Nyamal Aboriginal Corporation v Tristin Cole
[2020] NNTTA 61
•22 October 2020
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation v Tristin Cole & Another [2020] NNTTA 61 (22 October 2020)
Application No: | WO2020/0005 |
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 -
Tristin Cole
(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: | 22 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) Ben Ward & Ors v Western Australia & Ors [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Cyril Barnes and Ors on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti) Kevin Peter Walley & Ors on behalf of the Ngoonoru Wadjari People & Ors/Western Australia/Giralia Resources NL [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Little v Oriole Resources Pty Ltd [2005] FCA 506; (2001) 108 FCR 442 (Little v Oriole Resources) 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) WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2002] NNTTA 17 (WF v Emergent Resources) 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) |
| Representatives of the native title party: | Ashley Truscott and John Edwards, Arma Legal |
| Representative of the grantee party: | Tristin Cole |
| 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 P45/3045 to Tristin Cole. 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 approximately 1.76 square kilometres in size, approximately 37 kilometres west of Marble Bar, and is on land subject to the Nyamal determination (see Allen v Western Australia). The Nyamal Aboriginal Corporation (Nyamal) holds non-exclusive native title rights and interests over the proposed licence area in trust for the Nyamal People.
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 argues the expedited procedure should not apply to this licence on the basis that the grant will likely cause the interference contemplated in ss 237(a), (b) and (c).
Having been appointed to this inquiry, 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 the interference outlined in s 237 (see Yindjibarndi v FMG at [15]). For the reasons outlined below, I find the grant of P45/3045 is an act attracting the expedited procedure.
Submissions
Nyamal provided contentions referring to sections from Allen v Western Australia, which it argues supports its assertion that the expedited procedure should not apply. Nyamal argues the proposed licence area is within the determination area and, therefore, the observations of Reeves J made in Allen v Western Australia apply to the licence area. However, the sections of Allen v Western Australia relied upon contain broad references to Nyamal People’s country generally, and not to the proposed licence area specifically.
Nyamal has not provided further explanation as to why Allen v Western Australia, or portions of that decision, apply to my consideration of the limbs of s 237. No affidavit or statement material was provided in support of Nyamal’s objection application.
Mr Cole provided no submissions for this inquiry.
The State provided contentions, mapping, and other materials from the State’s databases. Searches of the Aboriginal Heritage and Inquiry System indicated the proposed licence area contains no sites or other heritage areas registered under the Aboriginal Heritage Act 1972 (WA).
Nyamal did not provide a reply to the State’s contentions.
Decision on the papers
Nyamal and the State indicated they were content for the matter to be determined on the papers, as permitted by s 151 of the Act. No response on this point was received from Mr Cole. I considered the issues for inquiry did not require a hearing and proceeded on the papers.
Consideration and conclusions in relation to s 237
Section 237(a)
As noted above, Nyamal relies on portions of the decision by Reeves J in Allen v Western Australia. In relation to social and community activities pertinent to s 237(a), Nyamal asserts the community goes camping, fishing, hunting and gathering on their country on weekends and during holidays, referring to the following passages from Allen v Western Australia, for example:
[58] Today, whilst some Nyamal People still live permanently in the Nyamal Determination Area at Marble Bar, a majority of Nyamal People now reside in Port Hedland whilst some remain at Yandeyarra. However, those Nyamal People who reside outside the Nyamal Determination Area continue to camp, fish, hunt and gather on their country on weekends and during holidays.
[59]…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.
It has been noted the proposed licence is approximately 37 kilometres from Marble Bar. It is also approximately 120 kilometres from Port Hedland and 80 kilometres from the Yandeyarra Community. These are all some distance from the proposed licence, and no link or information has been provided as to how the community and social activities referred to in Allen v Western Australia are relevant to the proposed licence, or how they might be interfered with by the grant of the proposed licence.
In relation to s 237(a), I must make a predictive assessment of whether the grant of the 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 a grantee party’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]).
Nyamal asserts these social and community activities have continued since before first contact (at 6), but does not provide any information about how they are conducted on the proposed licence, or where. The State raised concerns about the paucity of evidence in support of Nyamal’s assertions in relation to s 237(a) (at 27-28). While Nyamal has relied generally on Allen v Western Australia in this inquiry, if such a decision is to be used in support of an expedited procedure objection application, it should be explained how it directly relates to the inquiry and the s 237 criteria.
On the basis of the available information, I conclude the grant is not likely to cause interference to community or social activities.
Section 237(b)
There is brief mention of ‘mythological sites, dangerous, restricted, ceremonial, totemic and historical sites’ in the determination area, as referred to by Reeves J in Allen v Western Australia. The State raised concerns about the paucity of evidence in support of Nyamal’s assertions in relation to s 237(b) (at 36-38). 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]). This approach is further outlined in decisions such as 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…
While I appreciate the licence is within the Nyamal determination area, this fact is not, in itself, sufficient for the purposes of s 237 for me to conclude the expedited procedure should not apply. On the basis of the available information, I cannot conclude there are sites of particular significance on the proposed licence. As such, I do not need to inquire about interference with such sites.
Section 237(c)
Beyond Nyamal’s assertion that there will be interference of the type contemplated by s 237(c), no evidence or material has been provided in support of that assertion. My conclusion must be that major disturbance to land and waters is not likely to occur (see Little v Oriole Resources at [39]-[50]).
Determination
I find the grant of P45/3045 to Tristin Cole is an act attracting the expedited procedure.
Helen Shurven
Member
22 October 2020
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