Kevin Allen & Others on behalf of Nyamal #1; Nyamal Aboriginal Corporation RNTBC v Peter Donald Green and Another - [2022] NNTTA 50

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Nyamal #1; Nyamal Aboriginal Corporation RNTBC v Peter Donald Green and Another [2022] NNTTA 50 (19 July 2022)

Application No:

WO2021/1519; WO2021/1579

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; Nyamal Aboriginal Corporation RNTBC (WC1999/008; WCD2019/011)

(native title parties)

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Peter Donald Green

(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
Place:	Brisbane
Date:	19 July 2022

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – whether act likely to interfere with sites or areas of particular significance – act is an act attracting the expedited procedure
Legislation:	Mining Act 1978 (WA) ss 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 151, 237
Cases:	Kevin Allen and Others (Njamal) v Gary John McCutcheon and Another [2017] NNTTA 27 (‘Njamal v McCutcheon’) Kevin Allen and Others (Njamal) v Haoma Mining NL and Another [2017] NNTTA 22 (‘Haoma Mining No 4’) Kevin Allen and Others (Njamal) v State Resources Pty Ltd and Another [2017] NNTTA 19 (‘Njamal v State Resources’) Kevin Allen & Others on behalf of Nyamal #1 v Haoma Mining NL & Another [2020] NNTTA 45 (‘Haoma Mining No 1’) Kevin Allen & Ors on behalf of Nyamal #1 v John William Young & Another [2019] NNTTA 85 (‘Nyamal v Young’) Nyamal Aboriginal Corporation v Gary John McCutcheon & Another [2019] NNTTA 96 (‘Nyamal v McCutcheon’) Nyamal Aboriginal Corporation v Haoma Mining NL and Another [2020] NNTTA 11 (‘Haoma Mining No 3’) Nyamal Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2021] NNTTA 6 (‘Nyamal v FMG’) Nyamal Aboriginal Corporation RNTBC v Haoma Mining NL and Another [2020] NNTTA 42 (‘Haoma Mining No 2’) Nyamal #1 v Formula Resources Pty Ltd and Another [2018] NNTTA 68 (‘Nyamal v Formula Resources’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)
Representative of the native title party:	Alissa Bishop-Thorpe, Arma Legal

Representative of the grantee party:

Peter Green

Representatives of the Government party:

Stewart Palmer, 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 E45/5893 (licence) to Peter Donald Green.
The State of Western Australia (State) considers the grant of the licence is an act attracting the expedited procedure under the NTA, and included a statement to that effect in a notice given under s 29 of the NTA. If the expedited procedure applies, the licence may be granted without first requiring negotiation in good faith under

s 31(1)(b) of the NTA.
Nyamal Aboriginal Corporation RNTBC (Nyamal RNTBC) holds non-exclusive native title in trust on behalf of the Nyamal People in relation to 41.18% of the licence area. The remaining 58.82% of the licence area is located within the balance area of the Nyamal #1 native title determination application (WAD20/2019) (Nyamal Claim). Nyamal RNTBC and the registered native title claimant for the Nyamal Claim (together the Native Title Parties) object to the application of the expedited procedure to the grant of the licence.
The President of the Tribunal has directed me to constitute the Tribunal to determine whether or not the expedited procedure applies to the grant of the licence. For the reasons given below, I have concluded that the grant of the licence is an act attracting the expedited procedure.

My determination is made without the need for a hearing

All parties provided material for the inquiry in accordance with the Tribunal’s directions. The directions timetable was extended on a number of occasions to allow additional time for both the Native Title Parties and Mr Green to comply.
The State provided contentions together with mapping, a Quick Appraisal containing key tenement information for the licence, an Aboriginal Heritage Inquiry System (AHIS) search, a copy of the licence application together with the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) and the proposed endorsements and conditions to be imposed upon the grant of the licence.
The Native Title Parties initially provided joint contentions and witness statements of Mr Gavin Mitchell and Ms Linda Mitchell (both undated). Both Mr Mitchell and Ms Mitchell are Nyamal native title holders and members of the Nyamal claim group. The Native Title Parties also provided contentions in reply together with additional statements of both deponents addressing matters raised in Mr Green’s contentions.
Mr Green initially provided comments by way of email and later provided written contentions, having been afforded additional time to do so.
All of the parties indicated they are agreeable to the matters being determined on the papers as is permitted by s 151(2). Having reviewed the material, I am satisfied I can adequately determine the matters without a hearing.

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

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)).
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 the licence (see overview of approach in Yindjibarndi v FMG at [15]).
In this case, the Native Title Parties do not make any assertions in relation to direct interference with community or social activities within the scope of s 237(a) or major disturbance under s 237(c). In the absence of any evidence as to those matters, there is no basis to conclude such interference or disturbance is likely. Accordingly, my consideration of the issues is limited to s 237(b).

Details about the licence, licence area and the activities proposed by Mr Green

Exploration licences under the Mining Act are granted for an initial term of five years, and may be renewed (s 61 Mining Act). Section 66 outlines the rights conferred on the holder of an exploration licence, which include the right to “excavate, extract or remove ... earth, soil, rock, stone, fluid or mineral bearing substances” up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The State’s Quick Appraisal notes that the licence is 638.32 hectares in size, with the underlying tenure comprising pastoral lease. The AHIS search shows no registered sites or other heritage places on the licence area.
Mr Green’s s 58 statement discloses that his target mineral is gold and his objective is to “target the alluvial deposits along Paddy Market Creek with a view to turning this into a commercial mining operation”.
In his contentions, Mr Green states that he is a retired miner and prospects as a hobby. His contentions include the following further description of his proposed activities:
7. The tenement application is an Exploration Licence and our intended exploration work programme will be very low impact. We intend to use a small agricultural auger for the drilling program. The auger is on the back of a small trailer and towed by a Four-wheel drive. It would have less impact than a standard pastoral fencing trailer. We plan to sample approx. 30 holes 20 to 50 cm depth holes across the sand of the creek bed. I originally put up to 2 meters in the Exploration application, however after further research I believe it is a lot shallower. Further activities will depend on the results of the initial exploration work, but all works will be carried out in compliance with all DMIRS and environmental requirements and will be of short on ground duration. If viable we would then use a small plant to process the sand of the creek and extract any alluvial gold. No chemicals will be used during the process and the sand returned to its original location. After one summer thunderstorm the disturbance would no longer be visible. No sand will be processed offsite and no landforms will be changed.
8. The duration of the work in the first year would be approx. one week. If it was viable to use a plant then it would be approx. one to two months per year.

Section 237(b) – is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?

Section 237(b) is concerned with areas or sites of special, or more than ordinary, significance to the native title holders. Such areas or sites must also be known and be able to be located (see discussion in Yindjibarndi v FMG at [17]).
The Native Title Parties contend that Paddy Market Creek and Dalton Creek, which traverse the licence area, are areas or sites of particular significance to the Nyamal People. The contentions attribute significance in two different ways.
Firstly, Paddy Market Creek and Dalton Creek are said to be significant because they are tributaries of the Shaw River. Both deponents refer to this significance.
Mr Mitchell’s evidence is as follows:
6.   The Shaw River is one of the most important waterways for Nyamal, we all originated from the river.
7.   Paddy Market Creek and Dalton’s Creek are tributaries of the Shaw River. They flow off the high country, you can see on the map of E45/5893 that there is a junction of the two creeks, and it looks like the junction covers a large portion of the Tenement.
8.   The Shaw River is one of the oldest rivers ever recorded. It is the lifeblood of Nyamal people; it is a major waterway for us. The Shaw River runs through our Country, through our ceremonial ground giving life to our people.
9.   The river impacts all of Nyamal’s way of life. Once the creek bed and waterflow is affected, the whole river system downstream is impacted. Vegetation, hunting grounds, flora, fauna and everything really. Water is life for Nyamal.
10. There is also ochre in the Dalton and Paddy Market creeks, which Nyamal use for ceremonial purposes. There are also waterholes along the Paddy Market Creek and Daltons Creek which are important to Nyamal People.
(As per original)
Ms Mitchell’s evidence is similar stating:
7.   Rivers are culturally very important to the Nyamal people. Nyamal people come from the river, we all originated from living on the riverbed. The Shaw River is very important to Nyamal, its Nyamal name is Miralga.
8.   My family’s ancestors came from the Shaw River. I was born near Marble Bar. My mother was born at Warralong Station, near the Shaw River, as was my grandmother and great grandmother.
9.   Paddy Market Creek and Dalton’s Creek flow off from the Shaw River. The Tenement is within my great-grandfather’s country. My great grandfather, Kurlilpa, was born by a pool near to the Tenement area – near Dalton’s Creek and Paddy Market Creek, I believe that this might be the Olympic Pool. I remember my grandmother talking about a pool there. Water is very important to the Nyamal people.
10. Water is our life. Without water, we won’t survive. It shouldn’t be disturbed; drilling could impact our artefacts in this area. If you destroy that, you destroy us as well. If anything happens to the top end of our river, it will destroy the bottom where it flows out to the De Grey. It would be destroying our country, the flora and fauna.
In addition, the Native Title Parties contend significance arises from an association with the Nyamal Dreaming story Wallawallung. Mr Mitchell does not say too much about this story due to its sensitivity. He says it is a men’s Dreaming story extending “down through the De Grey River, through the Shaw and into Paddy Market Creek and Daltons Creek”. Mr Mitchell expresses particular concern about Mr Green’s intentions to drill in Paddy Market Creek. In that respect, the Native Title Parties also note the existence of a registered site ID 11161 called ‘Paddy Market Creek’ which is outside the licence area but which they say corroborates Mr Mitchell’s evidence of the significance of Paddy Market Creek and also raises the risk of there being other artefacts within the area of the creek.

Previous Tribunal decisions

In their contentions, the Native Title Parties note that a number of Tribunal determinations have referred to the Wallawallung Dreaming story, although the only decision mentioned is the recent decision I will refer to as Haoma Mining No 1, where the Tribunal determined that the expedited procedure did not apply. According to the Tribunal’s online mapping tool, Native Title Vision, and as also noted by Mr Green, the tenement considered in Haoma Mining No 1 is located about 12 kilometres easterly of the licence area.
In that case, the Tribunal was satisfied of the particular significance of Coolvia Creek, being a subsidiary of Shaw River, due to its intimate connection to the traditions of Nyamal and to the Dreamtime story, there spelt Wallawullung. In her reasons at

[18], Member Shurven noted that Nyamal’s evidence outlined why the story of Wallawullung is significant, particularly to Nyamal men, although that detail is not set out in the reasons. In that case, the Member was also satisfied of the particular significance of a registered site named Coolvia, near to Coolvia Creek.
There are, as the Native Title Parties suggest, a number of other determinations where the Tribunal has considered the particular significance of Shaw River and related creeks including Dalton Creek, and/or areas or sites related to the Wallawallung Dreaming (also spelt Walla Wallung).
I have reviewed a number of those determinations made between 2017 and 2021 for which Nyamal adduced evidence broadly consistent with aspects of the evidence in this matter and Haoma Mining No 1. These determinations are outlined below, including the proximity of the relevant tenements to the licence (as shown in Native Title Vision). One of these determinations, Nyamal v Formula Resources, concerned the licence area and was noted in the State’s initial material in this matter.

Nyamal v FMG (February 2021)

In the recent decision of Nyamal v FMG, one of the tenements concerned (E45/5592) was near to Shaw River, about 37 kilometres north-westerly of the licence.
The Tribunal considered evidence from Mrs Doris Eaton including that:
Shaw River is part of the dreamtime story Walla Wallung which is part of creation and significant to the area. The dreaming story is of birth, creation and the formation of life for my Nyamal people, that is what Walla Wallung is about.
Ultimately, the evidence in that case was considered to be too general to allow a finding for s 237(b).

Haoma Mining No 2 (April 2020)

I mention this decision for completeness because one of the tenement applications in issue (E45/5231) is adjacent to the licence. Member Shurven determined that the expedited procedure did not apply to E45/5231 on the basis of the particular significance of certain registered sites in the tenement area. However, while this tenement area is traversed by both Shaw River and Dalton Creek, no mention appears to have been made in the evidence of either of those watercourses or Wallawallung.

Haoma Mining No 3 (February 2020)

Member Shurven determined that the expedited procedure applied to the grant of E45/5440, located about 22 kilometres north-easterly of the licence. The importance of Shaw River and Walla Wallung were raised by Nyamal in that case, but the Tribunal considered the evidence was too general to make any relevant finding.

Nyamal v McCutcheon (November 2019)

This decision also considered the Walla Wallung Dreaming story. Member Shurven noted that the evidence explained the story but not why the area of the prospecting licence was relevant to the story. The Member stated further at [31] that, even if she had been satisfied the tenement area was of particular significance for the purpose of the inquiry, there was insufficient evidence to conclude the proposed prospecting activities would interfere with the Dreaming.

Nyamal v Young (October 2019)

In this matter, I determined that the relevant tenement (located about 118 kilometres south-easterly of the licence) was an act attracting the expedited procedure due to an insufficiency of evidence. The evidence referred to the nearby location of Skull Springs and stated that the Dreamtime story of Walla Wallung ran through the area from the De Grey River. The evidence referred to the country as a “continuing part of Nyamal traditional culture and part of an interconnected landscape through the dreaming of the Walla Wallung”. In that case, similar to this one and Haoma Mining No 1, the story was referred to as a men’s story.

Nyamal v Formula Resources (November 2018)

This determination concerned the application for exploration licence E45/4879, which included the entire area of the licence in issue here, as well as surrounding areas. However, the area of E45/4879 currently in force does not appear to include the licence area, which may explain why that tenement does not appear on the State’s Quick Appraisal as either a live or dead tenement with respect to the licence area.
Nyamal similarly contended in Nyamal v Formula Resources that the Shaw River area including the Dalton Creek tributary is an area of particular significance. This was supported by evidence from a Nyamal elder quoted at [19], which stated that the “entire Shaw River area is a site for us and should not be viewed piecemeal” and further that “Shaw River is part of Nyamal identity”. Paddy Market Creek was not mentioned.
Member Shurven concluded at [30] that she did not doubt that Shaw River and Dalton Creek are important to the Nyamal People and play a part in Nyamal identity and tradition. However, the Member noted that there was no evidence of why the area was said to be particularly significant in accordance with Nyamal tradition. Further, Member Shurven observed that if all waterways are important for the region, it is difficult to conclude that Dalton Creek or Shaw River are of particular significance.

Haoma Mining No 4 (May 2017)

This determination related to an area of the Nyamal Claim, which at the time was spelt ‘Njamal’. Shaw River traversed part of one of the tenements concerned (located about 14 kilometres south-easterly of the licence). The evidence stated that “Shaw River as a whole is a place of significance to Njamal People”.
There were also a number of other areas or sites said to be of particular significance to Nyamal People considered in the determination but, again, the Tribunal determined that the expedited procedure applied to the tenements due to a lack of evidence.

Njamal v State Resources (May 2017)

This was another matter where the expedited procedure was determined to apply. The evidence was very limited but included a reference to Shaw River as “such an important place”. The tenement considered in this matter is located approximately 11 kilometres to the north of the licence.

Njamal v McCutcheon (May 2017)

Again, the expedited procedure applied in this case, where the tenement application was located adjacent to the southern boundary of the licence. The evidence as quoted at [6] referred to Shaw River as an “important place of Njamal People”, including “Dalton Creek which runs off the Shaw River”. Dalton Creek traversed the relevant tenement, while Shaw River was some distance away. Member Shurven observed that a simple reference to Dalton Creek does not explain its particular, or more than ordinary, significance in accordance with Njamal traditions. The Tribunal found the evidence was insufficient to support a conclusion of particular significance for

s 237(b).

Consideration

It is evident from the review of the decisions above that there are a number of commonalities between the evidence in this case and evidence considered by the Tribunal previously. The Native Title Parties have often provided evidence regarding the importance of Shaw River, its association with Wallawallung and its relevance to Nyamal creation stories, however the evidence has not been consistent in all respects and has varied in the level of detail provided.
The evidence considered in some of the decisions outlined above suggests that Wallawallung is central to the creation story, whereas in this matter Mr Mitchell’s evidence appears to draw a distinction between the significance of Shaw River, Dalton Creek and Paddy Market Creek generally, and their association with the men’s story Wallawallung. These are not necessarily mutually exclusive propositions. However, there is a lack of information about why the river and creeks are of particular significance in accordance with the Dreaming story or otherwise.
I can readily accept that the whole of Nyamal country, including watercourses and creeks, is significant to Nyamal People but what is required for s 237(b) is an area or site of particular, or more than ordinary, significance (see Yindjibarndi v FMG at [130]). This was the difficulty noted by Member Shurven in Nyamal v Formula Resources (see [36] above).
On occasion, it can be instructive to review prior determinations that have considered similar evidence or the same areas or sites of significance. It can aid the Tribunal’s inquiry by supporting or providing additional detail of the evidence under consideration. However, despite the number of determinations outlined above where Shaw River, Dalton Creek and Wallawallung have been mentioned, there is nothing concrete I can draw from those cases to support the evidence here.
While the evidence mentioned, particularly regarding Shaw River and Wallawallung, has been broadly consistent, it has also been, for the most part, general in nature. There is a distinct lack of detail in the evidence which does not aid the Tribunal’s task.
In this case, Mr Mitchell and Ms Mitchell both speak to the significance of Shaw River, noting its importance to Nyamal People. Mr Mitchell refers to Shaw River as the “lifeblood of Nyamal people” and explains that it runs through Nyamal Country “giving life to our people”. Ms Mitchell also says that rivers are “culturally very important” and that “Nyamal people come from the river”. In relation to Paddy Market Creek and Dalton Creek, Ms Mitchell notes they flow off Shaw River although she does not appear to attribute particular significance to those creeks on that basis. She refers to a pool near to the licence area and Paddy Market Creek and Dalton Creek which she thinks might be a pool called “Olympic Pool” which she remembers her grandmother talking about. The significance of that pool is not explained.
That is in contrast to Haoma Mining No 1 relied on by the Native Title Parties, where Member Shurven had the benefit of specific evidence about the particular significance of Coolvia Creek and the associated Coolvia site and the relevance of those areas or sites to the Wallawallung story.
It may be that there is a particular significance attaching to Shaw River within the meaning of s 237(b). However, Shaw River does not traverse the licence area and, on the material available, I am not able to make such a finding. I am similarly unable to draw any conclusion regarding the consequential significance said to attach to Paddy Market Creek and Dalton Creek as tributaries of Shaw River.
Mr Mitchell also attributes significance to Paddy Market Creek and Dalton Creek due to the Wallwallung Dreaming story.
The State contends (at paragraph 21) that there is insufficient evidence about either the Wallawallung Dreaming or its connection to the licence area. In reply, the Native Title Parties argue that I should not accept that contention, arguing that Mr Mitchell has explained his discomfort in discussing details of the Dreaming due to its sensitivity and gender restrictions. They also point to the previous cases where Wallawallung has been considered including Haoma Mining No 1 and argue that Mr Mitchell’s evidence in this case is consistent with the evidence considered in Haoma Mining No 1.
I do appreciate Mr Mitchell’s concerns with respect to giving evidence about sensitive matters. That is an issue with which native title parties regularly grapple and which may have been able to be addressed through non-disclosure directions. With respect to the previous determinations that considered Wallawallung, there are, as I have already noted, both similarities and differences in the description of the Dreaming and the significance of Shaw River in the context of Wallawallung. While I have not drawn any adverse inferences from those differences, it is equally difficult to draw support for the contentions and evidence here.
In relation to Haoma Mining No 1, the Native Title Parties have not provided the evidence considered by Member Shurven in that case. The reasons given at [18]–[19] indicate that the Tribunal relied on specific evidence about the significance of Coolvia Creek as part of Wallawallung and also as a boundary feature together with the additional evidence about the Coolvia site. At [22], the Tribunal was satisfied of the particular significance of Coolvia Creek and the Coolvia site, but not so with respect to other rockholes and waterholes asserted by the native title party. There is nothing in the decision which indicates that the significance was attributed to all tributaries of De Grey River and Shaw River as asserted by the Native Title Parties.
Overall, this case is more akin to Nyamal v Formula Resources. The evidence here is too general to enable me to make a finding of particular significance for s 237(b) with respect to either Dalton Creek or Paddy Market Creek. Accordingly, it is not necessary for me to consider the question of likely interference from the grant of the licence.

Determination

I determine that the grant of exploration licence E45/5893 is an act attracting the expedited procedure.

Nerida Cooley
Member
19 July 2022