Nyamal Aboriginal Corporation v Peter Romeo Gianni

[2020] NNTTA 20

NATIONAL NATIVE TITLE TRIBUNAL

Nyamal Aboriginal Corporation v Peter Romeo Gianni & Others [2020] NNTTA 20 (25 February 2020)

Application No: WO2019/1068

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 -

Peter Romeo Gianni

(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:

25 February 2020

Catchwords:

Native title – future act – proposed grant of exploration 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:

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

Kevin Allen & Ors on behalf of Nyamal #1 v John William Young & Another [2019] NNTTA 85 (Allen v Young)

Nyamal Aboriginal Corporation v Abeh Pty Ltd & Another [2019] NNTTA 90 (Nyamal v Abeh)

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)

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 party: Peter Gianni

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 exploration licence E46/1307 (the licence) to Peter Romeo Gianni. 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 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 56 percent of the licence.  I note a portion of the licence is already subject to previous grants and so is not available for grant.

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. 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.

4. Having been appointed to determine this matter, a Tribunal member must look at what is likely to result from the grant of the 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]). The member must have regard to the rights conferred by the grant, the nature of the proposed grant and the applicable regulatory regime (see Walley v Western Australia). 

5. Much of the information that Nyamal provided in this inquiry turned on the fact that the Federal Court has determined that Nyamal hold native title over part of the licence. However, little to no information was provided by Nyamal which related directly to the licence itself.

6. It is important for the assessment under s 237 that native title parties provide the Tribunal with sufficient information. This is information within their knowledge. If they do not provide such clarity, then, when the Tribunal takes a common sense approach to the materials before it, the Tribunal may make an unfavourable inference against the native title party (as outlined by Carr J in Ward v Western Australia (at [26]-[28])).

7. Based on the material, my conclusion is that the expedited procedure applies.

Preliminary Matters

Submissions

1. Nyamal provided contentions and a reply to the State’s and Mr Gianni’s contentions.  No affidavit, statement or other supporting material was provided.

2. Both Mr Gianni and the State provided contentions. The State also provided mapping and other materials from the State’s databases. The materials 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 showed no recorded sites or other heritage places on the licence nor within its vicinity.

Determination to be made on the papers

1. 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)).

Section 237(a) – likelihood of interference with community or social activities

1. Nyamal assert 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’.  They cite Allen v Western Australia in support (at [54] and [58]-[59]), which broadly notes that Nyamal People ‘continue to camp, fish, hunt and gather on their country’ and ‘actively engage in hunting and gathering techniques and use traditional resources’. Nyamal assert they ‘conduct community and social activities within the meaning of s 237(a)’ on the licence (at 7) but provide no examples as to the types of activities, their location, duration, frequency or the numbers of Nyamal people involved. There is the general assertion that activities ‘occur more frequently’ given ‘the recent significant rain earlier in 2019’ (at 10), but again, no details are provided.

2. As such, there is little on which to base an assessment of how Mr Gianni’s exploration activities would be likely to substantially interfere with Nyamal community or social activities on the licence, even if Mr Gianni’s activities were exercised to the full amount permissible under the Mining Act 1978 (WA). In previous determinations, the Tribunal has found that evidence or assertions 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 activities will directly interfere with social or community activities in a substantial or more than trivial way (see eg Freddie v Asia Investment Corporation at [14]).  I conclude this is such a case.

Section 237(b) – likelihood of interference with sites or areas of particular significance

1. In support of their argument that sites or areas of particular significance exist on the licence, Nyamal submissions (at 13) again refer to Allen v Western Australia (at [59]), which contains a general reference that ‘Nyamal People continue to have a rich knowledge of the natural environment and particular sites within the Nyamal Determination Area’. Nyamal are of the view this reference supports that ‘substantial interference to areas of more than ordinary and particular significance is likely to occur’ (at 13-14). However, they provide no information about such areas on or near the licence.

2. There is insufficient evidence for me to conclude sites or areas of particular significance exist in relation to this licence.  As such, the question of interference with such sites or areas cannot be examined.

Section 237(c) – likelihood of disturbance to land and waters concerned

1. Nyamal contentions assert that ‘any disturbance to land and waters is too much disturbance’ (at 17 and reply at 25). As 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, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned.

Determination

1. The grant of E46/1307 to Peter Romeo Gianni is an act attracting the expedited procedure.

Helen Shurven
Member
25 February 2020