Nyamal Aboriginal Corporation v Gary John McCutcheon
[2019] NNTTA 96
•8 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation v Gary John McCutcheon & Another [2019] NNTTA 96 (8 November 2019)
Application No: | WO2019/0206 |
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 -
Gary John McCutcheon
(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: | 8 November 2019 |
Catchwords: | Native title – future act – proposed grant of special prospecting 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: | Mining Act 1978 (WA) s 70 |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti) Kevin Allen & Ors on behalf of Nyamal #1 v John William Young & Another [2019] NNTTA 85 (Allen v Young) Little v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FCR 576 Nyamal Aboriginal Corporation v Abeh Pty Ltd & Another [2019] NNTTA 90 (Nyamal v Abeh) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Wilma Freddie v Asia Investment Corporation) WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17 (WF v Emergent Resources) 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: | Gary John McCutcheon |
| Representatives of the Government party: | Caitlin Gilchrist, State Solicitor’s Office Michael McMahon, 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 its intention to grant special prospecting licence P45/3063-S (the licence) to Mr Gary John McCutcheon. The licence has been applied for over an area already subject to an exploration licence and allows Mr McCutcheon to prospect for gold within the applied for area (see s 70 Mining Act 1978 (WA) (the Mining Act). 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 Nyamal Aboriginal Corporation hold non-exclusive native title in trust for the Nyamal People (Nyamal) over approximately 79 per cent of the licence (see Allen v Western Australia). Native title has been determined not to exist in the remainder of the licence. 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.
The licence is approximately 0.08 square kilometres in size, located in the Shire of East Pilbara. I accept, based on mapping and party materials, that the licence is approximately 900 metres long and 90 metres wide. Mr McCutcheon asserts there is a historical track through the centre of the licence, and previous workings at the eastern end of the licence. Much of the Nyamal materials focus on the importance of Bamboo Creek Road. Mapping and the State’s Tengraph materials indicates a track and road reserve do run through the licence, but the licence does not encroach on Bamboo Creek Road as asserted in the Nyamal contentions. In fact, Bamboo Creek Road is nearly 2 kilometres away from the licence.
The Nyamal reply (at 40), and the affidavit evidence (at 9(p)) clarifies that Bamboo Creek Road is ‘in the corridor of a dreamtime ancestor story’. I accept this clarification, and that there is a ‘Bamboo Creek Road area’ – this is described as including the Talga River, which is approximately 10 kilometres west of the licence, and Coongan River which is further west, and Eight Mile Creek, which is referred to as an important part of the Bamboo Creek Road area. Mapping shows Eight Mile Creek is approximately 1 kilometre to the north east of the licence. It may be the waterway near the eastern boundary of the licence is a tributary or part of Eight Mile Creek, but I cannot be certain based on party materials.
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]). Nyamal reply on the principles outlined in that decision. 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). Being provided with a clear understanding of the nature and extent of any sites, or social and community activities, is an important part of that assessment. If parties do not provide such clarity, I must take a common sense approach to the materials (as outlined by Carr J in Ward v Western Australia (at [26])).
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). I find the expedited procedure does 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 Kevin Edward Allen (the evidence). Mr Allen identified himself as a Nyamal claimant, 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 Allen’s authority to speak for this area.
Mr McCutcheon provided a statement and photographs. He indicates he is ‘an individual part time prospector’ and that his ‘primary income is not derived from prospecting activities…’. The grant of a special prospecting licence authorises the holder to prospect for gold for a term up to 4 years from the date of grant. Section 70 of the Mining Act includes that the grant:
(a)shall not exceed 10 hectares in area; and
(b)shall authorise the holder to prospect only for gold; and
(c)shall not prevent the holder of the exploration licence from exploring for minerals other than gold in the licence area, unless directed by the Minister; and
(d)does not authorise the holder of the licence to excavate, extract or remove more than 500 tonnes of earth, soil, rock, stone, fluid or mineral bearing substances, unless authorised by the Minister; and
(e)does not authorise mining to be carried out in any portion of the land that is below a depth specified in the terms and conditions of the special prospecting licence, or if a depth is not specified, 50 metres or more below the lowest part of the natural surface of the land, unless approved by the Minister.
Mr McCutcheon outlines his proposed prospecting activities as follows:
·metal detecting on foot, soil and rock chip sampling by hand and recording locations via coordinates (at 8.1)
·expected frequency of prospecting activities is 3-6 days per month, likely to be during the cooler dry season (at 8.3)
·no permanent presence or structures on the licence and will carry sufficient food and water supplies with him (at 8.5)
·access to the licence will be via light vehicle using existing roads and tracks (at 6.1-6.2)
·no new roads or tracks are required to access or move within the licence, it can be walked over by foot (at 6.3-6.4).
The State provided their contentions, mapping, and other materials from the States databases. The material includes a quick appraisal outlining the underlying tenure and searches of the Aboriginal Heritage and Inquiry System, held under the Aboriginal Heritage Act 1972 (WA) (AHA). The searches show there are no sites or areas recorded on the licence under the AHA. The decision I must make is whether or not there are any sites or areas which are of particular significance to Nyamal.
Section 237(a): Is the grant of the licence likely to interfere directly with the community or social activities of Nyamal?
I must make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to that grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see (Smith v Western Australia at 449-450)). As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that prospecting activities will directly interfere with social or community activities in a substantial or more than trivial way (see Wilma Freddie v Asia Investment Corporation at [14].)
Much of the information and evidence provided by Nyamal turns on the location of the licence in relation to Bamboo Creek Road. It is said the licence ‘covers’ that road (the evidence at 6 and 9(h)), however, as noted above, the licence is some distance from the road. It also turns on the Bamboo Creek Road area, however, as outlined above, that area is relatively large, and the role of this licence is not detailed.
There is very broad evidence that Nyamal hunt, fish and gather resources in this area and continue to practice ceremonies in this area (the evidence at 5 and 9). For example, Mr Allen’s family fish and hunt every weekend since the rains have died down (Nyamal contentions at 9; the evidence at 9(f)). And Nyamal people fish, collect black berries from Jima trees, little peaches (Jubarri), medicine and food plants (contentions at 11; the evidence at 9(j)).
It is also outlined that Nyamal practice traditional law and culture through visiting a significant hill (for example, contentions at 10, the evidence at 8-11). This hill is said to be in the area of the licence, and in the Bamboo Creek area (for example, contentions at 9, the evidence at 9(e)). However, photographs provided by Mr McCutcheon which are said to be of the licence area, which are not challenged by Nyamal, do not show any hill feature on the licence. There is a hill in the distance of the north elevation photograph provided by Mr McCutcheon, which may be the hill referred to in the evidence, however, it is some distance from the licence. In addition, mapping does not indicate a hill on or near the licence.
The State contentions challenge the broad nature of Nyamal’s materials and evidence, noting that Nyamal provide:
· no details of law and cultural ceremonies (at 32)
· insufficient evidence regarding the location, duration, frequency and number of participants of any social and community activities (at 33)
· insufficient evidence regarding how the grant of the licence will interfere directly with law and cultural ceremonies (at 34)
· no evidence that members of Nyamal generally, not just Mr Allen’s family, conduct social and community activities on the licence, or visit the hill which is said to be of significance (at 35; 43)
· no details of the spiritual significance of the hill or details of the practice of the traditional law and culture (at 44)
· insufficient evidence of the frequency, duration and number of participants in activities related to the hill and how the grant of the licence will interfere directly (at 46).
The Nyamal reply addresses these points, for example, stating (at 12) that:
Mr Allen’s family have traditional ownership on the land known as an estate, in which the tenement is proposed and there are no other families hunting and fishing in that area unless invited by Mr Allen’s family. The assumption made [by the State] in paragraph 35 and 43, that other families are to come onto the land of the tenement for hunting and fishing is inconsistent with traditional Nyamal law and culture and should not be considered as a relevant factor in this inquiry.
I accept this argument. However, the evidence and contentions explains those activities as being broadly in the Bamboo Creek Road area, which itself is broadly defined by nearby creeks and rivers. There was insufficient evidence that the social and community activities of Mr Allen’s family were conducted on the licence in such a way that prospecting activities would interfere with them.
I accept the arguments of the State and Mr McCutcheon that social and community activities of Nyamal have not been made out to the extent that they are conducted on the licence in such a way that they will be interfered with by prospecting activities to a substantial extent.
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?
Barnes v AngloGold Ashanti (at [49]), sets out that the Tribunal:
has repeatedly found that in order to satisfy the requirements of s 237(b) of the [Act] in relation to the question of whether sites of particular significance exist in the area, the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance.
This approach is further outlined in WF v Emergent Resources (at [45]):
…the native title party is required to provide sufficient detail and specificity to allow the Tribunal to make the predictive assessment in accordance with s 237(b)... Mere reference to the existence of a…place without identifying the nature of its significance or its location does not provide an adequate basis for the Tribunal to make a finding about the existence of sites or areas of particular significance on the proposed licence…let alone a finding that the area in which the tenement is located is…imbued with a pervasive spirituality such that any unauthorised entry on the tenement area would constitute relevant interference.
The evidence asserts that sites, heritage places, waterways and social activities need to be protected through comprehensive surveying of the country (at 18). The sites referred to are an important hill, the area around Bamboo Creek Road and the Walla Wallung dreamtime pathway. In addition, Nyamal contend that merely entering Nyamal country would cause interference.
Bamboo Creek Road/Bamboo Creek Road area
The difficulty I have generally with the evidence is the assertion that places the licence as intersecting Bamboo Creek Road, when it is in fact some 2 kilometres from the road. In addition, the licence is said to intersect waterways (see for example affidavit evidence at (at 9(h)). This is explained at [4] above.
In their contentions, the State outline their concerns about the nature and extent of the evidence in relation to sites of particular significance. For example, they argue no details have been provided of the nature and location of the Bamboo Creek Road area or any explanation about why it is of particular significance (at 54). They argue there is insufficient evidence that the ‘Bamboo Creek Road area’ is located within the licence (at 55). The State also contend there is no evidence Eight Mile Creek, which is said to be part of the Bamboo Creek Road area, is within the licence (at 69) or why it, or other waterways are of particular significance in relation to the licence (at 68).
Without further information, I am unable to conclude that Bamboo Creek Road or the Bamboo Creek Road area are sites or areas of particular significance.
The important hill
The evidence states there is a significant site in the area of Bamboo Creek Road, identified through anthropological research – the site cannot be mentioned but it is significant to Nyamal families (at 11). It is not clear whether this is the hill site or another site. As noted above (at [14]), I had difficulty in locating a hill on the licence.
The State contentions (at 62-63 and attachment 1) provide a similar argument to that as outlined at [21] above, in relation to the hill.
Without further information, I am unable to draw any conclusions that the important hill is a site of particular significance.
The Walla Wallung dreaming
Mr Allen states the licence is in the middle of the Walla Wallung dreaming story (at 9(a) and (b)). Brief information about the story is provided, however, the role of the licence in the pathway of the dreaming is not described. I appreciate the details of such stories are often confidential.
The State accepts the dreaming could be a site of particular significance. However, I do not regard the evidence in this matter is such that the threshold of particular significance has been met.
The evidence explains the dreaming story, but not the part the licence has in that story, apart from it being in the Bamboo Creek Road area and that the whole area is of significance to Nyamal. The evidence explains how the dreaming can be interfered with, but not how this relates to prospecting activities on the licence. The evidence raises concerns (at 10) that Mr McCutcheon’s activities, including the travel route to and from the licence, would interfere with the Bamboo Creek area. There is a road or track which travels through the length of the licence (as confirmed by satellite imagery provided by the State), and Mr McCutcheon has indicated his intention to use it. Using the existing track seems reasonable given the size of the licence, and Mr McCutcheon has outlined the specific route he will use to gain access to the licence, that he will not need to create new tracks and that the area can easily be walked on by foot once accessed, which is all consistent with the materials provided by parties. I could not conclude that access to or from the licence would cause interference with the dreaming. In addition, I conclude it has not been established that access using the existing track and roads would cause such interference.
Other sites or areas
There are also some general comments regarding rains exposing sites of significance (Mr Allen at 9(g) and 17), including creek beds being burial grounds that may have washed away and exposed ancestors remains (Mr Allen at 15). Again, I appreciate these are sensitive subjects, however, there is insufficient information for me to conclude these areas are sites of particular significance in the context of this licence.
Conclusion
There is insufficient evidence for me to conclude the Bamboo Creek Road/Bamboo Creek Road area, the important hill or the other sites or areas are of particular significance, for the purposes of this inquiry.
The Walla Wallung dreaming is described in broad terms, and little is said about it in the context of the licence. Even had I been satisfied the dreaming, for the purposes of this inquiry, was of particular significance, there is insufficient evidence for me to conclude that prospecting activities would interfere with the dreaming, as far as it is described in this inquiry.
In addition, the assertion that merely entering the Nyamal country, including the licence, would cause interference for the purposes of s 237(b), is not made out.
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). This evaluation is taken 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 (see Little v Oriole Resources at [39]-[50]).
Nyamal provide brief contentions and evidence in relation to s 237(c). For example, the affidavit evidence (at 14) refers to ‘any’ disturbance of water, waterways, creeks and creek beds as being too much disturbance and needs to be managed in accordance with Nyamal traditions. In addition, the Nyamal contentions (at 43-45 and 46(iii)) refer to significant waterways in Nyamal traditional law and culture being disturbed and requiring comprehensive surveying to avoid such disturbance.
The States contentions (at 96), assert there is insufficient evidence of the likelihood of major disturbance, and that no evidence provided as to why ‘any disturbance is too much disturbance’.
As I have noted in recent Nyamal expedited procedure decisions (see Nyamal v Abeh at [39] and Allen v Young at [45])), s 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 P45/3063-S to Mr Gary John McCutcheon is an act that attracts the expedited procedure.
Helen Shurven
Member
8 November 2019
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