Nyamal Aboriginal Corporation v West Australia Resource Development Pty Ltd
[2019] NNTTA 127
•24 December 2019
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation v West Australia Resource Development Pty Ltd & Anor [2019] NNTTA 127 (24 December 2019)
Application No: | WO2018/0516 |
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 (WCD2019/101)
(native title party)
- and -
West Australia Resource Development Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 24 December 2019 |
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 applies – the act is an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 30, 31, 32(4), 141(2), 151(2), 237 Mining Act 1978 (WA) ss 57, 58, 61, 66 Aboriginal Heritage Act 1972 (WA) |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 Kevin Allen & Ors on behalf of Nyamal #1 v Jason Andrew Gill & Anor [2019] NNTTA 81 (Nyamal v Gill) Kevin Allen & Ors on behalf of Nyamal #1 v John William Young & Another [2019] NNTTA 85 (Nyamal v Young) Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 Josephine Forrest and Ors on behalf of the Yi-Martuwarra Ngurrara Native Title Claimants v State of Western Australia [2019] NNTTA 43 (Forrest v Western Australia) Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (Little v Oriole) Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (22 July 2019) (Tjiwarl v Gianni) 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 Hong-Jim Saw, Gold Valley Holdings Pty Ltd |
| Representatives of the Government party: | Mr Tom Ledger, State Solicitor’s Office, Mr Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act1993 (Cth) (NTA) applies to the grant of exploration licence E45/5091 (licence) to West Australia Resource Development Pty Ltd (WARD).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licence, with a notification day of 21 March 2018.
The s 29 notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure. If the expedited procedure applies, the licence may be granted without requiring negotiation under s 31 of the NTA.
The area of the proposed licence was, at the time the s 29 notice was issued, located wholly within the area of a native title determination application made by the Nyamal #1 native title claim group. On 19 July 2018, the registered native title claimant for the Nyamal #1 claim (claimant) lodged an objection against the State’s inclusion of the expedited procedure statement.
The President of the Tribunal, the Honourable John Dowsett AM QC, has directed me to constitute the Tribunal for the purposes of determining, under s 32(4) of the NTA, whether the grant of the licence is an act attracting the expedited procedure.
For the reasons outlined below, my determination is that the licence is an act attracting the expedited procedure.
The current native title party to the objection application
On 24 September 2019 the Nyamal native title claim was, insofar as it relates to the licence area, determined by the Federal Court (Allen on behalf of the Nyamal People #1 v State of Western Australia). Native title in relation to the licence area is now held by Nyamal Aboriginal Corporation (Nyamal) in trust for the Nyamal People. This has resulted in a change to the native title party for this matter.
The Nyamal registered native title claimant ceased to be a native title party when it ceased to be a registered native title claimant (s 30(2) NTA). However, Nyamal then became a native title party once it became a registered native title body corporate following the determination on 24 September 2019 (s 30(1)(c) NTA).
This position is reflected in the note to s 30(2) which provides that “[i]f a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate”. See also Forrest v Western Australia at [25].
Accordingly, while the objection application was properly lodged by the Nyamal claimant, it is no longer a native title party to the application.
However, the effect of s 141(2) of the NTA is that, in addition to the State and WARD, all native title parties are parties to an expedited procedure objection application. It therefore follows that, once it became a native title party in accordance with s 30(1)(c), Nyamal also became a party to the objection application and is entitled to participate in this inquiry.
Issues in the inquiry
Under s 237 of the NTA, the grant of the licence will only be an act attracting the expedited procedure if it 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 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 legal principles regarding the approach to s 237 are summarised in Yindjibarndi v FMG at [15]. My task, in considering whether the expedited procedure applies, is to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.
In this inquiry, Nyamal contends that the grant of the licence will result in interference within the meaning of ss 237(a) and 237(b), and also involve major disturbance as contemplated by s 237(c). I have considered each of these issues in turn below.
Determination on the papers
All parties have provided contentions in accordance with the Tribunal’s directions and Nyamal provided a reply.
The State provided evidence including mapping, a Tengraph Quick Appraisal form, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), the licence application and accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) as well as details of proposed endorsements and conditions of grant of the licence.
Nyamal’s evidence comprises two affidavits of Mr Kevin Edward Allen affirmed 10 June 2019 and 2 September 2019. Mr Allen was, when he affirmed those affidavits, a member of the applicant for the Nyamal #1 claim. Mr Allen says that he has authority to speak in relation to the licence area and that his evidence is from his own knowledge. I accept Mr Allen’s evidence. I note that Mr Allen’s September affidavit was provided with Nyamal’s reply after the time by which Nyamal was to provide its evidence in accordance with the Tribunal’s directions. However, the other parties have not raised any issue with this second affidavit and I have considered it in my review of the material.
WARD has not provided an affidavit with its contentions, but attached a Tengraph Quick Appraisal and map of the licence.
During the course of my consideration of this matter, the Tribunal prepared a map of the licence and surrounding areas (Tribunal Map). The Tribunal Map was circulated to the parties for comment. No party objected to my use of the map although Nyamal did provide comments in relation to WARD’s proposed access route, as discussed further below.
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA and, having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
The licence and WARD’s proposed exploration activities
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act 1978 (WA) (Mining Act). Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
According to the Tengraph Quick Appraisal forms lodged by the State and WARD:
(a)the area of the proposed licence is 5128.41 hectares; and
(b)the land tenure comprises pastoral lease (99.54%) and road reserves, including Warrawagine Road.
WARD’s contentions state that it is owned by a sole director, Mr Leonardo Shaw who is an experienced prospector based in Coolgardie.
The s 58 statement provided with the State’s evidence identifies that the commodities being targeted are gold, precious stones and base metals. Only the year 1 exploration programme and budget of $20,000 is detailed in the statement.
WARD’s contentions state at paragraph 4 that “Mr Shaw will be self funding exploration and conducts virtually all on-ground expenditure under his own time and power”. The contentions at paragraphs 10-15 also contain the following additional information on the proposed prosecting programme:
10. The proposed exploration activities whilst be prospecting and low ground disturbing activities during the initial 5 year term of grant.
11. The GTP is hopeful of identifying alluvial gold based on his prospecting activities.
12. The GTP intends to attend the tenement on an annual basis, less than 10 days per annum to meet expenditure, to meet expenditure and complete prospecting activities, limited too;
a. Removal of a low amount of samples;
b. Walking the tenement to visit identified desktop targets.
c. Panning and sampling where alluvial gold is identified.
13. The GTPs effect on native title rights would be limited by the easy access to the tenement via Warrawagine Road.
14. There are also road reserves that traverse the tenement, which would provide the GTP easy access to the tenement (see Attachment A on page 4 for the clearly delineated roads.
15. The GTP would commit to completing heritage surveys if significant ground disturbing activity were warranted follow ups to the prospecting trips, for example drilling.
While this information is helpful to understand the scale of activities proposed by WARD, the only evidence provided is the s 58 statement which is silent on the extent of activities proposed beyond year 1. Accordingly, it is reasonable to infer that WARD may exercise all of the rights available under the licence.
WARD’s proposed access route
As extracted above, WARD identified in its contentions that it would access the licence via Warrawagine Road. Both the Tribunal Map and the State’s topographical map show this road traversing the licence diagonally across both the western and southern boundaries. It is not apparent from WARD’s material whether it intends to access the licence from the south or west.
As noted previously, the Tribunal Map, which was circulated to parties, included the area surrounding the proposed licence. It showed, amongst other things, that there are two sites (ID 9730 and ID 11953) registered under the Aboriginal Heritage Act 1972 (WA) (AHA) some distance west of the licence, which partly extend into Warrawagine Road.
In providing its comments on the Tribunal Map, Nyamal raised the following issue:
The NTP was not originally aware that two sites would be traversed by the Grantee Party, on route to tenement E45/5091. This information was not available from any of the maps provided for in the initial Government Party’s contentions on 7 June 2019.
The Grantee Party provided in its contentions on 16 July 2019 paragraph 13, that it will use Warragine Road to access the tenement to limit affects on Native title. However, we note there are two registered sites which intersect Warragine Road - ID 9730, Marble Bar Shay Gap 1 and 11953, Yuda Dalu. We are aware that our client would like the opportunity to provide further information on the significance of those particular sites as well as the impact of using Warragine Road more generally. Originally, the evidence provided by the NTP only covered the tenement area specifically. Any opportunity to provide further evidence would be greatly appreciated by the NTP. However, we are aware that it may be the Tribunals’ preference to make its determination on evidence provided to date.
WARD’s proposed access via Warrawagine Road was known at the time of Nyamal’s reply and it was open to it to raise this issue then. Further, while I appreciate Nyamal’s concern, it is not a question for this inquiry. The Tribunal may take account of interference outside the area of the relevant tenement (see for example Silver v Northern Territory at [35] and Tjiwarl v Gianni at [86], however the interference must arise from the grant of the tenement.
Warrawagine Road is an existing road as shown on the mapping and any rights to use it are existing, not arising from the grant of the licence. The AHA will apply to any sites on that road, not just in relation to the use of the road by WARD, but generally.
Accordingly, the issue raised by Nyamal regarding the registered sites on Warrawagine Road is not an issue relevant to this inquiry.
Predictive assessment
Section 237(a): is the grant of the licence likely to interfere directly with Nyamal’s community or social activities?
The accepted approach to the application of s 237(a) is summarised in Yindjibarndi v FMG at [16]. The interference contemplated by s 237(a) must be direct. This requires an evaluative judgment that the grant of the licence is likely to be the proximate cause of the interference. The interference must also be substantial, rather than trivial.
Nyamal contends that the grant of the licence is likely to interfere with its community or social activities, however Mr Allen’s evidence on this issue is relatively brief.
In both of his affidavits Mr Allen says that Nyamal continue to practice native title activities and ceremonies “in this area”. Nyamal’s contentions more particularly describe the native title activities it says will be subject to interference from the grant of the licence. They include by way of example, residing on and travelling over the area; hunting, fishing and gathering; and camping.
However, Mr Allen’s provides minimal evidence on the activities conducted. Similar to other recent Nyamal matters (see for example Nyamal v Gill and Nyamal v Young), Mr Allen refers to ceremonies that are due to take place following a cyclone, as the licence is near Bubarinya Nyawarda (De Grey River), Nullagine River and Oakover River. The Tribunal Map shows that the licence area is to the south of the De Grey River. Mr Allen refers to women and children enjoying the produce from the land after the cyclone, “particularly, fishing, black berries from Jima trees, little peaches that grow through the rocks known as Jubarri: medicine and food plants will all be blooming and ready for Nyamal people to pick and use for traditional purposes”. (Allen June affidavit paragraph 9(k))
Some additional information is included in the September affidavit (at paragraph 6) in which Mr Allen states that “there is hunting that takes place on the tenement a few kilometres off of the Nullagine River into the tenement. Murundoo and Rawal which is the smaller version of goanna are all throughout the tenement and will be hunted and tracked throughout the tenement.”
Mr Allen also says that there are two hills of significance to Nyamal men and women in the licence area, the significance of which is related to birth control in Nyamal traditional law and custom. Mr Allen says further that the licence area is used for trade and exchange of arranged marriages and makes reference to his tribe, the Minungungnoo people, visiting the hills in November and December. (Allen June affidavit paragraphs 5(c), 5(d), 9(c), 9(f) and 9(h)).
The State argues that Mr Allen’s evidence regarding these various activities lacks sufficient detail and cites Yindjibarndi v FMG at [59] that there “needs to be quantifiable evidence before the Tribunal of ongoing community and social activities on, or having a nexus with, the relevant area in order to assess whether there is a real risk of those activities being adversely affected by the exploration activities if the grant is made.”
Much of Nyamal’s argument in its reply relates to the advantage of entry into its preferred heritage protection agreement.
On the question of interference, the State argues at paragraph 38 of its contentions that, while Nyamal and WARD may infrequently come across each other in the course of their activities, it is not apparent that Nyamal’s activities will be prevented or disrupted to a significant extent. Nyamal’s reply at paragraph 20 is that:
..in order to eliminate any intersection between the parties on the tenement, even if it is only for 10 days of the year, negotiations and meaningful engagement need to take place between the NTP and Grantee Party, to avoid a real chance of substantial interference.
Nyamal’s reply also relies on Mr Allen’s evidence at paragraph 10(j) of his September affidavit which states that Nyamal people will be “travelling out bush, seeing the country and doing hunting and cultural activities” from September through to summer time. However, this evidence relates to country generally rather than the licence area specifically.
I acknowledge that Nyamal is strongly of the view that entry into its preferred heritage protection agreement is the best way to manage the relationship between the parties and the interaction of their respective activities. However, the issue for consideration under s 237(a) is not whether interference will be eliminated but whether there is a real risk of direct and substantial interference to Nyamal’s community and social activities.
I accept the State’s contentions on this issue. Mr Allen’s evidence of the activities that take place in the licence area is simply too general to enable me to conclude that direct and substantial interference is likely.
Accordingly, I find that the grant of the licence is not likely to interfere directly with Nyamal’s community or social activities in relation to the licence area.
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Nyamal?
The accepted approach to s 237(b) is also summarised in Yindjibarndi v FMG at [17] – [18]. In particular, an area or site within the meaning of s 237(b) must be known and able to be located and be of special or more than ordinary significance to the native title holders. There must be a real risk of interference, but even slight interference may be unacceptable in the context of s 237(b).
What areas or sites are identified by Nyamal on the licence area?
Nyamal contend sites may have been exposed by recent rains. Mr Allen also says in his June affidavit that there are rock carvings and artefacts scatters all throughout the tenement area from the Nullagine River through to Ngarnn Creek (paragraph 8). However, the location of any of these sites is not specified. Reference is made at paragraph 9(j) to Bamboo Creek which is near the licence area. However, as shown on the Tribunal Map, Bamboo Creek appears to be some 30 kilometres from the licence area. Similarly, at paragraph 9(k), Mr Allen mentions creeks throughout the tenement that are a tributary of Bubarinya Nyawarda (De Grey River) and interconnected with other creeks in Nyamal country. However, other than saying that these creeks are a continuing part of Nyamal culture and an interconnected landscape, Mr Allen does not explain their special or more than ordinary significance. Overall, I find Mr Allen’s evidence on these sites is insufficient or speculative and I am unable to reach any conclusions in relation to them for s 237(b).
Mr Allen does make specific reference to the significance of the two hills mentioned above, due to their association with birth control in Nyamal traditional law and custom, however he does not say whereabouts on the licence the hills are located. This was an issue raised by the State in its contentions (at paragraphs 52-55) yet Nyamal has not addressed this point in its reply, nor in the September affidavit provided by Mr Allen. Much of Mr Allen’s evidence as to the location of sites is general in nature and includes references to areas outside the licence area. In that context and with nothing specific to locate the hills within the licence area, I am unable to conclude that the hills are a site of particular significance to Nyamal within the meaning of s 237(b).
Accordingly, on the evidence before me, I conclude that the grant of the licence is unlikely to cause interference within the scope of s 237(b).
Section 237(c): is the grant of the licence likely to involve major disturbance to any land or waters concerned?
Considering whether major disturbance under s 237(c) is likely requires an evaluative judgment as to whether there is a real risk of major disturbance from the grant of the licence. In this context ‘major disturbance’ is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. There is nothing to preclude Nyamal repeating here matters already considered in relation to s 237(a) and (b) (see Little v Oriole Resources at [39]-[54]; Dann v Western Australia at 395, 401 and 413)
Nyamal’s submissions in relation to s 237(c) rely on Mr Allen’s evidence in relation to the potential for disturbance to land and waters, in particular his evidence that “any such disturbance to water, waterways, creeks and creek beds is too much disturbance” (Nyamal June affidavit paragraphs 14 and 16). Again, the crux of Nyamal’s argument is that entry into a heritage protection agreement and the conduct of heritage surveys is the only way to manage any impact.
The State contends that Nyamal has provided insufficient evidence of the likelihood of major disturbance. The State asserts disturbance is unlikely because of the State’s regulatory regimes, the proposed conditions and endorsements on the licence and because the level of activity under the licence would be the same as, or no more significant than, the previous use of the area.
At paragraph 55 of its reply, Nyamal accepts that mere presence on the land would not amount to major disturbance, but says:
..the Grantee Party is not merely being present on the land of the NTP which is overlapped by the proposed tenement. The Grantee Party in its contentions of 16 July 2019, paragraph 10, will be conducting low ground disturbing activities during the five-year term of the grant, with a view to identifying alluvial gold. The Grantee Party will also conduct the removal of low amount of samples, walk the tenement including panning and sampling which may lead to further significant ground disturbing exploration on the tenement.
However, I do not consider the activities as outlined by Nyamal would equate to major disturbance within the meaning of s 237(c) in the context of this matter. I agree with the State that Nyamal has provided insufficient evidence in relation to the matter of major disturbance. Nyamal has raised concerns relating to water and waterways, creeks and creek beds and the possibility that sites may have been exposed by the rain. However, these concerns are speculative and general.
Based on the evidence before me, I find that the grant of the licence is not likely to involve major disturbance to the land and waters concerned within the meaning of
s 237(c).
Determination
I determine that the grant of exploration licence E45/5091 to West Australia Resource Development Pty Ltd is an act attracting the expedited procedure.
Ms Nerida Cooley
Member
24 December 2019
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