Nyamal Aboriginal Corporation RNTBC v Global Lithium Resources Pty Ltd

[2021] NNTTA 50

NATIONAL NATIVE TITLE TRIBUNAL

Nyamal Aboriginal Corporation RNTBC v Global Lithium Resources Pty Ltd and Another [2021] NNTTA 50 (22 September 2021)

Application No: WO2021/0754

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 -

Global Lithium 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:	Melbourne
Date:	22 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 applies

Legislation:

Native Title Act 1993 (Cth) ss 29, 32, 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)

Kevin Allen & Ors on behalf of Nyamal #1 v John William Young & Another [2019] NNTTA 85 (Allen v Young)

Nyamal Aboriginal Corporation v Abeh Pty Ltd & Another [2019] NNTTA 90 (Nyamal v Abeh)

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: Linda Skender, Deblin Tenement Management Services

Representatives of the Government party: Michael McMahon, Department of Mines, Industry Regulation and Safety
Stewart Palmer, State Solicitor’s Office

REASONS FOR DETERMINATION

1. The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E45/5812 to Global Lithium Resources Pty Ltd (Global Lithium). The notice for the 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 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 28 kilometres north-easterly of Marble Bar, and just over 38 kilometres square in size.  It is on land subject to the Federal Court’s native title determination in Allen v Western Australia (WCD2019/010).  The Nyamal Aboriginal Corporation (Nyamal) holds native title in trust for the Nyamal People. Nyamal lodged an objection with the National Native Title Tribunal (the Tribunal), arguing the expedited procedure should not apply on the basis that the grant will likely cause the interference contemplated in sections 237(a), (b) and (c) of the Act.

3. In my approach to s 237 in this inquiry, I adopt the principles and reasoning I outlined in Nyamal v Perkin (at [4]-[8]).  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.

Submissions

1. Global Lithium did not provide any contentions or materials, on the basis that previous agreements had been signed between Global Lithium and Nyamal in 2015 and 2016. Global Lithium stated they had received an updated version of that agreement in August 2021 and felt ‘we are close to finalising a Heritage Protection Agreement to cover exploration tenements E45/5812 [and one other]’.  These statements were not contested by Nyamal and I take them at their face value.  My decision that the expedited procedure applies means the State can grant E45/5812.  There is nothing preventing Global Lithium and Nyamal from continuing to negotiate an agreement in relation to the explorer’s activities on the licence. 

2. 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 mapping and extracts record the following sites:

   ·11101 Talga River

   ·11102 Talga Pool

   ·11103 Ralga Crossing 3

3. Nyamal provided contentions, but no reply to the State’s contentions. No affidavit or statement material was provided in support of the Nyamal contentions. Nyamal’s objection application, and their contentions, refer to the three AHIS recorded sites (as summarised at [5] above), and the Nyamal contentions annex those AHIS reports and mapping, as well as AHIS reports and mapping for three other AHIS recorded sites which are within half a kilometre of the proposed licence.

Determination to be made on the papers

1. All parties were advised I would determine this inquiry on the basis of the papers that had been submitted.  No party took issue with that approach.

Party submissions

Section 237(a)

1. Nyamal contentions refer very broadly to three paragraphs of the Federal Court decision in Allen v Western Australia.  The State notes (at 21-25) the lack of further information that has been provided or which is relevant to the licence in this inquiry. On the basis of the limited information provided, I cannot conclude social and community activities either occur on the proposed licence, or would be likely to be interfered with by activities of an explorer.

Section 237(b)

1. Nyamal focus on the six sites recorded on the AHIS – three which are on the licence and three which are nearby (as outlined at [5]-[6] above). These sites are described on the AHIS, and in the contentions, as artefacts, engravings and/or scatter sites, respectively. It is asserted by Nyamal (at 10) that they are sites of particular significance, and they are likely to suffer from ‘significant interference’ from the exploration activity of Global Lithium (at 16 and 19).

2. However, there is no evidence or information outlining the nature of the particular significance, or the likely interference.  The State notes this lack of information (at 28-32), including that ‘the Native Title Party has not otherwise identified the location or explained the sacredness of any such alleged sites by means of evidence adduced from persons with the authority to speak in relation to such sites, or any evidence’.

3. Taking a common sense approach to the information provided, I cannot conclude sites of particular significance exist for the purposes of s 237(b) in this inquiry, and so I do not need to turn my mind to the issue of interference.

Section 237(c)

1. Nyamal provided brief contentions in relation to s 237(c) (at 21-22), and those contentions have been mirrored in a number of previous inquiries. It has been repeated in reasons for decisions from the Tribunal in other inquiries that the argument about ‘any disturbance’ being too much is not what s 237(c) is targeted at – the information or evidence a party needs to turn its mind to is whether ‘major disturbance’ is likely (see for example comments in Nyamal v Abeh at [39] and Allen v Young at [45])).

2. Based on the limited evidence before me, I find the grant of the proposed licence is not likely to involve major disturbance to the land or waters concerned.

Determination

1. My determination is that the grant of E45/5812 to Global Lithium Resources Pty Ltd is an act which attracts the expedited procedure.

Helen Shurven
Member
22 September 2021