Kevin Allen & Others on behalf of Nyamal #1 v Haoma Mining Nl & Another
[2020] NNTTA 45
•11 May 2020
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Haoma Mining NL & Another [2020] NNTTA 45 (11 May 2020)
Application No: | WO2019/1069 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection application
Kevin Allen & Others on behalf of Nyamal #1 (WC1999/008)
(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
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 11 May 2020 |
Catchwords: | Native title – future act – proposed grant of exploration 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 – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 237 Aboriginal Heritage Act 1972 (WA) s 18 |
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) 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) Little v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FCR 576 (Little v Oriole) 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 Angela Murphy, Bethany Conway and Matthew Smith, 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 E45/5478 to Haoma Mining NL (Haoma).
The notice 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 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)).
The licence is on land subject to the Nyamal #1 registered native title claim (WC1999/008), and is approximately 37 kilometres from Marble Bar. Nyamal lodged an objection with the National Native Title Tribunal (the Tribunal) against the expedited procedure applying to the licence.
Having been appointed to conduct this inquiry, 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 argued the expedited procedure should not apply to the licence on the basis that the grant will likely cause the interference contemplated in ss 237(a), (b) and (c). The Nyamal submissions and argument refers to sections from a determination of the Federal Court in Allen v Western Australia, which deals with a nearby area to the licence where the Nyamal Aboriginal Corporation hold native title in trust for the Nyamal People. Nyamal argue these sections of the Court’s decision support 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 licence to the determined area, rather than specific references to the licence itself, particularly in relation to s 237(a) and (c).
Inquiry directions contemplated a hearing if necessary. Parties contested some aspects of the evidence which was provided with the Nyamal reply, and to expedite the matter, I directed an oral hearing be held to ensure 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 does not apply, for the reasons outlined below, particularly in relation to s 237(b).
Preliminary Matters
Nyamal provided contentions and a reply to the State and Haoma contentions. Haoma and the State considered the Nyamal reply included information beyond what is normally considered a ‘reply’, as it included an affidavit from Mr Kevin Edward Allen, a Nyamal traditional owner who could speak for the licence area. I agreed with that argument and allowed the State and Haoma to make final submissions in the inquiry, which they did. This information was then fully ventilated at the hearing, together with any final comments from Nyamal.
The State’s contentions included mapping, and materials from the State’s databases, as well as Haoma’s statement which accompanied their licence application. The State’s material also included a quick appraisal outlining the underlying tenure and a search of areas recorded on the Aboriginal Heritage and Inquiry System (AHIS), held under the Aboriginal Heritage Act 1972 (WA) (AHA).
During the hearing, the State noted that places recorded, but not registered, on the AHIS have either not met the threshold for registration or have not sufficiently been tested for registration. However, the recording of a site or area on the AHIS does not mean it is, or is not, 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 also exists a ministerial discretion under s 18 of the AHA, permitting consent to certain uses of areas such as sites recorded on the AHIS. These are issues to which I must turn to in my analysis of the material presented in this inquiry.
The AHIS searches provided by the State record a scatter/artefact heritage place called Coolvia Creek on the licence (which I will refer to as the Coolvia site), not far from the geographical area of Coolvia Creek which runs through the south of the licence. The Coolvia site and Coolvia Creek are near each other on the licence. The word ‘Coolvia’ is referred to also as Coolyia in party materials, and any reference in this decision is as per the terminology used in the relevant material. The State contentions argue (at 9), which was reiterated at the hearing, that the location of the Coolvia site is unreliable. However, Mr Allen has placed the site on the licence, it is said to be near Coolvia Creek, and that the area around the Creek has scatters and artefacts which are sacred to Nyamal. I am satisfied, based on the evidence, that the Coolvia site is a scatter/artefact site, is near Coolvia Creek and is on the licence.
Section 237(a): Is the grant of the licence likely to interfere directly with the community or social activities of Nyamal?
The evidence for 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 licence is near to the determined area, however, the evidence provided is broad, without providing support as to why the information specifically applies to social or community activities conducted on the licence. The affidavit evidence refers briefly to law time ceremonies (at 9), hunting (at 11), and camping (at 13), but the material focuses more on Coolvia Creek’s particular significance (as relevant to s 237(b)), rather than to social and community activities (as relevant to s 237(a)).
The Nyamal reply (at 9) also refers 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’. 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 this licence. As such, in relation to the general assertions in this inquiry about law time ceremonies, hunting, and camping, I adopt my reasoning at [4] and [16]-[19] 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 direct interference from the activities of 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]), 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.
Are there any sites of particular significance on the licence?
Mr Allen refers to Coolvia Creek, the AHIS recorded site (at 6, 9 and 10 for example), and to Coolvia Creek the geographical feature (the Creek) (at 8, 9, 10 and 12 for example) which comes off the Shaw River ‘which is a big important river in Nyamal country’.
Mr Allen outlines that the Creek is part of the dreamtime story Wallawullung, and is a boundary feature for the Nyamal group. Mr Allen also outlines why the story of Wallawullung is significant to Nyamal, and particularly for Nyamal men (at 7). It is asserted the Creek is used as a water source for Nyamal families (at 13).Mr Allen refers to ‘the rich Nyamal traditional culture along the Coolyia Creek’ (at 10).
In relation to the Coolvia site, Mr Allen asserts it is ‘near the creek and it is evidence of where our mob lived and you will find lots of significant objects throughout this other heritage place’ (at 9). The location of the site is consistent with AHIS mapping provided by the State. Mr Allen states the ‘site is telling of physical and spiritual meaning to Nyamal and…Nyamal people see this site as part of our history and culture, connection with country and land and waters, Nyamal spirituality and Wallawullung dreaming’ (at 10).
The evidence also refers to rockholes and waterholes ‘in and around the tenement’, but there is little other material in support of the location and significance of the rockholes and waterholes in relation to the licence or the traditions of Nyamal.
As to whether Coolvia Creek or the Coolvia site are sites of particular significance, the State contend in their written materials and at the hearing that these areas had not been sufficiently described to characterise them as being of particular significance. The State also contend there is insufficient evidence to identify the dreamtime area associated with either the Creek or the Coolvia site. Haoma make similar arguments in their written materials, and relied on these at the hearing.
While the evidence provided is relatively brief, it is targeted to identifying these areas within the licence, and to the connected traditions which make the areas particularly significant to Nyamal. I am satisfied the evidence supports that the portion of Coolvia Creek which crosses through the licence, and the Coolvia site, are areas of particular significance. I am satisfied they are intimately connected to traditions of Nyamal, and to the dreamtime story of Wallawullung. I am not satisfied the rockholes and waterholes are such sites.
Is it likely Coolvia Creek or the Coolvia site are likely to be interfered with by activities of Haoma?
The Nyamal reply contentions (at 32) argue the licence requires a survey to be conducted under the Nyamal heritage protection agreement. Nyamal are concerned that the Coolvia site could be destroyed by Haoma’s exploration activities. Their reply also outlines (at 26) that vibrations from exploration activities, including access roads and drilling in the vicinity, may impact the Coolvia site. The Nyamal reply (at 26) refer to dust impacting the integrity of both sites. Mr Allen refers to the importance of artefacts at the Coolvia site being untouched (at 9), and also refers to the importance to Nyamal traditions of being able to ‘protect and maintain areas of cultural significance’ (at 5). The Nyamal native title claim registered rights and interests includes the right to maintain and protect places of importance on the land and in the waters claimed, and exercising the responsibility for looking after the area in accordance with Nyamal traditional laws and customs.
Haoma argued (at 6.7 of their contentions, for example), that Nyamal had not established that the grant of the application is likely to cause interference with such sites. Haoma’s contentions (at 7.2) outlined they intend to explore for alluvial gold, which is ‘gold dust found in the soil that has been left behind by flowing water’. The statement Haoma provided to the State with their licence application refers to the area being prospective for other metals. Haoma contentions (at 7.4) and the statement assert that prior to carrying out ground disturbing activity (such as track clearing and drilling), they intend to obtain the relevant approvals and clearances. According to the statement, it is likely drilling will occur as needed, and prior to that, ‘low impact exploration’ would be conducted including geochemical and rock chip sampling ‘over all the terrain amenable to conventional soil sampling’.
So, the question is whether Haoma, acting lawfully, would be likely to interfere with either the Coolvia site or Coolvia Creek, should the licence be granted? The State intend to impose a Regional Standard Heritage Agreement (RSHA) condition on the grant of the licence. However, Haoma can apply to the State under s 18 of the AHA for permission to disturb a site or area relating to Aboriginal heritage. I note Haoma say they will conduct low impact activities such as soil and rock chip sampling over all of the licence amenable to such activity, and so it is likely that will include the Coolvia site, which I accept contains artefacts, and which is connected to the dreamtime story.
I do not believe such low impact activities would affect Coolvia Creek. However, the State’s endorsements and conditions provide few limits on how Haoma may use and access waterways on the licence. This is subject to necessary approvals from State departments which do not appear to involve consultation with a native title party. Given the dreamtime connection, it is possible that use of the Creek by Haoma during the course of exploration activities would cause interference for the purpose of s 237(b).
The State reply (at 16) contends there is no evidence provided about how the activities of Haoma will interfere with Coolvia Creek, and outline their view that the regulatory regime will protect the Coolvia site and the Creek from interference. The Nyamal reply argues the AHA does not afford any protection to sites of particular significance, and say that since AHA’s enactment (in 1972), only five prosecutions have been made, which is uncontested by the other parties.
Haoma’s contentions (at 8.6) say they will report any potential sites, however, it is not clear how they will recognise such sites, or who they would be reporting to. The Nyamal reply (at 28) says that people who are not Nyamal should not be in a position to accidentally come across sacred artefacts and scatters near Coolvia Creek and that AHA is inadequate to protect the Coolvia site (at 29).
I note McKerracher J’s comments in FMG v Yindjibarndi (at [64]-[76]), that what is substantial and not trivial interference under s 237(b) must be assessed by the traditions of the native title party. While Mr Allen’s evidence in relation to interference in the affidavit is brief, it is focused such that it highlights the importance of the area of Coolvia Creek and the Coolvia site, and the importance of the dreamtime story to Nyamal men’s initiation tradition, as well as Nyamal traditions to protect and maintain areas of cultural significance such as the Coolvia site and Coolvia Creek (at 5, 7 and 9 for example). This includes the importance of not touching artefacts in those areas (at 9). I am satisfied that Mr Allen’s evidence regarding interference to these sites is sufficiently outlined in relation to Nyamal traditions.
I am also satisfied that what others may regard as slight interference to either the Creek or the Coolvia site, would be regarded by Nyamal as substantial interference in accordance with Nyamal traditions. Having accepted the Coolvia site and the portion of the Creek on the licence 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, including the RSHA, 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).
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?
In relation to assessing s 237(c), I am required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it). This evaluation is taken from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little v Oriole Resources at [39]-[50]). The Nyamal materials with respect of s 237(c) are 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 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 E45/5478 to Haoma Mining NL is not an act that attracts the expedited procedure.
Helen Shurven
Member
11 May 2020
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