Kevin Allen & Others on behalf of Nyamal #1 and Another v Haoma Mining Nl & Another
[2020] NNTTA 37
•1 April 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 and Another v Haoma Mining NL & Another [2020] NNTTA 37 (1 April 2020)
Application No: | WO2018/1057; WO2018/1058; WO2018/1059; WO2018/1060; WO2019/0061; WO2019/0062 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Kevin Allen & Others on behalf of Nyamal #1 (WC1999/008) & Nyamal Aboriginal Corporation RNTBC (WCD2019/011)
(native title parties)
- and -
Haoma Mining NL
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 1 April 2020 |
Catchwords: | Native title – future act – proposed grant of exploration and amalgamation licences – expedited procedure objection applications – 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 not an act attracting the expedited procedure - the acts are acts attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 237 Aboriginal Heritage Act 1972 (WA) |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (BDAC v Oladipo Minerals) Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Kevin Allen and Others (Nyamal #1) v Bushwin Pty Ltd and Another [2019] NNTTA 75 (Allen v Bushwin) Nyamal Aboriginal Corporation v Haoma Mining NL and Another[2020] NNTTA 11 (Nyamal v Haoma) Nyamal Aboriginal Corporation v Onanong Perkin & Others [2020] NNTTA 10 (Nyamal v Perkin) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17 (WF v Emergent Resources) 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: | Jacob Loveland, All Mining Legal |
| Representatives of the Government party: | Ellise O’Sullivan, State Solicitor’s Office Michael McMahon and Bethany Conway, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant the following licences to Haoma Mining NL (Haoma):
·536063 to amalgamate former prospecting licence 45/2743 into the external boundaries of exploration licence 45/4176, (referred to in this decision as AM-E45/4176);
·536064 to amalgamate former prospecting licence 45/2879-1 into the external boundaries of exploration licence 45/4176, (referred to in this decision as AM-E45/4176);
·536062 to amalgamate former mining lease 45/644 into the external boundaries of exploration licence 45/4320, (referred to in this decision as AM-E45/4320);
·536068 to amalgamate former prospecting licence 45/2763 into the external boundaries of exploration licence 45/4477, (referred to in this decision as AM-E45/4477);
·E45/5231;
·E45/5230.
The notices for each licence included a statement that the grant is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts the grant of each licence 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 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)).
Each proposed licence is on land subject to the Nyamal #1 registered native title claim (WC1999/008), and E45/5231 is also subject to the Federal Court’s native title determination (WCD2019/011) in Allen v Western Australia. The Nyamal Aboriginal Corporation holds native title in trust for the Nyamal People in relation to a portion of land covered by that licence. The native title parties (Nyamal) lodged an objection with the National Native Title Tribunal (the Tribunal) against the expedited procedure applying to each of the licences. A summary is outlined below, for convenience, given the number of objection applications included in this inquiry:
Licence
Parties
Location
Overlap percentage
AM-E45/4176
Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008) & Haoma Mining NL
(WO2018/1057 & 1058)
Location: 57 km SW’ly of Marble Bar
100% - Nyamal #1
AM-45/4320
Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008) & Haoma Mining NL
(WO2018/1059)
Location: 53km SW’ly of Marble Bar
100% - Nyamal #1
AM-E45/4477
Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008) & Haoma Mining NL
(WO2018/1060)
Location: 63km SW’ly of Marble Bar
100% - Nyamal #1
E45/5231
Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008) & Haoma Mining NL
(WO2019/0061)
Location: 44km SW’ly of Marble Bar.
20.99% - Nyamal Aboriginal Corporation
79.01% - Nyamal #1
E45/5230
Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008) & Haoma Mining NL
(WO2019/0062)
Location: 33km S’ly of Marble Bar
100% - Nyamal #1
Having been appointed to conduct this inquiry, I must look at what is likely to result from the grant of the licences and decide whether there is a real chance or risk of the interference outlined in s 237 (see Yindjibarndi v FMG at [15]). I must have regard to the rights conferred by the grant, the nature of the proposed grant and the applicable regulatory regime (see Walley v Western Australia). Being provided with a clear understanding of the nature and extent of any sites, or social and community activities, is an important part of that assessment. If parties do not provide such clarity, I must take a common sense approach to the materials (as outlined by Carr J in Ward v Western Australia (at [26])).
Nyamal argued the expedited procedure should not apply to these licences on the basis that each grant will likely cause the interference contemplated in ss 237(a), (b) and (c). The Nyamal submissions and argument refers to sections from the decision in Allen v Western Australia, which Nyamal argue supports their assertions that the expedited procedure should not apply. However, as outlined below, much of that argument is general, and relies on the proximity of the licences to the determined area, rather than specific references to the licences themselves.
Inquiry directions contemplated an agreed statement of facts, and a hearing if necessary. Parties contested some aspects of the evidence provided, and to expedite the matter, I vacated the direction to provide an agreed statement of facts, and an oral hearing was held to ensure that all parties had the opportunity to fully ventilate and exchange their arguments.
Having heard, read and considered the respective submissions from all parties, I find the expedited procedure applies to all but E45/5231 (WO2019/0061).
Preliminary Matters
Nyamal provided contentions and a reply to the State and Haoma contentions, for each of the licences. Haoma and the State considered the Nyamal replies contained information beyond what is normally considered a ‘reply’. As the material included an affidavit of Mr Kevin Edward Allen, a Nyamal traditional owner who could speak for the licence areas, I agreed with that argument and allowed further time for the State and Haoma to make final submissions in the inquiry, which they did. This information was then fully explored at the hearing, together with any final comments from Nyamal. Parties were also provided with mapping prepared by the Tribunal, which showed all licences relative to each other, and their position in relation to sites recorded under the Aboriginal Heritage Act 1972 (WA) (AHA).
In addition to the information outlined at [8], the State provided their contentions, mapping, and other materials from the State’s databases. The material included a quick appraisal outlining the underlying tenure and searches of the Aboriginal Heritage and Inquiry System (AHIS), held under the AHA. The recording of a site or area on the AHIS does not automatically mean it is a site of particular significance (for the purposes of s 237(b)). If a site or area is assessed in an inquiry as being a site of particular significance, I must then assess whether or not it is likely it will be interfered with for the purposes of s 237(b). There may be areas or sites which, while within the terms of s 237(b), do not fall within the AHA. There also exists a ministerial discretion permitting interference to occur in some circumstances with sites recorded on the AHIS. These are issues to which I must turn in my analysis of the material presented in this inquiry.
The AHIS searches provided by the State showed were no recorded sites for AM-E45/4176 (AM 536063); AM-E45/4320 (AM 536064); AM-E45/4477 (AM 536068) and E45/5230.
The following sites or areas were recorded under the AHIS for the whole of E45/4320:
·Spear Hill Complex 1 (Site ID 7196) - overlapping the licence in the east;
·Chocolate Hill (Site ID 11173) - overlapping the licence in the east.
However, the amalgamation portion of that licence, AM 536062, which is the only portion of the licence subject to this inquiry, is approximately 2 kilometres from these areas.
The other licence which is part of this inquiry, E45/5231, is not an amalgamation licence, and the following AHIS sites are recorded (they overlap parts of the southern boundary of the licence):
·Spear Hill Complex 1 (Site ID 7196) - Engraving, Painting site with co-ordinates which are restricted
·Pilga Series 05 (Site 11153) – Engraving, Grinding Patches / Grooves site
·Pilga Series 04 (Site 11154) – Artefacts / Scatter, Engraving site
·Chocolate Hill (Site 11173) – Artefacts / Scatter, Engraving, Camp site
Section 237(a): Are the grants of the licences likely to interfere directly with the community or social activities of Nyamal?
The evidence in this inquiry for each licence on s 237(a) is similar to that provided in Nyamal v Perkin. The Nyamal contentions and reply refer to sections from the decision in Allen v Western Australia, which they say support their assertion that the expedited procedure should not apply with respect to s 237(a). The contentions note the licences are near to (and in one case, on) the determined area, however, the evidence provided is broad, without providing support as to why the information specifically applies to any social or community activities conducted on the licences subject to this inquiry.
The Nyamal reply also reiterates initial contentions, referring to my decision in Allen v Bushwin, ‘where the Tribunal found that the act was not an act attracting the expedited procedure, of the history of ceremonial activities after periods of significant rain’ (at 9). The materials provided in Allen v Bushwin were more detailed than those provided for the present inquiry. The social and community activities outlined in that matter were held not to be likely to be substantially interfered with by the explorer’s activities, even allowing for the influence of rain periods. I draw that same conclusion in the present inquiry. It was a site of particular significance which was held to be likely to be interfered with by exploration activity in Allen v Bushwin.
There is little information about specific social or community activities related to the licences. As such, I adopt my reasoning at [4] and [16]-[19] of Nyamal v Perkin, and apply that reasoning to each of the licences in this inquiry for the purposes of s 237(a). I do not consider there is sufficient information to conclude social or community activities have been described as being conducted in such a way as to be likely to suffer from substantial interference from the activities of Haoma.
Section 237(b): Are the grants of the licences likely to interfere with areas or sites of particular significance, in accordance with the traditions of Nyamal?
Barnes v AngloGold Ashanti (at [49]), sets out that the Tribunal:
has repeatedly found that in order to satisfy the requirements of s 237(b) of the [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.
This approach is further explained in WF v Emergent Resources (at [45]):
The native title party is required to provide sufficient detail and specificity to allow the Tribunal to make the predictive assessment in accordance with s 237(b)... Mere reference to the existence of a…place without identifying the nature of its significance or its location does not provide an adequate basis for the Tribunal to make a finding about the existence of sites or areas of particular significance on the proposed licence…let alone a finding that the area in which the tenement is located is…imbued with a pervasive spirituality such that any unauthorised entry on the tenement area would constitute relevant interference.
I outline my considerations below and, in summary, I find E45/5231 has sites of particular significance that are likely to be interfered with by activities of Haoma. In relation to the other licences, I do not find any sites of particular significance were established.
E45/5231
As noted above, the following sites have been recorded under the AHIS as overlapping the southern boundary of this licence:
·Spear Hill Complex 1 (Site ID 7196)
·Pilga Series 05 (Site 11153)
·Pilga Series 04 (Site 11154)
·Chocolate Hill (Site 11173)
Mr Allen explains that Spear Hill is a ‘secret, sacred site’ (at 6) and goes on to explain the importance of the area to men’s business (7-10 and 12). Some information is also provided about Chocolate Hill (at 13), its connection to Spear Hill, how it is different to Spear Hill, and how both sites are important culturally to Nyamal. I am satisfied these two sites are of particular significance to Nyamal.
In relation to the Pilga sites, the information is brief and more general and I could not conclude they are of particular significance to Nyamal for the purposes of s 237(b).
In their reply, Nymal contend that an ‘unnamed site’, located ‘in the tenement’ and ‘close to the road from Marble Bar to Cooglegong’, is a site of particular significance (at 19). However, the information provided is general and not specific enough for me to locate the site, or conclude that it is a site of particular significance.
Haoma’s reply contended that the size of the overlap of these sites was small, and so substantial interference was unlikely (at 2.14 for example). The State outline their view that the regulatory regime will protect those sites from interference, and reiterated this view at the oral hearing. The State also contended at the hearing that the size of the proposed licence compared with the location and size of the overlaps meant that substantial interference was unlikely. However, noting McKerracher J’s comments in FMG v Yindjibarndi (at [64]-[76]), what is substantial and not trivial interference under s 237(b) must be assessed by the traditions of the native title party. I am satisfied the evidence supports that the Spear Hill and Chocolate Hill sites are intimately connected to traditions of Nyamal, and that what others may regard as slight interference, would be regarded by Nyamal as substantial interference in accordance with their traditions.
I could not conclude the State’s regulatory regime would provide protections to mitigate such interference. As Member Cooley noted in BDAC v Oladipo Minerals (at [49]-[53]), even if native title holders are afforded procedural fairness and are consulted prior to the Minister’s decision to disturb a site, as allowed for under the AHA:
the State does not explain how that mitigates the likelihood of interference under s 237(b) of the NTA on the facts of the present case. Interference that is sanctioned under s 18 of the AHA may nonetheless be interference within the meaning of s 237(b) of the NTA, (at [53])
Having accepted Spear Hill and Chocolate Hill are sites of particular significance, and having reviewed the information provided by the State, I do not consider the endorsements or conditions the State intends to impose on the grant of this licence, including the Regional Standard Heritage Agreement, or the State’s regulatory regime, would mean there is unlikely to be interference of the type outlined in s 237(b). I consider that even acting lawfully within the State’s regulatory regime, and with the best of intentions, Haoma is likely to cause interference with these sites of the type envisaged by s 237(b).
AM-E45/4176 (AM 536063); AM-E45/4320 (AM 536064); AM-E45/4477 (AM 536068); E45/4320 (AM 536062) and E45/5230
The material in this inquiry for AM-E45/4176 (AM 536063); AM-E45/4176 (AM 536064); AM-E45/4320 (AM 536062); AM-E45/4477 (AM 536068); and E45/5230 is similar to that provided in Nyamal v Perkin. The Nyamal contentions and reply refer to sections from the decision in Allen v Western Australia, which Nyamal say support their assertion that the expedited procedure should not apply to each licence with respect to s 237(b). The contentions note these licences are near the determined area. However, the evidence provided is broad, without supporting why the information specifically applies to any sites or areas of particular significance related to these licence areas.
Nyamal refer to a number of sites within 25 kilometres of these licences which they say are sites of particular significance and would suffer interference from Haoma’s activities. However, no link is drawn between those sites and exploration activities related to the licences, and I do not consider sufficient detail has been provided for me to conclude they are sites of particular significance.
There is very little information about sites or areas of particular significance related to these licences. As such, I adopt my reasoning at [5], [22]-[23], and [26] of Nyamal v Perkin, and apply that reasoning to my consideration of licences AM-E45/4176 (AM 536063); AM-E45/4176 (AM 536064); AM-E45/4320 (AM 536062); AM-E45/4477 (AM 536068); and E45/5230 for the purposes of s 237(b). I do not consider there is sufficient information to conclude sites or areas of particular significance exist in relation to these licences. As such, I do not consider whether or not they are likely to suffer from interference from activities of Haoma.
Section 237(c): Are the grants of the licences likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
The evidence in this inquiry for each licence is very similar to that provided in Nyamal v Haoma. The Nyamal contentions and replies refer to sections from the decision in Allen v Western Australia, which they say support their assertion that the expedited procedure should not apply with respect to s 237(c). The contentions note the licences are near to (and in one case, on) the determined area, however, the evidence provided is broad, without providing support as to why the information specifically applies to the exercise or creation of rights likely to involve major disturbance to the relevant land or waters.
I adopt my reasoning at [9] of Nyamal v Haoma, and apply that reasoning to each of the licences in this inquiry for the purposes of s 237(c). I do not consider there is sufficient information to conclude the threshold for interference or disturbance as envisaged by s 237(c) has been met.
Determination
My determination is that the grant of E45/5231 to Haoma Mining NL is not an act that attracts the expedited procedure.
My determination is that the grant of the following licences to Haoma Mining NL are acts that attract the expedited procedure:
· 536063 to amalgamate former prospecting licences 45/2743 into the external boundaries of exploration licence 45/4176
· 536064 to amalgamate former prospecting licence 45/2879-1 into the external boundaries of exploration licence 45/4176
· 536062 to amalgamate former mining lease 45/644 into the external boundaries of exploration licence 45/4320
· 536068 to amalgamate former prospecting licence 45/2763 into the external boundaries of exploration licence 45/4477
· E45/5230
Helen Shurven
Member
1 April 2020
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