Nyamal #1 v Formula Resources Pty Ltd
[2018] NNTTA 68
•7 November 2018
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal #1 v Formula Resources Pty Ltd and Another [2018] NNTTA 68 (7 November 2018)
Application No: | WO2017/0699 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Kevin Allen & Others on behalf of Nyamal (Nyamal #1) (WC1999/008)
(native title party)
- and -
Formula Resources Pty Ltd
(grantee party)
- and -
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: | 7 November 2018 |
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 an act attracting the expedited procedure | |
Legislation: | Aboriginal Heritage Act 1972 (WA) | |
Cases: |
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| Representatives(s) of the native title party: | Ashley Truscott, Arma Legal |
| Representative(s) of the grantee party: | Janet Procak, All Mining Legal Pty Ltd |
| Representatives(s) of the Government party: | Bethany Conway & Michael McMahon, Department of Mines, Industry Regulation and Safety Francis Cardell-Oliver, State Solicitor’s Office |
REASONS FOR DETERMINATION
Introduction and background
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E45/4879 (the licence). On 14 October 2017, the State gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant the licence to Formula Resources Pty Ltd (Formula Resources). The notice indicated the State of Western Australia considers the grant of the licence is an act attracting the expedited procedure.
The licence covers approximately 70.18 square kilometres and is located 49 kilometres south-west of Marble Bar. The licence sits wholly within the Nyamal #1 registered claim area. Nyamal exercised its right to lodge with the National Native Title Tribunal (the Tribunal) an objection against the State’s assertion that the expedited procedure applies. Nyamal states the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely.
I must base my decision on the s 237 criteria. The issues I need to determine in relation to these criteria are:
(a)Is the grant of the licence likely to interfere directly with Nyamal’s community or social activities?
(b)Is the grant of the licence likely to interfere with areas or sites of particular significance to Nyamal?
(c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Parties executed and lodged with the Tribunal a statement which outlined the various facts and issues that were agreed between parties and those that were in dispute. Parties are in agreement that the grant of the licence is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve any major disturbance to relevant land or waters within the meaning of s 237(c) of the Act. Due to parties’ agreement on this issue, and as there is nothing in the material before me that would suggest otherwise, I am satisfied the grant of the licence is not likely to involve major disturbance to the land or waters concerned. Accordingly, my inquiry focusses on the questions listed at (a) and (b) above.
For the reasons outlined below, my decision is that the expedited procedure applies to the grant of the licence.
Preliminary evidentiary matters
All parties provided submissions in this matter. Nyamal’s included the affidavit evidence of Mr Kevin Allen. In his affidavit, Mr Allen states he is a Nyamal elder and an applicant for the Nyamal #1 claim. I accept Mr Allen has the authority to speak for the licence area.
In submitting their statement of agreed facts and issues, parties confirmed they were content for me to proceed on the papers. Based on the material before me, I am satisfied the matter can be determined on the papers without the need for a hearing.
(a) Is the grant of the licence likely to interfere directly with Nyamal’s community or social activities?
To find interference is likely in accordance with s 237(a) of the Act, the evidence must suggest direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native tile party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]). Parties were unable to agree on whether or not the act is likely to interfere directly with the carrying on of a) hunting and gathering resources, and b) practising ceremony.
Are hunting and gathering resources, and practicing ceremony carried out on the licence?
The affidavit evidence in relation to s 237(a) criteria is extremely brief, stating as follows:
I believe that the grant of the expedited procedure of tenement E45/4879 is likely to interfere with the carrying on of activities of the native title holders in particular the following:
(a)The native title holders continue to hunt and gather resources in this area
(b)The native title holders continue to practice ceremony in this area
Nyamal’s contentions state the traditional owners undertake hunting and gathering within the licence area as well as practice traditional and customary ceremony. The contentions state people who are not traditional owners need to seek permission to enter Nyamal country. The contentions state permission is needed so that hunting, gathering and ceremony are not interfered with. Parties could not agree whether or the extent to which these activities occur on the licence. I accept those activities do take place on the licence, as Mr Allen deposes that they do, and there is nothing to suggest to the contrary. I then need to consider the question of interference with these activities.
What activities does Formula Resources intend to undertake on the licence?
Formula Resources’ contentions do not provide details of its proposed activities should the licence be granted – some details of proposed activities are contained in the State’s materials. Those details outline activities proposed in year 1 and 2 of the grant period (for example, field mapping, rock chip and soil sampling). In its proposed work program, Formula Resources says the ‘ultimate aim of the program is to identify and define drilling targets and to implement a drilling, assaying and review program capable of providing thorough evaluation of the targets identified’, and that activity will be contingent on the initial results.
Formula Resources’ contentions state it will not exclude any community or social activities Nyamal intends on carrying out in the licence area unless deemed unsafe. Formula Resources undertakes to notify Nyamal prior to any exploration activity that is likely to restrict activities such as gathering bush tucker, medicines and hunting, and will consult with Nyamal on ways to minimise any disturbance.
Is the grant of the licence likely to interfere directly with Nyamal’s community or social activities?
Although the affidavit evidence states activities such as hunting, gathering and the practice of ceremony take place on the licence, no further details have been provided to support this assertion. For example, the evidence does not specify who participates in these activities, their duration, frequency, or where on the licence area they take place. Further, Nyamal’s contentions and evidence do not articulate how or why the activities of Formula Resources will interfere with its community or social activities.
Documents provided by the Department of Mining, Industry Regulation and Safety show the licence overlaps three live mining tenements (two prospecting licences and one exploration licence), totalling 11.8 percent of the total area applied for by Formula Resources. The State notes the Mining Act 1978 (WA) prevents exploration licences being granted in respect of land that is subject to a mining tenement that has already been granted (except miscellaneous licences) (see ss 18, 57(2c), (2d), and (2h)). The State contends the area available for grant is relevant to my considerations. It states, to the extent the licence overlaps live tenements, the Tribunal should conclude it will have no effect on the activities of the Nyamal community or any sites or areas of particular significance. I do reach that conclusion.
Parties could not agree whether the activities of the explorer will interfere with hunting, gathering or ceremonial activities. Based on the limited evidence before me, while I am satisfied Nyamal do carry on those social or community activities in the licence area, I cannot conclude the grant of the licence and the associated activities of Formula Resources are likely to interfere with Nyamal’s community and social activities.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to Nyamal?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at [34–35]). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
What areas or sites does Nyamal identify to be on or near the licence?
Sites or areas on the licence:
The agreed statement of facts showed parties concurred that Dalton Creek and parts of the Shaw River are on the licence.
Nyamal’s contentions assert the Shaw River area, including the Dalton Creek tributary, is an area of particular significance within the licence area. The Shaw River runs in a north-south direction crossing into the licence area on its eastern edge and again on its northern edge. Dalton Creek crosses through the centre of the licence area. Nyamal’s contentions state the significance of Shaw River is recorded through Nyamal oral history and forms part of Nyamal identity, with early European settlers associating Nyamal people as being beside the Shaw River.
Mr Allen’s affidavit supports this position, stating the Shaw River is an area known to him to be very significant for the Nyamal people and that this information has been passed down to him in the oral tradition. He further states:
The entire Shaw River area is a site for us and should not be viewed piecemeal. My view is that this area should be protected, any interference minimised, and activities negotiated with the Nyamal people so as to keep our cultural sites undisturbed. The Shaw River is part of Nyamal identity.
Nyamal’s contentions contain a lengthy extract from a report prepared for the Water and Rivers Commission of Western Australia, titled Identification and Protection of Aboriginal Cultural Values of the Pilbara Region. Broadly, the extract discusses the spiritual and cultural connection Aboriginal people in the Pilbara have to water sources. The report states that authors of heritage reports found on the Department of Planning, Land and Heritage’s register generally noted the densest concentrations of Aboriginal sites and living areas are found in the vicinity of rivers, creeks, pools and soaks.
The State (at [31] of its contentions) argues the information from this report is ‘cast at such a high level of abstraction that it offers no assistance in determining whether there are sites or areas of special significance to these native title claimants in this specific area’ (emphasis in original). The State’s contentions point out there is no indication in the material of the qualifications of the report’s authors. I also note the report extract is undated and little context is provided for the existence of the report. The State argues the report extract should be given no weight. I do give the report some weight, although the defects referred to as outlined above mean I do not give it great weight.
Maps provided by the State show there are no sites or other heritage places within the licence area registered on the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS) Register. However, it is well established that a site or area may be of particular significance without being recorded on the AHIS Register (see Little v Lake Moore Gypsum at [67]).
Sites near the licence:
There are a number of AHIS registered sites located to the south east of the tenement along the Shaw River. As noted in Nyamal’s contentions in reply, a site or area of particular significance for the purposes of s 237(b) will generally be located within the licence area. The exception to this is when an area or site is located close to, but outside of, the licence area it may be considered where there is evidence to show it will be directly and physically affected by the grantee party’s activities under the licence (Silver v Northern Territory at [35]).
The agreed statement of facts and issues states that parties agree the following sites are located in the vicinity of the licence:
·Artefact scatter, approximately 1km east of the licence;
·Burial site, approximately 10km south of the licence;
·Registered Aboriginal site 7196, Spear Hill Complex 1, approximately 1.5km south of the licence; and
·Registered Aboriginal site 11173, Chocolate Hill, approximately 1.5km south of the licence.
Artefact area:
Mr Allen states he considers the artefact scatter not to be an isolated site but rather ‘is indicative of the potentially rich archaeological history of this area’. Nyamal’s contentions state there is a real chance of this site being physically and directly interfered with if there were truck movements to and from the licence or if roads were built which would require ground disturbing work.
Burial site:
Mr Allen’s affidavit refers to the burial site as a ‘very significant site’ of both physical and spiritual importance to the Nyamal people. Mr Allen states the presence of this registered site is indicative of the relatively high density of Nyamal sites, including burials and campsites, along the Shaw River. Nyamal’s contentions argue a burial site will not be known until sub-surface investigation takes place. They state, given the Shaw River was known to be a high density living area for Nyamal people, the presence of one burial site on the river indicates there is a real chance of more along the river banks.
Spear Hill and Chocolate Hill:
Mr Allen’s affidavit does not specifically refer to the Spear Hill Complex 1 site or Chocolate Hill. Nyamal’s contentions in reply describe Spear Hill Complex 1 as a site of engraving and painting. Citing an academic journal article by archaeologist H. McNickle, Nyamal’s contentions state ‘the line of hills to the north of Spear Hill are ‘among the most prolific rock art sites in the Pilbara; they comprise several thousand petroglyphs altogether’.
In relation to Chocolate Hill, Nyamal’s contentions state it is an artefacts/scatter, engraving and camp site. The contentions state the presence of these sites is also indicative of the high density of Nyamal people in the area prior to colonisation and provides a clear indication there is a real chance of more, unrecorded significant sites in this area, including over the licence area.
(ii) Are any of the identified sites or areas of particular significance?
I must decide whether the sites and areas described above are of particular significance to Nyamal in accordance with their traditions. This question is a precondition for inquiring whether the grant of the licence is likely to cause interference with areas or sites of this kind (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). It is important to note what ‘particular significance’ means in the context of a Tribunal inquiry, and I refer to Carr J in Cheinmora v Striker Resources who stated:
It is not enough that the site simply be of significance to the native title holders. That would leave the word "particular" with no work to do. It would also involve a notional transposition of that word from being in front of "significance" (as it appears in the subsection) to immediately after it. If Parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word "particular" out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions.
I do not doubt that the Shaw River and Dalton Creek are important to the Nyamal people and play a part in Nyamal identity and tradition. However, the evidence before me merely states the area is important but does not describe in any detail why the area is particularly significant in accordance with Nyamal’s traditions. While the Waters and Rivers Commission report and the anthropological report are of assistance to my understandings of the importance of water generally for Aboriginal people in the Pilbara region, there is still little to connect the information specifically to this licence. In addition, if all such waterways are important for the region, it is difficult to conclude that Dalton Creek or the Shaw River are special or of particular significance. As such, I cannot find Shaw River or Dalton Creek, as a whole, or in part, is an area of particular significance for the purposes of s 237(b).
In considering the sites located outside of the licence area, I am not satisfied the evidence establishes these as sites of particular significance for the same reason as above. That is, it has not been explained how they are of particular significance to the Nyamal people in accordance with their traditions. In regards to the argument that the presence of these sites in the vicinity of the licence would suggest the existence of further sites within the licence, this is speculative and I cannot afford it any weight in the absence of evidence relating to this particular licence and the traditions of Nyamal in relation to the sites and areas.
Because I find there is insufficient evidence to establish sites or areas of particular significance to Nyamal on or near the licence, I do not need to consider whether interference is likely.
Determination
For the reasons stated above, I find the grant of exploration licence E45/4879 to Formula Resources Pty Ltd is an act attracting the expedited procedure.
Ms Helen Shurven
Member
7 November 2018
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