Nyamal Aboriginal Corporation RNTBC & Gardner Mining Pty Ltd & Another

[2021] NNTTA 48

NATIONAL NATIVE TITLE TRIBUNAL

Nyamal Aboriginal Corporation RNTBC & Gardner Mining Pty Ltd & Another [2021] NNTTA 48 (14 September 2021)

Application No: WO2021/0663

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Nyamal Aboriginal Corporation RNTBC (WCD2019/010)

(native title party)

- and -

Gardner Mining Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:

Ms Helen Shurven

Place:

Melbourne

Date:

14 September 2021

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, 151, 237

Aboriginal Heritage Act 1972 (WA)

Cases:

Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia)

Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (BDAC v Oladipo Minerals)

FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi)

Patricia Lewis & Others on behalf of Nyalpa Pirniku Claim Group v Vaso Kos and Another [2021] NNTTA 32 (Nyalpa Pirniku vKos)

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

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

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)

Representatives of the native title party:

Tara Babu and Grace Manning-Davis, Arma Legal

Representative of the grantee party:

Jacob Loveland, Lawton Macmaster Legal

Representatives of the Government party:

Michael McMahon, Department of Mines, Industry Regulation & Safety
Domhnall McCloskey, 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/NTA) of its intention to grant exploration licence E45/5694 to Gardner Mining Pty Ltd (Gardner Mining). 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 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 approximately 57 square kilometres, on land subject to the Federal Court’s native title determination in Allen v Western Australia (WCD2019/010).  The Nyamal Aboriginal Corporation (Nyamal/NTP) holds native title in trust for the Nyamal People. Nyamal lodged an objection with the National Native Title Tribunal against the expedited procedure applying to the proposed licence. 

3. 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). 

4. Having read and considered the respective submissions from all parties, I find the expedited procedure does not apply.   

Preliminary Matters

1. Nyamal provided contentions and a reply to the State and Gardner Mining contentions. While the expedited procedure objection application was made against each limb of s 237, Nyamal’s contentions focus on s 237(b). Taking a common sense view of the evidence (as outlined by Carr J in Ward v Western Australia (at [26])), I do not find there is any information or evidence supporting interference of the kind outlined in s 237(a) or s 237(c). As such, this decision focuses on s 237(b) of the Act.

2. Nyamal’s contentions were supported by the affidavit of Mr Kevin Edward Allen.  Mr Allen is a Nyamal traditional owner who speaks for the licence area. 

3. Gardner Mining provided contentions in support of their arguments.

4. The State provided contentions, mapping, and other material from the State’s databases. The material included a quick appraisal outlining the underlying tenure and searches of the Aboriginal Heritage and Inquiry System (AHIS) held under the Aboriginal Heritage Act (AHA). The AHIS searches provided by the State showed the registered site 11573 Little De Grey Mill, which is described as an ‘Engraving, Hunting Place’. Mapping provided by the State shows this site is on the western border of the proposed licence. I also note, according to mapping and the States tengraph, that Miningarra Creek runs through the licence, and that the Little De Grey Mill site is alongside the Creek. This is relevant as Nyamal’s expedited procedure objection application refers to this site. Mr Edwards also refers to Miningarra Creek in his evidence (at 8-9), including its importance and relevance to him, his family, and Nyamal old people. I turn more to this in my consideration of s 237(b) below.

5. The recording of a site or area on the AHIS does not automatically mean it is 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 may be areas or sites which, while within the terms of s 237(b), do not fall within the AHA. Gardner Mining argue (at 25) that ‘The Grantee is prevented by law from interfering with Little De Grey Mill (ID 11573)’. However, there exists a ministerial discretion in the AHA permitting interference to occur, in some circumstances, with sites recorded on the AHIS.

6. Having reviewed the material, I was satisfied that I could adequately determine the matter without the need for a hearing (see s 151(2) of the Act). No party took issue with that approach.

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?

1. I note the following principles in my consideration of s 237(b):

   ·A site or area of particular significance 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 (Silver v Northern Territory at [91]).

   ·If I am satisfied the site or area is of particular significance, I must consider the issue of likely interference, because of the importance the site or area has to the native title holders. 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 (Silver v Northern Territory at [88]). 

   ·Even slight interference may be unacceptable (FMG v Yindjibarndi at [64]-[76])).

   ·There must be a real chance or risk of interference with the site or area, not just a possible chance (Smith v Western Australia at [23]).

   ·I will give weight to State’s heritage and regulatory regime and the grantee’s intentions (Walley v Western Australia at [8]-[11]).

Sites of particular significance

1. Nyamal contentions (at 8-10) argue that Miningarra Creek is a site of particular significance to Nyamal.  Mr Allen attaches a supporting map to his affidavit showing the proposed licence and surrounds, and provides clear and cogent evidence of the particular significance of Miningarra Creek (at 9-12).  He states, for example, that the AHIS registered engraving site Little De Grey Mill is associated with the Creek, and at 11-12:

   Every time we go to these sites, it’ll take you to another site. The old people draw their stories on rocks and have found a way to last for ages. These drawings connect sites and are very important. It is important to my family tribe and to Nyamal people. Miningarra Creek comes off De Grey River. There are also other carvings along the Creek that should be checked out and avoided.  

2. Mr Allen goes on to outline the connection of dreaming pathways to the Creek (at 13-16), and the areas particular significance to Nyamal traditions in the form of creation (at 18). I do not repeat that information here as there is an indication it is a men’s story. I accept Miningarra Creek and the AHIS site of Little De Grey Mill are connected, and both of particular significance to Nyamal. As such, I need to consider whether or not the activities of Gardner Mining are likely to cause interference as outlined in s 237(b) of the Act.

Interference

1. The State (at 32) accepts Mr Allen’s evidence as to the existence of stories connected with the Creek. However, they are satisfied their regulatory regime will be sufficient to protect a site of particular significance from s 237(b) interference.

2. Nyamal contentions (at 11-12) refer to the rights Gardner Mining will have under an exploration grant, including the ability to remove up to 1,000 tonnes of material from the proposed licence.  They argue that doing so near to the Creek, or drilling near to the Creek is likely to cause interference.  I note Gardner Mining propose drilling may occur at a later stage of the exploration program, and do not give an indication of whether or not it may be undertaken on or near the Creek or the Little De Grey Mill site.

3. Nyamal contentions (at 18) go on to argue that:

   The Miningarra Creek is a sensitive area under the traditional law and custom of the NTP and any access to the area without the permission of Senior Traditional Owners is likely to disturb sites of significance, including the Registered site. 

4. Mr Allen explains the concept of interference in relation to the licence area, including the following (at 14):

   Only people that can go to the Tenement Area are people that have gone through heavy law like myself. That’s where warriors are made. Women and children can’t go there. Mining people haven’t been through the law. Significant places you can feel air jump up and you look down you can see significant things for men. [You can’t know these things if you haven’t been through the law].

5. I accept that argument, noting McKerracher J’s comments in FMG v Yindjibarndi (at [64]-[76]), which included that what is substantial and not trivial interference under s 237(b) must be assessed by the traditions of the native title party. I am satisfied the evidence supports that Miningarra Creek and the Little De Grey Mill site are intimately connected to traditions of Nyamal, and that what others may regard as slight interference, would be regarded by Nyamal as substantial interference in accordance with their traditions.

6. Gardner Mining (at 35) argues they are obliged to comply with the States regulatory regime, including the endorsements and conditions the State have outlined they will apply to the grant of the licence.  However, I could see no endorsements or conditions which addressed the issues as raised in the Nyamal evidence or contentions, and the Nyamal reply (at 8-9) argue those endorsements and conditions are not sufficient to satisfy any mitigation of interference. 

7. I note the endorsements and conditions largely go to the explorers need to consult with State departments to gain the relevant licences and permits to conduct activities on the area, as well as rehabilitation after exploration activities.  There are also endorsements which deal with ‘The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances’ (endorsement 5). None of these require any consultation or liaison with Nyamal.  Summarising the Nyamal reply (at 15-17), this argues there has been no information or evidence led by Gardner Mining as to the location of any drilling on the proposed licence, and under the terms of the grant from the State, drilling could occur anywhere on the proposed licence, including near to the Creek, or on or near to the AHIS site (with the requisite ministerial approvals).

8. Gardner Mining (at 35) argues that the Creek represents only a small portion of the proposed licence, and the State (at 27) argue the AHIS site of Little De Grey Mill has a ‘little overlap’ with the licence.  Mapping indicates the Creek traverses across the licence area and extends outside that area, and the State notes (at 28) the Creek ‘appears to be large’.  While the Creek may not be ‘large’ proportionally in terms of the geographical area it occupies (although there are no figures provided to accompany that assertion), it does traverse various areas of the licence.  In addition, the test I must turn my mind to is whether there is a site of particular significance and if so, the likelihood of interference (as noted in the Nyamal reply (at 5)).  The same applies to a ‘little overlap’ of the Little De Grey Mill site.

9. I could not conclude the State’s regulatory regime would provide protections to mitigate such interference.  As Member Cooley noted in BDAC v Oladipo Minerals (at [49]-[53]), even if native title holders are afforded procedural fairness and are consulted prior to the Minister’s decision to disturb a site, as allowed for under the AHA:

   …the State does not explain how that mitigates the likelihood of interference under s 237(b) of the NTA on the facts of the present case. Interference that is sanctioned under s 18 of the AHA may nonetheless be interference within the meaning of s 237(b) of the NTA.

10. I do not consider the endorsements or conditions the State intends to impose on the grant of this licence under the State’s regulatory regime would mean there is unlikely to be interference of the type contemplated in s 237(b). I consider that even acting lawfully within the State’s regulatory regime, and with the best of intentions, Gardner Mining is likely to cause interference with Miningarra Creek or the AHIS registered site of the De Grey Mill, of the type envisaged by s 237(b).

11. The Nyamal reply (at 23-26) drew my attention to the Western Australian Government submission to the Joint Standing Committee on Northern Australia inquiry into the destruction of Indigenous heritage sites at Juukan Gorge (Jukkan Gorge Report).  In particular, Nyamal argued ‘Recommendation 2 of the Interim Report provides that the Western Australian Government should replace the AHA with stronger heritage protections as a matter of priority’.

12. The State and Nyamal subsequently, and briefly, agitated this issue, with Nyamal arguing the adequacy of the State’s heritage regulatory regime was a relevant consideration in this inquiry, albeit the Jukkan Gorge Report did not specifically address the proposed licence area in this inquiry. The State argued I should not consider the Jukkan Gorge report because of that lack of specificity.  These arguments were raised late in the inquiry, and ultimately, as per my approach in Nyalpa Pirniku v Kos (at [5]), I did not use or refer to the Jukkan Gorge Report for the purposes of this inquiry given that no specific parts of that Report were highlighted for my consideration apart from Recommendation 2, and also that the information and evidence provided by all parties was sufficient for me to conclude the regulatory regime would not be sufficient to mitigate likely interference by exploration activities to the proposed licence.

Determination

1. My determination is that the grant of E45/5694 to Gardner Mining Pty Ltd is not an act that attracts the expedited procedure.

Helen Shurven
Member
14 September 2021