Teddy Allen and Others (Njamal People #10) v Cullen Exploration Pty Ltd and Another
[2017] NNTTA 31
•1 June 2017
NATIONAL NATIVE TITLE TRIBUNAL
Teddy Allen and Others (Njamal People #10) v Cullen Exploration Pty Ltd and Another [2017] NNTTA 31 (1 June 2017)
Application No: | WO2016/0203 |
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Teddy Allen and Others (Njamal People #10) (WC2000/005)
(native title party)
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Cullen Exploration Pty Ltd
(grantee party)
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The State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 1 June 2017 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to directly interfere with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure attracted |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 237 Mining Act 1978 (WA) s 66 |
Cases: | Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representatives of the native title party: | Ms Kate Major, Castledine Gregory Mr Andre Maynard, Castledine Gregory |
| Representatives of the grantee party: |
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| Representatives of the Government party: | Ms Bethany Conway, Department of Mines and Petroleum Mr Domnhall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
This decision considers whether or not the expedited procedure applies to the grant of exploration licence E45/4626 (the licence) to Cullen Exploration Pty Ltd (Cullen Exploration). In their public notice of the licence, the State of Western Australia included a statement that they consider the grant is an act attracting the expedited procedure under the Native Title Act 1993 (Cth). All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.
The Njamal People #10 registered native title claimants’ (Njamal) native title claim (WC2000/05) overlaps the licence, and therefore had the right to lodge an objection under s 32 against the State’s assertion that the expedited procedure applies. Njamal exercised that right, and the President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry to determine whether or not the expedited procedure applies to the grant of the licence.
My decision must be based on the criteria set out in s 237. Specifically, I must determine whether the grant of the licence is likely to:
(a)directly interfere with community or social activities carried on by Njamal;
(b)interfere with areas or sites of particular significance in accordance with the traditions of Njamal; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
For the reasons detailed below, I determine the expedited procedure applies to the grant of the licence. The effect of this is that the State can grant the licence without the usual requirement for negotiations between Njamal, Cullen Exploration and the State in accordance with s 31.
All parties lodged contentions. Njamal included a joint affidavit of Ms Alice Mitchell and Ms Doris Eaton. Both Ms Mitchell and Ms Eaton state they are Njamal Elders and members of the Njamal native title claimant group. I accept they have authority to speak for the area of the licence on behalf of Njamal. Cullen Exploration included an affidavit of Dr Christopher Ringrose (a Director of Cullen Exploration), and an affidavit of Ms Stephanie Lee (Cullen’s representative in the inquiry process). Dr Ringrose states he was involved in the preparation and implementation of the exploration plan. Ms Lee provides mapping showing the position of the licence and surrounds. I accept all of these affidavits as part of the inquiry process.
Njamal do not make submissions explicitly addressing s 237(b). Ms Mitchell and Ms Eaton state the Strelley River ‘means a lot to Njamal and to my family’ and there is ‘a dreamtime songline that follows the Strelley river but that’s a man’s story and I don’t want to talk about that’. They state if ‘we went out to the Exploration Licence area now we would be sure to find a lot of signs of traditional use of the country’ because of its location ‘between the Strelley rivers’. I note the mapping provided by parties shows a Strelley River West, and a Strelley River East – the licence lies approximately 5 kilometres away from both rivers, mid-way between the two rivers.
I acknowledge there may be cultural reasons why Ms Mitchell and Ms Eaton do not want to, or are not able to, disclose details of a site related to men’s story. However, it was open to Njamal to submit affidavit evidence from a person with appropriate authority to disclose further information, or to seek non-disclosure directions (s 155). Simple reference to a site or area does not explain its particular or more than ordinary significance in accordance with Njamal traditions for the purposes of s 237(b) (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]). References to signs of traditional Njamal use of the country, or statements that sites or areas are important, do not explain their particular or more than ordinary significance in accordance with Njamal’s traditions.
As stated in Ward v Western Australia at [26], ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. I find there is insufficient evidence before me to support a conclusion that there are areas of particular significance for the purposes of s 237(b). Because I find there is insufficient evidence to establish there are sites or areas of particular significance on the licence, I do not need to consider whether interference is likely.
Njamal do not provide contentions or evidence for s 237(c). Based on the limited information before me, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned.
On the basis of the evidence provided, I focus on s 237(a) and address the following issues to determine whether or not the expedited procedure applies to the grant of each licence:
(a)Is there likely to be direct interference with Njamal’s community or social activities?
i)What activities do Njamal undertake on the licence?
ii)What are Cullen Exploration’s proposed activities?
iii)Conclusion.
(a) Is there likely to be direct interference with Njamal’s community or social activities?
What activities do Njamal undertake on the licence?
Njamal contend they currently carry out community and social activities on the licence area. They submit the licence is ‘rich in a number of different types of bush tucker and bush medicines’, which means the area is used ‘intensively and frequently for community and social activities.’ However, the evidence provided is very general. Ms Mitchell and Ms Eaton state Njamal people, including their families, hunt, travel through, gather bush tucker and collect bush medicine in the licence area and the surrounding areas. They state the licence ‘is an ideal area’ for Njamal people to stop for hunting, fishing and camping when they travel along Marble Bar Road, between Port Hedland and Marble Bar, as it is situated between the Strelley River West and Strelley River East. Ms Mitchell and Ms Eaton also state ‘Njamal People use the Marble Bar Road on weekdays and weekends, and at other important times such as law business and for getting to funerals’. I note Marble Bar Road is some 10 kilometres north east of the licence.
Njamal provide no specific evidence about the nature of these social and community activities, or the frequency or intensity with which they are undertaken. Ms Mitchell and Ms Eaton allude to the area between Strelley River West and East being ‘a great location for hunting and fishing’, but provide no further details which might suggest the activities are undertaken in such a way that exploration activities are likely to interfere with them.
What are Cullen Exploration’s proposed activities?
Cullen Exploration contends it ‘proposes to conduct exploration for lithium’ and that while ‘an exploration plan is not yet finalised, the exploration is anticipated to involve a staged approach which comprises initially of field reconnaissance and mapping, and sampling of soils for geochemical analysis’. I note it would be open for Cullen Exploration to use the full suite of rights available to them under the grant of the licence following such initial phases (see s 66 of the Mining Act 1978 (WA)).
Cullen Exploration also provides general information about its familiarity with the State’s regulatory regime. It notes it signed and forwarded a Regional Standard Heritage Agreement (RSHA) to Njamal in January 2016, for the licence area. Dr Ringrose outlines the work would not be undertaken intensively on the licence (by between 2 to 5 persons), and less than 3 visits per calendar year are anticipated. He states existing tracks would be used where possible. I note the licence is approximately 57 square kilometres in size.
Conclusion
Njamal contend the grant of the licence, which would allow Cullen Exploration to access and use its vehicles and other machinery on the area, would impact Njamal’s ability to access the licence and conduct community and social activities there. However, I have found there is insufficient evidence to establish Njamal undertake social or community activities on the licence areas to such an extent or in such a manner that they may be interfered with by activities of the explorer.
On numerous occasions, the Tribunal has balanced a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities and has concluded exploration and social or community activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]). In this inquiry, I have balanced the general and limited evidence of Njamal’s community and social activities against the activities Cullen Exploration could undertake if they exercised their full suite of rights under s 66 of the Mining Act 1978 (WA). In Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16]), President Webb summarises previous Tribunal decisions, and the approach of the Tribunal and Federal Court, and notes ‘the level of interference with community and social activities must be substantial rather than trivial’.
On the basis of the material before me, I conclude both parties’ activities are likely to be able to coexist, and that interference with social or community activities on the licence is not likely.
Determination
The grant of exploration licence E45/4626 to Cullen Exploration Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
1 June 2017
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