Nyamal Aboriginal Corporation v Haoma Mining NL and Another
[2020] NNTTA 11
•10 February 2020
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation v Haoma Mining NL and Another [2020] NNTTA 11 (10 February 2020)
Application Nos: | WO2019/0888, WO2019/0889 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into 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: | 10 February 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) Daisy Lungunan and Others on behalf of Nyikina and Mangala/ Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (Geotech International) Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 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 (Little v Oriole) 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 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: | Mr Ashley Truscott, Arma Legal |
| Representative of the grantee party: | Mr Jacob Loveland, All Mining Legal Pty Ltd |
| Representatives of the Government party: | Ms Ellise O’Sullivan, State Solicitor’s Office Matthew Smith, Michael McMahon and Ruth Carter, 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 E45/5440 and E45/5441 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)).
E45/5440 is approximately 30 kilometres west of Marble Bar, and E45/5441 is approximately 58 kilometres north-east of Marble Bar. 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). Some of the emphasis from Nyamal in this inquiry focused on a 25 kilometre buffer zone outside of the area of each of the proposed licences. However, only brief information was provided by Nyamal about the licences themselves.
Being provided with a clear understanding of the nature and extent of any sites, or social and community activities, is an important part of the assessment I must make. 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]-[29])). Inquiry directions contemplated that a hearing may not be necessary, and all parties were content for me to determine the inquiry on the papers. I saw no reason a hearing should be held.
Nyamal argued 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). For the reasons outlined below, I find the expedited procedure applies to the grant of both licences.
In relation to assessing s 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 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 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].)
In relation to assessing s 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 relation to assessing s 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 [39]-[50]).
Party submissions and argument
Haoma’s argument
Haoma provided contentions with an analysis of the Nyamal contentions, together with their view of each element of s 237.
Broadly speaking, Haoma argue the submissions and evidence provided by Nyamal for my consideration of s 237(a) are insufficient to support that hunting, gathering, practice of ceremony, camping, intergenerational teaching or other social and community activities are carried out on the licences to such an extent that exploration activities could not co-exist with them (at 6.2).
Haoma state that for the purposes of s 237(b), men’s sites which are described as being on the hills, and relevant waterways, are not sufficiently described to enable me to conclude they are sites or areas of particular significance to Nyamal (at 6.4-6.5).
In relation to Nyamal’s criticism of the test to be applied for s 237(c) (see [28]), Haoma refer to their view that ‘ordinarily exploration activities will not be considered “major” disturbances’ (at 6.9).
The State’s argument
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.
The State relies on reference to cases and arguments which assert Nyamal has not provided sufficient evidence for me to draw a conclusion that there is likely to be interference with community or social activities of the native title holders, or with any sites or areas of particular significance to the native title holders. For example, the State argue (WO2019/0889 contentions at 37) that the social and community activities as described by Nyamal could co-exist with exploration activities. The State also assert the limited information provided about sites or areas of particular significance means I could not conclude any exist in relation to either licence (for example, WO2019/0888 contentions at 43-46).
The State contentions argue that based on the evidence provided, I could not conclude land or waters are likely to be interfered with in accordance with s 237(c) of the Act (WO2019/0888 contentions at 57-58). The State also outline they will apply a number of conditions and endorsements on the grant of each licence, as well as a condition allowing for a Regional Standard Heritage Agreement to be applied to each licence if Nyamal request it within the relevant timeframe.
Nyamal’s argument
Nyamal provided contentions and a reply to the State and grantee contentions. For E45/5440, Nyamal also provided the affidavit of Kevin Edward Allen. For E45/5441, Nyamal also provided the affidavit of Doris Eaton. The affidavit material is referred to below as the Nyamal evidence. Both Mr Allen and Ms Eaton are common law native title holders for Nyamal and I accept their authority to speak for these licences. The Nyamal submissions refer to sections from the decision in Allen v Western Australia, which they say support their assertion that the expedited procedure should not apply.
Section 237(a)
Nyamal evidence for E45/5440 (at 5 and 20) outlines that hunting, gathering resources, practice of ceremony, and protecting sacred sites and areas in and around the licence would be interfered with by exploration activities of Haoma. The Shaw River is said to be an important place for such activity – I note, as does Nyamal, that the river is outside the licence (approximately 11 kilometres away). A dreamtime story (Walla Wallung) is said to be connected to the Shaw River and ‘its surrounding area are areas of significance, with sites and cultural places everywhere’ (evidence at 6, 14-15). It is said the proximity to Marble Bar increases the significance of this area to Nyamal families, according to anthropological research (reply contentions at 35). However, no further detail is provided about that research, or the implication for social or community activities.
Nyamal evidence for E45/5441 (at 6, 11-12 and 20, for example) outlines that hunting, gathering resources (including spinifex), practice of ceremony, and protecting sacred sites and areas in and around the licence would be interfered with by exploration activities of Haoma. The evidence focuses on the 25 kilometre area on and around the licence, and little detail is provided about such activity on the actual licence. The evidence makes mention of seasonal cultural practices on the licence (at 8) although no further detail is provided.
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)
In support of their argument that sites or areas of particular significance exist on these licences, Nyamal’s submissions again refer to Allen v Western Australia.
Nyamal evidence for E45/5440 refers to the Shaw River and areas generally around the licence, including pools (at 6, 8, 14), and hills on the licence (at 19). Concerns are raised about the route the explorer may take to the licence disturbing significant places (reply contentions at 51(ii)(e)). The importance of a hill range is also raised in relation to E45/5441 (evidence at 7), as well as the Seven Sisters dreaming track (evidence at 17), various waterholes and other sites in and around the licence (evidence at 15 and 23-26).
Nyamal raise the argument that the area of the licences, and surrounds, is ‘site rich’ (for example, at WO2019/0888 reply contentions at 51(ii)(b)-(c)). In relation to the ‘site rich’ argument, I adopt the following reasoning from Geotech International (at [43]):
In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation.
The issue for me to decide is whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of Haoma.
While Walla Wallung is raised as being important in relation to dreamtime connection with sites and areas of significance (WO2019/0888 reply contentions at 51(ii)(c) and (f)), little information is provided as to which sites or areas on or associated with the licence have been touched by Walla Wallung. In addition, little information been provided about the traditions of the native title party and implications for interference with respect to s 237(b), apart from in the broadest terms.
Nyamal assert (WO2019/0888 reply contentions at 51(ii)(c) and WO2019/0889 reply contentions at 34) that the grantee party has not discussed a travel route in regard to the licences, and that sites associated with Walla Wallung may be interfered with by the grantee party’s access to E45/5440. However, a specific link has not been drawn between sites, the traditions of the native title party, and the likely activities of Haoma such that interference through accessing the licence would be likely to be caused.
There is insufficient evidence, as required by 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)
Nyamal provide brief contentions in relation to s 237(c), which is reiterated in the reply document. They assert that ‘any disturbance to land and waters is too much disturbance’ (for example, WO2019/0008 reply contentions at 41). There is general information provided in the contentions that land and waters, such as the Shaw River, are likely to be interfered with in a major way by activities of Haoma (40-44). However, no further detail has been provided.
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. In addition, while Nyamal argue to the contrary (contentions at 45-49), there is no requirement for the concerns of the Nyamal people to be afforded more weight than the community in general, unless such is warranted according to the evidence in the inquiry (see for example, Little v Oriole (at [49] and citing Dann v Western Australia):
the question of whether there is a likelihood of major disturbance is to be determined by the Tribunal from the viewpoint of the general community but taking into account the views and concerns of the local community as disclosed by the evidence (emphasis added).
In the present inquiry, only general references are made, including concerns about the Shaw River, which is some distance from the licences.
Based on the limited evidence before me, I find the grant of the licences is not 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. As noted at [7] 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 say 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 [8] 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 beyond other sites or areas. For the purposes of this inquiry, I could not say 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 [9] 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 E45/5440 and E45/5441 to Haoma Mining NL are acts attracting the expedited procedure.
Helen Shurven
Member
10 February 2020
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