Kevin Allen and Others (Njamal) v Haoma Mining Nl and Another
[2017] NNTTA 22
•17 May 2017
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others (Njamal) v Haoma Mining NL and Another [2017] NNTTA 22 (17 May 2017)
Application No: WO2015/1008; WO2015/1009
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kevin Allen and Others (Njamal) (WC1999/008)
(native title party)
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Haoma Mining NL
(grantee party)
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The State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms H Shurven, Member
Place: Perth
Date: 17 May 2017
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether act is likely to interfere substantially 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 Ms Kate Major, Castledine Gregory
native title party: Mr Andre Maynard, Castledine Gregory
Representatives of the Ms Emily O’Keeffe, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representative of the
grantee party: Ms Janet Procak, MMWC Group
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the grants of exploration licences E45/4586 and E45/4587 (the licences) to Haoma Mining NL (Haoma). In their public notices, the State of Western Australia included statements that they consider the grants are acts 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.
Because the Njamal registered native title claim (WC1999/008) overlaps the licences, the Njamal registered native title claimants (Njamal) had the right to lodge objections against the State’s assertion that the expedited procedure applies (s 32). Njamal exercised that right and I was appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies to the grant of the licences.
For the reasons below, I determine the expedited procedure applies. The State can therefore grant the licences without any requirement for negotiations with Njamal under s 31.
My decision must be based on the criteria set out in s 237. Specifically, I must determine whether the grant of the licences 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.
All parties lodged contentions. Njamal also submitted two affidavits of Mr Willie Jumbo, one for each licence. Mr Jumbo states he is a Njamal Elder and member of the Njamal Native Title Claimant group. I accept he has authority to speak for the area of the licences on behalf of Njamal. All parties were content to proceed with the inquiry on the papers.
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’. Njamal do not provide contentions or evidence in relation to s 237(c). Therefore, based on the limited evidence before me, I find the grants of the licences are not likely to involve major disturbance to the land or waters concerned.
On the basis of the evidence provided, I focus on ss 237(a) and (b) 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 licences?
ii)What are Haoma’s proposed activities?
iii)Conclusion.
(b)Is there a real risk of interference with areas or sites of particular significance to Njamal?
i)Are there areas or sites of particular significance to Njamal for the purposes of s 237(b)?
ii)Conclusion.
(a)Is there likely to be direct interference with Njamal’s community or social activities?
What activities do Njamal undertake on the licences?
Njamal’s contentions state that members of Njamal currently carry out community and social activities related to their claimed native title rights and interests. However, the affidavit evidence on which these contentions are based is broad. Mr Jumbo states in both affidavits that Njamal people, including his family, hunt, gather bush tucker and collect medicine in the area of the licences (at 8–10 in each affidavit). There is little specific information provided about particular persons or families who undertake the activities, the frequency or location of the activities, or any unique areas on the licences which might suggest Njamal’s social or community activities are undertaken there with particular intensity as compared to other parts of their claim area. Indeed, Mr Jumbo indicates generally that such activities also occur in areas surrounding and nearby the licences.
What are Haoma’s proposed activities?
Ms Janet May Procak as the representative for Haoma, has provided an affidavit with Haoma’s contentions. Ms Procak outlines Haoma’s proposed programme of works, as follows:
(a)Year One: the Grantee Party will conduct ground reconnaissance, surface sampling and geological mapping;
(b)Year Two: the Grantee Party will conduct geochemical sampling, aircore or RAB drilling using track – mounted rigs to minimise disturbance; and
(c)Year Three: the Grantee Party will conduct in fill shallow drilling and validate targets.
Haoma have provided other information about its proposed activities, including that a camp would not be needed in the exploration phase, and also refers to the various conditions to be placed on the licences by the State on grant. I note it would be open for Haoma to use the full suite of rights available to them under the grant of the licences (see s 66 of the Mining Act 1978 (WA)).
Haoma states they will ‘not exclude any community or social activities the Native Title Party intends to carry out on the Exploration Licences unless that activity is to be conducted in an area that is unsafe’ (at 10). Haoma also states they will ‘notify the Native Title Party prior to any exploration activity that is likely to restrict the gathering of bush tucker, medicines and hunting of game and will consult with the Native Title Party on ways of minimising any disturbance’ (at 12).
Conclusion
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 provided in relation to Njamal’s community and social activities against the activities Haoma could undertake if they exercised their full suite of rights under s 66 of the Mining Act 1978 (WA). 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 licences is not likely.
(b)Is there a real risk of interference with areas or sites of particular significance to Njamal?
A native title party must provide sufficient evidence about an area or site to: show it exists on a licence; explain its particular significance and distinguish it from other areas within the licence; and demonstrate it is of more than ordinary significance to them in accordance with their traditions. These are threshold requirements for finding the grant of a licence is likely to cause interference with areas or sites of particular significance. If there is no evidence that areas or sites of particular significance exist on a licence, I do not need to proceed with the next step of the inquiry to look at the question of interference (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17] and [125]).
Are there areas or sites of particular significance to Njamal for the purposes of s 237(b)?
Njamal contend that the areas of the licences are ‘important and unique parts of the Claim area for the Native Title Party due to their location in relation to Shaw River Coolegong Pool, Spear Hill and other sites and areas of significance’. Contentions should be supported by evidence, and in this matter, the evidence is provided by affidavit from Mr Jumbo.
Mr Jumbo states, in relation to E45/4586, there is ‘an important burial site for our old Njamal people that covers a significant portion of the Exploration Licence’ and he has ‘a responsibility to look after these important sites’ (at 11). However, no further information is provided in relation to where on the licence this burial site is located or the size of the area it covers. I acknowledge that the State’s Department of Aboriginal Affairs (DAA) Sites Register shows a site registered as the Shaw River Burial Site, which is in the west portion of the licence, where Shaw River runs through the licence. In the absence of further evidence, I conclude this is the same site as Mr Jumbo has referred to.
Mr Jumbo also states the ‘Shaw River as a whole is a place of significance to Njamal People and to me and my family’ (at 11). I note that part of the Shaw River travels through the west portion of E45/4586, but there is no evidence as to why this portion of the Shaw River is of particular significance to Njamal. Mr Jumbo next states Coolegong Pool is ‘a really important site for my old people and there is a camp there. Old Njamal people would camp there and do law business. This place should not be disturbed’ (at 12). Mapping attached to the affidavit shows the geographical feature called Coolegong Pool is located outside E45/4586. The DAA Register records a site called Coolegong, in the west of the licence.
In relation to E45/4587, Mr Jumbo states the area of Spear Hill ‘contains a very important Njamal ceremonial site’ with ‘engravings’ and the ‘Shaw River and its Creeks are also places of significance to Njamal People and to me and my family’ (at 11–12). However, according to mapping attached to the affidavit, Spear Hill is outside and to the west of the licence, as is Spear Creek. I note the State’s DAA Sites Register shows four sites overlapping this licence in part, and labelling them as engraving sites called Spear Hill (that is, Spear Hill 5, Spear Hill 6, Spear Hill 7 and Spear Hill 8). There is also a site recorded as Coolegong Pool which covers the southerly portion of this licence. This site is distinct from Coolegong in the west of the licence.
In relation to both E45/4586 and E45/4587, Mr Jumbo states ‘we would be sure to find a lot more signs of traditional Njamal use of the country’ (at 13 in each affidavit). 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 traditions for the purposes of s 237(b).
Conclusion
While I have no doubt the sites Mr Jumbo describes are of importance to the Njamal people, my task is to look at the criteria of s 237 and, in relation to s 237(b), decide whether there are any sites of particular significance to the native title party on the relevant area. The nature of the sites referred to in the evidence have not been explained to show how they are of particular significance to the Njamal people in accordance with their traditions. I conclude there are no sites of particular significance on these licences for the purpose of s 237(b) of the Act.
Because I find there is insufficient evidence to establish sites or areas of particular significance to Njamal on the licences, I do not need to consider whether interference is likely. I do note, however, that the sites described by Mr Jumbo appear to be those which are mapped on the DAA database, and as such, Haoma will need to comply with the legislative requirements of the State’s regulatory regime in relation to those areas.
Determination
The determination is that the acts, namely the grants of exploration licences E45/4586 and E45/4587 to Haoma Mining NL, are acts attracting the expedited procedure.
Helen Shurven
Member
17 May 2017
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