periods, which are said in this current inquiry to increase social and community activity of Nyamal people in this area, I draw the same conclusion. That is, I determine there is unlikely to be substantial interference with social and community activities given what is outlined in the submissions provided by Nyamal. I also note in this present inquiry, the grantees’ activities will be prospecting, rather than exploration.
Section 237(b)
In support of their argument that sites or areas of particular significance exist on these licences, Nyamal submissions again refer to Allen v Western Australia. However, they provide no information about sites or areas existing on the licences.
I refer to my comments at [17]-[18] above because Nyamal make a similar argument in regard to s 237(b) (see the reply at 21-22). Information is provided about sites which are within 25 kilometres of the licences (see the reply at 23-24). This is consistent with information provided by the State showing sites which exist within 25 kilometres of the licences. However, no information is provided regarding how prospecting activities on, or associated with the grant of, these licences would interfere with such sites. Some information outlined in the reply (at 30, for example) is that:
We submit, on behalf of the NTP, that there are registered sites and heritage places of archaeological and ethnographic value to the NTP which are of particular significance to the NTP as the dreamtime story of Wallawullung has touched these waterholes and sites, depositing a source of water for the Nyamal Native title holders and claimants’
However, no information is provided as to which sites or areas on or associated with the relevant licence have been touched by Wallawullung, nor has any information been provided about the traditions of the native title party and implications for interference with respect to s 237(b). In addition, Nyamal refer to the importance of Woodie Woodie (as noted at [20]-[21] above]). However, Woodie Woodie is many kilometres from the prospecting licences in this inquiry.
Nyamal assert the grantees have not discussed a travel route in regard to the licences, and that sites associated with Wallawullung may be interfered with by the grantee’s access to the licences. However, a link has not been drawn between any sites, the traditions of the native title party, and the likely prospecting activities of the grantee parties such that interference through accessing the licences would likely to be caused.
There is insufficient evidence to conclude sites or areas of particular significance exist in relation to these licences. As such, I cannot examine the question of interference with such sites or areas.
Section 237(c)
Nyamal provide brief contentions in relation to s 237(c). They assert that ‘any disturbance to land and waters is too much disturbance’ (contentions at 20 and reply at 36). As I have noted in recent Nyamal expedited procedure decisions (see Nyamal v Abeh at [39] and Allen v Young at [45])), s 237(c) refers only to ‘major disturbance’ and not ‘any disturbance’ as Nyamal contend. There is also no requirement for ‘major disturbance’ to be assessed according a native title party’s traditions (unlike s 237(b)). Based on the limited evidence before me, I find the grant of the licences is not likely to involve major disturbance to the land or waters concerned.
Conclusion in relation to my assessment of s 237 as applied to this inquiry
The statements Nyamal provide in support of their objection to the expedited procedure in this inquiry are too broad to be applied specifically to these licences – the jurisprudence attached to an analysis of s 237 is such that I must consider the particular licences specifically, rather than the application of previous Federal Court or Tribunal decisions generally. If parts of Federal Court or Tribunal decisions are to be used in support of an expedited procedure inquiry, the particular part/s of those decisions should be referred to.
In addition, it should be explained how those parts are relevant in terms of specifically how they apply to the licences under consideration in the inquiry. I appreciate these licences are near to a Nyamal determined area, and they are covered by a Nyamal registered native title claim, however, this is not sufficient for the purposes of s 237 for me to draw the conclusion that the expedited procedure should not apply.
Determination
My determination is that the grants of P46/1947-S to Onagong Perkin and P46/1948-S to David Alan Perkin are acts that attract the expedited procedure.
Helen Shurven
Member
6 February 2020
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