Kevin Allen & Others on behalf of Nyamal #1 v Giralia Resources Pty Ltd & Others
[2020] NNTTA 16
•18 February 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Giralia Resources Pty Ltd & Others [2020] NNTTA 16 (18 February 2020)
Application No: | WO2018/1056 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kevin Allen & Others on behalf of Nyamal #1 (WC1999/008)
(native title parties)
- and -
Giralia Resources Pty Ltd
(grantee party)
- and -
Haoma Mining NL
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 18 February 2020 |
Catchwords: | Native title – future act – proposed grant of application for amalgamation – 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, 32, 146, 237 |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) 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) Kevin Allen and Others (Nyamal #1) v Bushwin Pty Ltd and Another [2019] NNTTA 75 (Allen v Bushwin) Nyamal Aboriginal Corporation v Abeh Pty Ltd & Another [2019] NNTTA 90 (Nyamal v Abeh) 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 Weld Range Metals Ltd v Western Australia (2011) 258 FLR 9; [2011] NNTTA 172 (Weld Range Metals v Western Australia) 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 Giralia Resources Pty Ltd and Haoma Mining NL (Giralia and Haoma) the following licence:
·AM536061 – amalgamation of a portion of former prospecting licence 45/2550 into the external boundaries of existing exploration licence 45/2922-I.
The notice for the 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 the 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 the traditions of 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)).
The licence is on land subject to the Nyamal #1 registered native title claim (WC1999/008). Much of the material provided by the native title party turns on the proximity of the licence to the area described in Allen v Western Australia (where the Nyamal Aboriginal Corporation holds native title in trust for the Nyamal People in relation to that nearby land). The native title party (Nyamal) lodged an objection against the expedited procedure applying to this amalgamation licence, which is 70 kilometres south west of Marble Bar.
Having been appointed to determine this matter, I must look at what is likely to result from the grant of the licence 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 argue the expedited procedure should not apply to the licence on the basis that the grant will likely cause interference as 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 is said to support their assertion that the expedited procedure should not apply. However, as outlined below, much of that argument is general, and relies on the proximity of the amalgamation licence to the determined area, rather than specific references to the amalgamation licence.
Inquiry directions contemplated a hearing may not be necessary, and all parties were content for me to determine the inquiry on the papers. I saw no reason a hearing should be held.
On balance, I find the expedited procedure does apply to the grant of the amalgamation licence.
Preliminary Matters
Nyamal provided contentions and a reply to the State and grantee party contentions.
The grantee provided contentions.
The State provided contentions, mapping, and other materials from the State’s databases. The material includes a quick appraisal outlining the underlying tenure and searches of the Aboriginal Heritage and Inquiry System (AHIS), held under the Aboriginal Heritage Act 1972 (WA) (AHA).
The recording of a site or area on the AHIS does not automatically mean it is a site of particular significance. Nor does it mean if it is assessed in an inquiry as being a site of particular significance, it will not 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 is also ministerial discretion which exists, permitting interference to occur in some circumstances with sites recorded on the AHIS register.
The searches provided by the State show the following sites or areas are recorded under the AHA for the existing exploration licence E45/2922-I:
· Wilgie Talu (Site ID 6689) – overlapping the licence in the south west;
· Abydos Woodstock rock art and occupation site complex (Site ID 37748) – overlapping the licence in the south west.
The question I must consider is whether these sites exist on, or have a close connection or nexus with, the proposed amalgamation licence, which abuts E45/2922-I. I make further comment about these sites and areas in the analysis of s 237(b) below.
Section 237(a): Is the grant of the licence likely to interfere directly with the community or social activities of Nyamal?
The evidence in this inquiry for s 237(a) is very 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 amalgamation licence is near to the determined area, however, the evidence provided is broad. It does not provide support as to why the information specifically applies to any social or community activities conducted on that licence.
The Nyamal reply (at 14 for example) also reiterates initial contentions, referring to my decision in Allen v Bushwin, where the Tribunal found the act was not an act attracting the expedited procedure. The materials provided in that inquiry were more detailed, and I concluded 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. I draw the 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, rather than a social or community activity.
There is no information about specific social or community activities related to this amalgamation licence with respect to s 237(a). As such, per s 146 of the Act, I adopt my reasoning at [16]-[19], and [28]-[29] of Nyamal v Perkin, and apply that reasoning to the licence 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 Giralia and Haoma.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance, in accordance with the traditions of Nyamal?
Barnes v AngloGold Ashanti (at [49]) explains 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 outlined 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.
Sites of particular significance
As noted at [12], State mapping shows two registered sites overlap the existing licence E45/2922-I, namely:
·Wilgie Talu (Site ID 6689)
·Abydos Woodstock rock art and occupation site complex (Site ID 37748)
The Nyamal reply (at 18-21) refers to my decision in Nyamal v Abeh in support of a conclusion that the Abydos Woodstock site is a site of particular significance, and they assert the Wilgie Talu is also a site of particular significance. Nyamal argue the activities of the grantee are likely to cause interference to both of these sites.
The Nyamal reply further submits (at 23):
…that the registered site of Wilgie Talu (ID: 6689), a ceremonial site, as it has been assessed as meeting s 5 AHA, particularly the criteria in s 5 (b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent, with emphasis on special significance, is a site of particular significance to the NTP and the expedited procedure should also not apply due to this site being overlapped by the tenement and interfered with due to the Grantee Party’s proposed exploration activities.
The Wilgie Talu site is recorded on the AHIS register as being ceremonial and has a location which is restricted. The Abydos complex is recorded as being ‘Ceremonial, Engraving, Grinding Patches/Grooves, Historical’.
As noted in Weld Range Metals v Western Australia (at [149]):
…the Tribunal as an administrative body is entitled to have regard to evidence that has been given in another proceeding, provided the evidence is relevant (in reA Solicitor [1993] QB69, 77; Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126; (2008) 107 ALD 316).
I consider the material in Nyamal v Abeh is relevant, and I accept both these sites are of particular significance to Nyamal. Applying a commonsense approach, and the material which was adduced in Nyamal v Abeh, I do accept these sites are of special or more than ordinary significance to Nyamal in accordance with their traditions. I must then consider the question of interference with such sites.
Are the sites of particular significance likely to be interfered with by exploration activities on the amalgamation licence?
While the sites are said to overlap the existing licence E45/2922-I, the question I need to address is whether exploration activities will cause interference to sites on or near the amalgamation licence (AM536061), which is the subject of this inquiry. Mapping indicates E45/2922-I is actually in three separate segments, rather than one solid licence area. One segment overlaps the two AHIS sites, one segment is very near/adjacent to those sites, and one segment is about 8 kilometres east of those two segments.
AM536061 is to be amalgamated with the segment of E45/2922-I which is approximately 8 kilometres from the overlap with the two AHIS sites. I accept sites or areas of particular significance not located within the licence area to be granted are able to be impacted upon by activities of an explorer. However, there is nothing in the evidence or materials from parties which suggests to me that activities on the amalgamation licence are likely to cause such interference, given its distance from the sites. Had the amalgamation licence been attached to the part of the existing licence which contained the sites, or which was adjacent to the sites, my decision may have been different.
Conclusion
I cannot conclude it is likely any exploration activities of Giralia or Haoma will interfere with either of the sites of particular significance.
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?
The evidence in this inquiry is very similar to that provided in Nyamal v Haoma. The Nyamal contentions and reply refer to sections from the decision in Allen v Western Australia, which they say support their assertion the expedited procedure should not apply with respect to s 237(c). The contentions note the amalgamation licence is near to 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.
As per s 146 of the Act, I adopt my reasoning at [9] and [28]-[29] of Nyamal v Haoma, and apply that reasoning to the licence in this inquiry for the purposes of s 237(c). I do not consider there is sufficient information to conclude interference or disturbance as envisaged by s 237(c) has been met.
Determination
My determination is the grant of AM536061 (E45/2922-I) to Giralia Resources Pty Ltd and Haoma Mining NL is an act that attracts the expedited procedure.
Helen Shurven
Member
18 February 2020
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