Nyamal Aboriginal Corporation v Haoma Mining Nl
[2020] NNTTA 42
•28 April 2020
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation v Haoma Mining NL and Another [2020] NNTTA 42 (28 April 2020)
Application No: | WO2019/0193; WO2019/0194 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection applications
Nyamal Aboriginal Corporation (WCD2019/010)
(native title party)
- and -
Haoma Mining NL
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 28 April 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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 acts are acts attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 237 |
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) Little v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FCR 576 (Little v Oriole) Nyamal Aboriginal Corporation v Haoma Mining NL and Another [2020] NNTTA 11 (Nyamal v Haoma) Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Freddie v Asia Investment) 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: | 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 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 its intention to grant E45/5317 and E45/5318 to Haoma Mining NL.
The notices for each 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 each 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)).
Both licences are approximately 13 square kilometres in size, and both are approximately 50 kilometres or so south of Shay Gap. Each proposed licence is on land subject to the Nyamal determination. Nyamal Aboriginal Corporation holds native title in trust for the Nyamal People (Nyamal) (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 each licence. Each licence has a portion unavailable for grant, due to previous overlapping grants, however, as nothing material turns on this point, I do not provide further detail.
Having been appointed to this inquiry, I must look at what is likely to result from the grant of the licences and decide whether there is material to support 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).
I must take a common sense approach to the materials (as outlined by Carr J in Ward v Western Australia (at [26]-[28]) and I rely on parties providing me with sufficient material and evidence so that I can understand the nature and extent of any sites, or social and community activities, for example.
I determined this inquiry could be held on the papers and no party took exception to that approach.
The Nyamal replies (at 6) argue ‘the tenement falls within the determined lands and waters of the NTP [native title party] and the expedited procedure does not apply to the grant of the tenement’. They further argue the expedited procedure should not apply to these licences on the basis that the grant will likely cause the interference contemplated in ss 237(a), (b) and (c). However, there must be more than assertions that a licence falls within determined lands and waters for me to conclude an expedited procedure does not apply to the grant of the licence.
For the reasons outlined below, I find the expedited procedure applies to the grant of both licences.
Party submissions
For each licence, Haoma provided contentions with an analysis of the Nyamal contentions, together with their view of each element of s 237.
The State provided their contentions, mapping, and other materials from the States databases. The material included Haoma’s application for the licences, a quick appraisal outlining the underlying tenure, and searches of the Aboriginal Heritage and Inquiry System (AHIS) held under the Aboriginal Heritage Act 1972 (WA) (AHA). The searches showed no sites or areas as being recorded on either licence on the AHIS register.
Nyamal provided contentions and a reply to the State’s and Haoma’s contentions. The Nyamal submissions largely rely on sections from the decision in Allen v Western Australia, which they say support their assertion that the expedited procedure should not apply.
Consideration of s 237
Section 237(a)
I must make a predictive assessment of whether the grant of the proposed licences and activities undertaken pursuant to those grants 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 [23]). 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 an explorer’s or prospector’s activities will directly interfere with social or community activities in a substantial or more than trivial way (see Freddie v Asia Investment Corporation at [14].)
Nyamal make a similar type of argument for each licence in their contentions and reply and rely on Allen v Western Australia (at [54], [58] - [59] for example). Nyamal outline they maintain their connection to the Nyamal determination area and still live permanently in the determination area (at 5).
The Nyamal contentions and reply say that Nyamal common law holders conduct community and social activities in the area of the licences, and the proposed activities of Haoma will interfere directly with such activities (at 7), particularly as the licences are part of a larger program of works (reply at 16). However, no further detail is provided in relation to these arguments.
The arguments are made in broad terms, with little reference to the licences which are the subject of this inquiry. Haoma and the State argue no evidence is provided as to what activities occur, nor where they occur, in relation to the licences. I accept that argument.
I conclude there is insufficient evidence to conclude social or community activities are likely to be substantially interfered with by Haoma’s exploration activities on the licences.
Section 237(b)
The Tribunal ‘has repeatedly found that … 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’ (see Barnes v AngloGold Ashanti (at [49], for example). This approach is further outlined in decisions such as WF v Emergent Resources (at [45]):
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.
In support of their argument that sites or areas of particular significance exist on these licences, Nyamal’s submissions rely largely on general statements from or in relation to Allen v Western Australia.
For both licences Nyamal refer, in their contentions and reply, to mythological sites, and dangerous, restricted, ceremonial, totemic and historical sites. Nyamal also suggest the AHIS is not accurate and does not contain all sites of particular significance. However, no sites of particular significance have been identified on or near either of the licences.
Haoma and the State both argue that Nyamal has not provided any details as to the specific location of any sites, or in respect to any particular sites of significance. I accept that argument.
I find there is insufficient evidence, as required by the criteria of s 237(b), to conclude sites or areas of particular significance exist. As such, I cannot examine the question of interference with such sites or areas.
Section 237(c)
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 [45]-[53]).
Nyamal provide contentions in relation to s 237(c), which are largely reiterated in the reply document. I note s 237(c) refers to ‘major disturbance to any land or waters concerned’ and some material or evidence must be put forward to establish that it is likely such a disturbance will be caused by an explorer’s activities. Nyamal assert (in their reply at 30, for example), ‘that disturbance to land and waters is major disturbance which will need to be negotiated with the NTP to avoid such disturbance’.
Haoma contentions (at 6.12) argue that no evidence has been provided as to which proposed exploration activities or to what extent their proposed activities will affect the land or waters of the licences. The State mount a similar argument.
Based on the limited evidence before me, I find it has not been established that the grant of the licences is likely to involve major disturbance to the land or waters concerned.
Conclusion in relation to my assessment of s 237 as applied to this inquiry
Nyamal provide brief information and evidence in support of their objection applications to the expedited procedure applying to these licences. On that basis, I reiterate my conclusions below, as previously outlined in my recent decision Nyamal v Haoma Mining, which took a similar approach in terms of submissions.
As noted at [12] above, s 237(a) focuses on substantial interference with social and community activities. The activities must be described and established sufficiently so that conclusions can be drawn as to the extent to which, if any, interference will be caused to them by activities of the explorer, once the licences have been granted. For the purposes of this inquiry, I could not conclude that any social or community activities have been established as occurring on the licences to such an extent, or concentrated in such an area, that exploration activities would result in substantial interference.
As noted at [17] above, some guidance is needed to a decision maker in such inquiries, beyond reference to a place or area. The actual significance of an area, in terms of the native title traditions, must be described rather than just asserted that they exist. It must be outlined why activities of an explorer, once a licence is granted, would be likely to flow onto a site or area such that it is interfered with in accordance with the traditions of the native title party. That site or area must be explained as to its particular significance to the native title party – that is, why it stands out from other sites or areas. For the purposes of this inquiry, I could not conclude any site or area was described in such a way that it reached the threshold of being a site of particular significance.
As outlined at [22] above, I must consider ‘major disturbance to land and waters’ and whether there is a real risk of that in the context of the Australian community, which includes the concerns of Nyamal. I did not find any such likelihood of disturbance was established.
Determination
My determination is that the grants of E45/5317 and E45/5318 to Haoma Mining NL are acts attracting the expedited procedure.
Helen Shurven
Member
28 April 2020
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