Kevin Allen & Ors on behalf of Nyamal #1 v Beatons Creek Gold Pty Ltd and Another

[2021] NNTTA 40

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Ors on behalf of Nyamal #1 v Beatons Creek Gold Pty Ltd and Another [2021] NNTTA 40 (11 August 2021)

Application No: WO2021/0475; WO2021/0476; WO2021/0477; WO2021/0478; WO2021/0479; WO2021/0480; WO2021/0519; WO2021/0520; WO2021/0521; WO2021/0522; WO2021/0523; WO2021/0524; WO2021/0525; WO2021/0526; WO2021/0527; WO2021/0528; WO2021/0529; WO2021/0530; WO2021/0531; WO2021/0532; WO2021/0631; WO2021/0632; WO2021/0633

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008)

(native title party)

- and -

Beatons Creek Gold Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	11 August 2021

Catchwords:

Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community and social activities – whether acts likely to interfere with sites or areas of particular significance – whether acts likely to involve major disturbance to lands and waters – expedited procedure

Legislation:

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA) ss 48, 94A

Native Title Act 1993 (Cth) ss 29, 31, 151, 237

Cases:

Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (‘Nyamal Determination’)

Jack Dann v Western Australia & GPA Distributors [1997] FCA 332; (1997) 74 FCR 391 (‘Dann v Western Australia’)

Kevin Allen and Others on behalf of Njamal v Gijsbertus Marinus John Merks and Another [2017] NNTTA 41 (‘Njamal v Merks’)

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

Kevin Allen & Ors on behalf Nyamal #1 v Kevin Wayne Pearce and Another [2021] NNTTA 37 (‘Nyamal v Pearce’)

Kevin Allen and others on behalf of Nyamal #1 v Rocklea Gold Pty Ltd [2020] NNTTA 81 (‘Nyamal v Rocklea Gold’)

Little and Others on behalf of the Badimia People v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’)

Smith on behalf of the Gnaala Karla Booja People v State of Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)

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

Representative of the native title party:

Grace Manning-Davis, Arma Legal

Representative of the grantee party: Jacob Loveland, Lawton Macmaster Legal

Representatives of the Government party: Anthony Civiello, State Solicitor’s Office; Andrea Wyles, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

1. Beatons Creek Gold Pty Ltd (BCG) has lodged 23 prospecting licence applications (licences) under the Mining Act 1978 (WA) (Mining Act), each of which is wholly located in the area of the Nyamal #1 native title determination application (WAD20/2019) (Nyamal Claim). The licences are all located within about 17­–­36 kilometres north-east of Nullagine in Western Australia.

2. The State of Western Australia (State) considers the grant of each licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth) (NTA), and included a statement to that effect in notices given under s 29 of the NTA. Details of each licence and the relevant notification day are set out in Annexure 1.

3. If the expedited procedure applies to a licence it may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA. The registered native title claimant for the Nyamal Claim (Nyamal) lodged objections against the State’s inclusion of the expedited procedure statement.  

4. I have been directed to constitute the Tribunal in order to determine whether or not the expedited procedure applies to the grant of each of the licences. For the reasons outlined below I have concluded that the expedited procedure applies in each case.

My determination is made without the need for a hearing

1. For convenience, all of Nyamal’s objections are being dealt with together. Each party provided contentions in accordance with the Tribunal’s directions, except that Nyamal did not provide any contentions in reply. The State was the only party to provide any evidence which includes mapping, Quick Appraisals containing key tenement information for each licence, Aboriginal Heritage Inquiry System (AHIS) searches, a copy of the licence applications and proposed endorsements and conditions to be imposed upon grant.

2. The State and BCG agree to these matters being determined on the basis of the material provided. Nyamal did not express a view. Having reviewed the material, I am satisfied I can adequately determine all matters without the need for a hearing, as permitted by s 151(2) of the NTA.

What do I need to consider to determine whether the expedited procedure applies?

1. Under s 237 of the NTA, a licence will only be an act attracting the expedited procedure if it is not likely to, in summary:

   (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)).

2. I am required to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of each licence (see overview of approach in Yindjibarndi v FMG at [15]).

Details about the licences

1. Prospecting licences are granted under the Mining Act for four years, but may be extended on application in certain circumstances. Section 48 of the Mining Act outlines the rights conferred by a prospecting licence.

2. Each licence is relatively small in size. A number are adjacent and all are in reasonably close proximity. The underlying land tenure is either C Class Reserve, pastoral lease or both.

3. The Quick Appraisals provided by the State for P46/1981, P46/1982, P46/1984 and P46/1990 each identify a granted prospecting licence in part of the licence area. In its contentions, the State notes that the portion of the land subject to those current tenements is unavailable for exploration. The State cites ss 18 and 57 of the Mining Act as authority for that point, although I note s 57 applies to the grant of an exploration licence not a prospecting licence. In any event, the application for each of those four licences lists the relevant current tenement as an exclusion from the ground applied for.

4. The Quick Appraisals for P46/1995 and P46/1996 reveal that they include part of a granted miscellaneous licence, however that tenement can continue to apply concurrently with those licences, if granted (s 94A Mining Act).

5. Annexure 1 includes details of the size and underlying land tenure for each licence as shown on the Quick Appraisals provided by the State. It also lists the granted prospecting licences and miscellaneous licence mentioned above. I note that, while the licence applications for each of P46/1981, P46/1982, P46/1984 and P46/1990 identify the granted tenements as exclusions, the information in the Quick Appraisals for those licences appears to take account of them as part of the licence area. It is not clear therefore whether the area of the licences is less than that stated, but nothing turns on that point.

6. According to the AHIS searches provided by the State, there are no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA), and no other heritage places within the area of any of the licences.

Predictive assessment for s 237

Is the grant of any of the licences likely to interfere directly with Nyamal’s community or social activities?

1. Section 237(a) is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that this involves “an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts are outside the scope of interference contemplated by the section.

2. Nyamal has not provided any evidence of community or social activities undertaken in the area of any of the licences. Rather, it relies on the Nyamal Determination made by the Federal Court on 24 September 2019, and in particular what it says are references in the Court’s reasons to Nyamal People engaging in the community and social activities of hunting and gathering in the determination area (Contentions at 6­–­8).

3. The Nyamal Determination is a determination of part of the Nyamal Claim. All of the licences under consideration here are located outside of the determination area—in the yet to be determined part of the Nyamal Claim. In its reasons the Court noted that the reason for the partial determination of the Nyamal Claim was the existence of overlapping native title determination applications in the balance area.

4. In effect, Nyamal argues that because the Nyamal Determination is a determination of part of the Nyamal Claim, I should accept that Nyamal People conduct the same community and social activities in the area of the licences as they do in the determined area. Nyamal argues further that the grant of the licences and the activities proposed by BCG will directly interfere with those activities. 

5. The arguments put by Nyamal here are similar to those raised in Nyamal v Rocklea Gold. In that case the Tribunal noted at [11] that the paragraphs Nyamal cites from the Nyamal Determination are in fact extracts from joint submissions made to the Court by Nyamal and the State. The Tribunal went on to state that, while the Court may have been willing to rely on those submissions with respect to the case before it, it does not follow that Nyamal can simply assert they have some wider operation. The Tribunal also observed at [12] that, even accepting the quoted extracts from the joint submissions at face value, it does not follow that they apply to the undetermined part of the claim or the proposed tenement. Those comments apply equally here.

6. Nyamal also relies on Nyamal v Bushwin where the Tribunal found the expedited procedure did not apply to a tenement that is approximately 30 kilometres from the nearest of the licences. At paragraph 9 of its contentions, Nyamal relies on what it says is an acknowledgement by the Tribunal “of the history of ceremonial activities after periods of significant rain”. It submits further that, following significant rain earlier this year, community and social activities have occurred more frequently. There is no evidence to support that contention and Nyamal does not say where activities have occurred more frequently. I take Nyamal to be making a general reference to activities throughout the Nyamal Claim area. 

7. However, the Tribunal’s determination in Nyamal v Bushwin turned on likely interference in the context of s 237(b) with a Rockshelter/Ochre site called Woodie Woodie, located in the relevant tenement. So far as s 237(a) was concerned, the Tribunal at [18] referred to Nyamal’s evidence as “general and limited” and concluded that substantial interference was unlikely. Accordingly, the decision in Nyamal v Bushwin is of little relevance in the present context.

8. Of arguably greater relevance is the decision in Njamal v Merks which concerned P46/1873. P46/1873 is the tenement listed as an exclusion from P46/1984 and P46/1990. It is also adjacent to a number of the other licences, including P46/2003, P46/2004, P46/2005, P46/2006, P46/2007, P46/2008 and P46/2023, as shown on Annexure 1a to the State’s contentions. The existence of a previous determination in relation to P46/1873 was identified in the State’s initial material for P46/1984 and P46/1990, but none of the parties mention it in their contentions.

9. In Njamal v Merks, the Tribunal considered evidence from Mr Kevin Allen who is a member of the applicant for the Nyamal Claim (at that time known as Njamal). The Tribunal’s discussion of Mr Allen’s evidence is set out below:

   [10] Njamal contend they currently carry out community and social activities on the licence. 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.’ They also submit the location of the licence in relation to the Bridget Creek Track supports a conclusion that Njamal conducts social and community activities in the area.

   [11] Mr Allen states, ‘Our old people travelled all through this area [the land around the Nullagine River] and as such there are important places, where they camped and did cultural activities’. He states Njamal people ‘have a responsibility to look after their country’ and as such currently hunt, camp, travel through, gather bush tucker and collect bush medicine ‘in and around the Prospecting Licence area’. He states ‘the Bridget Creek and Mosquito Creek, which both come from the Nullagine River run through the Prospecting Licences’ and there is ‘a track that runs right through the Prospecting Licence (Bridget Creek Track) that Njamal people use to access this area for hunting, fishing and camping’ (emphasis in the original).

   [12] Mr Allen adds, ‘As the Bridget Creek Track allows travel from the north down to the old Billjim Mine and through to Skull Springs Road, Njamal People use the Bridget Creek Track regularly’. Mr Allen states ‘I go camping, fishing and hunting with my family during school holidays around the Nullagine River’ and that Njamal People use the Bridget Creek track even more regularly during the wet season, ‘especially during the November to March period’. State documentation shows one track that overlaps the licence. It is not clear whether this is the Bridget Creek Track.

10. Bridget Creek Track does not appear to be visible on any of the mapping provided in these matters, however Bridget Creek and Mosquito Creek are shown on certain of the maps contained in Annexure 1 to the State’s contentions. They traverse or are located near to a number of the licences in the vicinity of P46/1873. 

11. The Tribunal in Njamal v Merks (at [16]) was ultimately satisfied that Nyamal undertook social or community activities on the area of P46/1873, particularly around Bridget Creek, Mosquito Creek and Bridget Creek Track. However, as there was no specific evidence as to the nature, frequency or intensity of the activities, the evidence was insufficient to establish a likelihood of interference from the grant of the tenement. Likewise, there is no basis for such a conclusion here.

12. Even if I were to accept, as Nyamal contend, that Nyamal undertake hunting and gathering activities in the Nyamal Claim area, and further, that such activities occur in the vicinity of the licences, as found in Njamal v Merks, there is simply no evidence on which to conclude that the grant of any of the licences would cause direct and non-trivial interference with those activities as required for s 237(a).

Is the grant of any of the licences likely to interfere with areas or sites of particular significance to Nyamal?

1. An area or site within the meaning of s 237(b) must be known and be able to be located, and be of special or more than ordinary significance to the native title holders (see discussion in Yindjibarndi v FMG at [17]–[18]).

2. For s 237(b) Nyamal again relies on a passage from the Nyamal Determination which is in fact an extract from the joint submissions and includes a general reference to “particular sites in the Nyamal Determination Area”. However, there is no information about any areas or sites of particular significance in the area of any of the licences. 

3. Accordingly, there is no evidence upon which to conclude there are any such areas or sites in the area of any of the licences and no need for me to consider the question of interference.

Will the grant of any of the licences involve major disturbance?

1. Considering whether the grant of the licence is likely to involve major disturbance as contemplated by s 237(c) requires an evaluative judgment as to whether there is a real risk of major disturbance from the grant of the licence. In this context “major disturbance” is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. There is nothing to preclude Nyamal repeating here matters already considered in relation to ss 237(a) and (b) (see Little v Oriole Resources at [53]–[54]; Dann v Western Australia at 401 and 413).

2. Nyamal does not address the question of major disturbance and the requirements of

   
   

   s 237(c) but contends simply that “any disturbance to land and waters is too much disturbance”. That assertion is inadequate and has been consistently rejected by the Tribunal. Recent examples include Nyamal v Rocklea Gold at [34] and Nyamal v Pearce at [18].

3. The licences in question are prospecting licences and, on the material provided, I am not satisfied that the grant of any of the licences is likely to involve major disturbance as contemplated by s 237(c).

Determination

1. I determine that the grant of each licence listed in Annexure 1 is an act attracting the expedited procedure.

Nerida Cooley
Member
11 August 2021

ANNEXURE 1

Objection Application No.	Licence No.	Notification Day (s 29 Notice)	Licence Area (hectares)	Underlying tenure and overlapping mineral tenements
1.	WO2021/0475	P46/1979	21/10/2020	199.80	·     ‘C’ Class Reserve Common (100.00%)
2.	WO2021/0476	P46/1980	21/10/2020	199.65	·     ‘C’ Class Reserve Common (76.25%) ·     Bonney Downs Pastoral Lease (23.75%)
3.	WO2021/0477	P46/1981	21/10/2020	194.39	·     ‘C’ Class Reserve Common (4.99%) ·     Bonney Downs Pastoral Lease (95.01%)
					·     Prospecting Licence P46/1964 (28.43%)
4.	WO2021/0478	P46/1982	21/10/2020	194.30	·     ‘C’ Class Reserve Common (100.00%)
					·     Prospecting Licence P46/1964 (18.32%)
5.	WO2021/0479	P46/1983	21/10/2020	194.32	·     ‘C’ Class Reserve Common (100.00%)
6.	WO2021/0480	P46/1984	21/10/2020	194.37	·     ‘C’ Class Reserve Common (100.00%)
					·     Prospecting Licence P46/1873 (6.11%)
7.	WO2021/0519	P46/1990	04/11/2020	199.89	·     ‘C’ Class Reserve Common (96.97%) ·     Bonney Downs Pastoral Lease (3.03%)
					·     Prospecting Licence P46/1873 (7.27%)
8.	WO2021/0520	P46/1991	04/11/2020	188.76	·     ‘C’ Class Reserve Common (96.96%) ·     Bonney Downs Pastoral Lease (3.04%)
9.	WO2021/0521	P46/1992	04/11/2020	200.03	·     ‘C’ Class Reserve Common (97.31%) ·     Bonney Downs Pastoral Lease (2.69%)
10.	WO2021/0522	P46/1993	04/11/2020	200.04	·     ‘C’ Class Reserve Common (97.31%) ·     Bonney Downs Pastoral Lease (2.69%)
11.	WO2021/0523	P46/1994	04/11/2020	199.99	·     ‘C’ Class Reserve Common (97.31%) ·     Bonney Downs Pastoral Lease (2.69%)
12.	WO2021/0524	P46/1997	04/11/2020	190.23	·     ‘C’ Class Reserve Common (16.61%) ·     Bonney Downs Pastoral Lease (83.39%)
13.	WO2021/0525	P46/1998	04/11/2020	189.67	·     Bonney Downs Pastoral Lease (100.00%)
14.	WO2021/0526	P46/1999	04/11/2020	189.03	·     Bonney Downs Pastoral Lease (100.00%)
15.	WO2021/0527	P46/2000	04/11/2020	188.09	·     Bonney Downs Pastoral Lease (100.00%)
16.	WO2021/0528	P46/2003	04/11/2020	26.96	·     ‘C’ Class Reserve Common (82.35%) ·     Bonney Downs Pastoral Lease (17.65%)
17.	WO2021/0529	P46/2004	04/11/2020	184.24	·     ‘C’ Class Reserve Common (88.58%) ·     Bonney Downs Pastoral Lease (11.42%)
18.	WO2021/0530	P46/2005	04/11/2020	199.16	·     ‘C’ Class Reserve Common (100.00%)
19.	WO2021/0531	P46/2006	04/11/2020	126.34	·     ‘C’ Class Reserve Common (100.00%)
20.	WO2021/0532	P46/2007	04/11/2020	182.34	·     ‘C’ Class Reserve Common (100.00%)
21.	WO2021/0631	P46/1995	18/11/2020	164.30	·     ‘C’ Class Reserve Common (100.00%)
					·     Miscellaneous Licence L46/92 (3.32%)
22.	WO2021/0632	P46/1996	18/11/2020	170.15	·     ‘C’ Class Reserve Common (100.00%)
					·     Miscellaneous Licence L46/92 (0.75%)
23.	WO2021/0633	P46/2008	18/11/2020	112.43	·     ‘C’ Class Reserve Common (100.00%)