Kevin Allen & Others on behalf of Nyamal #1 v Haoma Mining Nl

[2022] NNTTA 20

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Nyamal #1 v Haoma Mining NL [2022] NNTTA 20 (16 March 2022)

Application No: WO2021/1327

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 & Others on behalf of Nyamal #1 (WC1999/008)

(native title party)

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Haoma Mining NL

(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 Helen Shurven

Place:

Melbourne

Date:

16 March 2022

Catchwords:

Native title – future act – proposed grant of amalgamation 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 – limited evidence – expedited procedure – the act is an act attracting the expedited procedure

Legislation:

Native Title Act 1993 (Cth) ss 29, 32, 151(2), 237

Aboriginal Heritage Act 1972 (WA)

Cases:

Kevin Allen & Others on behalf Nyamal #1 v Brand New Ventures Pty Ltd and Another [2021] NNTTA 49 (Nyamal v Brand New Ventures)

Nyamal Aboriginal Corporation v Onanong Perkin & Others [2020] NNTTA 10 (Nyamal v Perkin)

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208

Representatives of the native title party:

Grace Manning-Davis and Tara Babu, Arma Legal

Representative of the grantee party: Jacob Loveland, Lawton Macmaster Legal

Representatives of the Government party:

Andrea Wyles and Jake Lincoln, Department of Mines, Industry Regulation and Safety

Keahn Sardinha, State Solicitor’s Office

REASONS FOR DETERMINATION

1. 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 amalgamation licence E45/4060-I (AM616757) to Haoma Mining NL (the grantee party). The notice for the proposed 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 proposed 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)).

2. The proposed licence is under one kilometre square in size, and approximately 13 kilometres southerly of Marble Bar. It is overlapped in part by the Nyamal #1 native title claim (WC1999/008). The Nyamal #1 native title claimants (Nyamal) objected to the expedited procedure statement, and lodged an objection application with the National Native Title Tribunal. The application asserted all limbs of s 237 would be offended by the grant. The subsequent materials submitted for the inquiry focused on s 237(b) of the Act.

3. There was no evidence provided in relation to sections 237(a) or 237(c), and on a common sense basis, I conclude there is unlikely to be interference in accordance with those limbs. The remainder of these reasons focus on s 237(b). Having read party materials, I confirmed I would make the inquiry decision on the papers (see s 151(2) of the Act). No party took issue with that approach.

Limited submissions from Nyamal

1. Nyamal provided contentions, and did not provide any reply to the State and grantee party contentions.  No statement or affidavit evidence was provided in support of the Nyamal contentions.

2. I adopt the principles and reasoning I outlined in Nyamal v Perkin in relation to s 237(b) (at [5]). I also note, as explained by Carr J in Ward v Western Australia (at [26]):

   In administrative matters such as these, any party (not just the native title party) has what might be termed an evidentiary choice. They might choose not to lead any evidence on a particular issue.  But that does not necessarily mean that they must fail on that issue ie that they have an evidential onus of proof… where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence.  Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the common sense approach to evidence.

Consideration of s 237(b)

1. The State provided their contentions, as well as mapping, and other materials from the State’s databases.  Their 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 searches showed no sites or areas recorded on the proposed licence, under the AHA.

2. Nyamal assert (at 13-16) that there are four sites recorded on the AHIS which are within six to ten kilometres of the proposed licence, and that these will be subject to interference from the grant of the amalgamation.  They name the sites and assert they have significance and also assert interference will occur, but do not provide further detail as to why the sites are of particular significance.  Nor do they provide information or evidence about how exploration activities on the amalgamation area would cause interference to these sites, which are six or more kilometres away. 

3. Nyamal reserved its right to provide further evidence (at 21), however, none was provided. 

4. Haoma’s contentions outline and map the location of the four AHIS sites asserted by Nyamal as being of particular significance, and Haoma assert (at 23) there is no evidence of any sites of particular significance within the amalgamation area. They also assert (at 24-25, 27) that it has not been established any sites of particular significance will be subject to interference as contemplated in s 237(b) of the Act. The State make similar arguments (at 22-23).

5. The State also argue (at 21, 25-27) that sites and areas referred to by Nyamal in the expedited procedure objection application (for example, artefact scatters, scarred trees and escarpments related to rock shelters) have not been expanded on by Nyamal during the inquiry.

6. I concur with the arguments raised by the State and Haoma, regarding the lack of any evidence showing sites of particular significance exist, or in relation to the proposed licence.  There is no information about how the sites referred to relate to the proposed licence, or the nature and extent of the significance of the sites in accordance with Nyamal traditions.  There is also no information about other sites or areas on or near the proposed licence.  In respect of such sites, I adopt my comments and reasoning from Nyamal v Brand New Ventures (at [16]-[17]).

Conclusion

1. On the basis of the limited information provided by Nyamal about any sites or areas in relation to the proposed licence, I do not find any sites of particular significance exist in the context of the proposed licence. As such, I do not need to go on to examine whether or not there is likely to be interference with such sites, for the purposes of s 237(b).

Determination

1. My determination is that the grant of E45/4060-I (AM616757) to Haoma Mining NL is an act which attracts the expedited procedure.

Helen Shurven
Member
16 March 2022