Kevin Allen & Ors on behalf of Nyamal #1 v Jason Andrew Gill - [2019] NNTTA 81

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Ors on behalf of Nyamal #1 v Jason Andrew Gill & Anor [2019] NNTTA 81 (16 October 2019)

Application No:

WO2019/0060

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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Jason Andrew Gill

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Ms Nerida Cooley, Member
Place:	Brisbane
Date:	16 October 2019

Catchwords:	Native title – future act – proposed grant of exploration 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, 31, 32, 151, 237 Mining Act 1978 (WA) ss 57, 58, 61, 66 Aboriginal Heritage Act 1972 (WA)
Cases:	Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (Little v Lake Moore Gypsum) Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 Little v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (Little v Oriole Resources) Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representative of the native title party:	Ashley Truscott, Arma Legal

Representative of the grantee party:

Jason Andrew Gill

Representatives of the Government party:

Anthony Civiello, State Solicitor’s Office
Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E45/5263 (licence) to Jason Andrew Gill (Gill).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licence, with a notification day of 19 September 2018.
The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure, which would, subject to any objection, allow the licence to be granted without negotiation under s 31 of the NTA.
The area of the proposed licence is situated in the East Pilbara shire, wholly within the area of a native title determination application made by the Nyamal #1 native title claim group. On 19 January 2019, the registered native title claimant for the Nyamal #1 claim (Nyamal) lodged an objection against the State’s inclusion of the expedited procedure statement.
The President of the Tribunal, the Honourable John Dowsett AM, was previously the presiding member for this application and made directions for the conduct of the inquiry. On 13 August 2019, the President directed me to constitute the Tribunal for the purposes of determining, under s 32(4) of the NTA, whether the grant of the licence is an act attracting the expedited procedure.
For the reasons outlined below, my determination is that the licence is an act attracting the expedited procedure.

Issues and approach

Under s 237 of the NTA, the grant of the 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)).
These are the issues I must consider in determining whether the expedited procedure applies to the proposed grant.
The legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. Overall, my task is to undertake a predictive assessment by considering what is likely to occur under the licence. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.
There is no determination of native title in relation to the area of the licence. However, Nyamal is the registered native title claimant for the area and, I accept for the purposes of this inquiry, that Nyamal are the correct people to provide evidence and contentions for the purpose of the Tribunal’s predictive assessment for s 237(a) and (b).

The application may be determined on the papers

All parties have provided contentions in accordance with the Tribunal’s directions and Nyamal also provided a reply.
The State provided evidence including mapping, a Tengraph Quick Appraisal form, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), the licence application and accompanying statement, and details of proposed endorsements and conditions to be imposed on the grant of the licence.
Nyamal’s evidence comprised an affidavit of Mr Kevin Edward Allen, dated 9 May 2019. Mr Allen is a member of the applicant for the Nyamal #1 claim. Mr Allen’s Nyamal name is Milgoowana and his Warinbina is the wedge tail eagle, which is his animal totem. Mr Allen says, and I accept, that he has authority to speak on behalf of Nyamal for the licence area.
Gill has not provided any affidavit evidence but has included a number of attachments with his contentions, intended to show the licence area and its location in the context of surrounding features referred to in Nyamal’s evidence, as well as his proposed access route.
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA and, having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.

The licence and proposed exploration activities

The licence is an exploration licence proposed to be granted under s 57 of the Mining Act 1978 (WA) (Mining Act). Under s 61 of the Mining Act exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
The Tengraph Quick Appraisal form lodged by the State shows that the area of the proposed licence is 318.67 hectares. The land tenure is unallocated Crown land, although it is earmarked for amalgamation into adjoining pastoral properties.
The State has provided a redacted copy of the statement provided in accordance with

s 58 of the Mining Act, which accompanied Gill’s application for the licence. That document states that Gill believes the licence area “has the potential to host economic gold mineralization” and sets out details of the year 1 reconnaissance programme, which includes a collation of publically available data and a reconnaissance soil sampling program. The anticipated expenditure for year 1 is $14,600. The activities in year 2 and beyond would depend on the outcome of year 1.
In his contentions at paragraph 5, Gill adds that his intended work program will be “low impact and involve metal detecting by foot and some soil sampling by hand”. He says he will be accessing the licence using existing tracks in the granted tenement to the north. Gill acknowledges that, by its very nature, any further exploration will depend on the findings of the initial work. In summary, Gill says that he is a part-time prospector and his proposed work program will be low impact and of limited duration.
While I accept what Gill says about the proposed initial activities, which is supported by the s 58 statement, it is clear that, depending on the outcomes of the initial exploration activities, further exploration may follow. It is therefore reasonable to conclude that, beyond the initial work, Gill may avail himself of the full suite of rights available under the licence.

Predictive assessment

Section 237(a): is the grant of the licence likely to interfere directly with Nyamal’s community or social activities?

What community or social activities do Nyamal carry out on the licence area?

Nyamal contends that the grant of the licence is likely to interfere with its community or social activities.
Mr Allen believes that is the case because the native title claimants continue to hunt and gather resources, and practice ceremonies in this area. He also states that there are significant sites and breeding grounds for all birds, fish and animals with waterholes in the area, which have been enlivened by a recent tropical cyclone (Allen affidavit paragraph 5).
Mr Allen goes on to say that:
6.   The rain from the recent tropical cyclone would have brought the place to life, particularly as the tenement is near Elsie Creek which has been made lively due to the rain. Spirits of the ancestors have been awakened to the fullest and are now observing activities on the land through birds, snakes and other animals.
7.   Nyamal people have awaited this rain for a long time, nearly three or four years and now cultural practices and activities are due to take place. Cultural initiation is planned for half way through September through to December, where young boys become men and are travelling for three months from the tropical paradise of De Grey on to Elsie Creek country in order to survive, it’s a harsh land for training kids, young boys into men, and there is a camp near Elsie Creek.
8.   There is one waterhole off Elsie Creek where the boys will go through tribal law ceremonies, such as training on the track and trails for the young boys to learn the country and learn how to hunt and gather and bring back food for family: foods such as fresh snakes, black headed pythons which is a delicacy named windingnyiny also known as gnumburulgudda: gulia is the emu, murrungduu which is the goanna and djarrakiiy is a turkey that will be eaten in this area: iirraguuna is known as the fresh water purch (fish) which is a source of food that will be eaten.
Mr Allen’s evidence, at paragraph 9(c), also refers to the De Grey River which he says is “known to me to be a significant area as Nyamal oral history records that the area is alive for the following year after cyclone rains with culture and traditional practices due to be undertaken by Nyamal people on the tenement”.
He continues at paragraph 9(d), to say that “women and children enjoy the produce from the land after cyclone weather has gone through, particularly, fishing, black berries from Jima trees, little peaches that grow through the rocks known as Jubarri: medicine and food plants will all be blooming and ready for Nyamal people to pick and use for traditional purposes.”
Having regard to Mr Allen’s evidence, Nyamal submits that the Nyamal people engage in many community and social activities on the land (meaning I assume the licence area), including the tribal law ceremonies for initiation outlined at [23] above. Nyamal says the tribal law ceremonies will essentially be stopped by the grant of the licence and therefore the expedited procedure should not apply (Nyamal contentions paragraph 13).
Gill says, in his contentions, that he has no issue with Nyamal accessing the licence area for cultural or traditional use. He does not consider that the grant of the licence will have an adverse effect on any activities because of the nature of the licence area. Gill says that it is “sparsely vegetated, very hilly and has a very small drainage system which only carries runoff rain when that area is directly rained upon”. Further, Gill says that the licence area “is not an area that would be conducive to native title activities unlike the major river systems in the area further north” (Gill contentions paragraph 11).
As noted above, Gill has attached to his contentions a number of documents in support. The first five of these documents are printouts from Google Earth, which Gill says show the area of the licence as well as its distance to Elsie Creek, De Grey River and Oakover River.
Gill provides some context to these documents in paragraph 12 of his contentions:
The objector’s points (6, 7, 8, 9, 10, 11, 12, 17) all relate to the river systems, recent cyclone activity and rainfall for the wet season from throughout the summer months of 2018/2019. I would like to clarify these points and project a reference for clarification. Elsie Creek is a small tributary creek that runs on the outside and parallel of the Western side of the tenement for approximately 15kms. At this point it joins the Nullagine river which is a substantially larger watercourse but still not a permanent year-round river. The Nullagine river flows for approximately 90kms northward from where Elsie Creek enters it, at this point it joins the Oakover River. This distance from the tenement is approximately 110kms. It is this junction of the Oakover and Nullagine Rivers that give rise to the De Grey River being formed which when flooded or draining runs north west for a further 250kms to the ocean between Pt Hedland and Pardoo. I can concur that the river areas when they are flowing indeed resemble a tropical paradise, but this is limited in my view to the river areas only and the tenement area itself is truly only a comfortable place to be in the cooler winter months.
Gill also asserts that the licence (by which I take him to mean the licence area) has little to no impact on Elsie Creek itself. He says it would require very heavy rain for a period of days for any rainwater to enter Elsie Creek from the licence area. While Gill acknowledges there was a slight increase in rainfall in the most recent cyclone season, he says it is unknown if the rain reached the licence area and, even if it did, there would be little change in the ground conditions as the licence area is very free draining due to steep terrain (see Gill contentions paragraph 12).
In relation to Mr Allen’s evidence relating to the waterhole off Elsie Creek, Gill has provided a map of waterholes which appears to be taken from the State’s Aboriginal Heritage Inquiry System. Gill submits the waterhole referred to by Mr Allen is approximately 15 kilometres north of the licence and argues there are far more waterholes a similar distance to the east which would have a greater chance of retaining water. He also says traditional bush tucker would be limited on the licence area due to its nature and the lack of water.
Gill’s contentions are unchallenged and I accept he appears to have personal knowledge and experience of the region and the licence area. However, I have not relied on the information he has provided about the suitability of the licence area for the activities asserted by Nyamal, because it is not provided by way of affidavit and is largely unsupported by documentary evidence. I have had regard to the information and attachments provided by Gill in relation to the relative location and distance of various features from the licence area.
The State argues that Mr Allen’s evidence is vague as to the precise location of any hunting or gathering activities. It notes that many of the features consistently referred to by Mr Allen, such as Elsie Creek and De Grey River are outside the licence area. The State goes on to say that, even if I accept that hunting or gathering activities occur in the licence area, there is no evidence as to their frequency or duration or the number of Nyamal people involved. The State contends that, in any event, hunting and exploration activities are capable of co-existence.
In relation to the tribal law activities mentioned by Mr Allen, the State agrees with Gill’s contention that these will occur outside of the licence area and notes that, in any event, they will be of limited duration and, given Gill has stated his intention to comply with his legal obligations and his respect for Aboriginal culture, he would not be likely to conduct his operations in a way which would interfere with the ceremonies, if made aware of their location and time.
In its reply, Nyamal does not dispute any of Gill’s contentions, but it rejects a number of the State’s arguments as to why interference with any activities is unlikely. Nyamal reiterates its contention that the proposed tribal law ceremonies will be stopped if the tenement is granted (Nyamal reply paragraph 16). Nyamal argues that the only way for the interference to be managed is through entry into a Nyamal Heritage Protection Agreement and that, if Gill does have an intention to respect cultural traditions and Aboriginal heritage he would have entered into that agreement.

Will the grant of the licence interfere directly with the carrying out of Nyamal’s activities?

The accepted approach to the application of s 237(a) is summarised in Yindjibarndi v FMG, at [16]. The interference contemplated by s 237(a) must be direct. This requires an evaluative judgement that the grant of the licence is likely to be the proximate cause of the interference. The interference must also be substantial, rather than trivial.
The Tribunal has previously accepted that interference under s 237(a) may extend to community or social activities outside the relevant tenement area, but there ‘must be a clear nexus between those activities and issues being considered under s 237’ (see Silver v Northern Territory at [35]).
I accept Mr Allen’s evidence that cultural activities of the kind extracted at [23] above will occur. However, the specific areas of activity mentioned by Mr Allen are De Grey River, Elsie Creek country, the camp near Elsie Creek and a waterhole off Elsie Creek. The reference to turkey being eaten “in this area” is given in the context of the waterhole off Elsie Creek. There is nothing in Mr Allen’s evidence to support a view that any of these locations are on the licence area or that any of the activities occur or will occur on the licence area.
The most that Mr Allen says about the licence area is that it is near Elsie Creek, which can be seen from the AHIS Searches provided by the State. No detail is given in relation to the claimed hunting and gathering activities on the licence area. Mr Allen refers to the tribal law ceremonies being undertaken at the waterhole off Elsie Creek but there is no evidence this waterhole is on the licence area. Mr Allen’s statements that activities will occur on the licence area are not supported by his evidence about where those activities take place.
Further, Nyamal does not explain how or why activities under the licence will interfere with any activities or why it says the tribal law ceremonies will be stopped by the grant. Nyamal’s assertion that the grant of the licence will stop these activities is also unsupported by the evidence.
It follows that I am not satisfied that the activities referred to in Mr Allen’s affidavit occur on the licence area or are likely to be subject to interference from the licence. I conclude that the grant of the licence is unlikely to interfere directly with Nyamal’s community and social activities.

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Nyamal?

What areas or sites are identified by Nyamal on the licence area?

According to the AHIS Searches there are no sites registered under the Aboriginal Heritage Act 1972 (WA) (Heritage Act), and no other heritage places, in the licence area. However, sites do not need to be registered to be of particular significance (see Little v Lake Moore Gypsum at [67]).
As noted above, Mr Allen at paragraph 9(b) refers to the licence area being “near Elsie Creek which is a very significant area for the Nyamal People, and the recent rain has enlivened the De Grey River and the creek comes off it”. Mr Allen also says at paragraph 9(j) that “Elsie Creek is in the corridor of a dreamtime ancestor story following the De Grey River which is dreaming of Nyamal people from the sea until it finishes up from the top end to near Nullagine”.

Much of Mr Allen’s evidence concerns the significance of creeks and rivers in Nyamal country, particularly the De Grey River (called Bubarinnya Nyawarda) and Elsie Creek. Mr Allen also says that “sites and areas of significance become lively following rains, with sites and cultural places being washed anew that would not have been known before and require protection regardless of historical exploration, prospecting and mining in the tenement area”. Mr Allen refers to “likely sites” and states that he can’t talk about them, but that in order to protect the sites, Nyamal must survey the area following the cyclone to ensure it is safe for others to go on (Allen affidavit paragraphs 9(e), 9(g) and 11).
Mr Allen also raises a concern that, because the licence is near Elsie Creek, disturbance can’t be ruled out particularly as he doesn’t know the travel route of Gill. Gill says he will access the licence from his adjoining tenement E45/4837 and has provided a Google Earth map showing the proposed route.
The State contends that Nyamal has not identified specific sites of significance in the licence area but has stated that all rivers and creeks within Nyamal country are sites for Nyamal people and should not be viewed as piecemeal. Further, the State submits that although Nyamal contends that Elsie Creek is in the corridor of a dreamtime ancestor story, this does not identify sites of particular significance in the licence area itself. I agree with the State’s submissions on those matters.
Mr Allen has not identified any sites on the licence area. As noted, Elsie Creek is described as “near to” the licence area. The evidence regarding the potential for other sites in the licence area to have been exposed by recent rains is speculative.
An area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders in accordance with their traditions (see Yindjibarndi v FMG at [17] – [18]). In this case, Nyamal’s evidence lacks the required specificity about both the identification and particular significance of any sites on the licence area.
Having regard to the evidence provided, I am not satisfied that there are sites of particular significance to Nyamal within the meaning of s 237(b) in the licence area. It is therefore not necessary for me to further consider the issue of interference from the grant of the licence.

Section 237(c): 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?

Nyamal also argue that the grant of the licence is likely to involve major disturbance to the licence area.
Nyamal’s contentions on this issue are brief, but rely particularly on Mr Allen’s evidence at paragraphs 13-16 to the effect that any disturbance, particularly to water, waterways, creeks and creek beds, is too much disturbance and should be managed through a heritage survey conducted by Nyamal. In that context, Mr Allen again raises a concern about sites including burial grounds that would have been exposed by the recent rain from the cyclone. Again, this is speculative.
The State contends that Nyamal’s evidence on this issue is insufficient, particularly in relation to the proposition that “any disturbance is too much disturbance”. The State also submits that all of the creeks and rivers mentioned by Mr Allen, and therefore any associated burial grounds, are all outside the licence area.
The State relies on its regulatory regimes and argues that the endorsements and conditions to be imposed on the licence in relation to rehabilitation will mitigate any disturbance. It also notes the licence area has been subject to previous mining activity. I note that proposed endorsement 9 includes a requirement that all activities are to be undertaken so as to avoid or minimise damage, disturbance or contamination of waterways, including their beds and banks, and riparian and other water dependent vegetation.
Considering whether major disturbance under s 237(c) is likely, 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 also nothing to preclude Nyamal raising here matters already considered in relation to s 237(a) and (b) (see Little v Oriole Resources at [39]-[54]; Dann v Western Australia at 395, 401 and 413).
To the extent they are particularised, Nyamal’s concerns relate to water and waterways, creeks and creek beds. However, the creeks and rivers of concern identified by Nyamal are not in the licence area and many of the concerns raised are based on the possibility of sites of significance being exposed by the rain. Beyond this, Nyamal’s concern is generally expressed as a view that any disturbance without Nyamal’s agreement is too much disturbance. However, s 237(c) is directed at major disturbance, and while Nyamal’s concerns are relevant to that consideration, they are not determinative.
Based on the evidence before me, I find that the grant of the licence is not likely to involve major disturbance to the land and waters concerned within the meaning of

s 237(c).

Determination

I determine that the grant of licence E45/5263 to Jason Andrew Gill is an act attracting the expedited procedure.

Nerida Cooley
Member
16 October 2019