Kevin Allen and Others (Nyamal #1) v Bushwin Pty Ltd and Another

[2019] NNTTA 75

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others (Nyamal #1) v Bushwin Pty Ltd and Another [2019] NNTTA 75 (26 September 2019)

Application No:                WO2019/0136

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 (Nyamal #1) (WC1999/008)

(native title party)

- and -

Bushwin Pty Ltd

(grantee party)

- and -

The State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member

Place:  Perth

Date:  26 September 2019

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – 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 does not apply

Legislation:Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18

Native Title Act 1993 (Cth) ss 29, 31, 32, 237

Mining Act 1978 (WA) s 66

Mining Regulations 1981 (WA) r 20

Cases:Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391

Kevin Allen and Others (Njamal) v Oakover Gold Pty Ltd and another [2017] NNTTA 24 (Njamal v Oakover)

Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal #1 v Gianni)

Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (Little v Oriole)

Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni)

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory)

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara)

Representative of the     Ashley Truscott, Arma Legal

native title party              

Representatives of the     Wanjie Song, State Solicitor’s Office

Government party           Matthew Smith, Department of Mines, Industry Regulation and Safety

Representative of the     Denis Hawtin, Director, Bushwin Pty Ltd

grantee party                   

REASONS FOR DETERMINATION

1. This is a decision about whether the expedited procedure applies to the grant of exploration licence E46/1263 (the licence) to Bushwin Pty Ltd (Bushwin). In their public notice, 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) (the Act). All references to sections of legislation in this determination are to the Act unless otherwise stated.

2. Under s 237, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to:

   ·interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));

   ·interfere with areas or sites of particular significance, in accordance with their traditions, to those holders (s 237(b)); and

   ·involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).

3. The licence comprises approximately 206 square kilometres located 64 kilometres east of Nullagine and situated entirely on land where the Nyamal people claim native title. The Nyamal registered native title claimants (Nyamal) have the right to lodge an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion that the expedited procedure applies (see s 32). Nyamal exercised that right, and it is my role to conduct an inquiry to determine whether the expedited procedure applies.

4. For the reasons below, I determine the expedited procedure does not apply. The effect of the determination is, in summary, that the State and Bushwin must negotiate in good faith with Nyamal with a view to obtaining the agreement of Nyamal to the grant of the licence (see s 31).

5. In conducting this inquiry, I issued directions requesting parties to lodge contentions and evidence in support of their arguments. Bushwin indicated they would rely on the State’s materials, and the State provided various documentation including mapping, information held by the Department of Planning, Lands and Heritage (DPLH), as well as information from the Department of Mines, Industry Regulation and Safety (DMIRS).

6. Information provided by Nyamal included contentions, a reply to the State’s materials, and the affidavit of Mr Neil William O’Connor. Mr O’Connor states he is a Nyamal Traditional Owner and he has authority to speak for the area of the licence on behalf of Nyamal.  I accept that submission.

7. I address the following issues to determine whether the expedited procedure applies to the grant of the licence:

   (a)Is there likely to be direct interference with Nyamal’s community or social activities?

   i)What activities do Nyamal undertake on the licence?

   ii)What are Bushwin’s proposed activities?

   iii)What do the State contend?

   (b)Is there a real risk of interference with areas or sites of particular significance to Nyamal?

   i)Are there areas or sites of particular significance to Nyamal for the purposes of s 237(b)?

   ii)Are any areas or sites of particular significance likely to be interfered with?

   (c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area?

Is there likely to be direct interference with Nyamal’s community or social activities?

1. I note ‘the level of interference with community and social activities must be substantial rather than trivial’ (Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16])).

What activities do Nyamal undertake on the licence?

Law/Cultural time

1. Mr O’Connor describes this as an annual event taking place around Christmas ‘maybe 20, 30 or 40 people, all Nyamal men … out there on country for two weeks’ (at 9). This year in particular ‘is a very big cultural time’ because the recent cyclone has made the country spiritually and culturally ‘lively’ (at 17).Mr O’Connor states ‘there are roads in the tenement that we use for travelling during law time’ (at 9). Woodie Woodie is located on the licence and listed as a heritage place under the DPLH Aboriginal Heritage Information System (AHIS) Register, and described as ‘Rockshelter, Ochre’. Nyamal people will go to Woodie Woodie ‘to get this ochre during December this year’ as part of law time (Mr O’Connor at 11).

Hunting, gathering and camping activities

1. The evidence includes general statements that ‘there are pigeons, spinifex pigeons, galahs in the tenement which are good for eating’ and there ‘are rock holes and waterholes in the tenement … where we do our hunting around for bush turkey, kangaroo, emu, lizards. Kangaroo is normally there and if you come across other animals then that’s good luck’ (Mr O’Connor at 7 and 10). Nyamal people camp and fish at the rock holes and waterholes on the licence (Mr O’Connor at 10).Figs, jima bushes, wattle (for flour) and yams ‘are available in this tenement and are seasonal’ (Mr O’Connor at 13).

What are Bushwin’s proposed activities?

1. The State’s submissions include Bushwin’s statement in support of their licence application. The statement outlines that Bushwin intend to explore for gold and/or base metals ‘from previous work conducted over 20 years ago in the area’, by Mr Hawtin (the sole Director of Bushwin) and other explorers. The first and second year work program includes geochemical and rock chip sampling.  Drilling and survey gridding will be ‘generated subject to initial results’, with ‘further exploration activity contingent on the results from Years 1 & 2’.  The statement also outlines that during ‘the second year Bushwin, subject to results, intends to implement a further comprehensive drill campaign to test geophysical/structural targets and soil/rock-chip geochemistry detailed in Year 1’.

2. As Bushwin have not provided any further information about their proposed activities, I have assumed they will undertake the full scope of activity to which they are entitled under the grant of an exploration licence as set out in s 66 of the Mining Act 1978 (WA) (as per Silver v Northern Territory (at [30]).

What do the State contend?

1. The State observe the Nyamal evidence is that ceremonies take place ‘over two weeks’ and ochre collection will be ‘during December this year’. They contend ‘it is not clear whether these activities are conducted frequently within the area of the proposed tenement’ (at 26).  Further, the State contend that as Woodie Woodie is recorded on the AHIS, ‘protective mechanisms under the AHA [Aboriginal Heritage Act 1972 (WA)] means there is unlikely to be direct interference with any activity of gathering ochre conducted at Woodie Woodie’ (at 30.2).

2. The State also contend Nyamal have ‘not provided any details as to the frequency and number of people involved in hunting and gathering activities’ nor details as to location except for ‘rock holes and waterholes in the tenement’ (at 25-26).  I note the State’s quick appraisal documentation and mapping shows one waterhole on the north-eastern boundary of the licence and Hays Spring near the middle.

3. In reply to the State’s arguments, Nyamal contend ‘there will be increased community and social activities … following the consent determination [referring to the Federal Court native title determination] scheduled for 24 September 2019 where traditional owners will be visiting Woodie Woodie to obtain ochre and paint themselves and conduct celebratory ceremonies’ (at 7). This will occur in addition to the annual ‘law time ceremonies [which] are scheduled for Christmas where the NTP [native title party] will be accessing roads in the tenement area and engaging in community and social activities at Woodie Woodie’ (at 8).

Conclusion

1. Nyamal contend that allowing Bushwin to access and conduct exploration activities will interfere with Nyamal’s social and community activities on the licence, however, there is little evidence to support their contention, even taking into account the increased activity which is likely to take place following the consent determination.

2. As I outlined in Njamal v Oakover (at [12]) the issue to be determined is whether the factual circumstances disclosed give rise to any likelihood of relevant interference within the meaning of s 237(a).

3. While there is additional evidence provided in relation to activities at Woodie Woodie than was presented in Njamal v Oakover, I have balanced the general and limited evidence of Nyamal’s community and social activities against the activities Bushwin could undertake if they exercised the full suite of rights under s 66 of the Mining Act 1978 (WA). I conclude the level of social or community activities outlined by Nyamal is not such that Bushwin’s activities are likely to substantially interfere with them. Both parties’ activities are likely to be able to coexist, and substantial interference with social or community activities on the licence is unlikely.

Is there a real risk of interference with areas or sites of particular significance to Nyamal?

1. A native title party must provide sufficient evidence about an area or site to show it exists on a licence; explain its significance; distinguish it from other areas within the licence and demonstrate it is of more than ordinary significance to them in accordance with their traditions.

Are there areas or sites of particular significance to Nyamal for the purposes of s 237(b)?

Woodie Woodie

1. In Njamal v Oakover, I concluded that Woodie Woodie was important to Nyamal, but based on the limited evidence provided in that inquiry, I could not conclude the area was of particular significance for the purposes of s 237(b) (at [15]-[19]).

2. In this present inquiry, Nyamal’s contentions and reply draw my attention to aspects of Mr O’Connor’s evidence and argue the evidence in Njamal v Oakover can be distinguished from the evidence provided in this inquiry. I accept those arguments, as in this present inquiry, Nyamal have linked Woodie Woodie to their traditional laws and customs, and have explained the importance of ochre at Woodie Woodie to these traditions. Further information has been provided regarding the traditions which differentiate Woodie Woodie from other sites and areas, and which make it a site of particular significance to Nyamal.  Mr O’Connor draws a link between the ochre found at Woodie Woodie, as well as the ‘significant’ songline attached to Woodie Woodie (at 11-12).  Although expressed briefly, a link is also drawn between law time, a history of ceremonial activities after periods of significant rain and the centrality of ochre gathering at Woodie Woodie and the importance of Woodie Woodie for these activities, in a way which provides more detail than that outlined in Njamal v Oakover (see Mr O’Connor at 9, 11 and 17).

Other sites and areas

1. Nyamal contend there are rockholes and waterholes, as well as men’s and women’s sites or areas, and another area on or near the licence which are of particular significance. However, there is insufficient evidence to support a finding they are of particular significance for the purposes of s 237(b).

Are any areas or sites of particular significance likely to be interfered with?

1. While there is insufficient evidence to find Nyamal’s social and community activities will be substantially interfered with by Bushwin’s activities at Woodie Woodie, I consider exploration activities at Woodie Woodie are likely to cause interference with that area. 

2. The State argue they will apply a Regional Standard Heritage Agreement (RSHA) condition on the grant of the licence (at 13). Their materials include a statutory declaration from Mr Hawtin that he offered to enter into an RSHA with Nyamal.  In reply, Nyamal contend the RSHA ‘is not nominated by the NTP [native title party], whose preferred agreement is the Nyamal Heritage Protection Agreement’ (at 19). They argue the ‘real risk is found in the language of the RSHA’ citing the terms requiring ‘the grantee party to “notify, consult and, if necessary carry out surveys”’. They argue the use of such terms ‘provides for a discretionary and subjective standard to be applied by the Grantee Party in making an assessment as to Nyamal heritage and culture, without any external input to such an assessment from Nyamal’ (at 42). I accept that contention. As President Dowsett stated in Marputu v Gianni at [66], the terms of an RSHA:

   … leave open the real possibility, perhaps likelihood that there would be further disputes, in good faith or otherwise, about concepts such as “take into account”, “significantly affect” and “discuss”. … [P]rotection of that general kind may be appropriate where the traditional owners’ concerns are unparticularized, but that is not the present case.

3. Or, as Member Cooley recently put it, to ‘rely on the possible entry into a standard agreement that has not been negotiated by the parties to decide that interference under s 237(b) is unlikely, seems to me to require a number of long bows to be drawn’ (Nyamal #1 v Gianni at [66]).

4. The State outline a number of conditions and endorsements which they will apply to the licence on grant.  None of these refer to Woodie Woodie, nor can I see how any of them will afford Woodie Woodie protections from likely interference by exploration activities of Bushwin.

5. The State also provide contentions about their statutory protection regime (at 41-46). For example, they assert the AHA will afford areas such as Woodie Woodie with protections, under ss 5, 17 and 18, particularly given that Woodie Woodie is recorded on the AHIS. However, as has been outlined in many Tribunal decisions, the nature of interference under s 237(b) is not the same as that contemplated by the AHA, and Ministerial discretion exists under the AHA whereby exploration activities can be conducted on a licence on sites covered by the AHA in certain circumstance.

6. Nyamal make uncontested contentions that the protective regime under the AHA ‘is inadequate to protect sites within the meaning of s 237(b)’ because since ‘the AHA’s enactment in 1972, there have only been five prosecutions under the AHA for disturbance to sites which raises issues of enforcement of AHA obligations and reporting disturbances’ (at 38-39).

7. I have already outlined that I assume Bushwin will undertake the full scope of activity to which it is entitled under the grant of an exploration licence (as per Silver v Northern Territory (at [30]). These activities are set out in s 66 of the Mining Act 1978 (WA), and include the ability to enter and re-enter the licence with ‘vehicles, machinery and equipment as may be necessary’, to dig pits, trenches and holes, sink bores, and ‘to excavate, extract or remove…from such land, earth, soil, rock, stone, fluid or mineral bearing substances’. Regulation 20 of the Mining Regulations 1981 (WA) indicates the amount of material able to be removed from the exploration licence is up to 1000 tonnes in total.

8. While there is no onus of proof in Tribunal inquiries, once Nyamal led information and evidence about a site of particular significance, it is open to Bushwin to provide information or evidence as to how they might mitigate any interference. As outlined by Carr J in Ward v Western Australia (at [26]) (emphasis added):

   The "common sense approach to evidence" is not the same as applying an evidential onus of proof. In administrative matters such as these, any party (not just the native title party) has what might be termed an evidentiary choice. They might choose not to lead any evidence on a particular issue. But that does not necessarily mean that they must fail on that issue i.e. that they have an evidential onus of proof. The Tribunal might (subject to observing the requirements of procedural fairness) make its own inquiries and satisfy itself that the particular issue should be decided in favour of the party electing not to put evidence before it. Alternatively, part of an opposing party's evidence whether in cross-examination or otherwise, may satisfy the Tribunal on the point. That party has, in colloquial terms, taken its chances and won… 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. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the common sense approach to evidence.

9. My conclusion is that Woodie Woodie is likely to suffer from interference from Bushwin’s exploration activities. 

Is there likely to be major disturbance to land and waters (s 237(c))?

1. The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) 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 (Little v Oriole at [39]-[50]; Dann v Western Australia).

2. Applying my comments at [30] above in relation to Ward v Western Australia (at [26]), I note that Nyamal provide very brief contentions and evidence in relation to s 237(c).

3. For example, Mr O’Connor states ‘I think any disturbance to land and waters is too much disturbance and it will need to be managed in accordance with Nyamal culture’ (at 16). As such, Nyamal contend that ‘any disturbance to land and waters is too much disturbance within the meaning of s 237(c)’ (at 30).

4. Section 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 licence is not likely to involve major disturbance to the land or waters concerned.

Determination

1. The determination is that the act, namely the grant of exploration licence E46/1263 to Bushwin Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member
26 September 2019