Nyamal Aboriginal Corporation v Haoma Mining Nl

[2020] NNTTA 67

NATIONAL NATIVE TITLE TRIBUNAL

Nyamal Aboriginal Corporation v Haoma Mining NL & Another [2020] NNTTA 67 (3 November 2020)

Application No: WO2020/0020

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 -

Haoma Mining NL

(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:	3 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:

Native Title Act 1993 (Cth) ss 29, 32, 146, 237

Cases:

Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia)

Nyamal Aboriginal Corporation v Haoma Mining NL & Others [2020] NNTTA 24 (Nyamal v Haoma)

Nyamal Aboriginal Corporation v Peter Romeo Gianni & Others [2020] NNTTA 20 (Nyamal v Gianni)

Representatives of the native title party:

Ashley Truscott and John Edwards, Arma Legal

Representative of the grantee party: Jacob Loveland, All Mining Legal Pty Ltd

Representatives of the Government party: Reywin Rico, State Solicitor’s Office
Michael McMahon, Department of Mines, Industry Regulation & Safety

REASONS FOR DETERMINATION

1. 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 E45/5548 to Haoma Mining NL. The proposed licence is almost 96 square kilometres in size, approximately 10 kilometres north of Marble Bar, and is on land subject to the Nyamal determination (see Allen v Western Australia). In accordance with that determination, the Nyamal Aboriginal Corporation (Nyamal) holds non-exclusive native title rights and interests over 79.35 per cent of the licence area in trust for the Nyamal People.

2. Included in the notice for the licence was 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 proposed 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)).

3. Nyamal lodged an objection application with the National Native Title Tribunal (the Tribunal) in response to the inclusion of the expedited procedure statement. In doing so, Nyamal argues the expedited procedure should not apply to this proposed licence on the basis that the grant will likely cause the interference contemplated in ss 237(a), (b) and (c).

4. 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 note the licence area is within the determination area and contend that the observations of Reeves J made in Allen v Western Australia apply to the proposed licence area. However, the sections of Allen v Western Australia relied upon contain references to Nyamal People’s activities and country generally, and to various areas within the determination, but not to the proposed licence area specifically.

5. Nyamal’s approach in this inquiry was almost identical to that in Nyamal v Haoma and Nyamal v Gianni but for the fact that Nyamal did not provide a reply in the current inquiry.  As with those previous matters, Nyamal has not provided further explanation as to why Allen v Western Australia, or portions of it, apply to my consideration of the limbs of s 237. No affidavit or statement material was provided in support of Nyamal’s objection application.

6. In respect of s 237(a), both the State (at 28-31, 33-34) and Haoma (at 6.2 and 6.4(a)) assert in their contentions that Nyamal has not identified any social or community activities carried out within the proposed licence or how such activities will be directly interfered with. In relation to s 237(b), both the State (at 38-41) and Haoma (at 6.3, 6.4(b) and 8.3) assert that Nyamal has not identified any areas or sites of particular significance within the area, nor how the grant of the proposed licence will interfere with these areas or sites. With regard to s 237(c), both the State (at 51-52) and Haoma (at 6.1(c)) assert that Nyamal does not establish that the grant is likely to involve major disturbance. I accept the arguments of the State and Haoma with respect to each limb of s 237.

7. Given the information provided by all parties in this inquiry, and as per s 146 of the Act, I adopt the following paragraphs from Nyamal v Gianni:

   (a)my general approach (at [4]-[6], [10]);

   (b)information from Nyamal, my approach regarding s 237(a), and my conclusion that the grant is not likely to cause interference within the meaning of s 237(a) (at [11]-[12]);

   (c)information from Nyamal, my approach regarding s 237(b), and my conclusion that the grant is not likely to cause interference within the meaning of s 237(b) (at [13]-[14]); and

   (d)information from Nyamal, my approach regarding s 237(c), and my conclusion that the grant is not likely to involve major disturbance within the meaning of s 237(c) (at [15]).

Determination

1. The grant of E45/5548 to Haoma Mining NL is an act attracting the expedited procedure.

Helen Shurven
Member
3 November 2020