Kevin Allen & Ors on behalf of Nyamal #1 v Diversified Asset Holdings Pty Ltd

[2020] NNTTA 32

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Ors on behalf of Nyamal #1 v Diversified Asset Holdings Pty Ltd [2020] NNTTA 32 (13 March 2020)

Application No: WO2019/1075

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

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IN THE MATTER of an inquiry into an expedited procedure objection application

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

(native title party)

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Diversified Asset Holdings Pty Ltd

(grantee party)

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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:  13 March 2020

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

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA) s 66

Mining Regulations 1981 (WA) r 20

Cases:Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia[1996] FCA 1147 (Cheinmora v Striker Resources)

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

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

Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory)

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; Wag 6002 of 1996 Fed [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)

Representative of the     Ashley Truscott, Arma Legal

native title party             

Representative of the     Bob Kozryski

grantee party

Representatives of the     Ellise O’Sullivan, State Solicitor’s Office

Government party          Angela Murphy and Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. This is a decision about whether the expedited procedure applies to the grant of exploration licence E45/5067 (the licence) to Diversified Asset Holdings Pty Ltd (Diversified). 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 38 square kilometres located 26 kilometres southerly of Marble Bar, and is situated entirely on land where the Nyamal people claim native title rights and interests. 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 I have been appointed 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 Diversified 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. A summary of that material, and my reasoning and conclusions, are outlined below.

Materials provided on behalf of Diversified

1. Diversified indicated they would rely on the State’s materials. In addition, they did not wish to attend a hearing held on 9 March 2020 to allow parties to fully and finally ventilate their materials and views in relation to s 237(b) issues, which had been particularly contentious between parties. Diversified had no objection to the hearing, they merely expressed a desire not to attend, and that they were satisfied with any position the State provided.

2. The State’s submissions included the statement made by Diversified in support of their licence application. The statement outlines that exploration ‘plans to be undertaken throughout the area of the tenement with the intention to expand the area of interest if a resource is found’.  The statement also outlines that subject ‘to Aboriginal heritage clearance processes and other access issues…the progress of exploration will accelerate rapidly…’  The year 1 and 2 program includes rock chip collection, assay, interpretation of results and planning a drill program. 

3. As Diversified did 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]). These activities 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 which can be removed from the exploration licence is up to 1000 tonnes in total.

Contentions and evidence provided by the State

1. The State provided various documentation for the inquiry, 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).

2. Results from the States Aboriginal Heritage Inquiry System (AHIS) showed site 11092 Corunna Downs: Radar Hill (an engraving site) was located on the licence.  This was subject to argument in the party materials and at the hearing.  The State argued the location was not reliable and that the Nyamal evidence did not equivocally place the site on the licence.

Contentions and evidence provided by Nyamal

1. Information provided by Nyamal included contentions, a reply to the State’s materials, and the affidavit of Mr Kevin Edward Allen. Mr Allen states he is a member of the claim group and has authority to speak for the area of the licence on behalf of Nyamal.  I accept that submission.

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])).

2. Nyamal contend that allowing Diversified to access and conduct exploration activities on this licence will interfere with Nyamal’s social or community activities.  However, the evidence provided is relatively brief, and focuses more on the activities in relation to sites of particular significance, rather than on the activities themselves. 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. I conclude the level of social or community activities is not such that the activities of Diversified are likely to substantially interfere with them. As they are described in this inquiry, I am satisfied that 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. To establish a site is of particular significance, a native title party must provide sufficient evidence about an area or site to show its location and explain its significance (Silver v Northern Territory at [91]), and distinguish it from other areas, in context to the native title party traditions (Cheinmora v Striker Resources at 34-35).

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

1. The State argued that the AHIS site Corunna Downs: Radar Hill could not accurately be relied upon as being on the licence, as it was recorded some time ago, when co-ordinates were less reliable than in present times.  Mr Allen refers to the site Radar Hill, and he states (at 6) ‘specifically, the grant of the tenement will interfere with the area known as Radar Hill, in the Corunna Downs area…’  He goes on to say (at 15) that the ‘tenement also overlaps Camel Creek, it means a lot culturally for animals and water…’ (emphasis added).  This suggests to me that both Radar Hill and also Camel Creek are on the licence.  I am satisfied that both Camel Creek and the AHIS site Corunna Downs: Radar Hill intersect with the licence. 

2. Mr Allen states (at 17) that ‘Camel Creek is one of the boundaries used to indicate estate groups’, and explains how Camel Creek and an engraving at Radar Hill are tied to a significant songline and dreamtime story.  While the information provided is not greatly detailed, I am satisfied as to how the area around Radar Hill (between Radar Hill and Camel Creek), and Radar Hill itself, are important to Nyamal traditions, and how the Radar Hill area is of more than ordinary significance to Nyamal.   For example, the Nyamal reply (at 19) outlines that Corunna Downs: Radar Hill is of particular significance to Nyamal traditional owners as the engravings there ‘tell stories to the Nyamal people’.  There is also some further commentary in the evidence and contentions about the particular significance of the area, which I do not need to repeat here, save to say I am satisfied the Corunna Downs: Radar Hill area is of particular significance to Nyamal.

Other sites and areas

1. Nyamal contend there are rockholes and waterholes on 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. I note that Diversified’s statement indicates exploration will likely take place ‘throughout the area of the tenement’ suggesting to me that all areas of the licence will be explored. 

2. While there is no onus of proof in Tribunal inquiries, once Nyamal led information and evidence about sites of particular significance, it is open to Diversified 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.

   As noted earlier in this decision, Diversified chose not to provide any materials or information in relation to Nyamal’s concerns raised about the Radar Hill and Camel Creek area.

3. The State contentions outline they will apply a Regional Standard Heritage Agreement (RSHA) condition on the grant of the licence (at 13).  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 6).  The Nyamal reply argues (at 23) 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”’ (emphasis in original).   The Nyamal reply also argues (at 22):

   that an RSHA provides no protection to the NTP and rather places a discretionary, subjective onus on the Grantee Party to make its own assessment as to whether an Aboriginal site or artefact exists on the land of the NTP. This assessment, according to the terms of the RSHA is made solely by the Grantee Party, without having any Nyamal heritage and cultural experience and training or input from Nyamal Heritage officers. This creates a real risk of disturbance to areas or sites of significance to the NTP and thus, unacceptable. This puts the integrity of Corunna Downs Radar Hill 11092 at risk.

   I accept that contention. 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. Nyamal contentions (at 31) argue that the Corunna Downs: Radar Hill site is a site of particular significance and that Diversified’s non ground disturbing exploration activities will interfere with this site. The State outline a number of conditions and endorsements which will apply to the licence on grant, which they argue will provide protections from interference.  None of these refer to Radar Hill, and while some have regard to dealings with water on the licence, none refer to Camel Creek specifically. For each of those endorsements and conditions which deal with water, exploration work can progress with the relevant permit or permissions from the appropriate State department or Minister. I cannot see how those endorsements or conditions will provide Radar Hill with protections from likely interference by exploration activities of Diversified.  For example, if up to 1000 tonnes of material was removed from areas around the Corunna Downs: Radar Hill site, that is likely to cause interference, as described by Mr Allen. 

5. The State also assert (at 48-49 for example) that the Aboriginal Heritage Act 1972 (WA) (AHA) will afford areas on the licence with protections. 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. In addition, 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 reply contentions (at 20-21) 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’.

7. Diversified chose not to lead any information or evidence in this inquiry, either generally, or specifically in relation to the assertions made by Nyamal.  My conclusion is that the area on and around the Corunna Downs: Radar Hill site is likely to suffer from interference from Diversified’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 [20] 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 Allen 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 19). As such, Nyamal contend that ‘any disturbance to land and waters is too much disturbance within the meaning of s 237(c)’ (reply contentions at 35).

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 E45/5067 to Diversified Asset Holdings, is not an act attracting the expedited procedure.

Helen Shurven
Member
13 March 2020