Kevin Allen & Ors on behalf Nyamal #1 v Kristin Voutta, Mark Thomas Piltz and Another
[2023] NNTTA 44
•11 December 2023
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Ors on behalf Nyamal #1 v Kristin Voutta, Mark Thomas Piltz and Another [2023] NNTTA 44 (11 December 2023)
Application No: | WO2021/1688 |
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 & Ors on behalf Nyamal #1 (WC1999/008)
(native title party)
- and -
Kristin Voutta and Mark Thomas Piltz
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 11 December 2023 |
Catchwords: | Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – assumption that grantee party will use full suite of rights–– whether act likely to interfere with sites of particular significance – sites of particular significance - sites located outside of proposed licence – insufficient evidence of risk of interference – act is an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) s 18 Mining Act 1978 (WA) ss 45, 48 Mining Regulations 1981 (WA) r 14 Native Title Act 1993 (Cth) ss 29, 31, 32, 109, 146, 151, 237 |
Cases: | Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Kevin Allen & Others on behalf of Nyamal #1 v Jason Andrew Gill and Another [2022] NNTTA 58 (Nyamal #1 v Gill) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People & Another v Giralia Resources NL & Another [2002] NNTTA 24 (Walley v Western Australia) Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) State of Western Australia/Glen Derrick Councillor and Others on behalf of the Naaguja Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41 (Mullewa Wadjari v Bayform) Wanparta Aboriginal Corporation/Western Australia/Bradford John Young & Julie Lynne Young [2013] NNTTA 77 (Wanparta v Young) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives(s) of the native title party: | Alissa Bishop-Thorpe, Arma Legal |
| Representative(s) of the grantee party: | Kristin Voutta and Mark Thomas Piltz |
| Representatives(s) of the Government party: | Stewart Palmer, State Solicitor’s Office Andrea Wyles and David Crabtree, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
BACKGROUND
This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (Native Title Act) applies to the grant of prospecting licence P46/2028 (proposed licence) to Kristin Voutta and Mark Thomas Piltz (grantee party).
On 22 September 2021, the State of Western Australia (State) gave notice under s 29 of the Native Title Act of its intention to grant the proposed licence. This notice included a statement that the State considers the grant to be an act attracting the expedited procedure (see s 32 of the Native Title Act).
As outlined in s 237 of the Native Title Act, the expedited procedure applies if the grant of the licence is not likely to:
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 native title 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 licence is approximately 0.1 km2 in size and is located approximately 4 km northeast of Nullagine in Western Australia. The proposed licence sits within the area of the Nyamal #1 native title determination application (WC1999/008; WAD20/2019) (Nyamal Claim) and the registered native title claimant for the Nyamal Claim (Nyamal) has objected to the application of the expedited procedure to the grant of the licence.
The proposed licence also falls entirely within the undetermined area of the Palyku #2 native title claim (WC20018/022; WAD483/2018). I note Palyku #2 has not been accepted for registration.
Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiries into this matter. My decision is based on addressing the criteria set out in s 237 of the Native Title Act and making a predictive assessment (see Yindjibarndi v FMG at [15] - [21] and cases cited therein). I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the proposed licence, evidence of the grantee’s intentions and the applicable regulatory regime (see Walley v Western Australia at [8] - [9] and cases cited therein).
For the reasons given below, I have concluded that the grant of the licence is an act attracting the expedited procedure.
The Conduct of the Inquiry
All parties provided material for the inquiry in accordance with the Tribunal’s directions.
The State provided contentions (State contentions) together with mapping, a Quick Appraisal for the licence containing key tenement information, an Aboriginal Heritage Inquiry System (AHIS) search, a copy of the licence application under the Mining Act 1978 (WA) (Mining Act) and the proposed endorsements and conditions to be imposed upon the grant of the licence.
Nyamal provided contentions (Nyamal contentions), contentions in reply (Nyamal contentions in reply) and a signed witness statement from Mr Neil William O’Connor (O’Connor statement) which included a map of the proposed licence area (Annexure NO-1). Mr O’Connor says, and I accept, that he is a Nyamal traditional owner and has authority to speak on behalf of Nyamal People for the area of the licence, which is his family’s country.
The O’Connor statement is the same witness statement by Mr O’Connor used as evidence in matters WO2021/1685 – 1687 over adjacent licences P46/2029 - 2031, determined by Member Cooley in Nyamal #1 v Gill. Licences P46/2029 - 2030 are approximately 3 km northwest of the proposed licence while P46/2031 is 29 km northeast of the proposed licence. In Nyamal #1 v Gill, Member Cooley determined that the expedited procedure applied.
Section 109 of the Native Title Act establishes that the Tribunal is not bound by the rules of evidence while s 146 provides the Tribunal discretion to receive into evidence materials produced for other proceedings. Acting on this discretion and in consideration of the fact that this inquiry is in the same area of land covered by the statement of Mr O’Connor submitted for Nyamal #1 v Gill, I accept this statement is relevant to the current matter and accept it into evidence for this inquiry.
The grantee party also provided contentions which included 68 images of the proposed licence area (grantee party contentions).
All of the parties indicated that they are agreeable to the matter being determined on the papers as is permitted by s 151(2) (Native Title Act). Having reviewed the material, I am satisfied that I can adequately determine the matter without a hearing.
Details of the licence and proposed activities
The licence is a prospecting licence proposed to be granted under s 45 of the Mining Act for a period of four years with the opportunity to extend for another four years. Section 48 of the Mining Act and regulation 14 of the Mining Regulations 1981 (WA) set out the rights conferred by a prospecting licence. The Tengraph Quick Appraisal provided by the State notes the underlying tenure is entirely C Class Reserve for Common purposes.
The grantee party’s initial application, as provided by the State, did not include any program of works or plans identifying the type of activities to occur on the licence. In their contentions however, the grantee party provided further information regarding proposed work on the licence. This includes working on previously disturbed ground with small earthmoving equipment and metal detectors while undertaking dry blow sampling for six months of the year (grantee party contentions [4], [6]). Additionally, the grantee party states they will use existing roads which ‘bypasses most of the tenement to the north’ (grantee party contentions [8]).
The grantee party explains that they will not interfere with landforms or water catchments, or store chemicals or fuels on the site (grantee party contentions [5] – [6]). They also acknowledge their obligations under the Aboriginal Heritage Act 1972 (WA) (Aboriginal Heritage Act) and had offered the pro-forma regional standard heritage agreement to the native title party in line with the due diligence guidelines, which the native title party declined (grantee party contentions [14]).
While some specifics have been provided, I do note the grantee party is capable of conducting further activities than what is outlined. As is open to me, for the purposes of this consideration, I will assume the grantee party will exercise their full extent of rights subject to the grant of the prospecting licence (Silver v Northern Territory [25] – [32]).
CONSIDERATION
In conducting 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 or disturbance as outlined in s 237 of the Native Title Act and therefore, whether it is an act that attracts the expedited procedure (Smith v Western Australia [23]). The legal principles are outlined in Yindjibarndi v FMG at [15] – [21] and I adopt them for the purposes of this inquiry. If I find there is such a real chance or risk, then the expedited procedure does not apply and the parties must negotiate in good faith to seek the native title party’s agreement to the grant of the proposed licence (s 31(1)(b) Native Title Act).
Section 237(a): is the grant of the proposed licence likely to interfere directly with Nyamal’s community or social activities?
Nyamal make no contentions in relation to s 237(a) (Native Title Act). As such, there is no factual material before me which indicates the grant of the proposed licence is likely to interfere with community or social activities as contemplated in s 237(a). Therefore, applying the approach outlined in Ward v Western Australia at [26], I find that interference under s 237(a) is unlikely.
Section 237(b): Is the grant of the licence likely to interfere directly with areas or sites of particular significance to Nyamal?
Are there areas or places of particular significance?
For an area or site to be regarded as being of particular significance for the purposes of s 237(b) of the Native Title Act, it must be of special or more than ordinary significance to the native title holders in accordance with their traditions. It must be known, able to be located and for its significance to be explained to the Tribunal (see Yindjibarndi v FMG [17] and cases cited therein).
In his statement, Mr O’Connor describes ‘the area around Nullagine [as] very culturally rich and is a significant area for Nyamal People’ (O’Connor statement [6]). Based on Mr O’Connor’s evidence, Nyamal assert the following sites are areas of particular significance for the purposes of s 237(b):
(a)Nullagine Binmal (Registered site ID #11960);
(b)Nullagine Burials 1 & 2 (Registered site ID #6828 & #6829);
(c)Irrungadji (Registered site ID #6636);
(d)Old Law Ground;
(e)Seven Sisters Dreaming Sites; and,
(f)Women’s Law Ground at Kadjiba Pool.
I note none of these sites are located within the area of the proposed licence. A site does not need to be located on the relevant licence for a finding of interference to occur however, the native title party must be able to show how the site will be directly and physically affected by exploration activities in the area of the proposed licence (Silver v Northern Territory [89], [113]).
Nullagine Binmal
Nullagine Binmal is a site registered under the Aboriginal Heritage Act, the northern boundary of which is located approximately 90 m south of the proposed licence area. Mr O’Connor describes the site as an active law ground, last used in 2020 and states the area is used for law time ceremonies, ‘spiritual activities and a place to gather with other tribes. It is also used during Sorry Business as a Sorry Ground’ (O’Connor statement [8], [10]).
Mr O’Connor explains that during law time, Nyamal tribes camp within the area along Cajuput Creek, also known as One Mile Creek (O’Connor statement [9]). Mr O’Connor also states that the boundaries of the site go ‘out further than that square [referring to the registered site area] and should include more of the creek’ as waterways are important to Nyamal Law (O’Connor statement [9]). I note Cajuput Creek is on the western boundary of the registered site area and flows from the south where it merges with the Nullagine River some 1.5 km to the west of the proposed licence.
Mr O’Connor also deposes that the area surrounding the site is used to hunt and gather during law times and includes the collection of trees, special bushes, sticks and other materials to make ceremonial weapons and tools (O’Connor statement [11]). Mr O’Connor likens the area to a church as it is where the group does their ‘singing, [their] ceremonies and other spiritual things’ and outlines some access restrictions such as the need for permission to access the site (O’Connor statement [12 – 13]).
Neither the grantee party nor the State make submissions on the particular significance of this site. The State mainly focuses its contentions on the risk of interference.
Having examined the evidence before me, I am satisfied that Nullagine Binmal is a place of particular significance to the native title party. Its location is specific and described, as is the nature of its significance in that it is a law ground with contemporary use in the law and sorry business of the Nyamal people. As such, Nullagine Binmal has a place in the practice and transmission of traditional law and custom via the activities that occur and remain in practice on the site and in my view, can be accepted as a place of particular significance.
Nullagine Burials 1 & 2
Nullagine Burials 1 & 2 are registered sites, located approximately 7 km southwest of the proposed licence area (Nyamal contentions [26]). It is listed on the register of Aboriginal sites as ‘skeletal material/burials’ (O’Connor statement [22]).
Mr O’Connor explains that, as a child he was shown these sites by his Elders, was told they were burials and places of importance. He also explains there are more burials outside of the registered site boundaries which the Nyamal people know about and should be protected (O’Connor Statement [23]).
The State contends there is insufficient evidence regarding the burials for the Tribunal to determine whether the sites meet the parameters of s 237(b) (Native Title Act) (State Contentions [24]). To an extent, I agree with the State that there would generally be a level of further explanation as to why a place is of particular significance and stands out from the background. However, as the nature of these places is or has been for the burial of deceased Nyamal people, this particular significance is perhaps more self-evident.
As a result of this, given the nature of these places as burial areas and given they are registered sites, thereby making their location known and demonstrating a longer standing or recognition by Nyamal and others, I am prepared to find they are places of particular significance. This is not inconsistent with approaches taken by the Tribunal on burial grounds in previous matters (see Wanparta v Young [46], citing Mullewa Wadjari v Bayform [43]).
Irrungadji
Irrungadji is a registered site, located approximately 4 km west of the proposed licence area. It is listed on the register of Aboriginal sites as ‘artefact scatters, ceremonial, historical, camp’ (Nyamal contentions [29]). The site is distinct from the Irrungadji Indigenous Community located within Nullagine (Nyamal contentions [30]).
Mr O’Connor does not reference this site in his statement and the Nyamal contentions do not explain the nature of this site or why it is of particular significance to the Nyamal people. As above at [31], the State claims there is insufficient evidence to determine whether Irrungadji meets the parameters of s 237(b) (Native Title Act).
While the location of this site is known, given there is no explanation of why the site is of particular significance, I cannot make a finding that it is of particular significance.
Old Law Grounds
Mr O’Connor describes an unregistered Old Law Ground located approximately 3 km to the northwest of the proposed licence area (Nyamal contentions [23]). Mr O’Connor explains the law ground was mostly used for ceremonies but could only hold small gatherings (O’Connor statement [15]).
Mr O’Connor states that as a law ground, song lines may run through this location and there are many other older law grounds in the Nullagine area (O’Connor statement [16]). The Nyamal contentions further argue that there are ‘potential artefact scatters and engravings’ in the area which may be damaged by the grantee party’s activities (Nyamal contentions [24]).
For its part, the State comments that the native title party’s references to ‘potential artefact scatters and engravings’ is vague and speculative (State contentions [21]). I agree with the State on this point.
The evidence provided for this site is limited, and while its significance is described, this is done so in more general terms rather than on specific notions of the particular significance of this place. While I acknowledge this place is likely to be of significance the Nyamal, I have insufficient information before me to find it is a place of particular significance for the purposes of s 237(b) (Native Title Act).
Seven Sisters Dreaming Sites
Mr O’Connor’s statement identifies a dreaming site ‘within a kilometre or two outside of Nullagine’ associated with the Seven Sisters dreamtime story, as a site of particular significance (O’Connor statement [17]). Examining Annexure NO-1 and the Tengraph map provided by the State, this locates the area approximately 4 km southwest of the proposed licence.
I note however, that there are two sites marked on Annexure NO-1 on Marble Bar Road and this particular site is only referred to as ‘located at one of the two circles located on the road below Nullagine’ (Nyamal contentions [31]). Therefore, it is unclear which site Mr O’Connor is referring to. Additionally, aside from the assertion of being a place of particular significance, there is minimal description of why this site is of particular significance to the native title party.
The O’Connor statement also provides some details of the Seven Sisters dreamtime story and associated song line and explains that the story ‘is one of [the] main dreamtime stories for the whole Pilbara’ and ‘is everybody’s law (O’Connor statement [17]). Mr O’Connor identifies that the story ‘comes up through where the tenement is located’ (O’Connor statement [17]).
Based on the information provided, the State contends that the native title party has provided insufficient evidence to identify the parts of the proposed licence area subject to the Seven Sisters dreaming nor the path of the dreaming through the proposed licence for Tribunal assessment (State contentions [28] – [29]).
I am also of the view that the information provided is too generalised to provide for a finding of particular significance in regard to both the site identified and the dreamtime story. While I acknowledge the significance of dreaming trails such as this, Nyamal does not precisely locate the song line on Annexure NO-1, nor where it travels through or near the licence. Further, Nyamal only provides generalised information on its particular significance.
Women’s Law Ground at Kadjiba Pool
Kadjiba or Paijiga Pool is referred to as a rock pool associated with a sensitive women’s law ground and as a site of particular significance as a ‘special place’ associated with the Seven Sisters dreaming story (O’Connor statement [19]).
Mr O’Connor identifies its general location as south of Nullagine ‘not far from the Seven Sisters Site, probably near to the Day Dawn Mine site’ (O’Connor statement [20]). Due to gender restrictions and the sensitive nature of the site, Mr O’Connor did not feel comfortable marking out the site’s location on Annexure NO-1 (O’Connor statement [21]). However, the description of its proximity to the Day Dawn Mine site would, according to the mapping submitted by the parties, place it approximately 8 – 9 km south of the proposed licence.
The State argues that Nyamal have failed to identify the site with enough specificity to warrant a status of particular significance (State contentions [30]). In reply, Nyamal contends that ‘the discussion of the Women’s Law Ground is subject to cultural and gender restrictions’ and that the concerns of Mr O’Connor regarding the location’s disclosure should be ‘respected and that no negative inference be drawn by his discomfort’ (Nyamal contentions in reply [15]).
While not necessarily drawing a negative inference, I cannot make a finding of particular significance without a higher level of detail around the location and nature of the site than that which has been provided, in addition to further specific evidence as to its particular significance to Nyamal. In this instance, I am not satisfied that sufficient evidence has been provided and therefore cannot find Kadjiba Pool is a place of particular significance for the purposes of s 237(b) (Native Title Act).
Is there likely to be interference to these sites or places of particular significance?
Yindjibarndi v FMG at [17] – [18] outlines how interference to places of particular significance is assessed for the purposes of inquiry. Interference may involve physical intervention but even slight interference may be unacceptable in the context of s 237(b) (Native Title Act). There must be a real risk of interference with the area or site alleged and it will generally be located on or within the proposed licence area. Where a site is not located on the proposed licence however, interference may be considered if it can be shown that the activities of the grantee party would directly and physically affect a place of particular significance that is outside of the proposed licence area.
I have found that three of the sites put forward by Nyamal can be considered places of particular significance. Of these, the Nullagine Burials 1 and 2 are some 7 km distant from the proposed licence while Nullagine Binmal is less than 100 m from the southern corner of the proposed licence. While Nullagine Binmal is in close proximity, there is no overlap. As such, clearances such as a s 18 clearance under the Aboriginal Heritage Act would not be expected to be required.
Mr O’Connor outlines that access to Nullagine Binmal should not occur without permission, likens the area to a church and that people shouldn’t ‘go scratching around without permission (O’Connor statement [13]). Regarding the Nullagine burial sites, Mr O’Connor simply says they must be protected which I assume means from physical harm (O’Connor Statement [23]).
The State contends that the native title party has not provided evidence as to how the activities of the grantee party on the proposed licence will cause interference to sites that are located outside of the licence area, even if the grantee party’s activities are construed to their maximum extent (State contentions [19], [24] - [25]).
Having examined the proposed activities of the grantee party, in addition to making the assumption they will exercise the rights provided by the proposed licence over the extent of the area, I have formed the view that I cannot be satisfied there is a real chance of interference with the places found to be of particular significance.
I accept the views of Nyamal as to what may construe interference. In this instance however, I would agree with the contentions of the State that Nyamal have not provided the body of evidence that shows there is a real risk of interference from the activities of the grantee party on the proposed licence.
Access to the proposed licence will be via existing roadways and activities on the proposed licence will be limited by the rights conferred to a prospecting licence per the Mining Act. While this will allow for some ground disturbance, it is my view that insufficient evidence has been presented as to how activity on the proposed licence will impact upon the places of particular significance that are outside of the proposed licence area.
As a result of this, there is no basis on which to conclude that the grant of the proposed licence is likely to cause interference within the meaning of s 237(b) (Native Title Act).
Section 237(c): is the grant of the proposed licences likely to involve, or create rights whose exercise is likely to involve, major disturbance to any part of the area of the proposed licences?
As in s 237(a), Nyamal makes no contentions in relation to s 237(c) (Native Title Act). As such, there is no factual material before me which indicates the grant of the proposed licences is likely to involve, or create rights whose exercise is likely to involve, major disturbance as contemplated in s 237(c). Again, applying the approach outlined in Ward v Western Australia at [26], I find that major disturbance under s 237(c) is unlikely.
Determination
I determine that the grant of the prospecting licence P46/2028 is an act attracting the expedited procedure.
Mr Glen Kelly
Member
11 December 2023
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