Nyamal Aboriginal Corporation RNTBC v Lithium 1 Pty Ltd
[2020] NNTTA 70
•18 November 2020
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation RNTBC v Lithium 1 Pty Ltd and Another [2020] NNTTA 70 (18 November 2020)
Application No: | WO2020/0261 |
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 -
Lithium 1 Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Glen Kelly, Member |
Place: | Perth |
Date: | 18 November 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 an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) Native Title Act 1993 (Cth) ss 29, 32, 151, 237 |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People (WO01/179); Robin Boddington and Others on behalf of the Wajarri Elders (WO01/180)/Western Australia/Giralia Resources NL, [2002] NNTTA 24 (Walley v Western Australia) Marputu Aboriginal Corporation RNTBC v Element 25 Limited & Another [2020] NNTTA 58 (Marputu v Element 25) Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd [2001] NNTTA 42 (Young v South Coast Metals) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd, [2002] NNTTA 18 (Silver v Northern Territory) Nyamal Aboriginal Corporation v Haoma Mining NL and Another [2020] NNTTA 42 (Nyamal v Haoma Mining) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, [2004] NNTTA 30 (Freddie v Asia Investment Corporation) |
| Representative of the native title party: | John Edwards, Arma Legal |
| Representative of the grantee party: | Michael Giles, Element 25 Limited |
| Representatives of the Government party: | Reywin Rico, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
On 22 November 2019 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 exploration licence E45/5573 to Lithium 1 Pty Ltd (Lithium 1). The notification day specified in the notice is 29 November 2019.
The notice for the proposed 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)).
The proposed licence is approximately 92.64 square kilometres in size, approximately 17 kilometres east of Marble Bar, and is on land subject to the Nyamal native title determination (see Allen v Western Australia). The Nyamal Aboriginal Corporation RNTBC (Nyamal) holds non-exclusive native title rights and interests over 22.81 per cent of the proposed licence area on trust for the Nyamal People.
On 16 March 2020 Nyamal lodged an objection application with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence. Nyamal argues 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).
Having been appointed to conduct this inquiry by the President of the Tribunal on 22 October 2020, I must look at what is likely to result from the grant of the proposed licence and decide whether there is a real chance or risk of the interference outlined in s 237 of the Act. I have read the decision of President Raelene Webb QC in Yindjibarndi v FMG and adopt the principles she set out at [15] of that determination. For the reasons outlined below, I find the grant of E45/5573 is an act attracting the expedited procedure.
Submissions
Nyamal provided contentions referring to sections from Allen v Western Australia, which it argues supports its assertion that the expedited procedure should not apply. Nyamal argues the proposed licence area is within the determination area and, therefore, the observations of Reeves J made in Allen v Western Australia apply to the licence area. However, the sections of Allen v Western Australia relied upon contain broad references to Nyamal People’s country generally, and not to the proposed licence area specifically.
Nyamal also provided the statement of Gavin Mitchell dated 10 April 2019. Mr Mitchell describes himself as a Nyamal Traditional Owner. I accept Mr Mitchell has authority to speak for the licence area.
Lithium 1 provided a statement of contentions in which it stated it intends to initially conduct low impact activity which is envisaged to give rise to more intensive activity including drilling programs in future years. Lithium 1 sets out it intends (amongst other things) to notify the NTP of on-ground activity, advise of dates of on-ground activity and undertake activities in a manner which minimises disturbance.
The State provided contentions, tenure information including a series of maps, the results of searches of the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS), the statement under s 58 of the Mining Act 1978 (WA), and a draft Tenement Endorsement and Conditions Extract.
On 2 November 2020 the Tribunal contacted parties and requested they advise whether they agreed to this matter being determined “on the papers”. The State advised it is content with that approach. Nyamal and Lithium 1 raised no objection to this approach being adopted. Having considered all of the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’, as permitted by s 151, without the need for an oral hearing.
Consideration and conclusions in relation to s 237
Section 237(a)
For the purposes of s 237(a), Nyamal provide a general set of contentions based upon the determination of native title in Allen v Western Australia, particularly paragraphs [54], [58] and [59] of that determination, where Reeves J sets out that the Nyamal people have maintained their connection to their country, the continuation of native title activities and the importance of native title activities to the Nyamal people.
In relation to the specific area of the licence, Nyamal do not provide any specific evidence of community or social activities or how the activities of Lithium 1 on the licence may impact upon them.
In conducting my analysis I must make a predictive assessment of whether the activities that result from the grant of the proposed licence are likely to directly interfere with the community or social activities of the native title party, where ‘likely’ is a real chance of risk of interference or major disturbance[1] and ‘directly interfere’ is where it can be evaluated there will be substantial impact upon community or social activities.[2]
[1] Smith v State of Western Australia at [23]
[2] Ibid at [26]
Additionally, there must be sufficient evidence to support the assessment and contentions, in this case of the native title party. This has been set out on various occasions within decisions of the Tribunal such as Walley v Western Australia at [21] and Freddie v Asia Investment Corporation at [14].
In the context of this evaluation, the State contends that Nyamal has ‘not provided sufficient evidence with respect to its community or social activities within the proposed area of the tenement.’[3] In the absence of any specific evidence from Nyamal to provide the Tribunal with the opportunity to decide otherwise, I accept this argument.
[3] State Contentions at [23]
As a result of this, I conclude there is insufficient evidence to find social or community activities are likely to be interfered with as a result of the grant of the licence and the activities that may arise from it.
Section 237(b)
Section 237(b) refers to interference with areas or sites of particular significance to native title holders in accordance with their traditions. Importantly, two of the relevant principles involved in making this assessment are that an area or site must be of special or more than ordinary significance[4] and that if it is, then it must be known, able to be located and the nature of its significance explained to the Tribunal.[5]
[4] Silver v Northern Territory at [88]
[5] Ibid at [91]
In the case of the licence, Nyamal points out in their contentions at [6] that there are 6 sites registered under the Aboriginal Heritage Act 1972 (WA) (AHA) in the tenement area, although the AHIS extract from the Register of Aboriginal Sites (Register) shows 5 of these sites have been placed on the Register with one being noted as being on the list of ‘Other Heritage Places’.
The Nyamal contentions rely upon the placement of these sites onto the Register as evidence that they are of more than ordinary significance to the native title party along with a reference to Allen v Western Australia that provides a general statement on the Nyamal knowledge of sites in the Nyamal determination area.[6]
[6] Nyamal contentions at [13]
While I agree that sites placed on the Register are likely to have some significance attached to them, the task is focussed on whether they are of particular significance to native title holders in accordance with their traditions. On this point, no specific information is provided by Nyamal aside from that they have been placed on the Register and the reference to the general information in Allen v Western Australia.
The interaction between the AHA and the NTA has been addressed in a number of Tribunal decisions[7] and these deliberations include comment on the level of significance that may be ascribed to a site if it is placed onto the register and whether the AHA affords the type of protection envisaged by traditional owners.
[7] See for example Yindjibarndi v FMG at [18],[117]-[121] and Marputu v Element 25 at [51]-[52], [72]-[75], [94]-[101]
In these deliberations it has become clear that although they might be significant, ‘registration under the AHA does not lead to the conclusion they are sites of particular significance to the native title party in a particular case’[8] and that in order to demonstrate they are, the native title party is required to provide sufficient evidence to allow the Tribunal to reach that conclusion.[9]
[8] Yindjibarndi v FMG at [119] citing Young v South Coast Metals
[9] Nyamal v Haoma Mining [2020] NNTTA 42 at [17]
As set out previously, the Nyamal contentions for this rely on a reference to Allen v Western Australia however this information is generalised and does not relate specifically to or explain why the registered sites are of particular significance. As a result of the generalised nature of this information, I have no basis from which to assess whether these sites or areas are of particular significance in the first instance.
Because there is insufficient evidence to conclude there are sites or areas of special significance as required by s 237(b), I can only conclude there is insufficient evidence to find there will be interference with sites or areas of particular significance to the native title holders.
Section 237(c)
At [15] of their contentions, Nyamal quotes s 237(c) of the NTA however provides no information regarding their views on how the grant of the tenement will involve major disturbance.[10]
[10] Nyamal contentions at [15]
Lithium 1 in its contentions sets out that their activities will include a 2-3 week ground mapping and soil sampling program with the possibility or likelihood of drilling programs in the years following for 3-4 weeks per year. Lithium 1 further sets out that where possible, it plans to use existing drill lines and access the tenement via the sealed Marble Bar road which passes through it. It commits to comply with the AHA in addition to advising the native title party when on ground activities would commence and a number of other risk management and mitigation processes.[11]
[11] Grantee Party contentions at [4]-[13]
The State contend there is insufficient evidence from the native title party to allow the Tribunal to be satisfied the tenement is likely to involve a major disturbance to land and waters.[12]
[12] State contentions at [48]
For s 237(c), the task is to undertake a predictive assessment of whether there is a real chance or risk of major disturbance to lands and waters where the disturbance is understood to be a significant, direct physical disturbance to the lands concerned.[13] On the basis of the nature of activity set out by the grantee party and the very limited evidence provided by Nyamal, I find that it has not been established that the grant of the licences will involve a major disturbance to the lands and waters in the tenement area.
[13] Yindjibarndi v FMG at [19]
Determination
I find the grant of E45/5573 to Lithium 1 Pty Ltd is an act attracting the expedited procedure.
Glen Kelly
Member
18 November 2020
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