Nyamal Aboriginal Corporation v Haoma Mining Nl

[2020] NNTTA 24

NATIONAL NATIVE TITLE TRIBUNAL

Nyamal Aboriginal Corporation v Haoma Mining NL & Others [2020] NNTTA 24 (3 March 2020)

Application No: WO2019/1070

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 March 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 – the act is an  act attracting the expedited procedure

Legislation:

Native Title Act 1993 (Cth) ss 29, 32, 146, 151(2), 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 Peter Romeo Gianni & Another [2020] NNTTA 20 (Nyamal v Gianni)

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:

Ellise O’Sullivan, State Solicitor’s Office

Michael McMahon and Bethany Conway, 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 E45/5479 (the licence) to Haoma Mining NL. The notice for the 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 the licence is not likely to, in summary:

   (a)interfere directly with Nyamal’s community or social activities;

   (b)interfere with areas or sites of particular significance to Nyamal in accordance with their traditions;

   (c)involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.

2. As a result of the Federal Court determination Allen v Western Australia, the Nyamal Aboriginal Corporation (Nyamal) holds non-exclusive native title in trust for the Nyamal people over almost all of the licence.  

3. 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.  The President of the Tribunal appointed me to make a determination about whether the expedited procedure applies (s 32(4)). 

4. Nyamal argue the expedited procedure should not apply because the grant will likely cause the interference contemplated in sections 237(a), (b) and (c) of the Act. The arguments in the Nyamal contentions and reply were almost identical to those filed in the inquiry of Nyamal v Gianni, with no supporting evidence apart from references to Allen v Western Australia.  As such, having considered the relevant evidence and information from all parties, I adopt my approach and reasoning from Nyamal v Gianni (as per s 146 of the Act).

5. The parties indicated they did not seek a hearing in this inquiry. I was satisfied the issues for determination can be adequately determined on the papers (s 151(2)).

6. Both Haoma and the State provided contentions in this present inquiry. The State also provided mapping and other materials from the State’s databases. The materials include 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 recorded sites or other heritage places on the licence nor within its vicinity. Nyamal outlined in their reply (at 26) that there were ‘registered sites and heritage places surrounding the licence’, however, that was not supported by the States mapping and AHIS searches, or from any evidence or information provided by Nyamal regarding sites or areas of particular significance on or surrounding the licence.

7. As per s 146 of the Act, I adopt the following paragraphs from Nyamal v Gianni:

   (a)My general approach ([4]-[7])

   (b)Information from Nyamal, my approach regarding s 237(a), and my conclusion that there was no evidence of interference with social or community activities ([11]-[12])

   (c)Information from Nyamal, my approach regarding s 237(b), and my conclusion that there was no evidence of any sites or areas of particular significance ([13]-[14])

   (d)Information from Nyamal, my approach regarding s 237(c), and my conclusion that there was no evidence the grant of the licence is likely to involve major disturbance to the land or waters concerned ([15])

Determination

1. The grant of E45/5479 to Haoma Mining NL is an act attracting the expedited procedure.

Helen Shurven
Member
3 March 2020