Nyamal Aboriginal Corporation v Red Rock Australasia Pty Ltd
[2023] NNTTA 20
•15 June 2023
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation v Red Rock Australasia Pty Ltd [2023] NNTTA 20 (15 June 2023)
Application No: | WO2021/1683 |
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
(native title party)
- and -
Red Rock Australasia Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Member Glen Kelly |
Place: | Perth |
Date: | 15 June 2023 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – assumption that grantee party will use full suite of rights–– whether act likely to interfere with sites of particular significance – existence of artefacts, engraving sites and dreamtime stories – sites located outside of proposed licence – act is an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 66 Mining Regulations 1981 (WA) reg 20 Native Title Act 1993 (Cth) ss 29, 30, 31, 32, 151, 237 |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People & Another v Giralia Resources NL & Another [2002] NNTTA 24 (Walley v Western Australia) Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives(s) of the native title party: | Alissa Bishop-Thorne, Arma Legal |
| Representative(s) of the grantee party: | Shelly Zhang, Aurora Tenement Consulting |
| Representatives(s) of the Government party: | Stewart Palmer, Solicitor for the State Solicitor’s Office Andrea Wyles and David Crabtree, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
This is a decision on whether the expedited procedure as set out in the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E45/5885 (proposed licence) to Red Rock Australasia Pty Ltd (Red Rock).
On 23 July 2021, the State of Western Australia (the State) gave notice under s 29 of the NTA of its intention to grant the proposed licence to Red Rock. The notice for the proposed licence included a statement that the State considers the grant is an act attracting the expedited procedure (see s 32 of the NTA).
As outlined in s 237 of the NTA, the expedited procedure applies if the grant of the licence is not likely to:
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 native title 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 proposed licence is approximately 223 square kilometres in size and is situated approximately 90 kilometres in an easterly direction from Marble Bar. The proposed licence falls within the external boundary of the Nyamal People #1 determination (Allen v Western Australia). All of the area of the proposed licence has been determined as non-exclusive native title with the native title being held in trust by the Nyamal Aboriginal Corporation RNTBC (Nyamal).
On 22 November 2021, Nyamal lodged an objection 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 proposed licence. Nyamal had status to make this objection as it is a registered native title body corporate in respect of the Nyamal People’s native title determination at the time the s 29 notice was given (ss 29(2)(a) and 30(1) of the NTA).
Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter. My decision is based on addressing the criteria set out in s 237 of the NTA and making a predictive assessment (see Yindjibarndi v FMG at [15]-[21] and cases cited therein). I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licence, evidence of the grantee’s intentions, and the applicable regulatory regime (see Walley v Western Australia at [8]-[9] and cases cited therein).
For the reasons outlined below, I have determined that the grant of the licence does attract the expedited procedure.
The Conduct of the Inquiry and Submissions of the Parties
On 30 November 2021, I made directions for submissions from the parties and for the conduct of the inquiry. On 24 January 2022, I amended these directions to allow further time for parties to progress with negotiations which were aimed at resolving the objection via an agreement. This was not successful and on 9 February 2022, I amended the directions to allow further time for compliance following confirmation the matter would proceed to a determination.
In accordance with directions, the parties provided contentions and other material. The State provided contentions (State contentions) and materials (State materials), including mapping, a Tengraph Quick Appraisal and searches of the Aboriginal Heritage and Inquiry System (AHIS search). The State materials also included a copy of Red Rock’s application for the proposed licence including a portion of its statement required by s 58 of the Mining Act 1978 (WA) (Mining Act, s 58 statement). Details of the proposed endorsements and conditions the State intends to be imposed on the grant of the licence were also provided in this material.
Nyamal provided:
· contentions lodged 18 March 2022 (Nyamal contentions);
· the witness statement of Tony Taylor, lodged 18 March 2022 (Taylor statement); and
· contentions in reply lodged 20 April 2022 (Nyamal reply contentions).
Red Rock provided:
· contentions lodged 4 April 2022 (Red Rock contentions).
Mr Taylor is a Nyamal elder and Nyamal determined native title holder in relation to the proposed licence area. Mr Taylor states he has authority to speak on behalf of Nyamal through descent (Taylor statement [4]). Based on the information provided in Mr Taylor’s statement, I accept Mr Taylor has the necessary authority to speak on behalf of Nyamal in this matter.
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA. In my view, having regard to the material before me, I am satisfied the matter can be determined without the need for a hearing.
The proposed licence and the proposed activities
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act for a period of 5 years with a potential for a further 5 year extension. Section 66 of the Mining Act and Regulation 20 of the Mining Regulations 1981 (WA) set out the rights conferred by an exploration licence.
The Tengraph Quick Appraisal provided by the State reveals that the underlying tenure overlapped by the proposed licence is the Warrawagine Pastoral Lease (57%), unallocated crown land (34.77%) and a C class reserve for the purpose of a stock route (8.23%).
Red Rock’s s 58 statement includes that Red Rock aims to identify economic grades and quantities of manganese. The statement indicates that Red Rock proposes to conduct field geological mapping, rock chip sampling and soil sampling and other low impact activities in the first year of the licence term, with assaying and drilling to be subsequently conducted should the first year review be prospective. Given no information is provided for any time following the first year, for the purposes of making this determination, I will assume Red Rock will exercise its full suite of rights over the full extent of the proposed licence, as it is entitled.
Consideration
In conducting this inquiry 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 or disturbance as outlined in s 237 of the NTA and therefore whether it is an act that attracts the expedited procedure (Smith v Western Australia at [23]). The legal principles are outlined in Yindjibarndi v FMG at [15-21] and I adopt them for the purposes of this inquiry. If I find there is such a real chance or risk, then the expedited procedure does not apply and the parties must negotiate in good faith to seek the native title party’s agreement to the grant of the proposed licence (s 31(1)(b) of the NTA).
Section 237(a): is the grant of the licence likely to interfere directly with the native title party’s community or social activities?
Nyamal make no contentions in relation to s 237(a). As such, there is no factual material before me which indicates the grant of the proposed licence is likely to interfere with community or social activities as contemplated in s 237(a). Therefore, applying the approach outlined in Ward v Western Australia at [26] I find that interference under s 237(a) is unlikely.
Section 237(b): is the grant of the licence likely to interfere directly with areas or sites of particular significance to the native title party?
What sites or places are on the proposed licence?
For an area or site to be regarded as a place of particular significance, it must be of special or more than ordinary significance to the native title holders in accordance with their traditions. It must be known, able to be located and for its significance to be explained to the Tribunal (see Yindjibarndi v FMG [17] and cases cited therein).
The Nyamal identifies four sites it contends are of particular significance; these are Warrawagine, Warrawagine Station, Nullagine River and Little DeGrey Spring.
Warrawagine
This portion of the evidence presented by Mr Taylor relates to a site registered under the Aboriginal Heritage Act (1972) (AHA), registered as Warrawagine (Site ID 12142). As is noted by Nyamal, the boundary of the registered site area is some 5 kilometres from the proposed licence (Nyamal contentions [14]), being located to the north east of the northern boundary of the proposed licence.
Mr Taylor sets out that Warrawagine is his family’s country and is very important to his family. Mr Taylor further states he was born on Warrawagine, that his grandmother is from Warrawagine and that his mother was born and ‘grew up’ on Warrawagine (Taylor statement [7]). Mr Taylor also deposes that he grew up on Warrawagine station for a time, camping in the river ‘where the [r]egistered site Warrawagine [Site ID 12142] is, but that the family moved away on the advent of the pastoral strikes (Taylor statement [9]).
Mr Taylor sets out that there are ‘many dreamtime stories and corrobborees about Warrawagine’ (Taylor statement [8]). Mr Taylor also states ‘[t]here are a lot of artefacts in this area around Warrawagine, not just within this Registered Site’ (Taylor statement [10]) and that ‘[t]he artefacts were stones that were used as spearheads by the old people. There are also lots of grinding stones in that area’ (Taylor statement [11]).
Nyamal make no specific contentions on this site other than highlighting Mr Taylor’s statement. The State also make no specific contention on the particular significance of this place (or otherwise), focussing instead on risk of interference to sites. Red Rock contend no evidence has been provided to show this (and other sites) are of particular significance (Red Rock contentions [9])
Based on the materials before me, I have come to the view that the native title party has not provided sufficient evidence as to why this area is of particular significance. While it looks to be significant to Mr Taylor and Nyamal more widely, the evidence provided is somewhat general in nature and as such, I am not satisfied the particular significance of this area has been made out to the extent necessary. As a result of this, I am unable to find Warrawagine is a place of particular significance for the purposes of this determination.
Warrawagine Station
This portion of the evidence presented by Mr Taylor relates to a site registered under the AHA, registered as Warrawagine Station (Site ID 12143). From the AHIS search provided by the State, this site looks to be located approximately 8 kilometres to the north of the northern boundary of the proposed licence and is westward of and contiguous to the Warrawagine site examined in the previous section.
Mr Taylor states ‘[t]here is an engraving site to the west of Warrawagine, where this [r]egistered [s]ite is. There are engravings of snakes and footprints of people. It’s in the little red rocks’ (Taylor statement [12]). Mr Taylor goes on to say ‘[i]t’s a very special place, it’s like the Murujuga National Park on the Burrup Peninsula’ and that ‘[t]here are many engravings in this area’ (Taylor statement [13]).
Mr Taylor further explains that ‘[t]here was a spring where these engravings are, the old people used to go there and dig a hole and get water from there’ and ‘[t]here are engravings of snakes because old people used to say there is a dreaming snake in that spring’ (Taylor statement [14]).
The contentions made by Nyamal reiterate the statements made by Mr Taylor and similarly to the Warrawagine site, the contentions from the State are more focussed on whether there may be interference rather than the particular significance of this place. Again, Red Rock contend no evidence has been provided to show this site is of particular significance (Red Rock contentions [9]).
In my view the evidence presented is insufficient to allow a finding that this site is of particular significance in accordance with the traditions of the native title party. I am satisfied of the location. Mr Taylor describes some of the attributes of the site and makes an assertion of particular significance, in part by way of comparison with the well known area of Murujuga on the Dampier Peninsula.
In this case however, I am not satisfied there is adequate explanation of particular significance beyond its assertion. While Murujuga is well known, saying a place is like another without providing further explanation that is specific to the site in question is not adequate to enable a finding of particular significance. Similarly, while Mr Taylor provides an explanation of why snake engravings are present and references a dreaming snake, no further explanation of why the site is of special or more than ordinary significance is provided. As a result of this, I cannot find Warrawagine Station to be a place of particular significance.
Nullagine River
Nyamal do not make a clear contention that the Nullagine River is a place of particular significance, however due to the manner in which it is presented and the evidence provided, I will examine this question. The Nullagine River traverses the northern portion of the proposed licence in a north westerly direction, and intersects with the two site areas discussed above.
Mr Taylor details that ‘in the old days, the river was the main pathway for people to walk, it was the way to get to Nullagine’. Mr Taylor also states that because this was a travel route where people camped by the main pools, ‘[t]here will be many artefacts along the river’ (Taylor statement [18]).
Mr Taylor also details walking along the river with his family, hunting, camping at the main pools and in particular, Pinjian Pool, which Mr Taylor deposes is within the area of the proposed licence (Taylor statement [19]). Mr Taylor also details that in ‘[e]very pool we go to, we get the water and spit it out and talk in Nyamal and call out to the spirits to let them know we come from this area, the Nyamal area. Old people would do this at Pinjian Pool’ (Taylor Statement [19].
While the information provided does show the Nullagine River to be of significance to the Nyamal people, in my view there is insufficient evidence to show it is a place of particular significance. As it stands, it is my view the information regarding the Nullagine River is generalised and lacks specific information that may go towards explaining particular significance. For this reason, I am unable to find the Nullagine River is a place of particular significance.
Little DeGrey Spring
Nyamal make no specific contentions in regard to Little DeGrey Spring however, like the Nullagine River, I will examine whether it is a place of particular significance due to the information provided in the statement of Mr Taylor.
Mr Taylor states that Little DeGrey Spring is ‘a yinta, this means permanent water in Nyamal language’ and that when ‘we visit the waterhole we put water from the yinta in our mouth and spit it out, talk in Nyamal and call out to the spirits to let them know we are there and we are Nyamal people’. Mr Taylor also deposes that the area would have been a frequent camping place and as a result, there ‘will be a lot of artefacts there’ (Taylor statement [22]-[23]).
The State contend insufficient evidence has been provided to determine whether Little DeGrey Spring is located within the proposed licence (State contentions [24]). In my view, there is no information provided in the materials from Nyamal on the location of Little DeGrey Springs in the first instance. As such, I am unable to determine its location.
Additionally, there is no evidence or explanation provided as to why Little DeGrey Spring is a place of particular significance. From the description of Mr Taylor, it is a place of noteworthy value to the Nyamal people, however no evidence has been tendered as to why it might be of special or more than ordinary significance. As a result of this and not being able to determine its location, I am unable to find that Little DeGrey Spring is a place of particular significance.
Is there likely to be interference to places of particular significance?
As I have not made a finding that there are places of particular significance within or around the proposed licence, I am unable to make a finding there will be interference to places of particular significance. As such, I find there is unlikely to be interference with places of particular significance as contemplated by s 237(b).
Section 237(c): is the grant of the licence likely to involve major disturbance to the area of the licence?
As in s 237(a), Nyamal makes no contentions in relation to s 237(c). As such, there is no factual material before me which indicates the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance as contemplated in s 237(c). Again, applying the approach outlined in Ward v Western Australia at [26], I find that major disturbance under s 237(c) is unlikely.
Determination
I find the grant of exploration licence E45/5885 to Red Rock Australasia is an act attracting the expedited procedure.
Mr Glen Kelly
Member
15 June 2023
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