Kevin Allen & Others on behalf of Nyamal #1 v Adam Woelk and Others
[2021] NNTTA 47
•9 September 2021
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Adam Woelk and Others [2021] NNTTA 47 (9 September 2021)
Application No: | WO2021/0897; WO2021/0898 |
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)
(native title party)
- and -
Adam Woelk
(grantee party)
- and –
Thomas Walter Woelk
(grantee party)
- and –
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 9 September 2021 |
Catchwords: | Native title – future acts – proposed grant of special prospecting licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community and social activities – whether acts likely to interfere with sites or areas of particular significance – whether acts likely to involve major disturbance to lands and waters – expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 70 Native Title Act 1993 (Cth) ss 29, 31, 151, 237 |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (‘Nyamal Determination’) Kevin Allen and Others on behalf of Njamal v Gijsbertus Marinus John Merks and Another [2017] NNTTA 41 (‘Njamal v Merks’) Kevin Allen & Ors on behalf of Nyamal #1 v Beatons Creek Gold Pty Ltd and Another [2021] NNTTA 40 (‘Nyamal v Beatons Creek’) Kevin Allen and Others (Nyamal #1) v Bushwin Pty Ltd and Another [2019] NNTTA 75 (‘Nyamal v Bushwin’) Kevin Allen and Others on behalf of Nyamal #1 v Mining Equities Pty Ltd [2020] NNTTA 78 (‘Nyamal v Mining Equities’) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representative of the native title party: | Grace Manning-Davis, Arma Legal |
| Representatives of the grantee parties: | Adam Woelk and Thomas Walter Woelk |
| Representatives of the Government party: | Catherine Wallace, State Solicitor’s Office; Bethany Conway, 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 two special prospecting licence applications numbered P46/2020-S and P46/2021-S (licences) to Adam Woelk and Thomas Walter Woelk (Woelk).
Both licences are located about 48 kilometres easterly of Nullagine in Western Australia, wholly within the area of the Nyamal #1 native title determination application (WAD20/2019) (Nyamal Claim).
The State of Western Australia (State) considers the grant of each licence is an act attracting the expedited procedure and included a statement to that effect in a notice given under s 29 of the NTA.
If the expedited procedure applies to a licence it may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA. The registered native title claimant for the Nyamal Claim (Nyamal) lodged objections in the Tribunal against the State’s inclusion of the expedited procedure statement.
I have been directed to constitute the Tribunal in order to determine whether or not the expedited procedure applies to the grant of each licence. For the reasons outlined below I have concluded that the expedited procedure applies in each case.
My determination is made without the need for a hearing
On 7 May 2021 and 8 July 2021, I made directions for the conduct of the inquiry in these matters. The State provided contentions and evidence consisting of mapping, Quick Appraisals containing key tenement information for each licence, Aboriginal Heritage Inquiry System (AHIS) searches, copies of the licence applications and proposed endorsements and conditions to be imposed upon grant. Nyamal provided contentions together with AHIS searches for heritage sites in the vicinity of the licences. Nyamal elected not to provide a reply. Mr Adam Woelk provided brief comments by email. Nothing was received from Mr Thomas Woelk.
Having reviewed the material, I am satisfied that I can adequately determine these matters without the need for a hearing (see s 151(2) NTA).
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 each licence (see overview of approach in Yindjibarndi v FMG at [15]).
Details about the licences
It is useful at the outset to outline key information about the licences, which is relevant to my consideration of each limb of s 237.
A special prospecting licence is a prospecting licence for gold which may be granted over land that is subject to the grant of a current tenement. In this case both licences fall within the area of exploration licence E46/1197 held by Valroc Ventures Pty Ltd.
Section 70 of the Mining Act 1978 (WA) (Mining Act) sets out the requirements for a special prospecting licence over land subject to an exploration licence. Such a licence must not exceed 10 hectares in area, and the extraction of earth, soil, rock, stone, fluid or mineral bearing substances in excess of 500 tonnes is not permitted without prior Ministerial approval.
Woelk seeks a four year term for each licence, which is the maximum period specified in s 70 of the Mining Act. The area of each licence as shown on the State’s Quick Appraisals, is within the permitted limit at 9.28 hectares for P46/2020-S and 8.15 hectares for P46/2021-S. Further, according to the State’s proposed endorsements and conditions, neither licence will authorise mining on any portion of the land below five metres from the surface.
Both licences are situated wholly within the Bonney Downs pastoral lease. The State’s mapping shows that the licences are near to each other and suggests that the westerly corner of P46/2020-S abuts the easterly corner of P46/2021-S.
In terms of access to the licences, Mr Adam Woelk states that there is easy access “as there is a track from main road and the tenements are only 100m or so off the main road”. This is generally consistent with the State’s mapping which shows Skull Springs Road in close proximity to the southerly boundary of each licence, especially P46/2020-S.
The AHIS searches provided by the State reveal there are no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA), and no other heritage places within the area of either licence.
Predictive assessment for s 237
Is the grant of either licence likely to interfere directly with Nyamal’s community or social activities?
Section 237(a) is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that this involves “an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts are outside the scope of interference contemplated by the section.
Nyamal has not provided any evidence of community or social activities undertaken in the area of either licence. As it has done in a number of recent matters, Nyamal relies on the Nyamal Determination, and what it says are references in the Court’s reasons to Nyamal People engaging in the community and social activities of hunting and gathering in the determination area, as well the decision in Nyamal v Bushwin (Contentions at 4–8).
I recently considered near identical arguments in Nyamal v Beatons Creek. Similar to the facts in that matter:
(a)Nyamal acknowledges that the licences are about 30 kilometres from the Nyamal Determination area; and
(b)the State’s mapping at Annexure 5 to its contentions indicates the nearest of the licences (P46/2020-S) is about 13 kilometres from the tenement considered in Nyamal v Bushwin.
For the same reasons given in Nyamal v Beatons Creek, the arguments put by Nyamal here are insufficient to support any finding that interference within the scope of
s 237(a) is likely. The decision in Njamal v Merks which I also considered in that case is not relevant here.
Accordingly, I am not satisfied that the grant of either licence is likely to cause interference within the meaning of s 237(a).
Is the grant of either licence likely to interfere with areas or sites of particular significance to Nyamal?
An area or site within the meaning of s 237(b) must be known and be able to be located, and be of special or more than ordinary significance to the native title holders (see discussion in Yindjibarndi v FMG at [17]–[18]).
Nyamal has not identified any areas or sites of particular significance within the licences. However, it does identify the three sites in the vicinity of the licences which it says are of significance to Nyamal. These are:
(a)a registered Aboriginal site named Eastern Creek Nullagine (ID 8303), being of a type described as ‘Artefacts/Scatter, Repository/Cache’, which Nyamal says is located within 10 kilometres of the licences; and
(b)two ‘Other Heritage Places’ being Black Granite Boss (ID 12155) and Nullagine East (ID 12151), each described as ‘Engraving’ and both of which Nyamal says are located within eight kilometres of the licences.
While Nyamal contends that each of these sites is significant, there is no evidence of particular significance in accordance with Nyamal’s traditions. All that is provided is a copy of the AHIS search for each site. In Nyamal v Mining Equities at [33], President Dowsett described Nyamal’s assertions of the evidentiary value of a registered site for the purposes of s 237(b) as ‘misconceived’. Coincidentally, it appears, from the Tribunal’s online mapping tool Native Title Vision, that the registered site considered in Nyamal v Mining Equities is the Eastern Creek Nullagine site ID 8303 relied upon here.
On the material provided, I am unable to conclude that any of the three identified sites is of particular significance to Nyamal within the meaning of s 237(b) and it is therefore not necessary for me to decide the question of likely interference. However, in that respect, I note that Nyamal simply asserts that the grant of the licences is likely to cause “significant interference” with the three identified sites. This contention is unexplained and unsubstantiated and, given the location of the sites, the nature of the licences and the available access, appears spurious. There is nothing in the material to suggest any interference is likely, let alone significant interference.
Will the grant of either licence involve major disturbance?
As in Nyamal v Beatons Creek, Nyamal does not address the question of major disturbance and the requirements of s 237(c) but contends simply that “any disturbance to land and waters is too much disturbance”. As I noted in that case at [31], that assertion is inadequate and has been consistently rejected by the Tribunal.
The licences in question are special prospecting licences to be granted over an existing tenement as detailed above and, on the material provided, there is nothing to indicate that the grant of either is likely to involve major disturbance as contemplated by
s 237(c).
Determination
I determine that the grant of each of P46/2020-S and P46/2021-S to Adam Woelk and Thomas Walter Woelk is an act attracting the expedited procedure.
Nerida Cooley
Member
9 September 2021
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