Kevin Allen and Others on behalf of Nyamal #1 v Haoma Mining Nl and Another
[2019] NNTTA 26
•22 May 2019
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen and Others on behalf of Nyamal #1 v Haoma Mining NL and Another [2019] NNTTA 26 (22 May 2019)
Application No: | WO2018/0027 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kevin Allen and Others on behalf of Nyamal #1 (WC1999/008)
(native title party)
- and -
Haoma Mining NL
(grantee party)
- and -
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: | 22 May 2019 |
Catchwords: | Native title – future act – proposed grant of exploration (amalgamation) 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, 237 |
Cases: | Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti Australia) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182; 324 ALR 580 (FMG v Yindjibarndi Aboriginal Corporation) Little v Oriole Resources Pty Ltd [2005] FCAFC 243, 146 FCR 576 (Little v Oriole Resources) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (Silver v Northern Territory) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith v Western Australia) Ward v State of Western Australia (1996) 69 FCR 208 (Ward v Western Australia) WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17 (WF v Western Australia) Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Wilma 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: | Ashley Truscott, Arma Legal Hema Hariharan, Arma Legal |
| Representative of the grantee party: | Jacob Wotherspoon, All Mining Legal |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety Tom Ledger, State Solicitor's Office |
REASONS FOR DETERMINATION
The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant E45/4070 (AM511878), an amalgamation licence, to Haoma Mining NL (Haoma Mining). The notice included a statement that the grant of the amalgamation licence is an act attracting the expedited procedure (see s 32 of the Act). This is a decision about whether the expedited procedure applies to the proposed grant of E45/4070 (AM511878).
To decide whether or not the grant of the licence should be done under the expedited procedure, I must examine the criteria in s 237 of the Act. The issues I need to determine in relation to these criteria are:
(a)Is the grant of the licence likely to interfere directly with Nyamal’s community or social activities?
(b)Is the grant of the licence likely to interfere with areas or sites of particular significance to Nyamal?
(c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Exploration licence amalgamation applications are referred to in s 67A of the Mining Act 1978 (WA). Section 67A(1) states that where ‘a person is the holder of both an exploration licence and a secondary tenement the person or an agent of the person may, without marking out the land, apply in writing to the Minister in the prescribed manner for the secondary tenement to be amalgamated with the exploration licence’. The amalgamated area relevant to this expedited procedure inquiry is to be added to the south of the existing exploration licence E45/4070, held by Haoma Mining.
The inquiry into whether or not the expedited procedure applies to this licence was running parallel with two other proposed amalgamation licences (E45-4201-I (AM511806) and E45-4201-I (AM511877). These two licence applications were surrendered by Haoma Mining in March 2019 - the materials provided by parties up to March 2019 relates to all three licences. I raise this only because some of the evidence provided by the native title party relates to Coognan River, which runs through the two surrendered licences, but not through E45/4070 (AM511878).
E45/4070 (AM511878) is approximately 0.240 square kilometres in size and is located 8 kilometres north west of Marble Bar. The licence is located wholly within the Nyamal #1 registered claim area. Nyamal lodged with the National Native Title Tribunal, an objection to the State’s assertion that the expedited procedure applied to the proposed grant of the licence. Nyamal states the expedited procedure should not apply as interference or disturbance with the criteria set out in s 237 of the Act is likely. For the reasons outlined below, my decision is that the expedited procedure applies to the grant of the licence.
Preliminary evidentiary matters
Each party provided contentions in this matter. Nyamal’s contentions included two affidavits of Mr Kevin Edward Allen. The second affidavit was lodged following a listing hearing, where parties’ views were aired on Nyamal’s request to lodge further evidence after their reply had been filed. No party took issue with further evidence being lodged, on the basis they were able to provide comment on that evidence, should they wish to do so. The State exercised that discretion, and Haoma Mining indicated they did not wish to do so. Mr Allen states he is a Nyamal native title claimant and has authority to speak for the licence area. I accept Mr Allen’s authority and affidavit evidence.
Parties raised no objection to this matter proceeding on the papers and based on the material before me, I am satisfied a hearing is not required and the matters can be determined on the papers.
Is the grant of the licence likely to interfere directly with Nyamal’s community or social activities?
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it 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 [23]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith v Western Australia at [26]).
If evidence about community or social activities is of a general and unspecified nature, this will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Wilma v Western Australia at [14]).
What community and social activities do Nyamal carry out on the licence?
Nyamal’s contentions, which focused on the three initial licences applied for (see [4] above) state the ‘traditional owners… undertake hunting and gathering and practice traditional and customary ceremony on the area’. The contentions also state that as the representative of Nyamal, they are aware through anthropological research, that particular Nyamal families ‘continue to regularly access the area to conduct cultural events and hunt in the region of the Coognan River’.
The native title party evidence in the first affidavit outlines broad activities such as hunting and gathering resources, and practice of ceremonies ‘in the area’. This evidence relates to all three of the initial amalgamation licence applications. It is cast too broadly for me to draw any conclusions about activities on E45/4070 (AM511878). In the second affidavit, it is outlined that the area of E45/4070 (AM511878) is a significant breeding ground for birds, fish and animals due to waterholes, and that a recent tropical cyclone has enlivened the area, including the Coognan River which is near to or adjacent to E45/4070 (AM511878). It is stated that after a cyclone, the women and children fish and collect ‘black berries from Jima trees, little peaches that grow through the rocks known as Jubarri’ and that medicine and food plants will be ready to be collected and used for traditional purposes. It is not clear though whether this is done on E45/4070 (AM511878), or elsewhere nearer to the river.
The State’s comment on the second affidavit raised issues about the broad nature of the evidence, and indicated that there was little information about the cultural practices and activities which take place, when they take place, how many people are involved and the expected duration of any social or community activities.
What activities does Haoma Mining intend to undertake on the licence?
Haoma Mining’s contentions do not include details of the proposed activities to be conducted should the licence be granted. Based on the absence of information it is open to me to conclude Haoma Mining intend to exercise the full suite of rights available to them upon the grant of the licence under the Mining Act 1978 (WA).
Haoma Mining’s contentions state it will not exclude any community or social activities Nyamal intends on carrying out in the licence area unless deemed unsafe. Where Nyamal’s access is restricted for safety reasons, Haoma Mining has stated it will consult with Nyamal in order to seek an arrangement agreeable to both parties. Haoma Mining undertake to notify Nyamal prior to any exploration activity that is likely to restrict activities such as gathering bush tucker, medicines and hunting, and will consult with Nyamal on ways to minimise any disturbance.
Conclusion
Although Nyamal’s affidavit evidence states activities such as hunting, gathering and the practice of ceremony take place on E45/4070 (AM511878), no details have been provided to support this assertion. For example, the evidence does not specify who participates in these activities, or the duration, frequency, or location on or near the licence area the activities take place, apart from referring generally to Coognan River and waterways. Further, Nyamal’s contentions and evidence do not explain how or why the activities of Haoma Mining will interfere with its community or social activities.
In Silver v Northern Territory, the Tribunal held (at [35]) that there may be community or social activities carried out which are not in the area of the proposed licence but which could still be interfered with in the sense contemplated by s 237(a) provided there is a 'clear nexus between those activities and issues being considered under s 237' (Silver v Northern Territory). However, the information and evidence provided in relation to the amalgamation area and the nexus with the Coognan River, as well as the activities undertaken in and around the amalgamation area, is only provided in the broadest of terms.
I conclude there is unlikely to be interference with Nyamal’s social and community activities from the explorer’s activities in relation to the amalgamation area, even were they to exercise the full suite of rights available to them under the Mining Act 1978 (WA).
Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk) of interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the Aboriginal Heritage Act 1972 (AHA) shows there are no registered or recorded sites on this amalgamation area. This does not mean there may not be other sites or areas of particular significance to the native title party over that area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
As the Tribunal reaffirmed in Barnes v AngloGold Ashanti Australia (at [49], referring also to WF (deceased) v Emergent at [45]):
in order to satisfy the requirements of s 237(b) of the NTA [Native Title Act] in relation to the question of whether sites of particular significance exist in the area, 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.
As the Tribunal outlined in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [17(d)]):
generally the relevant area or site will be located within the proposed licence, in order for it to be directly affected by grant. It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site.
That was qualified somewhat by the Federal Court in FMG v Yindjibarndi Aboriginal Corporation (at [76]):
As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘... in accordance with [the native title party’s] traditions’ (emphasis added).
What areas or sites have been identified as being of particular significance to Nyamal?
Nyamal’s contentions, which focused on the three initial licences applied for (see [4] above), indicates the Coognan River is significant to Nyamal history and culture (at 8-9). They go on to say (at 12) ‘it is understood that many sites that are not recorded on the register are sites that occur along rivers and waterways in the Pilbara’ and they include the Coognan River. The contentions also say the Nyamal representative ‘is aware through anthropological evidence into the area that there are two sites of significance to the Nyamal people within the vicinity of the amalgamated tenements that require protection’ (at 3).
No further information is provided in the contentions in relation to which of the amalgamated tenements the sites are near – given there were three such tenements which were the focus of these initial contentions, that is problematic in terms of me being able to draw a clear conclusion about sites of particular significance being on or near the licence which is the subject of this inquiry.
The evidence does outline the Coognan River is a ‘very significant’ area for Nyamal people (at 6). It is said to be an important part of Nyamal tradition and culture, and I accept that is the case. The evidence indicates the location of the ‘tenements’ with respect to the river, and outlines the Nyamal people’s concern that the explorer’s access to and from the ‘tenements’ are likely to lead to interference with the river. However, once again, the focus is on the three original applications, rather than on the remaining amalgamation area which is subject to this inquiry. That is understandable, as the other two applications were only surrendered after the contentions and the first affidavit were lodged.
The second affidavit focuses on the amalgamation area subject to this inquiry. This confirms the remaining amalgamation licence is near the Coognan River (as opposed to the other two areas, which had the river running through them). It is said ‘the creek beds are burial grounds’ (at 14), however, it is not clear whether this is on the amalgamation area, or somewhere on or near Coognan River.
Is the grant of the licence likely to interfere with a site of particular significance?
I accept the portion of the Coognan River near this amalgamation licence is a site or area of particular significance. I am satisfied that portion of the river is special or more than of ordinary significance to Nyamal - it is known, it has been located as near E45/4070 (AM511878), and the nature of its significance explained. I note the river extends for some 200 kilometres, according to the material lodged in this inquiry, and based on the available evidence, I could not make any conclusions about the area of the river which extends beyond that which is near the amalgamation licence.
In relation to E45/4070 (AM511878), the evidence about the link between the river and the area where the explorer would conduct their activities, including travel to and from the exploration area, is very limited – that such interference would occur is expressed, however, no detail is provided about how that interference would occur, or the relationship with Nyamal traditions.
Conclusion
I am not satisfied that any activities the explorer would be entitled to do on or near to E45/4070 (AM511878) would lead to a real chance or risk of interference with the portion of the Coognan River which is near that area. There is no evidence or information demonstrating how the relevant activities under the grant, either off or on the amalgamation licence, would affect the relevant portion of the Coognan River and lead to interference in accordance with the native title party traditions.
Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little v Oriole Resources).
Nyamal made brief contentions in relation to s 237(c). Evidence provided in support of the contentions focused on that Nyamal considered disturbance to land or waters should be managed in accordance with native title traditions, and that any disturbance over water in the area was too much disturbance.
Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licences is likely to involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(c) is unlikely.
Determination
I find the grant of proposed amalgamation licence E45/4070 (AM511878) to Haoma Mining NL is an act attracting the expedited procedure.
Helen Shurven
Member
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