Albert Little and Others on behalf of the Badimia People/Western Australia/FMG Resources Pty Ltd
[2014] NNTTA 3
•13 January 2014
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little and Others on behalf of the Badimia People/Western Australia/FMG Resources Pty Ltd, [2014] NNTTA 3 (13 January 2014)
Application No: WO2012/0486
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Albert Little and Others on behalf of the Badimia People - (WC96/98) (native title party)
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The State of Western Australia (Government party)
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FMG Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 13 January 2014
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109(3), 146, 151(2), 237
Mining Act 1978 (WA) s 63
Aboriginal Heritage Act 1972 (WA)
Cases:Albert Little and Others on behalf of the Badimia People/Western Australia/FMG Resources Pty Ltd [2011] NNTTA 173, ('Albert Little')
Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, ('Butcher Cherel')
Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1, (Champion')
Dann v Western Australia and Another (1997) 74 FCR 391; (1997) 144 ALR 1; [1997] FCA 332, (Dann')
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (Tarlpa')
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977, ('Little')
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65, ('Maitland Parker')
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, (Parker 1)
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175, (Parker 2)
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19, ('Smith')
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, ('Walley')
Western Australia/Glen Derrick Councillor and Others on behalf of the Naagaju Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41, ('Bayform Holdings')
Representative of the Mr Marcus Fort, Yamatji Marlpa Aboriginal Corporation
native title party:
Representatives of the Ms Shelley Moore, State Solicitor’s Office
Government party: Mr Phillip Nell, Department of Mines and Petroleum
Representative of the
grantee party: Ms Nerolie Nikolic, Fortescue Metals Group Ltd
REASONS FOR DETERMINATION
On 25 January 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E59/1279 (the proposed licence) to FMG Resources Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licence comprises an area of 33.2 square kilometres located 49 kilometres South of Mount Magnet in the Shire of Mount Magnet. It is 100 per cent within the registered claim of the Badimia People (the native title party) (WC96/98 – registered from 4 October 1996).
On 25 May 2012, the native title party lodged an expedited procedure objection application with the Tribunal.
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. At the request of parties, compliance dates were extended and, after an agreement had not been reached, for contentions and evidence to be gathered. Final directions included that the Tribunal be provided with contentions and documents of the: Government party evidence by 11 March 2013; native title party by 19 August 2013; the grantee party by 2 September 2013, and the Government party contentions by 9 September 2013.
The Department of Mines and Petroleum (DMP) provided the Government party evidence on 20 March 2013 and the Government party lodged its contentions and evidence on 9 September 2013. On 19 August 2013, the native title party provided its contentions and evidence in this matter, which included signed and witnessed statements from three members of the native title party dated 13 June 2011 - these statements will be expanded upon later in this determination. On 2 September 2013, the grantee party provided its contentions and evidence, which included a sworn affidavit, which will also be expanded upon later in this determination.
The native title party was then given leave to provide a reply, which they did on 26 September 2013. All parties agreed this matter could be determined ‘on the papers’ (that is, without holding a hearing). I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act). On 19 December 2013, I was appointed by President Raelene Webb QC as the Member for the purposes of conducting the inquiry.
Legal principles
Section 237 of the Act provides:
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley, Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker at [31]–[38], [40]-[41]. In Parker 1, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker 2).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little). The correct approach to be taken to this limb of s 237 is outlined by the Full Court in Little (at 588-589), where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by what could be done rather than what was likely to be done.
Previous History of the Proposed Licence
The proposed licence had previously been notified under s 29 of the Act on 11 August 2010, when the Government party had given notice of its intention to grant the proposed licence to the grantee party and included a statement that it considered the grant attracted the expedited procedure.
The native title party lodged an objection to the inclusion of the grant in the expedited procedure and the matter proceeded to Inquiry before Member O’Dea. Member O’Dea identified various defects in the s 29 notification and considered whether the s 29 notice was adequate. Member O’Dea considered that the s 29 notice failed to comply with the requirements of s 29(3) of the Act and, therefore, the Tribunal lacked jurisdiction to conduct an inquiry into the native title party’s objection application. The full details of the history of the matter and Member O’Dea’s reasons for the decision can be found within Albert Little. I note Member O'Dea's comments (at [24]) where he stated:
Before coming to my conclusion in relation to jurisdiction I had considered the evidence in this matter and (if the Tribunal had jurisdiction to conduct an inquiry) I was inclined to find that, pursuant to s 237(b), the expedited procedure would not apply.
I do not formally adopt his reasoning, as I am not aware of the evidence or contentions provided by the Government party or the grantee party in Albert Little. However, the native title party have stated their evidence is the same in this matter as was provided in Albert Little, and for the reasons outlined further later in this determination, I accept that and so I am confident that Member O'Dea was so persuaded at least on the evidence available from the native title party.
Evidence in Relation to the Proposed Act
Government Party
Government party documentation establishes the underlying tenure on the proposed licence is:
·Crown Reserve for a Trigonometrical Station (CR 37895) at less than 0.1 per cent;
·Vacant Crown Land at less than 0.1 per cent;
·Historical Lease 394/665 (H394/665) at 45.8 per cent;
·Historical Lease 394/728 (H394/728) at 43.7 per cent;
·Pastoral Lease 3114/636 (Kirkalocka) at 45.2 Percent;
·Pastoral Lease 3114/1170 (Nalbarrra) at 40 per cent
·Pastoral Lease 3114/1151 (Wogarno) at 10.4 percent, and
·Great Northern Highway Road Reserve at less than 0.1 per cent.
Government party documentation establishes twelve previous exploration tenements granted between 1984 and 2010 and overlapping the proposed licence between 0.7 and 70.4 per cent, all now surrendered or expired. There were twelve previous prospecting tenements granted between 1982 and 2006 and overlapping the proposed licence between 0.2 and 5.9 per cent, all now surrendered, forfeited or expired. There were three previous mining leases existing between 1986 and 2010 overlapping between 0.7 and 5.4 per cent, all surrendered, and twenty five mining claims existing between 1968 and 1982 overlapping between 0.2 and 3.7 per cent, all surrendered or cancelled.
The quick appraisal document shows that services affected are: a shut mine shaft; a historic mine site; sixteen abandoned mine sites; eleven geodetic survey stations; three major roads; twelve tracks; 2 fence lines; a yard; a well/bore with a windmill and a quarry/mullock.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal sites database maintained by the Department of Aboriginal Affairs (‘DAA’), pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’), shows there are no registered sites within the proposed licence, but there is an ’other heritage place’:
·Kirkalocka Burial (Site ID 4415, skeletal material/burial, closed access, no gender restrictions).
The draft tenement endorsements and conditions extract provided by DMP indicates that the grant of the proposed licence will be subject to the following conditions; in addition to the four standard conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]):
5. The Licensee notifying the holder of any pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs, water carting equipment or other mechanised equipment.
6. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of the transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing mining on Trigonometrical Station Reserve 37895.
8. No excavation, excepting shafts, approaching closer to the Great Northern Highway, Highway verge or road reserve than a distance to equal to twice the depth of the excavation and mining on the Great Northern Highway or Highway verge being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge, to below a depth of 15 metres from the natural surface.
9. No interference with Geodetic Survey Stations KIRK 87, KIRK 88, KIRK 89, KIRK 90, KIRK 91, KIRK 91 (sic), KIRK 92, KIORK [sic] 195, KIRK 196, KIRK 197, KIRK 198, MC 18 and MC 18A and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3.Pursuant to the Savings and Transitional Provisions of the Mining Amendment Acts 1990 and 1994 all land surrendered, forfeited (other than by plaint action) or expiring from a non-graticular exploration licence will either:
·Automatically be included into a graticular exploration licence, provided the surrender, forfeiture or expiry occurred after the grant of the graticular exploration licence; or
·Automatically be included into an application for a graticular exploration licence provided the surrender, forfeiture or expiry occurred after 14 October 1995
4.The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under section 111 of the Mining Act 1978 is authorised to explore for iron.
The Government party do not appear to intend to impose any heritage conditions, such as a Regional Standard Heritage Agreement, in relation to the proposed licence.
Government party contentions are outlined in detail under the consideration of each limb of s 237 of the Act.
Native title party evidence
The native title party filed contentions and a reply to the Government party and grantee party contentions, as well as signed and witnessed statements of Mr Frank Walsh Junior, Mr Frank Walsh Senior and Mr Ollie George, which are set out at Annexures A, B and C of this determination respectively. I accept that each statement has been made by a member of the native title party, and that each has the authority of the native title party to speak on behalf of this country.
These statements were originally created for the purposes of the previously advertised s 29 notice (the history of which is outlined at [13]-[14] above). The native title party refer to them in their contentions and reply. The grantee party points to two anomalies in relation to the contents of the witness statements being applied to the current matter (one a reference to the earlier native title party contentions and one a reference the grantee party as being 'Fortescue Metals Group' rather than FMG Resources Pty Ltd). I do not find these anomalies are significant for the purposes of the current matter.
The grantee party also suggests the statements do not address the specific locality of the proposed licence (for example, by provision of maps annexed to the statements). Mr Walsh Junior does refer generally to Badimia country, but specifically to initiation sites, avoidance sites, and the importance of Kirkalocka Station, which is approximately 500 metres to the south of the proposed licence. As such, I have taken into account his comments in relation to the importance of such sites, and the importance of Kirkalocka Station.
Mr Walsh Senior also speaks of the importance of Kirkalocka Station, burial sites on and around the Station, as well as a camp ground and a law ground which are 'within this tenement'. He states this information in relation to both Badimia country and also the sites’ proximities to 'the tenement'. He also refers specifically to the DAA other heritage site (Kirkalocka Burial, Site ID 4415) which overlaps the proposed licence by more than 80 per cent.
Mr George refers to Kirkalocka Station, grave sites and other special places including law places. He specifically states that 'one of these law places is within the tenement. I know this because the Yamatji Marlpa Aboriginal Corporation staff took me out to the tenement...' (at 18). The grantee party suggest that without evidence in the form of a map, this raises doubts as to whether the native title party was taken to the proposed licence area.
In the absence of any significant evidence to contrary, and taking into account the native title party legal representative’s assertion that the statements provided in this matter were the statements provided in Albert Little, I accept that this is the case. Given that each of the statement's title pages refers to the proposed licence as being E59/1279 and not some other tenement, and the references to the other heritage site and the importance of Kirkalocka Station and surrounds, and the references to certain sites being 'on the tenement', it is reasonable for me to conclude that all three statements are referring to the area which is E59/1279, and as such, the statements are accepted for the purposes of this matter.
The native title party’s contentions do not address s 237(a) (or s 237(c)). The native title party does not specifically indicate whether or not it is only focussing on s 237(b) of the Act, and as such each limb of s 237 will be canvassed in this determination.
In relation to s 237(b), the native title party state the proposed licence is located in Kirkalocka Station, and that Kirkalocka is an area of particular ethnographic significance to the native title party, as it encompasses a burial ground and a law ground for initiated men only (at 18 and 19). It contends that the law ground and burial grounds are so significant to the native title party that they should not be disturbed (at 19).
Mr Walsh Senior indicates in his witness statement that '[t]here are burial places on Kirkalocka Station that are important to Badimia in close proximity to the tenement...These are sites that should not be destroyed or disturbed’ (at 7). He goes on to state that there are ancestor spirits where the ancestors are buried (at 8). He also states ‘[w]ithin this tenement there is a law ground. It is within the Kirkalocka Burial registered site (#4415). This is where Uncle Percy George went through the law. This is a very important site and area to Badimia because of this. Uncle Percy was the last Badimia man to go through the law on Badimia country. There is also a camp ground within the tenement that was used by the old people during law time’ (at 12). Mr Walsh Senior also states that only initiated people can go on those special areas, as uninitiated people will get sick if they trespass on to those areas (at 13).
He states that Kirkalocka Station is important to the native title party, as a site exists there where the first dreamtime white cockatoo came (at 10). Further, Mr Walsh Senior attests there is an important site on the eastern side of Kirkalocka Station where there exists a large white quartz stone that is used ceremonially to bring on more bardis for the native title party to eat (at 11).
Mr George attests that he was raised on Kirkalocka Station for many years and knows those areas that people are not permitted to go under Badimia law (at 4 and 9). He indicates there are two or three sacred sites on Kirkalocka Station where men went for law business (at 16) and that one of those sites is within the proposed licence (at 18). He states it is the law ground where his brother, Percy, went through the law and that he knows this as staff from the Yamatji Marlpa Aboriginal Corporation took him out to the proposed licence (at 18). Mr George also accords with Mr Walsh Senior when he states there is also a camping ground near to the proposed licence (at 20), and that there is a white quartz stone on Kirkalocka Station that is used ceremonially to cause an increase in bardis for the native title party to eat, called a Bardi Warlgu (at 22).
Mr George relates the dreamtime story of how the first white cockatoo came up from Noongar country and travelled to Kirkalocka Station (at 26). He states there is a big white rock at Kirkalocka Station that is the dreamtime site for the white cockatoo and that “Kirkalocka” means “cockatoo” (at 26).
Mr George’s evidence accords with that of Mr Walsh Senior when he says there are burial sites and spirits on, and in the vicinity of, the proposed licence area that can make people sick if they go there without being accompanied by the appropriate members of the native title party (at 9, 10, 11, 13, 15, 19, 29 and 31).
The evidence of Mr Walsh Junior is very general in nature, but accords with the evidence of Mr George and Mr Walsh Senior when he refers to the need to avoid sacred sites, as unauthorised access to such sites can cause sickness (at 7 and 8). He also reinforces the importance of sacred sites to the native title party as a community (at 6 and 7).
Grantee party evidence
The grantee party relies upon the evidence presented in the affidavit of Mr Thomas Weaver, the Native Title Manager for Fortescue Metals Group Ltd (‘FMG’), which is set out at Annexure D of this determination. The grantee party is a wholly-owned subsidiary of FMG and it appears that FMG determines the overarching policies and procedures under which its subsidiaries operate.
Mr Weaver attests the grantee party is cognisant of its obligations under the AHA (at 7 and 8) and FMG has an Aboriginal Heritage Department, which is responsible for ensuring that it meets its obligations under the AHA, any agreements between FMG and third parties and any other areas that FMG accepts are of particular importance to Aboriginal people (at 8).
Mr Weaver goes on to outline the process FMG uses to minimise the risk of damage to heritage sites. The process utilised by FMG and its subsidiaries involves the requirement for the internal issue of “ground disturbance permits” (‘GDPs’) before employees or contractors can undertake any ground disturbing work (at 9). According to Mr Weaver’s affidavit, various matters must be satisfied before a GDP is issued, including Aboriginal heritage (at 9). Mr Weaver deposes (at 9) that the following Aboriginal heritage matters must be addressed before a GDP can be issued:
·all heritage approvals and compliance conditions under relevant legislation, heritage agreements and land access agreements must be in place;
·ensure the GDP application is wholly within areas that have been heritage surveyed for the specific purpose;
·identify whether a heritage survey is required;
·ensure that access to the GDP area is defined;
·evaluate the proximity and scope of works and assess the potential direct or indirect impact on in situ heritage sites or exclusion zones;
·check that all approvals such as s18 of the AHA are in place; and
·any other applicable items.
According to Mr Weaver’s affidavit, FMG is aware of the Register of Aboriginal Sites maintained by the Registrar of Aboriginal Sites under the AHA and also maintains its own record of Aboriginal heritage sites through the various heritage surveys that FMG has carried out (at 12 and 13). FMG maintains its own geographic information system, which uploads the information from the Register of Aboriginal Sites on a monthly basis and also includes all the information gathered from the various heritage surveys undertaken by FMG (at 14).
Mr Weaver states that FMG welcomes the opportunity to enter into a Regional Standard Heritage Agreement with the native title party, and that it endorses the principles set out in the Guidelines for Consultation with Indigenous Peoples by Mineral Explorers, published by DMP (at 15 and 16).
Mr Weaver has attached to his affidavit at TJW3, a copy of the grantee party’s outline of proposed works, which was part of the grantee party’s application for the proposed licence. It states that the initial phase of exploration work will comprise:
·a literature search and analysis of previous publicly available data;
·the acquisition of aerial photography, landsat imagery, aeromagnetic and other public geophysical data sets (i.e. Gravity) to be ortho-rectified and imported into its data management system;
·interpretation of literature and geophysical data sets;
·detailed geological mapping, including rock chip sampling, target selection, gridding and access;
·ranking and selection of targets supporting the grantee party’s strategy direction; and
·ethnographic clearance.
Further work, should promising areas be identified, will include:
·reverse circulation drilling;
·analysis of samples, compilation of data, drafting of section and writing of technical reports; and
·metallurgical testing of low grade or marginal material.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it 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 at 449-450 [23]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The evidence establishes that some exploration and mining activity has occurred in the area of the proposed licence between 1982 and 2010 and that pastoral activities are conducted on a significant portion of the area. There were also various mining claims over the area between 1968 and 1982. I accept that these activities will already have interfered to some extent with any traditional community or social activities of the native title party.
As noted earlier, the native title party has not submitted any contentions specifically in relation to s 237(a).
The size of the proposed licence is 33.2 square kilometres and the area of the native title party’s claim is 36,129.97 square kilometres. Consistent with previous Tribunal decisions such as Dioro Exploration, I find the size of the proposed licence area, in the context of the much larger native title determination area, makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they had been shown to be carried out in the proposed licence area).
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place. In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities except in an incidental and insubstantial way. I believe this is such a case.
Taking all of these factors into account, I find that exploration activity in relation to the proposed licence E59/1279 is not likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated, DAA documentation shows no registered sites and one “other heritage place” (Kirkalocka Burial, Site ID 4,415) within the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The DAA Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. While some sites may be administratively assessed as not being an ‘Aboriginal site’ under the AHA, those sites may still be ‘areas or sites of particular significance’ to the native title party ‘in accordance with their traditions’ as per s 237(b) of the Act.
The Government party relies on relevant aspects of its regulatory regime under the Mining Act and the AHA, including s 63, the standard conditions to be imposed on exploration licences, and the additional conditions/endorsements, to contend that there is not likely to be interference with sites of particular significance. The grantee party has detailed its own internal policies and procedures that minimise the risk of interference with sites or areas of particular significance to the native title party, as well as its proposed work plan.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Faustus Nominees at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with sites of particular significance found to exist.
The Tribunal’s own map indicates the proposed licence is overlapped by the Kirkalocka Burial site by 84 per cent. DAA records indicate this site is a closed access site.
Mr Walsh Senior and Mr George both refer to the presence of burial sites in the proposed licence area. It also appears there has been a continuous historical presence of members of the native title party in the area of Kirkalocka Station and the proposed licence area, supported by Mr Walsh Senior’s statement that there is an old camp ground in the proposed licence area. Mr George states that he spent much of his childhood living with relatives on Kirkalocka Station which is very near to and which overlaps the proposed licence. This supports the likelihood of the presence of burial sites within the proposed licence area. The Tribunal has previously accepted that burial sites may be sites of particular significance even where there is a lack of evidence describing the specific connection between the site and the laws and customs of the native title holders (see Bayform Holdings). In the present matter, such a connection has been provided in separate witness statements from members of the native title party.
Mr Walsh Senior states the spirits of the ancestors reside at their burial sites, and he and Mr George are both clear in their evidence that the burial sites of their ancestors should not be disturbed. The native title party contentions argue the burial ground is a site of particular significance to the native title party. This sensitivity regarding the burial sites of ancestors is understandable across cultures.
Mr Walsh Senior and Mr George are also very clear that a law ground is within the Kirkalocka Burial site and within the proposed licence. Both men state this law ground is where Mr Percy George (a significant Badimia elder) went through the law, and that he was the last man to go through the law on Badimia country. It appears from the evidence that only initiated men can access the law ground. Both Mr Walsh Senior and Mr George make it clear in their evidence that uninitiated people must not enter the law ground, and the native title party contentions argue this is a site of particular significance to the native title party.
The witness statements of Mr George and Mr Walsh senior also refer to the presence of other sites, including the white cockatoo dreaming site and the Bardi Warlgu, but there is no evidence that these sites are on the proposed licence and it would appear that while they are likely to be on Kirkalocka Station they are not necessarily on the proposed licence.
There is evidence of previous exploration, mining and pastoral activity on the proposed licence. However, there is nothing in the native title party evidence which suggests this has interfered with sites of particular significance. There is also nothing specific in the grantee party or Government party evidence or contentions to indicate the nature and extent of any previous disturbance which may have occurred from such activities, apart from the general contention that such previous activity may have led to disturbance.
I must now consider whether the intentions of the grantee party, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, renders it unlikely there will be interference with any areas or sites of particular significance.
I note there is no evidence to suggest the grantee party will not act lawfully and in accordance with the AHA. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the Regional Standard Heritage Agreement (RSHA) (see Champion at 386-388 [30]-[34]). While the grantee party has outlined a positive attitude toward an RSHA, I do note the Government party has not included the entering into an RSHA, on request of the native title party to the grantee party, as a condition on grant of the proposed licence. The native title party refers to this in their reply, as well as outlining in some detail (at 22-49) issues relating to the grantee party's site protection regime.
The grantee party has provided detailed submissions, an affidavit and supporting evidence to demonstrate the grantee party’s commitment to minimising any risk of interference with Aboriginal heritage sites in its project areas. It appears to have in place commendable systems to focus on Aboriginal heritage site identification, recording and protection. It would appear that in most situations this would be enough to allay any reasonable concern of interference with sites of particular significance.
The proposed work plan provided by the grantee party, as I have outlined at [24] and [25], shows low impact work in the first phase such as aerial photography, desk-based research and rock chip sampling. Some of this work will require access to the proposed licence area.
However, the Kirkalocka Burial site is a closed access site and the grantee party’s GDP procedure only becomes activated when the grantee party wishes to undertake ground disturbing work. The closed nature of the Kirkalocka Burial site and the evidence of the presence of a law ground within that site which can only be accessed by initiated men means that simply accessing the sites is potentially interfering with the sites. I must also consider that the grantee party’s evidence states that a heritage survey will be triggered by an application for a ground disturbance permit. However, it is likely that, on or near such sensitive areas, interference may occur before the grantee party moves to the ground disturbance stage of their works on the proposed licence, given the nature of the sites of particular significance which have been said to exist on the proposed licence such as burial sites and the law ground.
While I am confident that the grantee party has lawful and positive intentions, I am not confident in this matter that the regulatory regime and the grantee party’s own procedures will operate to minimise the likelihood that sites of particular significance may be interfered with. I am of the opinion that this is a case where the negotiation process available under s 31 of the Act should take place to avoid the likelihood of inadvertent interference with sites of particular significance on this proposed licence. The sites of particular significance which have been stated to exist on the proposed licence area, which may or may not be on the public record, means there is a real risk of interference with them despite the protective provisions of the AHA and the grantee party’s procedures.
I find that there is likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area, and as such the act is not an act which attracts the expedited procedure for the purposes of s 237(b) of the Act.
Major disturbance to land and waters (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) 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 (Little at [41]-[57]; Dann).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place, as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (see Champion at 386-388 [74]-[79] and the cases cited therein).
In this matter, no contention is made by the native title party in relation to s 237(c) and there is no evidence to suggest there are any exceptional factors leading to a finding that major disturbance of this nature is likely. The proposed licence area has been the subject of previous tenements, and ongoing pastoral activity. In this case, I find that there is not likely to be major disturbance to land or waters or the creation of rights which would do so for the purposes of s 237(c) of the Act.
Determination
The determination of the Tribunal is that the grant of exploration licence E59/1279 to FMG Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
13 January 2014
ANNEXURE A
WITNESS STATEMENT OF FRANK WALSH JUNIOR
1. My name is Frank Douglas Walsh (Jnr) and I am a Badimia man. I am currently the Art Development Officer for Winda Barna Art Centre in Mt Magnet.
2. I was born in Mount Magnet on 19 September 1970 and I am 40 years old. I live in Mount Magnet.
3. My father is Frank Walsh Senior. He was born at Wydgee Station and is a Badimia man. My mother is Anne Walsh. She was born in Northampton and is a Nanda woman.
4. I am a Badimia man because I have a Badimia father and grandparents and great grandparents. I also am Badimia because I was born on Badimia country and I lived with old Badimia people who told me that I was Badimia, taught me about Badimia country, told me Badimia stories and showed me Badimia culture through song and dance. They were humble those old people. They showed me that all they needed was the bush and they didn’t need any material goods. All of those things that the old people told us I now realise are very important and I’m passing them on to my children and grandchildren.
5. Strangers to Badimia country, particularly Aboriginals from other groups and miners, have to ask our permission to come onto Badimia land. We would expect them to come and let us know. I have the right to stop them from coming onto our land and doing things if they haven’t asked permission first, because it is my country.
6. Every single place where the old people were is important to us. Its part of who we are as a group of people. Sites and sacred places have a life and are part of who we are. The birds there can tell a story; the wind can tell a story.
7. If those places where the old people lived got damaged or destroyed, then it would not only dishonour the old people, but it would make the people who did it sick. It could also bring bad luck and hurt to the community.
8. If we don’t look after certain parts of Badimia country, like sacred sites and the places where the old people camped, then there could be bad outcomes for us. Wherever there was water, there were camping grounds so we know where our old people lived. You can still walk around our country and see an old camp with the stick that formed the mia mia still there and the grinding stones still around. It makes us happy to see where our ancestors have been and know they are still with us.
9. My dad has told me the story of the white cockatoo on Kirkalocka Station; it is a special Badimia site.
10. There can be bad spirits in the land called moondong. They could be created by the featherfoot or they could be around sites, left by the old people. They could be dangerous to you if you don’t have the right to be there.
11. It is important to Badimia people that the spirits are not disturbed. Strangers should either ask the right elder to be allowed to use the country or take the right elder with them. An elder who knows the country should open up the country and talk to the spirits first. If that doesn’t happen, then the spirits could follow you and torment you. I teach my children and my grannies that.
ANNEXURE B
WITNESS STATEMENT OF FRANK WALSH SENIOR
1. My name is Frank ‘Bangi’ Walsh Senior and I am a Badimia man.
2. I was born on Wydgee Station on 1 July 1948 and I am 63 years old. I live at Mount Magnet.
3. My father was Frank ‘Kuran’ Walsh. He was born around Boogardie Station. My mother was Cauley George. She was born on Kirkalocka Station. They were both Badimia.
4. I am a Badimia man because I have Badimia parents and family. My mother taught me that I am Badimia. My mother told me to teach my children that they are Badimia. That’s how it works and that means that I am Badimia and Badimia country is my country. If someone starts to do something bad to our country, I have the right to go and tell them where to go and to help protect the country. That knowledge comes from my Mum telling me that Badimia country is our country. I anyone wanted to damage a site, that would not be alright with my family, because this is our country and we would not allow that to happen.
5. If a stranger comes onto Badimia country and does not ask permission we will ask them what they are doing and what is going on. I have the right to do that because it is Badimia country and the old people did that too.
6. It’s important to respect country if people come in here they must respect our country and check with us if they are going to do anything. It’s the same with miners too; if they are going to come and do something to our country then they have to check with the Badimia people first, and they have got to check where they are going to do that mining, because they might do it in a special place, like a rock hole or some other sacred place. If they said that they wanted to go and do the mining in a place that we had been told by the old people was a sacred place, we would tell them not to go there.
7. Places where people are buried are special places to Badimia people. I know there were people buried all over our country. There are burial places on Kirkalocka Station that are important to Badimia in close proximity to the tenement. My dad showed me some places where people were buried. I show my children and grannies where these places are. Al Badimia and non Badimia people have to be respectful of these places. These are sites that should not be destroyed or disturbed.
8. There’s still ancestor spirits out on the stations where they’re buried. It’s important to Badimia people that those spirits are not disturbed. Strangers to Badimia country should ask an elder to be allowed to use the country. It is important that they do that because they could go to a wrong place and get hurt themselves if they do not know the places they should avoid. I know the places I should avoid and have told my kids where they cannot go.
9. Uncle Percy George took me out to Kirkalocka Station and showed me some important places for Badimia people. He showed me a very special site of the white cockatoo. Kirkalocka is special for that white cockatoo and it is the name of the Station in Badimia language. There are Karkola gum trees near the creek on Kirkalocka Station and you do not see them hardly anywhere else on Badimia country. They are big and tall and have a white bark and are usually near water.
10. The other place you find those trees is down south in Badimia country at a place near Payne’s Find. Those white cockatoos move between those two places. At certain times of the year the gum trees near the Kirkalocka Station homestead are full of those birds. They are at Kirkalocka during the cooler months. That white cockatoo site Uncle Percy showed me is their special site, where the first dreamtime cockatoo came to on Kirkalocka Station a long time ago. This is a special place for the white cockatoo because when you get up close to it, it looks like the cockatoo it has an orange beak and a tail. It looks like a cockatoo that’s why they go there.
11. Uncle Percy also took me to another important site to Badimia people on Badimia country, which is on the eastern side of Kirkalocka Station near a big breakaway. It is a large white quartz stone that is a bardi grub. If elders go to that site and get some of the white powder flakes from the rock and throw it into the air, then lots of bardis will come on for us to eat.
12. Within this tenement there is a law ground. It is within the Kirkalocka Burial registered site (site #4415). This is where Uncle Percy George went through law. This is a very important site and area to Badimia because of this. Uncle Percy was the last Badimia man to go through the law on Badimia country. There is also a camp ground within the tenement that was used by the old people during law time.
13. Only initiated people can go there. Miners would get very sick if they go out there and don’t avoid these places. This is just walking through these places. Digging up the land on these sites would be even worse for the miners and the Badimia people.
14. Badimia people believe that little hairy men live in the bush called wudarjis. I have been told that they live in caves on Kirkalocka Station. You know they live in them, but I haven’t seen them. They don’t like their country being disturbed; like what the miners are doing digging up Badimia country now. They are like little spirit creatures, but they do not hurt you. They can frighten people though.
15. Spirits of those ancestors are around those places where Badimia people have always been. They are not bad to you, unless you do something wrong. They are there in the land making sure people do the right thing. You have to be careful not to do the wrong thing and hold on to things or you can get into trouble. Like, after my dad died, I found $50 under his swag, but I didn’t keep it. I burned that money, because it belonged to my father, not to me. I teach my kids not to pick up anything off the land and take it home. If people pick up the wrong thing they can get sick.
ANNEXURE C
WITNESS STATEMENT OF OLLIE GEORGE
Personal and Family History
Introduction
1. My name is Ollie George and I am a Badimia man.
2. I was born on Pullagaroo Station in 1934 and I will be 77 years old in November 2010.
3. My father was Sidney George. I don’t know where he was born but he came from somewhere near Kalgoorlie. My mother was Clara (Billygwi) George. She was about 100 years old when she died about 5 years ago. My mother was Badimia. She was born on the land that is now Wynyangoo Station.
4. We lived at Kirkalocka Station from when I was a little ‘juba’ until I was old enough to work. I went back there on and off to work until I was about 20.
5. The family of the station owners that were at Kirkalocka station in them days are still there and are always happy to see me come home. I still go past and drop in and talk to the boss and the missus because it is the same family who were there when I was a boy. Ann Pilkington, the granddaughter of the owners back then is on the station now. When I visit they say, “Hello, Ollie, you’ve come home” and “oh it must be nice to be back home again”.
6. When I was younger and was on Kirkalocka Station, I was with my Pop and Nan, old Dina and Nugget. Juumbi was there too (Juumbi was one of the old Fogarty ladies who lived on Kirkalocka with us). She was very old and had no home, so she stayed with my grandpop. That’s how Badimia people work; we look after each other. Old Larry Dooly, Old Emily they were both living on Kirkalocka Station when I was little. There were lots of Badimia people living around there.
7. Back in those days I was always camping with my Nan and Pop. Those two old people used to tell me what to do and where not to go. I was glad to go with Nan and Pop because I learnt a lot from them old people.
8. Kirkalocka is very special to me. The name means a white cockatoo. There is a cockatoo dreaming on Kirkalocka Station. Grand pop told me about it. There are lots of other special places on Kirkalocka Station; Chungari, Karlulu Hill, Chewar, Bardiwarlgu (the bardi site) and graves of my ancestors. My Pop and Nan told me about those places.
9. I know places you’re not supposed to go to. I have told my children and will tell my grannies. If you go to a place you’re not supposed to go to you will get in trouble. It doesn’t matter if you’re young or old if you go to the wrong place you’ll get punished. You could get sick or something would go wrong.
10. I know there are still spirits there. The spirits of those places could also make you sick if you went to the wrong place. The old people said that people who went to the wrong places got sick and crippled up and those kinds of sicknesses. If people were to disturb burials or dig them up they would get in big trouble. The spirits would make them sick too.
11. My Nan died in town just out of Mt Magnet. She was buried in town but I reckon she went back to Kirkalocka. I reckon when I die even if I get buried in Mt Magnet my spirit will have to go back to Kirkalocka. I would want to be buried down there between Kirkalocka and Wydgee if I could because that is the country I always feel most comfortable in. Most of my family, my parents, grandparents, brothers and sisters are all buried on Kirkalocka, Wydgee and Thundelarra stations.
12. There are some things you shouldn’t do, because you might get sick if you did.
13. People from other places should ask an older Badimia person if they wanted to go out there. Some places they need to take an elder too. If someone from somewhere else came here they should sit down and have a feed with us and we’d show them where they can go. If they just came in they shouldn’t go out though without permission. Unless they were just passing through and driving on roads, that would be OK. If other aboriginal people or white person come on Badimia country and went to a men’s place they might get sick. The spirits are still there. If a stranger goes there they could get sick or in trouble. If they don’t come and see an elder first they will get sick and that serves them right. Some people come around today and don’t ask me if they can go out on our country. They shouldn’t go out and just do that. They could get in trouble or get sick.
14. If you breached those laws you could get killed by the featherfoot. It was that serious. Also, you could get punished by the spirits.
15. It’s the same for strangers that come on Badimia country. The spirits on Badimia could cause trouble for them if they went places they shouldn’t. They might get sick.
16. My grandmother and grandfather, old Dina and Nugget, they told me about Badimia sites and things like that and what to do and where not to go. There are 2 or 3 sacred sites on Kirkalocka Station where all the men went for law business.
17. I still go back to Kirkalocka and I know where those sites are. I could take you there now if you wanted to go. If I take young people out to Kirkalocka Station I make sure the young people know to stay away from those sites. All my sisters and brothers knew those places too. I have showed my sons where those places are.
18. One of those places is within the tenement. I know this because Yamatji Marlpa Aboriginal Corporation staff took me out to the tenement. It is a law ground where my late brother, Percy went through the law.
19. Old Badimia men knew those sites were there and who knows who knew before that. It must be hundreds of years before, maybe a long time before that. Younger people still shouldn’t go near those places. Non-Badimia people definitely should not go out there. It would be bad for them and Badimia people. If you become an old man, who has got a lot of knowledge then it would be different. If you purposely went there and you touched the sacred objects and if people find out that you did do that, they would kill you; send out a featherfoot. All the old men knew that those places are dangerous and they didn’t want young fellows seeing that or touching them, because the old men and me could have got punished.
20. The law grounds on Kirkalocka are very important to Badimia. There is also a camping ground further over. I took the Yamatji Marlpa Aboriginal Corporation staff over there and showed them. It’s still important to know about those places even though men aren’t going through the law now in Badimia country. We know where they are and we still have to look after them.
21. Gurinjiri is a spring on the edge of the granite at Kirkalocka Station, about 2kms east of Chewar Rock. You have to dig to get water. There are lots of old camps around there. Wilana Creek is just a boggy sandy creek and you can get water all along there. People used to camp there. This is east of the tenement.
22. We have a ceremony for the bardi that my grand pop used to do out the back of Kirkalocka Station. When you go to the special white rock there that looks like a bardi you must scrape the fine white flakes from the rock to throw into the air and call out in language. Throwing the flakes makes more Bardis. It is called Bardi Warlgu.
23. If strangers come to Badimia country, from other Aboriginal groups we tell them to stay away from certain places, so they don’t get into trouble. If they didn’t take any notice and went to that place anyway or if they go to the wrong place, I think they might even get sick. That’s one of the things that is a Badimia rule too. If people break a rule and go to a place they shouldn’t go, they can get sick because they knew it was the wrong thing to do but they did it anyway and didn’t respect the laws.
24. Dreaming stories travel through Kirkalocka. Kirkalocka is the “heart” of Badimia country. This is why Kirkalocka is very important to Badimia.
25. My brother Percy used to say that the hill kangaroo (bigurda) was speared at Payne’s Find, then he did a big hop to Wydgee, he kept hopping up to Kallalu on Kirkalocka then to Bunanjarra, then to Waramboo in Magnet, then Woolgarong near Cue, then he died on the hill at Wilgi Mia, in Wajarri country. You see this blood stains along the rocks in the ground; where the red dirt, that’s his blood. My mum taught me that story. I heard my other brothers say that story of that kangaroo too.
26. Kirkalocka means cockatoo; there’s lots of white cockatoos that come to Kirkalocka and it is a special place for the white cockatoos. My grand pop told me the dreamtime story about the white cockatoo. The white cockatoo comes from the south in Noongar country and travels to Kirkalocka Station. There is a white quartz site at Kirkalocka Station. That is the place that is the dream time site for the white cockatoo. I could show you that place out at Kirkalocka. There are white trunked gumtrees there that are really big and the cockatoos go there. Kirkalocka is named after the site. The big white rock at Kirkalocka is the dreamtime site for the cockatoo.
27. There are other animal stories down at Kirkalocka, like the one about the bardies. Grandfather told me that one too. Every year when they wanted to make more bardies come up, my Grand pop would go there with the axe to cut the pieces off the white quartz rock, of the special bardi site and see which way the wind was blowing and throw it into the wind. It’s a site, so the bardi will come back and build up around there and grow every year everywhere. It makes more feed for us. I’ve done that now when I want more bardies.
28. My Grand pop was the head of the tribe, so he knew these things. He knew stories for places in the Badimia area. They used to have corroborees over there on Kirkalocka and Wydgee Stations. There was a corroboree over here in the old reserve back in the 1950’s or 60’s, on the old reserve by the side of that hill west of Magnet. There were camps all around there and there’s an old Aboriginal grave site there, too. All of these places are very close to where I have been shown the tenement is.
29. If the ancestor spirits do not recognise you, they might make you sick. It’s important to the Badimia people that the spirits are not disturbed. We make a fire around graves so that the spirits can go and sit by those fires and not disturb people at the camp fire.
30. Strangers should at least come and see us before they go into Badimia country. They should just come and check in with us first.
31. But you don’t have to go through the law to speak for Badimia country. This is my country and I know it like the back of my hand. I’ve got the language and I know dreaming stories taught to me by the old people. They wouldn’t have taught me those stories for no reason. I’ve got all I need to know to look after my country. If non-Badimia people want to come here then they have to see someone like me; they wouldn’t want to risk getting sick by coming here and not checking with someone like me about the country and the spirits.
32. My mother used to take me to Juumbi’s grave on Kirkalocka Station and the relatives would take turns lying on top of it.
ANNEXURE D
AFFIDAVIT OF THOMAS JAMES WEAVER
1. I am employed by Fortescue Metals Group Ltd (ACN 002 594 872) (“Fortescue”) as its Native Title Manager. My duties include the management of matters arising under the Native Title Act 1993 (Cth) (“NTA”) which concern Fortescue and its wholly owned subsidiaries (collectively “FMG”).
2. I am authorised by FMG Resources Pty Ltd (ACN 095 546 428) to provide this affidavit, and do so, in support of its application for the grant of E59/1279 (“Inquiry Tenement”).
3. The facts contained in this affidavit are, unless stated to the contrary, within my own personal knowledge and belief and are both true and correct. In the case of facts obtained from other sources, I believe those facts to be true to the best of my knowledge, information and belief.
Background
4. Fortescue is a public company listed on the Australian Stock Exchange.
5. FMG is Australia’s third largest iron ore producer.
6. FMG’s current mining operations and expansions are described in its 2012 Annual Financial Report (“Annual Report”). A copy of the Annual Report can be downloaded from Fortescue’s web site at Heritage Act 1972 (WA)
7. FMG is aware of its obligations under the Aboriginal Heritage Act 1972 (WA) (“AHA”).
8. FMG has an Aboriginal Heritage Department. That department is responsible for ensuring that FMG meets its obligations:
(1)under the AHA, including in respect of Aboriginal sites, as that term is defined in s5 of the AHA;
(2)under the agreements between FMG and third parties, to the extent those obligations relate to Aboriginal heritage; and
(3)in respect of other areas which FMG accepts are of particular importance to Aboriginal people. Those areas are designated by FMG as “heritage exclusion zones” or “heritage restricted zones” (“Heritage Zones”).
(together, “Heritage Obligations”).
9. FMG has adopted a Ground Disturbance Permit Procedure (“GDP Procedure”). A true copy of the GDP Procedure is annexed and marked TJW1. Under the GDP Procedure, FMG personnel and contractors must not disturb any area unless a Ground Disturbance Permit (“GDP”) has been issued for that area. The issue of a GDP is dependent on a range of matters being satisfied. One of those matters concerns Aboriginal heritage. The following extract from page 7 of the GDP Procedure describes those matters concerning Aboriginal heritage which must be satisfied before a GDP may issue:
The purpose of the Heritage review is to assess the GDP in relation to the following:
·Ensure that all heritage approvals and compliance conditions under relevant legislation, heritage agreements and land access agreements are in place;
·Ensure the GDP application is wholly within areas that have been heritage surveyed for the specific purpose;
·Identify whether a heritage survey is required;
·Ensure that access to the GDP area is defined;
·Evaluate the proximity and scope of works and assess the potential direct or indirect impact on in situ Heritage sites or the exclusion zones;
·Check that approvals (e.g. s18 under the Aboriginal Heritage Act) are in place;
·Any other applicable items.
10. FMG has adopted a Guideline for the Management of Aboriginal Cultural Heritage for its project areas (“Heritage Guidelines”). A true copy of the Heritage Guidelines is annexed and marked TJW2. All FMG personnel and contractors are required to comply with the Heritage Guidelines.
11. The following extract from page 3 of the Heritage Guidelines describes the purpose of the Heritage Guidelines:
The Guideline provides all Fortescue and contractor personnel, and visitors, on Fortescue Project Areas with a set of guidelines and procedures to:
·assist with the day to day management and protection of Sites on Fortescue project areas;
·ensure we meet our internal, statutory and community obligations with respect to the consultation, identification, assessment, protection and management of Aboriginal cultural heritage; and
·enable access to land for development activities for Fortescue operations, projects and tenements.
The Guideline applies to all stages of development of Fortescue’s project areas, including exploration, construction, mine planning operations.
12. I am informed by Lisa Maher, FMG’s Heritage Manager, that:
(1)Within Western Australia and during the period from 2005 to the present time:
(a)Over 700,000 hectares have been the subject of ethnographic Aboriginal heritage surveys commissioned by FMG; and
(b)Over 130,000 hectares have been the subject of archaeological Aboriginal heritage surveys commissioned by FMG;
(2)Over 4,000 Aboriginal sites are currently recorded in FMG’s geographic information system as being located on mining tenements held by FMG; and
(3)In respect of areas the subject of mining leases, FMG has been granted in excess of 60 consents by the Minister pursuant to s18 of the AHA.
Aboriginal Site Register
13. FMG is aware that a Register of Aboriginal Sites (“Register”) is maintained by the Registrar of Aboriginal Sites in accordance with the AHA.
14. FMG maintains a comprehensive geographic information system (“GIS”). The GIS is the primary tool used by the Heritage Department to ensure that FMG’s Heritage Obligations are satisfied. Among other things, the GIS records Aboriginal sites contained on the Register, Aboriginal sites identified by FMG which have yet to be entered on the Register and Heritage Zones relevant to FMG’s activities. I am informed by Jenny Thompson, FMG’s Manager of GIS, that the Register is uploaded into the GIS on a monthly basis.
Regional Standard Heritage Agreement
15. FMG welcomes the opportunity to enter into a Regional Standard Heritage Agreement with the Native Title Party for the Inquiry Tenement.
Guidelines for Consultation with Indigenous People by Mineral Explorers
16. FMG endorses the principles set out in the Guidelines for Consultation with Indigenous Peoples by Mineral Explorers, published by the Department of Mines and Petroleum, Tenure and Native Title Branch, July 2004 (as updated).
Heritage Surveys
17. It is the policy of FMG not to undertake ground disturbing activities without a heritage survey having first been undertaken. The policy is inherent in:
(1)The following extract from page 3 of the GDP Procedure:
A GDP must be applied for in the following circumstances:
· If ground disturbance or vegetation clearing is proposed;
· If the activity on or purpose of the parcel of land in question is being altered e.g. from a lay down area to a workshop.
(2)The following extract form paragraph 4.1 of the Heritage Guidelines:
Heritage surveys are triggered by:
· Project operations, expansion and development requirements; or
· Applications for a Ground Disturbance Permit (see Part 5.5 of this document)
Proposed Programme of Works
18. Annexed and marked TJW 3 is a true copy of the Statement by FMG Resources Pty Ltd pursuant to s58(1)(b) of the Mining Act 1978 (WA) which accompanied FMG Resources Pty Ltd’s application for the Inquiry Tenement (“S58 Statement”).
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