Nyamal Aboriginal Corporation v Carawine Resources Limited
[2019] NNTTA 104
•19 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation v Carawine Resources Limited and Another [2019] NNTTA 104 (19 November 2019)
Application No: | WO2018/0550 |
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 -
Carawine Resources Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 19 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 applies – the act is 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) May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 113 (Rosas v Northern Territory) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal #1 v Gianni) Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley 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: | Eamon Cornelius, Western Tenement Services |
| Representatives of the Government party: | Matthew Smith and Bethany Conway, Department of Mines, Industry Regulation and 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 an intention to grant exploration licence E46/1239 (the licence) to Carawine Resources Limited (Carawine). 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 7619 hectares in size, located in the Shire of East Pilbara. The Nyamal Aboriginal Corporation holds non-exclusive native title in trust for the Nyamal People #1 (Nyamal) over almost 100 per cent of the licence (see Allen v Western Australia).
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. 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 argues 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 applies to the grant of the licence.
Preliminary Matters
The Nyamal materials
Nyamal provided contentions and a reply to the other parties’ contentions, as well as relying on the affidavit of Kevin Edward Allen. Mr Allen identifies as a Nyamal traditional owner, and as having the authority to speak on behalf of Nyamal for the area of the licence (at 1-2). I accept Mr Allen’s authority.
The Carawine materials
Carawine provided a statement of contentions signed by Wayne Gregory Groeneveld and an affidavit by Mr Groeneveld. He states he is a consultant to Carawine, and the affidavit provides supporting documentation for the contentions. I accept Mr Groeneveld’s authority to provide that material, which consisted of a map, a copy of a Heritage Agreement, and a copy of a Deed of Variation.
The Heritage Agreement
The Heritage Agreement provided is between Sheffield Resources Limited, Carawine and Nyamal, and was executed in August 2017. It covers five tenements, none of which are the licence in this inquiry. Mapping provided by Carawine shows two of the tenements included in the Heritage Agreement are adjacent to the licence, namely:
·E46/1116 which is along the western border of the licence; and
·E46/1099 which is to the south of the licence.
These two tenements are said by Mr Groeneveld (at 4) to form part of Carawine's Oakover East Project, together with another tenement (E45/5179), and the licence.
The Deed of Variation
The Deed of Variation is drafted as being between Carawine and Nyamal. It is not executed. The purpose of the Deed is to vary the Heritage Agreement (described at [7] above), by adding the licence to the tenements covered by the Heritage Agreement. I note that Carawine submits (at 27), irrespective of my decision in this inquiry, it will seek to include the licence into the existing Heritage Agreement.
The State’s materials
The State provided information about the land tenure, the results of searches undertaken of the Department of Planning Lands and Heritage Aboriginal Heritage Inquiry System (AHIS) and the proposed endorsements and conditions to be applied on grant.
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 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 contends their community and social activities include hunting for the animals in the licence area, particularly pigeons and galahs, as well as gathering bush foods. Nyamal also submits that hunting is an ongoing practice and takes place in the licence area seasonally, including in the lead up to law business time, and that rains increase the abundance of animals and resources in the area. The evidence asserts, for example, that kangaroos drink from the rockholes in the area (at 10).
Mr Allen also states (at 4), ‘I believe that the grant of the expedited procedure for tenement E46/1239 will interfere with the carrying on of activities of the native title claimants, particularly: (a) we continue to hunt and gather resources in this area’.
The evidence 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 refer, more broadly, to Nyamal country in general.
The State argues the evidence in relation to social and community activities is broad, unspecified and lacks detail (at 26-27).
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, and as such I find interference is unlikely.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance, in accordance with Nyamal traditions?
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]). Mere statements or assertions that a site is of particular significance are not sufficient to establish it is such.
As Cheinmora v Striker Resources and Silver v Northern Territory outline, there must be some material indicating what it is about a site or area that makes it ‘of particular significance to the native title party, in accordance with their traditions’, as required by s 237(b). Like all administrative decision makers, I cannot ‘justify the making of the decision’ without ‘evidence or other material’ to support an essential statutory element of that decision (Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(h), 5(3)). I must consider what the materials raise about the nature and extent of sites of particular significance, and if such sites are established, I must address whether or not a grantee’s proposed activities and the State’s protective regime make it unlikely there will be interference.
Are there sites or areas of particular significance?
A number of sites or areas have been identified by Nyamal, both on and off the licence. The assertions made in relation to them are very broad both in the evidence, and in the contentions, with little explanation about why each is of particular significance to Nyamal, in accordance with Nyamal traditions. I address each site or area below.
Yinta (permanent pool)
While yinta’s are not explained in the materials for this inquiry, I understand they are permanent pools (see for example Nyamal #1 v Gianni at [52]). The evidence outlines simply (at 12) that there ‘is likely to be a Yinta there which is unrecognisable to others. This is the reason to have a survey’. However, there is no further information on this assertion.
The dreamtime story
The evidence states (at 13) that the licence is ‘in the middle of a dreamtime story as it is not far from the main river of Oakover River and Bubarinya Nyawarda (De Grey River)’. I accept the licence does intersect with the dreamtime story, however, there is little further information about the story, or its connection with the licence itself, or with sites on or near the licence.
Twin rockhole and other sites and heritage places outside the licence area
The evidence (at 16) refers to sites and heritage places recorded by the State as part of their obligations under the Aboriginal Heritage Act 1972 (WA) being: ‘the heritage area known as 29379 Twin Rockhole’ and the ‘many heritage places near the tenement with identification numbers 31867, 31897, and others, 31924, which are of quarry types, and artefact scatters’.
Mapping indicates the Twin Rockhole site is approximately 1.5 kilometres from the licence. There are approximately twelve other sites and heritage places recorded on the State’s Aboriginal Heritage Inquiry System within approximately three to seven kilometres from the western boundary of the licence, and Nyamal contentions (at 26) assert they are all of particular significance to Nyamal. However, the significance of these places and their link to the licence area is not explained in the evidence, except for assertions such as that these sites and places are ‘evidence of our rich Nyamal heritage and culture’ (at 16).
Waterholes/wells – the three blue dots
Nyamal’s contentions (at 24), outline that there are ‘a number of significant waterholes extremely close to the left boundary of the tenement, below the Twin Rockhole, with identification numbers HSA 27420 – 1 and HSA 27388 – 1. We submit that these waterholes are of particular significance to the NTP [native title party]’. Again, the significance is not explained.
In addition, Nyamal’s reply refers to three blue dots on its mapping at Annexure 2 to the reply, which it asserts indicate waterholes or wells. These are toward the east boundary of the licence and within the licence. Nyamal submits that ‘due to the rich Nyamal culture and heritage within the tenement and the dreamtime story of Wallawullung which passes through the tenement, the dots signify places of importance and significance to the NTP in spite of the three blue dots being waterholes or wells’. Beyond that, the assertion of significance is not explained.
Nyamal’s reply goes on to say (at 61) that the places signified by the three blue dots are also connected to yinta’s and the dreamtime story, however, given the imprecise nature of the information and evidence provided about yinta’s and the dreamtime story, I could not confirm this connection.
Other sites
The evidence states (at 14) the licence is near hills that are significant to Nyamal people, however, it does not outline why these are significant, or the location of the hills.
Further, the evidence (at 17) states that because of the ‘many heritage places near the tenement … and because of the 29379 Twin Rockhole heritage place which is almost in the tenement, there are likely to be other heritage deposits in the tenement area’. The evidence also states (at 18), that recent rains ‘would have produced sites and areas of significance that would not have previously been known’, however, there is no further information about locations or significance.
Conclusion
In their contentions, Nyamal asserts that all of the above sites (at [21]-[29]) are of particular significance to Nyamal. The affidavit evidence, after listing these sites, states that ‘[s]ome of these areas are myths, beliefs based on Nyamal heritage and culture’. I have no doubt these sites and areas are of importance to Nyamal, and that they are linked and interconnected, however, that interconnection has not been sufficiently explained. As there is no further information about these myths, beliefs, heritage and culture, I cannot conclude any of the above sites are of particular significance.
Given that I have concluded the material does not establish sites or areas of particular significance as required by s 237(b), I will not assess whether interference by exploration activities is likely. Nyamal raises brief arguments about the utility of buffer zones around some areas, however, as these arguments go to interference, I do not address them further.
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’s evidence (at 19) makes a brief reference to ‘any disturbance’ being too much disturbance, however, that is not further explained in the evidence in the context of s 237(c). As has been noted in recent Tribunal decisions, this sub section of s 237 refers only to ‘major disturbance’ (and not ‘any disturbance’ as Nyamal contends). Further, there is also no requirement for ‘major disturbance’ to be assessed according a native title party’s traditions (unlike s 237(b)).
Nyamal’s evidence (at 19) makes a brief reference to ‘any disturbance’ being too much disturbance. Further, Nyamal’s reply suggests (at 55, 57) that the ‘mere presence’ of the explorer would constitute major disturbance. The Oakover River is specifically mentioned.
Such an assertion in the context of this inquiry does not meet the threshold of major disturbance for the purposes of s 237(c). As has been noted in recent Tribunal decisions, this sub section of s 237 refers to ‘major disturbance’ (and not to ‘any disturbance’, as Nyamal contends). Further, there is also no requirement for ‘major disturbance’ to be assessed according to a native title party’s traditions (unlike s 237(b)).
Conclusion
I note the Oakover River is approximately 15 kilometres to the west of the licence and the materials have not sufficiently established how the river, or tributaries of the river, might be disturbed in a major way by exploration activities. 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 E46/1239 to Carawine Resources Limited is an act that attracts the expedited procedure.
Helen Shurven
Member
19 November 2019
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