Atlas Iron Pty Ltd v Nyamal Aboriginal Corporation RNTBC - [2021] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

Atlas Iron Pty Ltd and Another v Nyamal Aboriginal Corporation RNTBC [2021] NNTTA 7 (18 February 2021)

Application No:

WF2020/0008; WF2020/0009; WF2020/0010

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

Atlas Iron Pty Ltd

(grantee party)

- and -

Nyamal Aboriginal Corporation RNTBC (WCD2019/010, WCD2019/011)

(native title party)

- and -

State of Western Australia

(Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE WITH CONDITIONS

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:	Member Helen Shurven
Place:	Perth
Date:	18 February 2021
Catchwords:	Native title – future act – application for determination in relation to proposed grant of mining leases – s 39 criteria considered – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – proposed conditions – determination that the act may be done with conditions – determination that the act may be done
Legislation:	Native Title Act 1993 (Cth), ss 30A, 31(1)(b), 35, 38, 39 Mining Act 1978 (WA) ss 8, 67(3), 82, 85 Aboriginal Heritage Act 1972 (WA), s 18
Cases:	Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Atlas Iron Pty Ltd and Another v Nyamal Aboriginal Corporation [2020] NNTTA 75 Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (Cheinmora v Striker Resources) Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571 (Eaton v Western Australia) Evans v Western Australia; [1997] FCA 741 ; Minister for Mines (WA) v Evans (1998) 163 FLR 274; [1998] NNTTA 5 (Koara 2) FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 91 (FMG Pilbara v Cheedy) Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 (Hogan v Hinch) Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37 (Osland v Secretary, Department of Justice) Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (Re Koara People) Weld Range Metals Ltd/Western Australia/Simpson (Wajarri Yamatji) (2011) 258 FLR 9; [2011] NNTTA 172 (Weld Range Metals Ltd v Western Australia) Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (Western Australia v Thomas)
Representative of the native title party:	Grace Manning-Davis, Arma Legal
Representatives of the grantee parties:	Melissa Watts, M Watts Legal C I Taggart, Counsel
Representatives of the Government party:	Domhnall McCloskey, State Solicitor’s Office Bree Ingram and Christine Weetman, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

In Atlas Iron Pty Ltd and Another v Nyamal Aboriginal Corporation [2020] NNTTA 75 (the good faith decision), I was satisfied Wodgina Lithium Pty Ltd (in relation to mining lease M45/1280) and Atlas Iron Pty Ltd (in relation to mining leases M45/1281 and M45/1282) had negotiated in good faith with a view to obtaining the agreement of the native title party, as required by s 31(1)(b) of the Native Title Act 1993 (Cth) (the Act). I have the power to proceed to make a future act determination on the s 35 applications lodged with the National Native Title Tribunal in respect of M45/1280, M45/1281 and M45/1282. Section 38 of the Act prescribes the type of decision I can make in respect of those applications, being, in summary:
(a)a determination that the act must not be done;
(b)a determination that the act may be done;
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.
In the good faith decision inquiry process, Atlas Iron Pty Ltd (Atlas Iron) was the beneficial holder in the future act M45/1280 and represented Wodgina Lithium Pty Ltd (Wodgina Lithium), as well as representing themselves with respect to M45/1281 and M45/1282. On 3 December 2020, Atlas Iron became the legal (registered) holder of M45/1280 (Mining Act 1978 (WA) s 67(3)) and, therefore, is now the grantee party for that lease (s 30A of the Act). Atlas Iron represented itself in these proceedings with respect of each lease. The Nyamal Aboriginal Corporation (WCD2019/010, WCD2019/011) (Nyamal/NTP) are the native title party because they hold native title rights and interests for the Nyamal People over the area of the leases (as outlined in the good faith decision). The State is the other negotiation party for the purposes of this inquiry.
Altas Iron seek a future act determination that mining leases M45/1280, M45/1281 and M45/1282 may be granted by the State of Western Australia (s 38(1)(b)). Collectively, these leases are referred to in materials as the Miralga Creek Project. Nyamal argue I should determine the act must not be done (s 38(1)(a)), or be done with conditions (s 38(1)(c)). Nyamal argued the minimum conditions I should impose are the terms of an agreement signed in December 2008 between Atlas Iron and the Nyamal claimants (prior to the claims being partially determined). In the good faith decision, I referred to this agreement as ‘the 2008 agreement’ and will do so in this decision. The future act determination applications were made as there was no s 31(1)(b) agreement (the 2008 agreement is not such an agreement). A s 31(1)(b) agreement must be between all negotiation parties.
The mining leases applied for are productive mining leases, with all the rights and interests allowed under ss 82 and 85 of the Mining Act 1978 (WA) (Mining Act), subject to any conditions or endorsements the State will impose on the leases. The extent and nature of the mining operations is outlined in the good faith decision at [29]-[32]. I accept the argument in the Nyamal contentions (at 15) that Atlas Iron are likely to exercise the full suite of rights available to them on grant of the leases.

The inquiry process

All parties complied with directions to produce material for the conduct of the inquiry. A hearing was held to air party argument on conditions, and following that, I indicated I would determine the matters, taking into account parties’ written and oral materials. I considered the criteria outlined in s 39 of the Act in the context of the submissions and evidence provided by the parties.
The general thrust of Nyamal’s contentions (at 10) is the grant of the leases:
·Would unnecessarily and unacceptably impact the exercise of their determined native title rights and interests on the leases and surrounds.
·Would negatively impact their culture and traditions as practiced on the leases.
·Would have a detrimental effect on the developed and continued development of their social, cultural and economic structures.
·Would severely impact their sites and areas of particular significance.
·Is contrary to their interests and wishes in relation to the management, use and control of their lands that will be affected by the act.
·Is not of such economic or other significance to Australia, the State of Western Australia.
·Is not in the public interest.
As well as providing fresh contentions and information in relation to the s 39 criteria, parties relied to some extent on the materials they provided for the good faith decision. Nyamal also provided a statement which I accept is from Mr Kevin Allen. Mr Allen is a Nyamal native title holder and member of the Nyamal Aboriginal Corporation Registered Native Title Body Corporate, and I accept he has authority to speak for the country of these leases on behalf of Nyamal. Atlas Iron provided an additional affidavit of Stacey Anne Brown, Atlas Iron Project Manager (Ms Brown’s December 2020 affidavit). Ms Brown is responsible for, among other things, the delivery of the Miralga Creek Project.

Section 39 criteria

Section 39(1)(a)(i) – the effect of the act on the enjoyment of Nyamal’s registered native title rights and interests; Section 39(1)(a)(ii) – the effect of the act on Nyamal’s way of life, culture and traditions

Section 39(1)(a)(i) directs me to consider the effect of the act on Nyamal’s enjoyment of their registered native title rights and interests. This requires an evaluation of whether the grant of the leases will constrain or otherwise affect the exercise of Nyamal’s registered rights and interests. This is a matter of fact to be determined on the evidence in each inquiry (Western Australia v Thomas at 167). Section 39(1)(a)(ii) requires me to have regard to whether the proposed leases will have a tangible effect on Nyamal’s contemporary way of life, culture and traditions (see FMG Pilbara v Cheedy at [62]).
Nyamal’s contentions argue (at 20-23) I should take into account the Federal Court decisions of Allen v Western Australia and Eaton v Western Australia. They refer to several specific paragraphs of those decisions, and emphasise the Federal Court accepted that Nyamal had maintained their connection to the determined area, and continue to camp, fish, hunt and gather on that area. The leases are within the determined area. However, as the State contend (at 29), the leases are relatively small in comparison with the size of the determined area (with the approximate sizes being just over 3 square kilometres for M45/1280, 6.3 square kilometres for M45/1281 and 15.9 square kilometres for M45/1282) and the determined areas being 28,478.55 square kilometres in total). I also note the rights and interests outlined by Nyamal are predominantly referred to in the context of the determined area as a whole, with some references to specific areas on or near the leases, as outlined in this decision.
Nyamal’s contentions assert (at 24) that members of the community ‘regularly enjoy their native title rights and interest in the areas in and around the Tenements and wish to continue to do so into the future’. They go on to list a number of rights and interests which they say will be impacted upon by the grant of the leases and the activities allowed under the grants. However, apart from the broad references to those Federal Court decisions, there is little specific evidence about how, when and where on the leases these rights and interests are exercised.
Mr Allen’s evidence focuses on the importance of the lease areas, and the areas surrounding the leases, for: travelling to and from the leases for hunting and fishing (at 31-33, 35, 38); teaching young members of the Nyamal community about Nyamal law and culture (25-26); and gathering traditional resources such as ochre for ceremonial purposes (22-26, 28, 35). Nyamal’s contentions (at 27) summarise Mr Allen’s evidence in saying:
The particular features of the subject area, namely its proximity to important caves and hill sites and its proximity to natural features such as Ochre sources and the presence of fish, goanna and so on leads to the logical conclusion that the area in and around the Tenement areas is a high use area which members of the NTP frequent so as to exercise their determined native title rights and interests.
This reference to caves is brief. However, the issue is addressed in Ms Brown’s December 2020 affidavit (at 12), where she states ‘Atlas is aware of several caves that are located within M45/1282 (Miralga East) but are outside of the project footprint’. I consider further information about sites and Nyamal’s concerns throughout this decision, and particularly in my consideration of sites of particular significance at s 39(1)(a)(v).
Nyamal assert that Atlas Iron’s activities on the leases will ‘abolish’ the exercise of the following determined rights and interests in the lease areas:
·the right to live (by entering, remaining, camping and erecting temporary shelters and structures, travelling over and visiting) on the Determination Areas;
·the right to hunt, fish, gather and use traditional resources (including ochre);
·the right to take and use water;
·the right to engage in cultural activities and the transmission of cultural knowledge (including by protecting places of cultural or spiritual importance);
·the right to be accompanied onto to the Determination Area by specified classes of persons for specified purposes.
Nyamal further clarify this assertion in their final submissions (at 5-6), where they assert:
…the Indigenous Land Use Agreement between the Nyamal Native title holders and the Strelley Pastoral Company (Strelley ILUA)…should also be considered as rights and interest that will “essentially abolish”the NTP’s ability to exercise those rights and interests….The NTP submits the NTP contentions and Allen Statement are consistent, relevant and should be accepted in relation to the impact of the Atlas Iron’s activities on the determined native title rights and interest and those agreed in the Strelley ILUA (emphasis in original).
In relation to these issues, I accept Atlas Iron’s reply (at 10) that ‘The Native Title Party does not distinguish between the general exercise and enjoyment of native title rights and interests by Nyamal people and their particular exercise and enjoyment relevant to the Mining Lease areas’. Nyamal also rely on the leases being ‘very near’ to the areas where the Federal Court determined Nyamal held exclusive possession. However, that area is some 4 kilometres at the nearest point to the leases, and as Atlas Iron assert, there is no further particularisation of the relevance of this in the Nyamal materials.
The Nyamal final submissions (at 8) note the native title rights and interests are general in the way they are expressed in the Federal Court determinations of native title, ‘…to allow for a wide range of native title activities to be undertaken by Nyamal native title holders…’. They assert that the evidence supports the exercise of these rights and interests on and around the leases. Nyamal also assert in their final submissions (at 9) that travel through the area determined to have exclusive native title rights and interests will infringe those rights and interests. However, no specific evidence has been led by Nyamal as to such travel routes, or how the rights and interests will be infringed. My view is that Nyamal broadly assert these rights and interests are so exercised, and there is little evidence about where and in what circumstances in relation to the leases or the development footprint within the leases.
The State’s reply (at 24) refers to its intention to impose extra conditions on the grant of the leases (see Annexure A to this decision), by which access will be preserved under the extra condition 1, which is similar in effect to clause 10 of the 2008 agreement.
On the basis of the information provided, I do not find the grant of the leases will have a relevant effect on Nyamal’s enjoyment of their native title rights and interests under s 39(1)(a)(i). I am also satisfied the leases will not affect the way of life, culture and traditions of Nyamal under s 39(1)(a)(ii).

Section 39(1)(a)(iii) – the effect of the act on the development of Nyamal’s social, cultural and economic structures

Section 39(1)(a)(iii) requires me to consider the effect of the proposed leases on the development of Nyamal’s social, cultural and economic structures. The effects may be positive or negative, having regard to adverse effects, as well as effects that are likely to promote the development of those structures (see Western Australia v Thomas at 170).
Nyamal suggest conditions could be imposed to ensure the effect would be a positive one, however, they do not suggest any conditions which specifically relate to this criteria (apart from the general assertion elsewhere in their contentions that the terms of the 2008 agreement should be imposed as a condition). Nyamal indicate they are concerned about the effect of the mining project on their proposed healthy country programs. No detail is provided about those programs, or about how the grant of the leases would impact on such programs. The lack of available detail for such programs is confirmed in Nyamal’s final submissions. Atlas Iron’s reply (at 33-35) is that Nyamal has not identified any social, cultural or economic structures which fall under this criteria. The State’s reply supports Atlas Iron’s argument (at 27). I agree that Nyamal’s arguments here are broadly conceived.
Based on the information before me, I consider it has not been established there are likely to be negative effects on the development of Nyamal’s social, cultural and economic structures.

Section 39(1)(a)(iv) – the effect of the act on Nyamal’s freedom of access to the land and waters, and freedom to carry out rites, ceremonies or other activities of cultural significance

Nyamal’s contentions (at 38-39) reiterate the assertions made as outlined at [11] above, that they access the lease areas and surrounds freely, despite there being underlying pastoral leases. For example, they draw my attention to the Strelley ILUA (as referred to at [14] above) which covers Nyamal’s access to M45/1282.
Nyamal’s contentions make broad assertions about the importance of freedom of access to the areas of the leases for social and community activities. However, there is nothing specific within the evidence which suggests the lease areas themselves are required as an access pathway to some place, or that social or community activities are carried out on or very near to the leases, such that they would be affected by the mining operations on the leases (or affected by Atlas Iron’s access to and from the leases). Mr Allen refers to the importance of the Shaw River to Nyamal (at 14-15, for example). However, it is not clear the leases are a point of access to areas associated with social and community activities, or that such activities are conducted on the leases, or on parts of the Shaw River within the leases, although I accept that is implied from the evidence. The State (at 34) refer to the relative size of the leases in relation to the Nyamal determination areas, and ‘any effect on the NTP's freedom of access to the proposed tenements is unlikely to be significant when weighed against criteria such as the economic significance or public interest in the doing of the act’.
The Atlas Iron contentions and reply, and Ms Brown’s December 2020 affidavit, all confirm Nyamal’s access to and through the lease areas will not be affected, save for reasons of safety during mining operations. Further, the State intends to impose an extra condition (see Annexure A of this decision) that Atlas Iron cannot restrict Nyamal’s access to the leases except for safety or security reasons.
I do not find the proposed leases will have a relevant effect on Nyamal’s freedom to carry on rites, ceremonies and other activities of cultural significance.

Section 39(1)(a)(v) – the effect of the act on any site or area of particular significance to Nyamal in accordance with their traditions on the land or waters concerned

Section 39(1)(a)(v) requires me to have regard to the likely effect of the proposed leases on any areas or sites on the land and waters concerned that are of particular significance to Nyamal in accordance with their traditions. An area or site is ‘of particular significance’ if it is of special or more than ordinary significance to the native title party in accordance with their traditions (Cheinmora v Striker Resources at 34-35).
In their contentions (at 41) Nyamal argue ‘The areas and sites of particular significance with the Tenement Areas are numerous and the NTP relies on the evidence as the most relevant documentation of the cultural standing of each of these sites and areas’. Nyamal assert the sites or areas which will be impacted on by the leases are: dreaming stories; hunting and fishing areas; access to significant ochre sites and the ability to conduct ceremony. As noted above, Mr Allen’s evidence suggests fishing is conducted widely throughout the determined area, and there is little evidence about hunting. There is no evidence of particular hunting or fishing areas that would meet the requirement of special or more than ordinary significance in accordance with Nyamal traditions. Men’s and women’s sites throughout hills are asserted by Nyamal in broad terms, however, these are not described in relation to the location of the leases.

Nyamal assert ochre is collected through the determined area, and refer to ‘songlines through the Coongan River and Coongan Gorge’ (at 21). Mr Allen also outlines (at 7) there are many sites between the Shaw River and the Coongan River. The Atlas Iron reply (at 40) asserts only M45/1281 falls between these two rivers, and that the evidence is cast in very broad terms.
The more specific evidence provided by Nyamal relates to Miralga Creek, which is said to be part of the dreaming story, and is also important for its different coloured ochres (Mr Allen at 23). According to the State’s materials (tengraphs and mapping, for example), Miralga Creek runs through M45/1281. Throughout Mr Allen’s statement, he references the importance of waterways, particularly the Shaw River, in relation to Nyamal traditions. Mr Allen also refers to ‘The most significant dreaming story in that area of the Mining Leases is the point in the middle of Panorama Station and the middle of Shaw River’ (at 24). The State’s materials show the Shaw River, and the Panorama Pastoral Lease both overlap M45/1282.
The Atlas Iron reply (at 17-20) accepts the Shaw River and Panorama Pastoral Lease both overlap M45/1282. However, they assert ‘The Shaw River passes through the north eastern corner of Miralga West [M45/1282] but not through the development footprint of that Mining Lease’. Ms Brown provides evidence in support of this assertion (at 6 of the December 2020 affidavit, and mapping which includes the Miralga Creek Heritage Survey Areas map). For example, Ms Brown states:
Although Miralga West [M45/1282] has a small portion of the Shaw River on its eastern boundary, the project footprint within the Mining Leases does not affect Shaw River nor access to the Shaw River.
The Atlas Iron reply (at 23) refers to cultural heritage surveys which have been conducted with Nyamal, which raised ochre as an issue with respect to M45/1281, which Ms Brown outlines will not be disturbed by the mining project (at 11 of the December 2020 affidavit). Nyamal noted in their final submissions (at 16) that ‘It is unclear to the NTP as to whether Atlas are advising that the 3 mining lease application areas have been surveyed by Nyamal Traditional Owners’. In the good faith decision I canvassed the heritage survey process in relation to the leases, and noted (at [26]) that the future act determination applications outlined that surveys had been conducted, including at the Miralga Creek Project area, and ‘that Archaeological and ethnographic surveys identified a number of potential heritage sites, which the Grantee Party has buffered and excluded from the development envelope’. I concluded that it appeared these surveys were undertaken under the terms of the 2008 agreement (at [44]).
Nyamal acknowledge in their final submission (at 29) that a survey has been conducted over M45/1281 (Miralga East), but go on to say ‘it is unclear whether the entire extent of the Tenements has been adequately surveyed’. Ms Brown’s affidavit for the good faith decision (October 2020 affidavit) attached a schedule of heritage surveys (document 11). The schedule does not refer to the leases by their number identifier, but refers to survey’s having been done at the ‘Miralga Creek mine site’ and ‘Sandtrax’ (the latter which is referred to in materials as M45/1280). I note that M45/1281 is referred to in materials as Miralga East, and Miralga Creek runs through that lease, and M45/1282 is referred to as Miralga West, with the whole project referred to as the Miralga Creek Project.
Ms Brown’s October 2020 affidavit also provided mapping (document 12) which showed the areas surveyed, with an overlay of the project development envelope. It appears the majority of the development envelope has been surveyed, with some relatively small areas which have not been surveyed. Much of the area outside the development envelope has not been surveyed according to that mapping.
Nyamal contentions argue the State’s regulatory regime, including the Aboriginal Heritage Act 1972 (WA) (AHA), is insufficient to mitigate the interference to areas of particular significance. Nyamal contentions (at 43-45) refer to the Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia – Interim Report, published by the Joint Standing Committee on Northern Australia, December 2020, Canberra, as evidence to the inadequacies of the AHA. The State reply (at 34) argues that the Interim Report refers to a different set of circumstances, and was created for a different purpose, and I should not accept that ‘as the basis for a determination that the acts [must] not be done’. I do accept the Interim Report as relevant in the context of the AHA and the State’s regulatory regime.
I accept there is just sufficient evidence that the area of the Shaw River which runs through M45/1282 is an area of particular significance for the purposes of this inquiry. In addition, I also accept the area of Miralga Creek which runs through M45/1281 is an area of particular significance for the purposes of this inquiry, and is likely to be a focal point for ochre. I also accept the AHA and the conditions proposed by the State would be, on their own, insufficient to mitigate interference to these areas caused by mining operations within these two leases. I do note, however, the Atlas Iron reply (at 43) provides detail about how there is a mechanism in place in the form of the 2008 agreement to consult with Nyamal ‘in relation to heritage in ways which provide greater entitlements than those provided by the [AHA]’. Atlas Iron also provide evidence, in the form of Ms Brown’s October 2020 and December 2020 affidavits, that the development footprint of the mine was generated using heritage processes under the 2008 agreement, and will not impact on those sites or areas of particular significance. As noted above, there are some parts of the development area which do not appear to have been subject to survey. In addition, the grant of the leases will be for the whole of the leases, and not just for the development survey.
I accept areas of particular significance exist on M45/1281 and M45/1282, and it does not appear the whole area of those leases has been subject to a heritage survey. As such, I consider it is appropriate to impose conditions on these two leases as part of my determination in this matter. Those conditions will require that, if mining operations (as defined in s 8 of the Mining Act) are to occur over an area not previously subject to a survey (as described by Ms Brown in Annexure 11 of her October 2020 affidavit), then a survey must be undertaken beforehand. The conditions I will impose are outlined at Annexure D (for lease M45/1281) and Annexure E (for lease M45/1282) to this decision.

Section 39(1)(b) – Nyamal’s interests, proposals or wishes in relation to the management, use or control of the land or waters where there are native title rights and interests that will be affected by the act

The assertions made with respect to this criteria by Nyamal are brief. Nyamal (at 46) assert that:
The area of the Tenements are wide and varied in different locations within the Nyamal native title determination areas. The area of impact is quite large. In particular with respect to this criterion, the NTP evidence identifies the interests, proposals and opinions and wishes as follows:
a.Seeking to use the land for traditional and cultural activities;
b.Wanting to protect the land and numerous significant areas;
c.Wanting to protect the Ochre hills; and
d.Wanting to use the land for intergenerational teaching.
However, Nyamal do not refer to any particular evidence in support of such assertions. The Atlas Iron reply (at 21) raises issues about the description of the hills and their location with respect to the leases. I accept ochre can be found on the leases, particularly M45/1281, and that there are caves on M45/1282. I cannot conclude the leases are used for traditional and cultural activities such that they will require specific management or control by Nyamal, including intergenerational teaching. Nor can I conclude from the evidence there are ‘numerous significant areas’ on the leases, but, as noted in my conclusion of s 39(1)(a)(v), there is sufficient evidence to support a conclusion that Miralga Creek and areas of ochre (on M45/1281) and the Shaw River and caves (on M45/1282) are areas of particular significance.
There is insufficient evidence to find the acts will have an effect upon the interests, proposals, opinions or wishes of Nyamal in relation to the management, use or control of the land.

Section 39(1)(c) – The economic or other significance of the act to Australia, the State, the area and Aboriginal peoples who live in the area

Section 39(1)(c) directs me to consider the economic or other significance of the act to Australia, the State, the area on which the land or waters concerned are located and the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the proposed leases, rather than a generalised inquiry into the importance of exploration or mining to the local or national economy.
Nyamal contend that while Atlas Iron have advised approximately 300 people will be employed in the Miralga Creek Project (as described in the good faith decision), the life of the mine will be less than 5 years, and employment opportunities for local people, including Nyamal, is uncertain.
The State (at 41-42) contend that ‘if the acts are done, it will enable the continued development of a significant national industry’, and that ‘Benefits will also include licence and rental fees (for the State) and income (for the nation)’. The Atlas Iron contentions (at 31) refer to ‘ongoing employment opportunity for in excess of 850 jobs’.
I am satisfied the mining program proposed on the leases is likely to produce economic benefits associated with exploration expenditure and rental payments to the State and to the nation. It is not clear what economic or other benefit there will be to Aboriginal peoples who live in the area, or to members of the Nyamal community in particular.

Section 39(1)(e) – Any public interest in the doing of the act

Section 39(1)(e) directs me to consider the public interest in the grant of the proposed leases. The term ‘public interest’ derives its content from the subject matter, scope and purpose of the legislation in which it appears (see Hogan v Hinch at [31]). The question of what is ‘in the public interest’ may require consideration of competing arguments about, or features or facets of, the public interest (see Osland v Secretary, Department of Justice at [137]).
Nyamal’s contentions with respect of this criteria may be summarised (at 53) as:
The NTP submits that the type of Project will cause irreparable damage. The potential impact to the access of ochre sources, potential damage other sites and areas of significance must be given weight and the Mine Project deemed not in the public interest.
Nyamal (at 54) say I should follow the decision in Weld Range Metals Ltd v Western Australia in that the Nyamal wishes and interests in relation to the lease areas should be given greater weight than the public interest in granting the leases and the mining project proceeding. However, the evidence and information provided in the Weld Range Metals Ltd v Western Australia inquiry was vast, and detailed, and supported such a conclusion. The evidence and information provided in this inquiry is not comparable.
Nyamal argue the 2008 agreement is ‘no longer in line with best practice’ (at 55), and that the parties have not engaged to ‘agree acceptable terms’. I dealt with this in the good faith decision and do not consider these arguments warrant a conclusion that the grant of the leases are not in the public interest. These arguments are commercial ones between the parties.
Atlas Iron’s contentions (at 18-20) outline how the Miralga Creek Project underlying the three leases is connected to the existing Corunna Downs Project, which is geographically near to the leases subject to this inquiry, and which is subject to the terms of the 2008 agreement: ‘If the Miralga Creek Project is not developed or its development is delayed, Atlas may need to consider whether to proceed with Corunna Downs and that project may be put at risk’. Atlas Iron goes on to say: ‘The Corunna Downs Project is expected to result in the payment of approximately $132 million in royalties to the State, port usage charges in excess of $190 million, $19 million in payments to the Nyamal people pursuant to an existing agreement [the 2008 agreement] and has a net economic value of $106 million’.
I am satisfied the grant of the leases will contribute to the development of the mining industry, and there is a public interest in the grant of the leases.

Section 39(1)(f) – Any other matter the Tribunal considers relevant

Section 39(1)(f) affords a wide discretion for the Tribunal to take into account other matters the Tribunal considers relevant, provided they fall within the scope, subject matter and purpose of the Act (see Re Koara People).
Nyamal do not raise any other issues apart from insisting (at 58) the 2008 agreement terms ‘form a minimum condition under which the act may be done’, should that be my decision under s 38. Nyamal argue they wish ‘to improve on those outdated terms from the 2008 Agreement to ensure that Industry best practice terms in relation to culture and heritage protection, and engagement with Nyamal’ (at 59). Once again, these are commercial issues between the parties.
Atlas Iron argue (at 33) I should take into account that:
Pursuant to the Environmental Protection Act 1986 (WA) the Environmental Protection Authority has assessed the proposal to establish the Miralga Creek Project. Having assessed that proposal, the Authority has concluded that the proposal to develop Miralga Creek Project may be implemented subject to recommended conditions.
I note that information.

Conditions

The Tribunal has a broad power to impose conditions. However, there must be evidence or support for such (see for example, the principles outlined in Koara 2)).
As noted, Nyamal seek to have the terms of the 2008 agreement imposed on the grant of the leases, should I conclude the future act may be done. This is a very broad assertion and there is little of substance to support such a condition being imposed. Nyamal outline in their final submissions (at 36) that ‘The [2008 agreement] currently do[es] not apply to the Tenements and whether the existing agreement [2008 agreement] is line with the industry best practice when it comes to engagement with Aboriginal People is extremely relevant and should be accepted, given the current issues with Aboriginal engagement noted in the Interim report’ (see [34] above in relation to the Interim Report).
Further clarification in relation to Nyamal’s assertion that the 2008 agreement should apply as a condition to the leases is in their final submissions (at 37) where they argue that:
The NTP admits the assertion made by Atlas Iron in the GP reply contentions at [63] the NNTT cannot make conditions relating to the payment of monies. The minimum condition referred in the NTP contentions applies to all other terms of the Existing Agreement such as employment, contracting opportunities, environmental protection, protection of Aboriginal heritage, cross cultural education, dispute resolution and monitoring and liaison committee. The NTP confirms that the NTP has no intention of binding itself, or Atlas Iron to the invalid terms of the Existing Agreement, in particular clause 3. The suggestion that terms of the Existing Agreement may apply is an attempt to protect the interests of the NTP.
Atlas Iron’s reply (at 63-65) state that Nyamal’s argument ‘suffers from a number of difficulties’. The first difficulty Atlas Iron raise is that ‘insofar as the [2008 agreement] provides for the payment of monies based on royalties the Tribunal does not have power to make such a condition’ (as per s 38(2) of the Act). I regard clause 5.6(a) and possibly clause 18 may offend s 38(2). However, I do not need to make a decision as to whether or not there are clauses within the 2008 agreement which are calculated by reference to the prohibited criteria listed under s 38(2), because there is simply insufficient evidence for me to make such a condition as part of this determination.
The second difficulty Atlas Iron raise is the lack of clarity around the nature of the condition to be imposed – referring to the imposition of the terms of the 2008 agreement is a broad approach. I accept this contention - the way the proposed condition is couched by Nyamal is very broad and not supported by the available evidence.
The third and final difficulty Atlas Iron raise is that ‘whilst the Native Title Party would apparently prefer a different agreement it is apparent that it considers [the 2008 agreement] (or part of it) is sufficient to form the basis for protecting Nyamal People’s interests’. I note, as is outlined in the Atlas Iron reply (at 65) and Ms Brown’s December 2020 affidavit (at 101), it is ‘Atlas Iron’s intention to observe terms of that agreement if the Mining Leases are granted’. This was reinforced at the oral hearing (as outlined below).
The State (at 22) has indicated it will impose four extra conditions (at Annexure A of this decision) on the grant of the leases, in addition to the conditions and endorsements it intends to impose on each of the leases (at Annexure B). I do not intend to impose these endorsements and conditions outlined by the State, or the extra four conditions also proposed by the State, as the State have confirmed they will impose these upon grant of the leases.
The State indicated they proposed to add a further endorsement on each of the leases in the following form:
The Lessee's attention is drawn to National Native Title Tribunal determination [2021] NNTTA #TBA1 (DD/MM/2021) and the conditions set out in that determination at Annexure # TBA2.
The State also noted:
Secondly, in order to be consistent with the terms used in the Mining Act 1978 (WA), the term 'grantee party' will be replaced by the word 'Lessee' wherever the former appears in the Extra Conditions the Government Party proposes be imposed on the leases applied for.
While there was insufficient evidence to impose the terms of the 2008 agreement broadly as part of this determination, there was sufficient evidence for me to impose a heritage survey condition as part of my determination for M45/1281 and M45/1282 (as outlined above at [36]).
Parties were given the opportunity to provide written comment on the draft conditions I intended to impose on M45/1281 and M45/1282 (at Annexure C). Following consideration of parties’ written comments, I allowed parties an oral hearing to outline any final submissions and argument they had in relation to the subject of conditions in general and the proposed conditions in particular, and to hear each other’s argument and submissions and respond. Having considered the written and oral information provided by parties, I intend to impose the conditions outlined at Annexure D (for lease M45/1281) and Annexure E (for lease M45/1282).
The Nyamal written response to the draft conditions proposed an additional twelve conditions (7-19) to be imposed on the grant of all leases. Those conditions focused on protection of Nyamal cultural heritage, and to facilitate a positive working relationship between Nyamal and Atlas Iron. They also sought the draft conditions proposed at Annexure C to be imposed on all three leases, and not only on M45/1281 and M45/1282. As noted in this decision, there simply is insufficient evidence to impose conditions on M45/1280.

Subsequent to the written submissions, and confirmed at the oral hearing, Nyamal withdrew their proposed conditions 7-14, and any documents provided in support of those conditions.
Nyamal asserted their proposed conditions 15-19 should be applied to all three leases – these conditions related to the creating and ongoing function of a monitoring and liaison committee (MALC), which Nyamal asserted was core to protecting Nyamal cultural interests, including issues related to rehabilitation of the area. Atlas Iron opposed the application of these proposed conditions 15-19 on any of the leases, for reasons including: the Tribunal’s proposed conditions allowed for a consultation process; and Atlas Iron will comply with the existing terms of the 2008 agreement which includes a MALC (clause 12) (albeit the MALC clause in that agreement has a broader purpose). Atlas Iron argued the MALC condition as envisioned by Nyamal for this inquiry proposed to meet three times per year, which they said was not proportionate to the context, and that to date, Atlas Iron has not been able to convene a single MALC meeting with Nyamal despite efforts to do so. Nyamal were concerned that an intention from Atlas Iron to comply with the MALC clause of the 2008 agreement was not an actual condition Nyamal could rely on.
Given a communication mechanism is something which has been a challenge to progressing the agreement making process and the Miralga Creek Project, and communication is also at the centre of the cultural heritage concerns expressed by Nyamal (for example, in relation to s 39(1)(a)(v)), I find there is support for the imposition of a MALC condition. This is also taking into account Atlas Iron indicating they intended to meet the MALC clause in the 2008 agreement.
I have used the basis of the 2008 Agreement MALC clause, and modified it in regard to the submissions made by Atlas Iron at the oral hearing, and the submissions they made in writing in response to Nyamal’s proposed conditions 15-19, and also taking into account the concerns Nyamal expressed at the oral hearing and written materials. For example, I have applied the financial terms for Atlas Iron’s financial commitment to MALC meetings as used in the 2008 agreement, and made them approximately proportionate to a single meeting per year (taking into account consumer price indexing from 2008 to the present, as per the MALC clause in the 2008 agreement). The condition will read as follows:
Monitoring and Liaison Committee
The native title party and the grantee party will establish a Monitoring and Liaison Committee with the object of providing a means of communication between those parties in relation to the Miralga Creek Project.
The Monitoring and Liaison Committee will consist of:
(i)A maximum of 6 Nyamal common law holders as nominated from time to time by the native title party;
(ii)an advisor to the Nyamal common law holders as nominated from time to time by the native title party;
(iii)up to four members nominated by the grantee party.
The Monitoring and Liaison Committee will meet once per year, at a mutually agreed date and place.
If none of the committee members nominated by the native title party or their substitutes are available to attend a meeting, the grantee party is released from the meeting commitment for that particular year.
The grantee party will pay the Nyamal common law holder members of the Monitoring and Liaison Committee up to a total of $10,000 (adjusted annually for the consumer price index) to cover sitting fees for attending the meeting and towards their reasonable travel and accommodation costs of attending the meeting.
The grantee party will pay the reasonable costs of an advisor capped at $3,500 per year.
The grantee party will provide a copy of the Operations Report - Expenditure On Mining Tenement (Form 5) for M45/1280, M45/1281 and M45/1282, and any returns required to be submitted to the relevant State of Western Australia Government department in respect of royalties from the Mining Operations to the members of the Monitoring and Liaison Committee at the same time as it lodges it with the relevant department.
Definitions
The Miralga Creek Project consists of M45/1280, M45/1281 and M45/1282
Mining operations is defined as per s 8 of the Mining Act 1978 (WA).
Department means the State Government department responsible for the administration of the Mining Act 1978 (WA)
I have imposed this condition on the lease which is at the centre of the Miralga Creek Project (M45/1282), rather than duplicate the condition on M45/1281, given the MALC condition allows communications on the project as a whole.

Determination

The determination of the Tribunal is that the act, being the grant of mining lease M45/1280 to Atlas Iron Pty Ltd, may be done.
The determination of the Tribunal is that the grant of mining lease M45/1281 to Atlas Iron Pty Ltd may be done with conditions as set out in Annexure D.
The determination of the Tribunal is that the grant of M45/1282 to Atlas Iron Pty Ltd may be done with conditions as set out in Annexure E.

Helen Shurven
Member
18 February 2021

Annexure A: EXTRA CONDITIONS THE STATE WILL IMPOSE ON M45/1280, M45/1281 AND M45/1282

Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the mining tenement is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.
If the grantee party gives a notice to the Aboriginal .Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
Where, prior to commencing any development or productive mining or construction activity, the grantee party submits a plan of proposed operations and measures to safe guard the environment or any addendums thereafter to the Director of Environment at the Department of Mines and Petroleum for his assessment and written approval; the grantee party must at the same time give to the native title party a copy of the proposal or addendums, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
Upon assignment of the mining tenement the assignee shall be bound by these conditions.

Annexure B: Conditions and endorsements the state intend to apply to the grant of each respective lease

Annexure C: PROPOSED Draft CONDITIONS TO BE IMPOSED ON M45/1281 AND M45/1282

If Atlas Iron Pty Ltd (the grantee party) is to conduct productive mining operations over an area of M45/1281 or M45/1282 which has not previously been subject to a survey, then a survey must be undertaken before such mining operations commence. Mining operations is defined as per s 8 of the Mining Act 1978 (WA).
A survey for condition 1 must be conducted by a) a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional, agreed between the Nyamal Aboriginal Corporation RNTBC (native title party) and the grantee party, engaged and paid for by the grantee party, and b) up to three Nyamal common law holders (as defined on the National Native Title Register and in Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 and Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571), nominated by the native title party (nominated persons). Nomination by the native title party must be in writing and include full contact particulars of the nominated persons.
The grantee party must pay the reasonable costs of the nominated persons’ attendance and participation in the survey. This is not intended to include the professional costs of legal or other representation or advice. Other Nyamal common law holders may attend as observers to the survey.
The grantee party must give written notice to the native title party of its intention to conduct the survey and when giving notice must include a suitable topographical map showing the areas proposed to be surveyed, and the location of the lease. If, within 30 days of receipt of the notice, the native title party fails to nominate any persons for the survey, then the grantee party need not conduct such survey.
Subject to any law, a survey required under condition 1 must be completed within 30 days of the native title party’s nomination with the parties cooperating in good faith on the conduct of the survey. If the survey is not carried out in this time due to the failure of the native title party to cooperate in good faith with the grantee party, then the grantee party need not conduct such survey.
The grantee party must not disclose to any person any confidential information given to it by the native title party or the Nyamal common law holders regarding Aboriginal heritage or cultural information, during or as a result of the survey, except (and only then on a confidential basis):

(a)with the written consent of the native title party; or
(b)to a bona fide prospective assignee of the lease; or
(c)to an actual assignee of the lease; or
(d)to its employees, agents, contractors and consultants for the sole purpose of ensuring that no Aboriginal sites or cultural heritage are interfered with and as far as the information relates only to the location of those areas; or
(e)as required by law; or
(f)for a purpose under the Aboriginal Heritage Act 1972 (WA).

Annexure D: Final Conditions to be Imposed on M45/1281

If Atlas Iron Pty Ltd (the grantee party) is to conduct productive mining operations over an area of M45/1281 which has not previously been the subject of an existing survey, then a survey must be undertaken before such mining operations commence.
A survey for condition 1 must be conducted by a) a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional, agreed between the Nyamal Aboriginal Corporation RNTBC (native title party) and the grantee party, engaged and paid for by the grantee party, and b) up to three Nyamal common law holders (as defined on the National Native Title Register and in Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 and Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571), nominated by the native title party (nominated persons). Nomination by the native title party must be in writing and include full contact particulars of the nominated persons.
The grantee party must pay the reasonable costs of the nominated persons’ attendance and participation in the survey. This is not intended to include the professional costs of legal or other representation or advice. Other Nyamal common law holders may attend as observers to the survey.
The grantee party must give written notice to the native title party of its intention to conduct the survey and when giving notice must include a suitable topographical map showing the areas proposed to be surveyed, and the location of the lease. If, within 30 days of receipt of the notice, the native title party fails to nominate any persons for the survey, then the grantee party need not conduct such survey.
Subject to any law, a survey required under condition 1 must be completed within 30 days of the native title party’s nomination with the parties cooperating in good faith on the conduct of the survey. If the survey is not carried out in this time due to the failure of the native title party to cooperate in good faith with the grantee party, then the grantee party need not conduct such survey.
The grantee party must not disclose to any person any confidential information given to it by the native title party or the Nyamal common law holders regarding Aboriginal heritage or cultural information, during or as a result of the survey, except (and only then on a confidential basis):

(a)with the written consent of the native title party; or
(b)to a bona fide prospective assignee of the lease; or
(c)to an actual assignee of the lease; or
(d)to its employees, agents, contractors and consultants for the sole purpose of ensuring that no Aboriginal sites or cultural heritage are interfered with and as far as the information relates only to the location of those areas; or
(e)as required by law; or
(f)for a purpose under the Aboriginal Heritage Act 1972 (WA).

Defined Terms

Existing survey means a survey identified in Annexure 11 of the Affidavit of Stacey Anne Brown, affirmed on 15 October 2020

Survey means a survey other than an existing survey

Mining operations is defined as per s 8 of the Mining Act 1978 (WA)

Annexure E: Final Conditions to be Imposed on M45/1282

If Atlas Iron Pty Ltd (the grantee party) is to conduct productive mining operations over an area of M45/1282 which has not previously been the subject of an existing survey, then a survey must be undertaken before such mining operations commence.
A survey for condition 1 must be conducted by a) a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional, agreed between the Nyamal Aboriginal Corporation RNTBC (native title party) and the grantee party, engaged and paid for by the grantee party, and b) up to three Nyamal common law holders (as defined on the National Native Title Register and in Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 and Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571), nominated by the native title party (nominated persons). Nomination by the native title party must be in writing and include full contact particulars of the nominated persons.
The grantee party must pay the reasonable costs of the nominated persons’ attendance and participation in the survey. This is not intended to include the professional costs of legal or other representation or advice. Other Nyamal common law holders may attend as observers to the survey.
The grantee party must give written notice to the native title party of its intention to conduct the survey and when giving notice must include a suitable topographical map showing the areas proposed to be surveyed, and the location of the lease. If, within 30 days of receipt of the notice, the native title party fails to nominate any persons for the survey, then the grantee party need not conduct such survey.
Subject to any law, a survey required under condition 1 must be completed within 30 days of the native title party’s nomination with the parties cooperating in good faith on the conduct of the survey. If the survey is not carried out in this time due to the failure of the native title party to cooperate in good faith with the grantee party, then the grantee party need not conduct such survey.
The grantee party must not disclose to any person any confidential information given to it by the native title party or the Nyamal common law holders regarding Aboriginal heritage or cultural information, during or as a result of the survey, except (and only then on a confidential basis):

(a)with the written consent of the native title party; or
(b)to a bona fide prospective assignee of the lease; or
(c)to an actual assignee of the lease; or
(d)to its employees, agents, contractors and consultants for the sole purpose of ensuring that no Aboriginal sites or cultural heritage are interfered with and as far as the information relates only to the location of those areas; or
(e)as required by law; or
(f)for a purpose under the Aboriginal Heritage Act 1972 (WA).

Monitoring and Liaison Committee
(a)The native title party and the grantee party will establish a Monitoring and Liaison Committee with the object of providing a means of communication between those parties in relation to the Miralga Creek Project.
(b)The Monitoring and Liaison Committee will consist of:
(i)A maximum of 6 Nyamal common law holders as nominated from time to time by the native title party;
(ii)an advisor to the Nyamal common law holders as nominated from time to time by the native title party;
(iii)up to four members nominated by the grantee party.
(c)The Monitoring and Liaison Committee will meet once per year, at a mutually agreed date and place.
(d)If none of the committee members nominated by the native title party or their substitutes are available to attend a meeting, the grantee party is released from the meeting commitment for that particular year.
(e)The grantee party will pay the Nyamal common law holder members of the Monitoring and Liaison Committee up to a total of $10,000 (adjusted annually for the consumer price index) to cover sitting fees for attending the meeting and towards their reasonable travel and accommodation costs of attending the meeting.
(f)The grantee party will pay the reasonable costs of an advisor capped at $3,500 per year.
(g)The grantee party will provide a copy of the Operations Report - Expenditure On Mining Tenement (Form 5) for M45/1280, M45/1281 and M45/1282, and any returns required to be submitted to the relevant State of Western Australia Government department in respect of royalties from the Mining Operations to the members of the Monitoring and Liaison Committee at the same time as it lodges it with the relevant department.

Defined Terms

Existing survey means a survey identified in Annexure 11 of the Affidavit of Stacey Anne Brown, affirmed on 15 October 2020

Survey means a survey other than an existing survey

Mining operations is defined as per s 8 of the Mining Act 1978 (WA)

The Miralga Creek Project consists of M45/1280, M45/1281 and M45/1282

Department means the State Government department responsible for the administration of the Mining Act 1978 (WA)