Nyamal Aboriginal Corporation v Abeh Pty Ltd & Another
[2019] NNTTA 90
•1 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation v Abeh Pty Ltd & Another [2019] NNTTA 90 (1 November 2019)
Application No: | WO2018/0563 |
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 (WCD2019/010)
(native title party)
- and -
Abeh Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 1 November 2019 |
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: | 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) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Little v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FLR 576 (Little v Oriole Resources) May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 113 (Rosas v Northern Territory) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Walalakoo Aboriginal Corporation & Anor v Boadicea Resources Ltd and Anor [2016] NNTTA 29 (Walalakoo Aboriginal Corporation v Boadicea Resources) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward 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 Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | Ashley Truscott, Arma Legal |
| Representative of the grantee party: | Max Strindberg, Abeh Pty ltd |
| Representatives of the Government party: | Emily Archer, State Solicitor’s Office Bethany Conway, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of their intention to grant exploration licence E45/5071 (the licence) to Abeh Pty Ltd (Abeh). The notice included a statement that the grant of the licence is an act attracting the expedited procedure (see s 32 of the Act). By including this statement, the State asserts the grant 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 licence is approximately 19 square kilometres in size, located in the Shire of East Pilbara. The Nyamal Aboriginal Corporation hold non-exclusive native title in trust for the Nyamal People #1 (Nyamal) over a portion of the north of the licence (see Allen v Western Australia). The State’s quick appraisal tenure document shows the majority of the licence is Unallocated Crown Land (UCL).
Nyamal lodged an 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. Having been appointed to determine this matter, 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).
Nyamal argued the expedited procedure should not apply to this licence on the basis that the grant will likely cause the interference contemplated in ss 237(a), (b) and (c). For the reasons outlined below, I find the expedited procedure does not apply to the grant of the licence.
Preliminary Matters
Nyamal provided contentions and a reply to the State’s contentions, as well as relying on the affidavit of Gavin Fredricks Mitchell. Mr Mitchell identifies himself as a Nyamal traditional owner, and as having the authority to speak on behalf of Nyamal in relation to the area of the licence (at 1-2). I accept Mr Mitchell’s authority to speak for the licence area.
Abeh provided no submissions for this inquiry.
The State’s submissions include Abeh’s brief statement in support of their licence application. That statement outlines Abeh intends to explore for gold, nickel and lithium. The first year’s program is described, which includes activities such as detecting, sampling, panning and reverse circulation drilling. On this basis, the State agreed (at 18) that it is open to the Tribunal to find that Abeh will exercise the full suite of rights available to them under the terms of their exploration licence. I do so find that.
The full suite of activity to which Abeh is entitled under the grant of an exploration licence are set out in s 66 of the Mining Act 1978 (WA), and includes the ability to enter and re-enter the licence with ‘vehicles, machinery and equipment as may be necessary’, to dig pits, trenches and holes, sink bores, and ‘to excavate, extract or remove...from such land, earth, soil, rock, stone, fluid or mineral bearing substances’. Regulation 20 of the Mining Regulations 1981 (WA) indicates the amount of material able to be removed from the exploration licence is up to 1,000 tonnes in total.
The State’s quick appraisal tenure document shows a number of previously granted prospecting and exploration licences overlapping the licence.
Section 237(a): Is the grant of the licence likely to interfere directly with the community or social activities of Nyamal?
The Tribunal balances a native title party’s evidence of community or social activities against a grantee party’s proposed exploration activities, to determine whether the activities can coexist without direct or substantial interference (see for example, Yindjibarndi v FMG at [16]). The test is outlined in Rosas v Northern Territory (at [67]):
The leading case on the proper interpretation of section 237(a) is Smith v WesternAustralia [2001] FCA 19; (2001) 108 FCR 442. French J made these observations about the proper interpretation of this paragraph (at 451):
"The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section."
If the evidence about the alleged activities is general and unspecific, then this is insufficient to find that the grant will create such direct or substantial interference (Freddie v Western Australia at [13]).
What social and community activities are referred to in the evidence?
Nyamal refer to hunting, gathering, camping, intergenerational teaching, practice of ceremony and fishing activities. Nyamal contend their community and social activities have ‘been enriched by the recent deluge of rain’ (at 34) and that their activities ‘will essentially be stopped by the grant of the exploration tenement’ (at 13). It is not clear when the deluge of rain occurred, nor is it clear how often such occurs.
Mr Mitchell asserts Nyamal people ‘continue to hunt and gather resources … practice ceremonies … [and] protect and maintain areas of cultural significance in the area’ (at 5). There are general statements about travelling ‘out on country … with my family … of about 30 people … to teach the younger generation about stories, bush and culture’ (at 8). This includes the licence area, however, the activities more broadly refer to Nyamal country in general.
The area of the Turner River (approximately 6 kilometres west of the licence) is described as good for fishing and for collecting Jima (berries), Jubarri (peaches), Munggurdu (bush coconut), medicine and food plants (Mr Mitchell’s affidavit at 19). According to Tribunal mapping, a tributary of the Turner River runs through the south of the licence – this is consistent with Mr Mitchell’s evidence (at 6) that ‘the tropical cyclone has brought the country to life, particularly as the tenement is near the Turner River’.
The State ‘accepts that fishing and gathering activities occur in the general vicinity of the proposed tenement’ however, they assert that Nyamal ‘has not provided sufficient evidence as to the location of these activities … [and] the intensity and frequency’ (contentions at 31-32). The State also contend that ‘hunting, fishing, gathering and mineral exploration activity are capable of coexistence’ and that the Tribunal has found this ‘on numerous occasions’ unless there is ‘particular and very unusual evidence suggesting otherwise’ and there ‘is no such evidence in this case’ (at 43.1).
Conclusion
The evidence from Nyamal is cast in broad terms and has not established the named social and community activities are conducted on the licence in such a way that exploration activities would directly or substantially interfere with them. The use of the licence area appears to be part of a wider area where social and community activities are conducted, for example, around the Turner River and the Abydos Woodstock site complex, the latter which I refer to in more detail in my analysis of s 237(b).
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?
In relation to section 237(b) of the Act, 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 (Silver v Northern Territory at [91]).
I must consider what the materials raise about the nature and extent of sites of particular significance, and whether the State’s protective regime is sufficient to make it unlikely there will be interference. The Nyamal evidence asserts areas of particular significance to be Abydos Woodstock site complex, the Ipipi Hills, a ceremonial law ground, Walla Wallung dreaming, and ‘other sites’ (referred to in general terms). I deal with each in turn.
Are there sites of particular significance?
Abydos Woodstock site complex and Ipipi Hills
Mr Mitchell says Abydos Woodstock site complex is ‘significant’ and ‘historical’ containing ‘many ceremonial, engraving, grinding patches and grooves that were used by my ancestors’ (at 14). He says that ‘further rains would have produced sacred objects and sites’ in this area (at 19(h)). Mr Mitchell notes the Ipipi Hills encroach the licence and this area is ‘important to Nyamal people as it was used by Nyamal people for traditional purposes’ (at 17).
The State has provided the results of any sites on this licence which are recorded on their Aboriginal Heritage and Inquiry System (AHIS), under the Aboriginal Heritage Act 1972 (WA) (AHA). Sites recorded on the AHIS can be characterised in two main ways. Firstly, as a registered site, which means the site or place has been assessed as meeting s 5 of the AHA. Secondly, as an ‘other heritage place’, which includes sites or places which have been assessed as not meeting s 5, and places where information has been received in relation to the place but an assessment has not been completed to determine if it meets s 5. Regardless of whether or not sites are recorded on the AHIS, a native title party may establish that one or more of those sites constitute areas or sites of particular significance in accordance with their traditions (as per s 237(b) of the Act)) by providing sufficient evidence.
The AHIS results shows a portion of the registered site Abydos Woodstock rock art and occupation site complex ID 37748 overlaps the south western portion of the licence. It is described as a ‘ceremonial, engraving, grinding patches/grooves, historical’ site. The Abydos Woodstock site is a large site which runs approximately adjacent to the entire western boundary of this licence and extends for several kilometres beyond the site. The AHIS also shows an other heritage place within the Abydos Woodstock site complex, and overlapping the licence, as Ipipi Hills ID 6697.
The State accepts the evidence is likely to establish the Abydos Woodstock site complex and the Ipipi Hills are sites of particular significance for the purpose of s 237(b) (at 50). Having reviewed the evidence, I conclude the Abydos Woodstock site complex and the Ipipi Hills are sites of particular significance.
Ceremonial law ground
Mr Mitchell (at 15) states there ‘is a significant ceremonial law ground which provides our young men their rights of passage from boyhood to manhood, which should be protected and not be disturbed’. Of all the sites, he notes the law ground should be ‘especially’ protected. ‘If it is not protected, thousands of years of Nyamal history, culture and identity will be permanently lost, which will cause much anguish to Nyamal people’ (Mr Mitchell at 16).
The State accepts that if the ceremonial ground is located within the licence, the evidence is likely to establish this place is a site of particular significance for the purpose of s 237(b) (at 53).
Having reviewed the evidence, I accept the ceremonial law ground is a site of particular significance. However, there is no evidence as to the location of the law ground, including whether or not it is located within the licence. This is relevant to my consideration of whether the grant of the licence will interfere with that site, as outlined further below.
Walla Wallung dreaming
Mr Mitchell says the Walla Wallung dreaming story runs through the licence and concerns ancestors ‘who shaped the country and named all the animals, plants … and left signs on country to care and protect our culture and heritage’ (at 13).
The State makes no submissions in relation to the dreaming.
Having reviewed the evidence, I accept it does run through the licence, as there is no evidence to the contrary. However, there is no further information about the dreaming or any sites associated with the dreaming. Nor is there further information about the importance of the dreaming to the Nyamal traditions, apart from in the broadest terms. As such, I do not conclude the Walla Wallung dreaming story is an area of particular significance for the purposes of this inquiry.
Other sites
Mr Mitchell refers to a deluge which exposed further sites of significance throughout the licence that ‘would not have been known previously’ including burial grounds along the Turner River, its tributaries and creeks (at 19, 22). The State asserts that reference ‘to areas or sites that are very broad or imprecise cannot be relied on’ (at 54 citing Walalakoo Aboriginal Corporation v Boadicea Resources at [30], [35]-[36], [43]-[44]). I accept the States argument, with respect to these other sites, as they have not been sufficiently identified.
Is there likely to be interference with any sites of particular significance?
Having found there are sites of particular significance, I must decide whether or not such sites are likely to be interfered with from the explorer’s activities on grant of the licence. This interference must take into account the traditions of the native title party. Nyamal have provided some evidence concerning interference, including the need to preserve ‘Nyamal culture and identity’ (Mr Mitchell at 16, 17, 26).
In relation to the ceremonial law ground, I cannot conclude it would be interfered with by Abeh’s exploration activities because there is no evidence placing the law ground on the licence. The remainder of this section of my decision relates to interference with the Abydos Woodstock site complex and Ipipi Hills, which clearly overlap the licence and which I have concluded are sites of particular significance.
The State note the Regional Standard Heritage Agreement (RSHA) condition they will apply on the grant of the licence (at 16). The Nyamal reply contends the RSHA ‘is not nominated by Nyamal, whose preferred agreement is the Nyamal Heritage Protection Agreement’ (at 6). They argue the ‘real risk is found in the language of the RSHA’ citing the terms requiring ‘the grantee party to “notify, consult and, if necessary carry out surveys”’. They also argue the use of such terms ‘provides for a discretionary and subjective standard to be applied by the Grantee Party in making an assessment as to Nyamal heritage and culture, without any external input to such an assessment from Nyamal’ (at 25). I accept that argument.
The State outline a number of other conditions and endorsements which they will apply to the licence on grant. It is not apparent how these apply to the sites of particular significance. The State also note previous licences have overlapped this one, and suggest that is evidence of interference for the purposes of s 237(b) in this inquiry. However, there is little further detail about those overlapping licences, including what activities took place on grant, or whether those activities were conducted under an agreement between Nyamal and the relevant explorer.
The State also provide contentions about their statutory regime (at 62-66). For example, they assert the AHA will afford protection to areas as identified by Nyamal. As has been outlined in many Tribunal decisions, the nature of interference under s 237(b) is not the same as that contemplated by the AHA, and Ministerial discretion exists under the AHA whereby exploration activities can be conducted on sites covered by the AHA in certain circumstances.
While there is no onus of proof in Tribunal inquiries, once Nyamal led information and evidence about a site of particular significance, it is open to the explorer to provide information or evidence as to how they might mitigate any interference. As noted at [6], Abeh provided no submissions for this inquiry. Carr J described the common sense approach to evidence in Ward v Western Australia (at [26]) (emphasis added):
The "common sense approach to evidence" is not the same as applying an evidential onus of proof. 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 i.e. that they have an evidential onus of proof. The Tribunal might (subject to observing the requirements of procedural fairness) make its own inquiries and satisfy itself that the particular issue should be decided in favour of the party electing not to put evidence before it. Alternatively, part of an opposing party's evidence whether in cross-examination or otherwise, may satisfy the Tribunal on the point. That party has, in colloquial terms, taken its chances and won... 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.
Conclusion
My conclusion is that given the highly sensitive and significant nature of both Abydos Woodstock site complex and the Ipipi Hills, what may appear to the explorer as relatively minor non-ground disturbing exploration activities are likely to cause interference of the kind contemplated by s 237(b) of the Act. Even though both sites are on the AHIS, this will not afford them protection from non-ground disturbing works by Abeh.
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) 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 (Little v Oriole at [39]-[50]). Nyamal have provided brief contentions and evidence in relation to s 237(c).
For example, Mr Mitchell states ‘Nyamal people believe that any disturbance [to land and waters] is too much disturbance and it will need to be managed in accordance with Nyamal culture’ (at 23). Nyamal contend that ‘the quantity of the water levels and quality of the water would be affected by the granting of the tenement through the high use of underground water’ (at 33).
Section 237(c) refers only to ‘major disturbance’ and not ‘any disturbance’ as Nyamal contend. There is also no requirement for ‘major disturbance’ to be assessed according a native title party’s traditions (unlike s 237(b)). Based on the limited evidence before me, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned.
Determination
My determination is that the grant of E45/5071 to Abeh Pty Ltd is not an act that attracts the expedited procedure.
Helen Shurven
Member
1 November 2019
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