Kevin Allen & Others on behalf of Nyamal #1 v Youanmi Metals Pty Ltd & Another
[2019] NNTTA 110
•27 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Nyamal #1 v Youanmi Metals Pty Ltd & Another [2019] NNTTA 110 (27 November 2019)
Application No: | WO2018/1061 |
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 party)
- and -
Nyamal Aboriginal Corporation (WCD2019/010)
(native title party)
- and -
Youanmi Metals Pty Ltd
(grantee party)
- and -
The State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 27 November 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to directly interfere with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure attracted |
Legislation: | Native Title Act 1993 (Cth) ss 31, 32, 151, 237 |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Daisy Lungunan and Others on behalf of Nyikina and Mangala/ Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (Lungunan v Geotech) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; (2014) 227 FCR 182 (FMG v Yindjibarndi) Little v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FCR 576 (Little v Oriole Resources) Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (Western Australia v McHenry) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara) |
| Representative of the native title party: | Ashley Truscott, Arma Legal |
| Representative of the grantee party: | Jacob Wotherspoon, All Mining Legal Pty Ltd |
| Representatives of the Government party: | Bethany Conway and Matthew Smith, Department of Mines, Industry Regulation and Safety Wanjie Song, State Solicitor's Office |
REASONS FOR DETERMINATION
This decision considers whether or not the expedited procedure described in s 32 of the Native Title Act 1993 (Cth) (the Act) applies to the grant of exploration licence E45/5036 (the licence) to Youanmi Metals Pty Ltd (Youanmi). In its public notice of the licence, the State of Western Australia (the State) included a statement that it considers the grant to be an act attracting the expedited procedure.
The Nyamal Aboriginal Corporation holds non-exclusive native title in trust for the Nyamal People #1 (Nyamal) over most of the licence (see Allen v Western Australia). The licence covers 223.27 square kilometres and is 74 kilometres north-east of Nullagine. Nyamal lodged an application with the National Native Title Tribunal (the Tribunal), objecting to the State’s assertion that the expedited procedure applies to the grant of the licence.
My decision as to whether or not the expedited procedure applies must be based on the criteria set out in s 237 of the Act. Specifically, I must determine whether the grant of the licence is likely to, in summary:
(a)directly interfere with community or social activities carried on by Nyamal;
(b)interfere with areas or sites of particular significance in accordance with the traditions of Nyamal; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
For the reasons detailed below, I determine the expedited procedure applies to the grant of E45/5036. The effect of this is the State can grant this licence without the s 31 requirement for negotiations to occur between Nyamal, Youanmi and the State.
Preliminary Matters
All parties lodged contentions. The State also provided, among other things, information about land tenure, and the results of searches undertaken of the Department of Planning Lands and Heritage’s Aboriginal Heritage Inquiry System (AHIS).
Nyamal’s contentions included the affidavit (July affidavit) of Ms Evelyn Mitchell, dated 31 July 2019, who is a Nyamal traditional owner - I accept Ms Mitchell’s authority to speak for the area of the licence on behalf of Nyamal. Nyamal’s reply included a further affidavit (September affidavit) from Ms Mitchell, dated 13 September 2019, addressing some of the information provided by the State and Youanmi.
Despite the September affidavit being provided at the point of the inquiry reserved for contentions in reply, the State advised all parties were, nonetheless, of the view that matter could be determined on the papers. Considering the materials before me and the parties’ views, I concluded the matter could be determined on the papers, as I am entitled to do under s 151 of the Act.
Is there likely to be direct interference with Nyamal’s community or social activities?
The Tribunal is required to make a predictive assessment of whether the grant of the licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). The notion of direct interference involves an evaluative judgment that the grant of the licence is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith v Western Australia at [26]).
What activities do Nyamal undertake on the licence?
Nyamal refer to a cultural practice in the July affidavit (at 7), regarding what happens when family members pass away. It is stated this cultural practice occurs in the licence and Elsie Creek although it is not clarified whether the cultural practice can only be undertaken on a certain part of the creek, or whether that part of the creek is only on the licence. According to the State’s tenure information, Elsie Creek runs through the licence. The Nullagine River is also said to be an important place for Nyamal activities. The river travels through the south-western corner of the licence - again it is not clear whether social and community activities connected to the river are isolated to that part within the licence.
Hunting, gathering and fishing are activities outlined to occur on the licence (July affidavit at 6, 7, 12 for example), as well as intergenerational teaching and storytelling (July affidavit at 12-13). However, it is not clear where on the licence these activities occur, such that exploration activities will substantially interfere with those activities.
It is also said that men’s and women’s dreamings and songlines overlap and travel through the licence and nearby, and those songlines are the focal point for some community and social activities (July affidavit at 16-17). However, such activities have not been sufficiently described to support a finding that exploration activities would directly and substantially interfere with them.
The contentions (at 17) outline that the ‘many’ social and community activities Nyamal engage in ‘will essentially be stopped by the grant of the exploration tenement and for that reason the expedited procedure should not apply’. It is not clear how exploration activities, which by their nature are limited in scope and intensity as compared with, for example, mining activities, would stop any Nyamal social and community activities in the licence.
Nyamal’s reply and the September affidavit provides some clarification in relation to the issue of interference of social and community activities. For example, the September affidavit asserts that Youanmi’s activities will interfere with Nyamal’s ability to:
(a) hunt and gather resources in this area;
(b) practice our ceremonies in this area; and
(c) protect and maintain areas of cultural significance in the area.
In that affidavit, a ‘ceremony place’ which is described as being ‘on country in the tenement’ (at 6) is described very briefly, and it is not clear how often social and community activities are conducted which are associated with that place, or approximately where it is on the licence. It is said that up to 400 people would participate in such an activity when the native title determination ceremony is held (in September 2019), but there is nothing further about other times such activities are conducted, or how many people participate.
There is further information in the September affidavit (at 9) about another cultural practice associated with the water from Elsie Creek, where up to 50 people will participate. Nyamal’s reply (at 22) refers to ‘community and social practices…involving 50 Nyamal traditional owners’ occurring in November to December annually ‘which will be significantly disturbed within the meaning of s 237(a)’ by exploration activities. Little further detail is provided about those activities. The September affidavit describes that law and culture time is from around November to December, when the boys go through Nyamal law (at 10-11), and reference is made to the area of the licence being involved in such, however, no detail is provided.
On numerous occasions, the Tribunal has balanced a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities and has concluded exploration and social or community activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]). In this inquiry, I have balanced the general and limited evidence provided in relation to Nyamal’s community and social activities against the activities Youanmi could undertake if it exercised the full suite of rights available to it under s 66 of the Mining Act 1978 (WA). In Yindjibarndi Aboriginal Corporation v FMG Pilbara, the approach used in previous Tribunal decisions is summarised, as well as the approach of the Federal Court – it is noted that ‘the level of interference with community and social activities must be substantial rather than trivial’ (at [16]).
Conclusion
I find there is insufficient evidence before me to establish Nyamal undertake social or community activities on the licence to an extent that they may be substantially interfered with by the Youanmi exploration activities. I conclude both parties’ activities are likely to be able to coexist, and that direct interference with Nyamal social or community activities on the licence is not likely.
Is there a real risk of interference with areas or sites of particular significance to Nyamal?
In considering this limb of s 237, and the evidence provided in this inquiry, I note the following principles:
·a site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at 34-35).
·to be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91], citing Western Australia v McHenry).
·if I am satisfied the site or area is of particular significance, I must assess the potential interference, in the context of the native title holders traditions. The nature of the site or area, the nature of the potential interference and the laws and traditions of the native title holders are relevant considerations (Silverv Northern Territory at [88]).
What areas or sites are identified by Nyamal?
Because of the number of sites and areas broadly referred to, I address each one below (at [20]-[30]) and then draw conclusions on all the sites and areas (at [31]-[35]).
Elsie Creek/ Nullagine River
Nyamal’s contentions (at 29 and 33) outline that Elsie Creek and the Nullagine River are ‘significant to all Nyamal people’ and are connected to a dreamtime story in Nyamal traditional law and culture. It appears there are men’s and women’s dreaming stories which run through the licence, and the creek and river are connected to the men’s story (July affidavit at 16 and 17). As noted earlier, materials provided by the State indicate that the creek and river run through the licence.
The State (at 28) and Youanmi (at 31 and 45) argue that Nyamal have not established why the creek is of particular significance, apart from reference to a yinta (permanent pool). There is little detail about the yinta in the Nyamal materials. The July affidavit refers to a yinta as being in ‘Nyamal country’, so the description is broader than being in the licence itself.
Hills
Nyamal assert in the July affidavit (at 14) that there are hills in the licence area which ‘are significant’ and ‘significant to Nyamal People’ (at 14). Nyamal women cannot go near the hills, ‘it’s a place for men only’ related to law grounds. The concern is ‘…that the explorers are going to the hills without permission from the elders, the men’.
Nyamal’s reply and the September affidavit (at 12) refer to ‘too many hills in the tenement close to the east and central northern part of the tenement and no women are allowed to climb them. Ladies are not allowed to talk about it, not even its significance. The hills have names known only to men’.
Youanmi argues (at 29) there is no explanation in the materials as to why or how the male restricted site is significant (beyond reference to it being a ‘law ground’) and that evidence does not identify where within the licence area it is located. The State argues (at 44) there is no evidence which enables the hills to be located within the licence, nor have Nyamal provided sufficient evidence about the particular significance of these sites.
I note the State mapping shows Baroona Hill as being close to the south-western corner of the licence. However, the evidence does not support a conclusion that this is a hill being referred to in the affidavits.
Grave
Nyamal assert there is a grave in the vicinity of the licence. It appears the grave is at or near a place called ‘twenty mile’ which is described as ‘a place off Nullagine in the tenement’ (July affidavit at 21-22; September affidavit at 16). The State argue (at 46) that it ‘is unclear whether ‘twenty mile’ is located within the licence area’. The State refer to their mapping which indicates ’20 Mile Well’ is located outside the licence area. I note there is an ‘Old 20 Mile Well’ and a ‘New 20 Mile Well’ marked on the map – both of which are approximately 20 kilometres north-east of the licence.
Nyamal do not provide any mapping with their contentions, or with the affidavit evidence. Nyamal’s reply does refer to interference with graves being possible, and generally states (at 36) that ‘the burying of ancestors in correct and appropriate graves is a significant part of Nyamal culture and custom’. Some of the September affidavit (at 17 for example) also addresses disturbance of a grave. This goes more to the question of interference, and it must be established that a site is of particular significance prior to the issue of interference with such a site being considered.
The evidence suggests to me that the grave is not on the licence area. This does not necessarily mean it is not of particular significance, however, even were I to determine it was of particular significance, the grave being some distance from the licence means that interference from exploration activities would usually be unlikely.
Drawings, paintings, rock carvings
Nyamal assert in the July affidavit (at 18) there are drawings, paintings, rock carvings, and paintings on the rocks in the licence area. The Nyamal material is very general in this respect. Youanmi (at 31) and the State (at 47) argue that Nyamal have not provided information regarding the particular significance of these sites, or their location. The September affidavit provides some clarification (at 13) when it is outlined there ‘…is rock art of animals throughout the tenement and the carvings are on the hills. Sometimes you look for grinding stones where damper has been made and all of this is in the country of the tenement’. However, the information is broadly cast.
Widgerina Rockhole
The September affidavit (at 14) refers to the Widgerina Rockhole (AHIS Site 12154), which is located off the licence, to the east. It is outlined that ‘Nyamal people camped here during winter as it would have provided warmth near the creek bed. There are artefacts, engravings on stones and a water source are located there and are very significant to Nyamal people connected to the tenement as a place where Nyamal elders spent time’. Reference to the rockhole is made in broad terms, and as with the grave, given it is not on the licence, and no further detail is provided, even were I to conclude the rockhole was of particular significance, it is unlikely interference from exploration activities on the licence would occur.
Are these areas or sites of particular significance to Nyamal?
Nyamal’s reply (at 30) contend that the licence area can be described as ‘site rich’, due to the sites they have raised in their materials, and that there is likely to be other such sites in the vicinity. In Lungunan v Geotech, this argument was considered, and it was concluded that s 237(b) is concerned with identifying sites of particular significance - it is not necessary to combine various sites into a general assertion that an area is site rich. I adopt the following reasoning (from Lungunan v Geotech at [43]):
In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation.
I find the term ‘site rich’ is not particularly helpful in this matter. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of Youanmi.
As can be seen by the outline of materials provided in this matter (at [20]-[30] above), the sites and areas are described very broadly, in terms of location and in terms of their relationship to Nyamal traditions. I have no doubt there are areas on the licence which are important to Nyamal, and also areas off the licence which are important to Nyamal (such as the grave and Widgerina Rockhole). However, I must assess the evidence and material provided in the context of s 237(b).
Conclusion
In Western Australia v McHenry (at [14]) the Tribunal clarified that s 237(b) was focused on ‘sites of “particular significance in accordance with their tradition to the holders of native title”’, and that this meant there had to be more than assertions that this was the case. There had to be an explanation as to why a site or area was of special or more than ordinary significance to the native title holders – for example, ‘the distinct and particular character’ of the area, or the ‘particular function, purpose or application’ of the site or area had to be explained (at [15]).
Given the broad nature of the assertions made in this inquiry in relation to sites and areas, both on and off the licence, I find there are no sites or areas of particular significance according to the requirements of s 237(b) of the Act. Given that conclusion, I do not need to assess whether or not such sites will be interfered with by exploration activities of Youanmi.
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 Tribunal is 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 evidence and materials provided by Nyamal in relation to s 237(c) is broad. Youanmi argues (at 37) that Nyamal do not provide any evidence to indicate the grant of the licence is likely to involve major disturbance. The State and Youanmi argue (at 44 and 64 respectively, for example) that exploration activities conducted in the licence area will be unlikely to cause major disturbance to the land or waters concerned. The State go on to argue (at 64) that ‘it does not appear that the licence area has any particular characteristics that would likely result in major disturbance to land and waters’.
Nyamal’s reply (at 46) argues that cultural concerns of Nyamal, not Aboriginal people generally, should be taken into account in this inquiry, and that the concerns of Nyamal are major as they are a significant stakeholder (at 49). The State addresses this argument (at 63) referring to Ward v Western Australia (at [226]-[227]), where the Court endorsed the Tribunal’s approach that:
Subsection (c) does not refer to the standards of the native title holders and that is in marked contrast to the preceding subsections. I think that Parliament intended to leave to the Tribunal the assessment, as a matter of fact in each case, whether an act involved major disturbance to land or waters by giving the ordinary English meaning which the Australian community as a whole (rather than the meaning which would be applied by the native title holders only) would give to those words in relation to any land or waters.
I could not see any evidence or materials which supported exploration activities under the grant of this licence being likely to cause major disturbance for the purposes of s 237(c).
Determination
The grant of exploration licence E45/5036 to Youanmi Metals Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
27 November 2019
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