FMG Magnetite Pty Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal - [2011] NNTTA 213

NATIONAL NATIVE TITLE TRIBUNAL

FMG Magnetite Pty Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal, [2011] NNTTA 213 (20 December 2011)

Application Nos: WF10/11 and WF10/12

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into future act determination applications

FMG Magnetite Pty Ltd (first grantee party/first applicant)

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FMG North Pilbara Pty Ltd (second grantee party/second applicant)

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Johnson Taylor and Others on behalf of the Njamal People (WC99/8) (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal: Daniel O’Dea, Member

Place: Perth
Date: 20 December 2011

Catchwords: Native title – future acts – application for determination for the grant of mining leases – s 39 criteria considered – limited direct and relevant evidence – minimal effect on enjoyment of native title rights and interests – effect on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of acts – public interest in doing of acts – determination that the acts may be done subject to conditions.

Legislation:Native Title Act 1993 (Cth) ss 25-44, 26, 29, 31(1), 35, 36(2), 38, 39, 41, 52, 75, 109(3), 146, 238
Mining Act 1978 (WA) ss 82, 84, 85, 123
Aboriginal Heritage Act1972 (WA) s 18

Cases:Australian Manganese Pty Ltd v State of Western Australia and Others (2008) 218 FLR 387[PDF]; [2008] NNTTA 38
Cheinmora v Striker Resources NL and Others (1996) 142 ALR 21; [1996] FCA 1147
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15
Re C.I. Doxford & Ors [2003] QLRT 58
Evans and Another v Western Australia and Others (1997) 77 FCR 193; [1997] FCA 741
Fortescue Metals Group Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal [2011] NNTTA 66
FMG Pilbara Pty Ltd/Flinders Mines Ltd/Wintawari Guruma Aboriginal Corp v Western Australia [2009] NNTTA 69
Griffiths and Another v Northern Territory and Another (2007) 165 FCR 391; (2007) 243 ALR 72; [2007] FCAFC 178
Parker on behalf of Banyjima/WA/Ammon [2006] NNTTA 65
Minister for Mines (WA) v Evans and Others (1998) 163 FLR 274; [1998] NNTTA 5
Ward and Others v State of Western Australia and Another (1996) 69 FCR 208; (1996) 136 ALR 557; [196] FCA 1452
Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji [2011] NNTTA 172
Western Australia v Thomas and Others (1996) 133 FLR 124; [1996] NNTTA 30
Western Desert Lands Aboriginal Corporation v Western Australia and Anor (2009) 232 FLR 169; (2009) 2 ARLR 214; [2009] NNTTA 49
WMC Resources and Another v Evans (1999) 163 FLR 333; [1999] NNTTA 372

Solicitors for the Ms Maimbo Chilala, Pilbara Native Title Service

native title party:          Mr Rainer Mathews, Pilbara Native Title Service
Solicitor for the
grantee party:               Mr Ken Green, Green Legal Pty Ltd
Representatives of the  Mr Ian Repper, State Solicitors Office
Government party:       Ms Paola O’Neill, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

Background

On 15 July 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of future acts, namely the grant of the following mining leases (‘the proposed leases’/‘project area’) under the Mining Act 1978 (WA) to the following parties:
·M45/1180, 202.82 hectares, to Fortescue Metals Group Ltd
·M45/1181, 198.21 hectares, to Fortescue Metals Group Ltd
·M45/1182, 221.11 hectares, to Fortescue Metals Group Ltd
·M45/1183, 262.02 hectares, to Fortescue Metals Group Ltd
·M45/1184, 193.28 hectares, to FMG North Pilbara Pty Ltd
On 7 July 2011, the Tribunal was notified by the Department of Mines and Petroleum that a holder change had been registered in relation to M45/1180, M45/1181 M45/1182 and M45/1183 from Fortescue Metals Group Ltd to FMG Magnetite Pty Ltd.
In these proceedings both Fortescue Metals Group Ltd/FMG Magnetite Pty Ltd and FMG North Pilbara Pty Ltd were represented by solicitors, being Green Legal Pty Ltd, and for the purposes of these proceedings, unless the context otherwise requires, a reference in these reasons to the grantee party or FMG includes both grantee parties.
The proposed leases are located 72 kilometres west of Marble Bar in the Shire of East Pilbara and are entirely overlapped by the Njamal registered claim (WC99/8, registered from 3 June 1999). Accordingly, the native title party in respect of these proceedings is Njamal.
The proposed leases are future acts covered by s 26(1)(c)(i) of the Act and unless the right to negotiate provisions of the Act are complied with (Part 2, Division 3, Subdivision P (ss 25-44)) will be invalid to the extent that it affects native title.
On 30 June 2010, being a date more than six months after the s 29 notice was given, the grantee party made applications pursuant to ss 35 and 75 of the Act for a future act determination under s 38. The application is made on the basis that the negotiation parties (Government party, grantee party and native title party) have not reached an agreement of the kind mentioned in s 31(1)(b) of the Act as to the doing of the future act.
The native title party challenged the Tribunal’s power to conduct an inquiry and make a determination on the basis that the grantee party had not negotiated in good faith (ss 31(1)(b), 36(2) of the NTA). This challenge was rejected and reasons were handed down on 15 April 2011 (Fortescue Metals Group Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal [2011] NNTTA 66) (‘good faith decision’).
On 26 July 2010, the Tribunal made directions to deal with the good faith challenge and the substantive inquiry. Subsequent amendments were made at the request of some of the parties. In relation to the substantive inquiry the following contentions and submissions were provided:

Government party’s Statement of Contentions (‘GVPSC’) and list of supporting documents GVP1 to GVP31, lodged 11 May 2011;
Grantee party’s Statement of Contentions (‘GPSC’) and list of supporting documents GP1 to GP104, lodged 12 May 2011;
Native title party’s Statement of Contentions (‘NTPSC’) and supporting documents, including the declarations of Joe Taylor, affirmed 2 June 2011, and Willie Jumbo, affirmed 8 June 2011, lodged 13 June 2011;
Grantee party’s Statement of Contentions in reply to the native title party’s contentions (‘GP Reply1’) and supporting documents GP105 and GP106, lodged 6 July 2011;
Government party’s Statement of Contentions in reply to the native title party’s statement of contentions (‘GVP Reply1’) and supporting documents GVP1 to GVP5, lodged 7 July 2011;
Native title party’s Statement of Contentions in reply (‘NTP Reply1’), including the affidavit of Rainer Mora Mathews, sworn 13 July 2011, lodged 15 July 2011;
Grantee party’s further Statement of Contentions in reply to the native title party’s contentions (‘GP Reply2’), lodged 22 July 2011; and
Native title party’s further Statement of Contentions in reply to the grantee party’s contentions (‘NTP Reply2’), lodged 3 August 2011.

The Tribunal’s directions required the parties to confer with a view to agreeing issues before the inquiry, the facts and documents to be relied on, and procedures for the conduct of the inquiry. At the listing hearing on 15 July 2011, all parties agreed the inquiry could be conducted on the papers and I believe it appropriate to do so in the circumstances.

Government party’s evidence

Government party documentation submitted on 12 May 2011 establishes the underlying tenure of the proposed leases to be entirely unallocated crown land. There is no prior history of any mining or exploration activity over the proposed leases, however they are overlapped by two active exploration licences, being E45/2510 which entirely overlaps M45/1180, M45/1181, M45/1182 and M45/1183, and E45/3084 which entirely overlaps M45/1184. Both exploration licences are held by the grantee party.
There are no Aboriginal communities identified within or in the near vicinity of the proposed tenements.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveal there are no sites registered under the Aboriginal Heritage Act1972 (WA) (‘AHA’) overlapping the area of the proposed leases.
The Mining Act entitles the grantee party to exercise the rights set out in s 85 subject to the covenants and conditions referred to in s 82 and such further conditions and endorsements that the Minister may at any time impose under s 84. The grant of a mining lease is for a term of 21 years from notification of grant and a right of renewal for 21 years.
The Endorsements (the breach of which does not render the tenement liable to forfeiture) and Conditions to be imposed on the grant of the proposed leases are as follows:
‘ENDORSEMENTS
1. The Lessee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Lessee’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. The Lessee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to work and mine for iron.
CONDITIONS
1.   Survey.
2.   All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
3.   All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
4.   All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
5.   Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
6.   The lessee submitting a plan of proposed operations and measures to safeguard the environment to the Director, Environment, DMP for his assessment and written approval prior to commencing any developmental or productive mining or construction activity.’
The Government party also proposes four ‘Extra Conditions’ on the grant of the proposed leases:
1.Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act1993) to access or use the land the subject of the mining lease 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.
2.If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act1972 (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.
3.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.
4.Upon assignment of the mining lease the assignee shall be bound by these conditions.
I have addressed the circumstances of the imposition of these extra conditions in FMG Pilbara Pty Ltd/Flinders Mines Ltd/Wintawari Guruma Aboriginal Corp v Western Australia [2009] NNTTA 69 at [23]-[24] and I adopt the same approach here as I did in that matter. If I come to the view that the imposition of the extra conditions is appropriate, I will make the imposition a condition of the doing of the acts, rather than assume they are to be imposed as a matter of course upon grant.

Grantee party evidence and proposed activities

Grantee party evidence included many documents, including documents which provided the following information about the project (GP11):
·The proposed leases form part of FMG’s Glacier Valley and North Star project. The grantee party proposes to undertake open pit mining methods in which iron ore deposits will be extracted.
·The proposed mining activities include the removal of ore via drill and blast, hydraulic shovels and off road trucks. Once removed, ore will then be transported to an adjacent processing plant for crushing, screening and magnetic separation.
·The target iron ore deposits are over 450 metres deep, up to 300 metres wide and several kilometres long.

Native title party evidence

Native title party submissions included the declaration of Mr Joe Taylor, affirmed on 2 June 2011, made in the following terms:
‘I, Joe Taylor of 28 Koonarra Cresent, South Heldand [sic], in the State of Western Australia, do sincerely and solemnly declare as follows:
1.Nyamal country was created in the Kapukarri – the creation time.
2.Our language, law and country were all created together in this time by the manguny, the creation beings. They gave us our culture, our plants and animals, all our hills and rivers and everything in them. They also gave us the responsibility to look after and protect our country. Everything has been passed down from the manguny through to us by our old people. Now we have to teach our young ones. We still do this, sometimes when we are on survey other times when we are out on country alone with family.
3.Everything was created together. It’s all tied up in one. If we keep our culture strong then our country stays strong. I we keep our country strong our culture stays strong.
4.Our country has been the same since it was created by the manguny. If you mine a hill you are destroying what the manguny put in place. When our country is dug up or destroyed then we can become sick, or even die.
5.Protecting our country shows respect to our old people and to our ancestors and protects our culture. It makes us healthy and strong.
6.I have seen maps of the tenements at M45/1180, M45/1181, M45/1182, M45/1183 and M45/1184 and we have heard that FMG wants to put a big mine there. There’s a map that shows the tenements annexed to this affidavit as Annexure JT1.
7.I have been out near that mine area recently for a survey. We found a couple of sites. One was a carving of emu and kangaroos. We had to put a fence up around that to protect from damage. Another site around there was a cave with some artifacts inside, we also fenced that cave off. There’s lots of sites in that area round the mine – probably lots of sites where the mine will be that haven’t been surveyed yet. Under our law and custom we have to look after our sites.
8.Those artifacts can be dangerous. I know of a couple of stories of people who took stones from Nyamal country and then were visited by these little hairy creatures who like to make trouble. One whitefella from FMG took some stones and when he was back in Perth he dreamt that one of these creatures found him and told him he had to put the stones back or he would get sick and maybe die. There is a similar story from the Western desert too.
9.Under the law passed down to us from the manguny we Nyamal People are the owners of the land. When other people want to visit or do things on our land they should come and ask us first. If I want to chop a tree in Ngarla country then I have to go and ask first. That’s our law. It is the same in Nyamal country. If people want to visit then they have to ask us first. If they don’t they might run into trouble and get hurt. We haven’t given permission for a mine to be built on those tenements. And if there’s a big mine there then they’ll need to put in roads which will mean lots of people will be able to access the area around the mine – like tourists and people from town. There’ll also need to be a big camp of workers who’ll come and go on our country whenever they want. At the moment we can keep an eye on that area and stop most people going out there because it’s so hard for them to get there. But if FMG opens it up we’ll lose control.
10.The new mine is close to Strelley Gorge. I am worried that if FMG starts pumping water out or into the creek they could destroy the trees and animals. People like to go fishing around there. The rivers and creeks are important for Nyamal. We have names for all of the pools. People used to walk up and around them, and many of our songs follow the rivers. It is all connected. We sing our country so we know how far it runs.
11.Where the mine will be, and all around that area, Nyamal people go hunting and camping, collecting bush tucker and bush medicine. I walked all that country with my family, when I was young, learning about culture. I have been hunting there for bush turkey, kangaroo, goanna and emu. Also collecting bush medicine like Eucalyptus for colds, or a gum leaf that you boil and mix with cold water and shower in for bites and scratches, or the gum from the hardwood that you boil and drink to keep your heart and blood strong. The fat from the emu is also good if you have muscle cramps. Many Nyamal still go around where the mine will be hunting.
12.If they build a mine there they’ll have to kill lots of plants and animals to put it in. We won’t be able to go shooting anywhere near there, because there’ll be people everywhere. And lots of the animals will be scared away.
Native title party submissions also included the declaration of Mr Willie Jumbo, affirmed on 8 June 2011, made in the following terms:
‘I, Willie Jumbo of, 3B Dorringo Loop, South Hedland in the State of Western Australia, Community Relations Manager/Mentor, Ngarda Civil and Mining, do sincerely and solemnly declare as follows:
1.I am a Nyamal law man.
2.I have seen maps of the tenements M45/1180, M45/1181, M45/1182, M45/1183 and M45/1184 and have been involved in heritage surveys of some of the area with FMG.
3.We own that country – it’s Nyamal country.
4.My family speaks for the area around Strelley Gorge, including where those tenements are.
5.Our language, law and culture were all created together in the dreamtime by the Manguny. They created the landscape and everything in it. This has been passed down to us by our old people and we must pass it on to our children.
6.Near the tenement is an important area, whitefellas call it Strelley Gorge. There is a big snake there in the big rock pool. If you want to go near that area you need to have an elder with you so they can blow the water and speak to the snake in Nyamal language to keep him calm.
7.The new mine will be close to Strelley Gorge and they will have to be carefulwith how they use water. The area is rich with water but if the mine is not careful the pool could dry up and the snake could move on. Or they could flood the water hole and make the snake angry.
8.If anyone wants to visit that area around those FMG tenements or any place in Njamal they must first come and ask us. If I want to go out there, I take my mum. She speaks to the country in our language to ask for protection. If FMG has a big mine there and a big camp then there will be many people around and they may upset the snake. Njamal people will also have less control over their country because the workers will come and go wherever and whenever they want. We must make sure that we protect our sites.
9.We used to go camping out there all the time when I was young, and the old people would teach me all about Njamal culture. Now we mostly go fishing in Strelley Gorge or check the country is healthy when we go out on survey. Sometimes people go hunting. You can catch kangaroo and bush turkey around Strelley Gorge. People also get bush tobacco out there. It is beautiful country.
10.There are a lot of carvings around that area too and I think that there could be lots in the sides of the hills on those FMG tenements. Some carvings are for woman [sic] and others are only for men. Some of the carvings there in the hills are very small and white. These must be protected as they are sacred to Njamal.
11.There are lots of fossils around Strelley Gorge too. Scientists from around the world have come to study these. When we see them we wonder: how did the ocean come here, but then we think they must have been put there by the Manguny. There is even some white sand around the Gorge which must have been put there a long time ago with the sea shells.
12.There are also a lot of archaeological scatters around where those FMG tenements are. We need to be careful of these. Njamal people must go out on survey to check if the area is safe. Some scatters could just be from an old camp but others could be from an old law ground. If it was an old law ground then we must be careful and make sure we stay away. These law grounds are very powerful and were used by many groups together in the Pilbara. Uninitiated men and women must not go there as they are dangerous places.
13.We also believe that really small hairy people live there in the caves in the hills, including the hills where those FMG tenements are. We need to be careful of these people because they are cheeky and like to make trouble.
14.Njamal country is spiritual for its people. If something bad happens on that country then Nyamal people get sick. The old people sing about our country- they map the land in our songs. When we go out there my aunties feel the energy of the country and get power to sing. When there is a big mine there, they look at the country and think of how it used to be they feel sad if the country is dug up. The power from the country is gone.

Mr Jumbo deposes to be a Njamal law man and both Mr Taylor and Mr Jumbo are named as two of the persons comprising the applicant for native title. While the grantee party raises some concerns in their submissions regarding the unsworn declarations, this issue was raised by the native title party at the listing hearing on 22 June 2011. Mr Rainer Mathews, the native title party representative, advised during the listing hearing that they had not obtained sworn documents for logistical reasons, but that should any party take the point he would seek to obtain sworn versions. Neither the Government party nor the grantee party raised concerns at this time. The Tribunal is not bound by the rules of evidence (s 109(3) of the Act) and the Tribunal’s practice with respect to statements not in affidavit form has been summarised by Hon C J Sumner in Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15 (at [18]-[28]). I am satisfied that the unsworn statements provided have relevance to this inquiry and are admissible. I am also satisfied that Mr Taylor and Mr Jumbo have authority to speak on behalf of the native title party for the area of the proposed leases.
Native title submissions also include a letter from members of the native title party speaking on behalf of the Njamal community addressed to myself in my capacity as a Member of the Tribunal. The letter, dated 7 June 2011, was signed by Willie Jumbo, Doris Eaton, Michael Taylor, Alice Mitchell, Biddy Norman, Jane Taylor, Johnson Taylor and Joe Taylor. The letter outlines what the native title party believes should be the minimum requirements of the grantee party if the mine goes ahead. Native title party contentions include a list of proposed conditions (NTPSC, para 46), similar in content to the requirements outlined in the letter. Those proposed conditions are set out in full at [60] below. The contentions also note that the Tribunal should ensure that any conditions that apply to the grantee party for the proposed leases also apply to any entity that acquires or otherwise takes assignment of an interest in the proposed leases.
Native title party submissions in reply, lodged on 15 July 2011, also included the affidavit of Mr Rainer Mora Mathews, a lawyer employed by Yamatji Marlpa Aboriginal Corporation (‘YMAC’).

Legal principles

I rely on the principles enunciated in the following Tribunal future act determinations:
·Western Australia v Thomas and Others (1996) 133 FLR 124; [1996] NNTTA 30 (‘Waljen’);
·WMC Resources and Another v Evans (1999) 163 FLR 333; [1999] NNTTA 372 (‘WMC/Evans’);
·Western Desert Lands Aboriginal Corporation v Western Australia and Anor (2009) 232 FLR 169; (2009) 2 ARLR 214; [2009] NNTTA 49 (‘Holocene’); and
·Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji [2011] NNTTA 172 (‘Weld Range’).
Section 38 of the Act sets out the types of determination that can be made, being a determination that the act must not be done or may be done with or without conditions. No condition can be imposed entitling a native title party to payments worked out by reference to the amount of profit made, income derived or things produced by the grantee party (s 38(2)).
Section 39 lists the criteria for making such a determination:

‘39 Criteria for making arbitral body determinations

(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)     the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)     any public interest in the doing of the act;
(f)     any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)    existing non‑native title rights and interests in relation to the land or waters concerned; and
(b)    existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect

(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’

The Tribunal’s duty in making a determination requires the exercise of a discretion which involves a weighing of the various effects, interests and other relevant factors referred to in the s 39 criteria in accordance with the circumstances before it (Waljen at 165-166).
The Tribunal’s inquiry function is summarised in Waljen (at 162-163) and involves, among other things, the Tribunal making a determination based on logically probative evidence and application of the law.
Regardless of whether the registered native title rights and interests are determined or claimed, there is still a need for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act, and of all the other matters in s 39(1)(a) of the Act (WMC/Evans at 339-341). While there is no onus of proof as such, it is ordinarily the responsibility of a native title party to produce evidence on these matters as for the most part they are peculiarly within their knowledge (Waljen at 154-163; Ward and Others v State of Western Australia and Another (1996) 69 FCR 208; (1996) 136 ALR 557; [196] FCA 1452 at 215-218). This approach has been endorsed by the Land and Resources Tribunal, Queensland (Re C.I. Doxford & Ors [2003] QLRT 58 at [7]-[12]).

Section 39(1)(a)(i) – enjoyment of registered native title rights and interests

The extract from the Register of Native Title Claims in relation to the Njamal Claim, WAD6028/98 (WC99/8), sets out two areas where native title rights and interests have been registered: area 1 (where a claim for exclusive possession can be sustained) and area 2 (where a claim for exclusive possession cannot be sustained). As the proposed leases are entirely unallocated crown land, the prima facie evidence would indicate that the area which concerns the Tribunal in making this determination is area 1. The native title party’s contentions (NTPSC, para 11) accurately set out the registered rights and interests over the proposed leases as follows:
‘The Native Title Party possesses the following rights and interests, being rights and interests of exclusive possession, in relation to the Mining Leases (except in relation to any minerals, petroleum or gas wholly owned by the Crown in rights of the Commonwealth or the State of Western Australia):
(a)     The right to possess the land and waters claimed;
(b)The right to be asked, and the enforceable right to say no, with respect to any proposed activity by any person not part of the native title claim group within or affecting the determination area;
(c)The right to occupy the land and waters claimed;
(d)The right to use and enjoy the land and waters claimed;
(e)The right to make decisions about the use and enjoyment of the land and waters claimed;
(f)The right to control access of others to the land and waters claimed;
(g)The right to control the use and enjoyment of others of the resources of the land and waters claimed;
(h)The right to receive a portion of any resources taken by others from the land and waters claimed;
(i)The right to maintain and protect places of importance on the land and in the waters claimed;
(j)The right of free access to the land and waters claimed;
(k)The right to use and enjoy the resources of the land and waters claimed;
(l)The right to trade in the resources of the land and waters claimed;
(m)The right to carry out the following activities:
(i)    Residing on and travelling over the area;
(ii)   Making use of the resources of the area through activities including, but not limited to, hunting, fishing, gathering bush tucker and bush medicine, camping, extracting ochre and other materials, building dwellings and making ceremonial artefacts and implements;
(iii)    Exercising the responsibility of looking after the area in accordance with their traditional laws and customs, including exercising native title rights;
(iv)     Passing on knowledge of the area.
There is no evidence of any prior extinguishment of native title over any part of the proposed lease area or evidence of any prior interest (such as a pastoral lease) which would have partially extinguished any native title rights and interests. The native title party’s contentions state the fact that the proposed leases are on unallocated Crown land ‘is significant in assessing the extent to which the Njamal People currently enjoy their registered native title rights and interests, including rights of exclusive possession’ (NTPSC, para 14). The capacity of the native title party to exercise their native title rights and interests does not appear to have been restricted by activities of other persons such as pastoralists or miners in the past or at present, except possibly by the recent exploration activities of the grantee party. Despite this there is limited evidence of the exercise or enjoyment of native title rights and interests over the proposed lease area.
There is also no dispute that at law the non-extinguishment principle applies to the grant of a mining lease. However, in practice, depending on the nature of the proposed activity the grant of a mining lease could for all practical purposes mean that the native title party is unable to enjoy its native title rights and interests over the area where active mining is taking place and I consider this to be such a case. As pointed out in the native title party’s contentions, the Tribunal must be directly concerned with the effect of the future act, being the grant of the proposed leases, but this must be considered in the context of the whole project, including associated infrastructure and tenure (see Holocene at [64]). The grantee party’s proposal is for an open cut mine which would occupy a large part of the proposed leases. The grantee party has also provided some general information regarding planned infrastructure and tenure in the Mining Statement included in GP11. Point 6 of the Mining Statement states that the area to be mined is contained within the mineralisation zone shown on the accompanying map, and the minesite infrastructure will be located on an adjacent tenement, also shown on the accompanying map. It is clear from this Mining Statement that this will not be a small scale project and will entail a significant amount of associated infrastructure and tenure. The Government party’s first proposed extra condition might well ameliorate this affect to some extent in that access to the balance of the project area is not prohibited. However, I find that over the area of mining activity, and in the near vicinity, the capacity to exercise and enjoy native title rights and interests will in practice be substantially curtailed for the duration of the mining activity.
The native title party, in its contentions in reply, asserts that both the Government party, at paras 6 to 9 of its contentions in reply, and the grantee party, at part 5 of its contentions in reply, have asserted that the native title party has failed to provide sufficient evidence to demonstrate that it exercises and enjoys exclusive rights within the proposed tenements (see NTP Reply1 at para 16). I am not entirely certain that that is what either the grantee party or the Government party was saying in those particular contentions. It did not appear to me that they were addressing the question of exclusivity at all, but rather the question as to whether there had been any evidence of activities that indicated the exercise of the particular rights, whether they were exclusive rights or not. In any event, the native title party asserts that there is sufficient evidence provided in the statements of Mr Jumbo and Mr Taylor to justify the assertion of exclusive rights in the area. They cite the Federal Court’s decision in Griffiths and Another v Northern Territory and Another (2007) 165 FCR 391; (2007) 243 ALR 72; [2007] FCAFC 178 at [127] as authority for the proposition that in circumstances where ‘control of access to country flows from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive’. I do not dispute that proposition, however the issue is not pertinent to this inquiry. My task is not to determine whether the registered native title rights and interests are proven or not. The task of the Tribunal is to assess the impact of the proposed grant of the tenement on the registered rights of the native title party. Therefore, the rights I must consider are the rights as characterised on the register, and the evidence I look to is the evidence from the native title party of the likely impact upon the exercise of those rights from the grant of the tenement.
The Tribunal’s task is to examine the native title rights and interests which are enjoyed by the native title party over the relevant area and which would be affected by the mining proposal. The matter should not be considered on the untested assumption that all the registered or determined rights are exercised or enjoyed equally over the whole of the claim or determined area (Australian Manganese Pty Ltd v State of Western Australia and Others (2008) 218 FLR 387[PDF]; [2008] NNTTA 38 (‘Australian Manganese’) at [36]-[39] and cases cited therein). The Tribunal must look to the evidence adduced by the native title party concerning the exercise and enjoyment of such rights over the relevant land.
The native title party’s contentions and evidence provide very limited evidence of the actual exercise or enjoyment of their registered rights and interests. The declaration evidence of Mr Jumbo and Mr Taylor is very general in nature and I have not found evidence to support the native title party’s contention that both declarations ‘refer explicitly to the conduct of activities within the area of the Mining Leases, or within broader areas that encompass the area of the Mining Leases’ (NTP Reply1, para 15). Mr Taylor’s declaration states that ‘[w]here the mine will be, and all around that area, Nyamal people go hunting and camping, collecting bush tucker and bush medicine’ (para 11) and that the native title party still teaches the ‘young ones … sometimes when we are on survey other times when we are out on country alone with family’ (para 2). Both Mr Jumbo and Mr Taylor make direct reference to the continued use and enjoyment of Strelley Gorge (Wantiwanjarlunya), however Tribunal mapping places this some 13 kilometres north east from the nearest point of the project area. Mr Jumbo states in his declaration that ‘[n]ow we mostly go fishing in Strelley Gorge or check the country is healthy when we go out on survey’ and that kangaroo, bush turkey and bush tobacco can be obtained from around Strelley Gorge (para 9).
With respect to the registered right to maintain and protect places of importance over the land and waters claimed, the evidence provided lacks specificity such as where these sites are located and how the native title party maintains and protects them. Mr Jumbo makes reference to a number of carvings ‘around that area’ and also states that he thinks ‘there could be lots [of carvings] in the sides of the hills on those FMG tenements’ (para 10).
Native title party contentions state that the Njamal People did not provide any evidence of their enjoyment of registered rights (h) and (l) over the area of the proposed leases. As such I am unable to make a finding in relation to whether these rights and interests will be affected.
I am satisfied that there will be some practical effect on the claimed rights in relation to rights of access and use of the land and the right to be asked, and the enforceable right to say no to certain activities on the land. I also accept that the native title party’s right to hunt, as detailed by Mr Taylor and Mr Jumbo, will be adversely affected. It may be that other rights are affected, such as the right to camp or build dwellings, however the native title party has provided no evidence of their actual enjoyment of these rights over the area. My finding is that the mining lease will have an effect on the limited native title rights and interests which are currently exercised in the area.
Government party contentions (GVPSC, paragraph 7 to 11) maintain that the interference with the native title rights and interests will be mitigated by the imposition of the proposed extra conditions. I accept that they will provide some mitigation of any impact on the exercise of registered native title rights and interests

Section 39(1)(a)(ii) – way of life, culture and traditions

The native title party contends that the construction of a large mine will be ‘deeply upsetting and disruptive to their culture and way of life’ (NTPSC, para 20). The native title party points to the declarations of Mr Jumbo and Mr Taylor for evidence of this impact. The declaration of Mr Taylor states that ‘[w]hen our country is dug up or destroyed then we can become sick, or even die’ (para 4). The declaration of Mr Jumbo also discusses the native title party’s connection to the land, including that they get sick ‘[i]f something bad happens’ over Njamal country (para 14). Again, the evidence before me is general in nature and provides no specific information regarding the native title party’s way of life, culture and traditions. The Government party raises the point that the proposed leases occupy a relatively small area in the overall context of the Njamal claim which would result in the grant of the leases having minimal, if any, impact on the way of life, culture and traditions of the native title party. The native title party dispute this conclusion and state that while the area is small relative to the total claim area, it is significant in that they still maintain exclusive rights.

There is insufficient evidence provided by the native title party about the way of life, culture and traditions practised within the area of the proposed tenements to support a conclusion that the grant of the proposed tenements will affect them except in the minimal way as already described in relation to s 39(1)(a)(i). The fact that it is an area where they have maintained exclusive rights is, in itself, not sufficient for a finding that there will be a significant impact on the exercise of the native title party’s way of life, culture and traditions. Native title is not extinguished by the proposed grants and the Government party’s proposed Extra Condition 1 permits access to the project areas except where there are actual exploration or mining activities taking place or there are safety or security issues relating to them.

Section 39(1)(a)(iii) – development of social, cultural and economic structures

The grantee party contends that the grant of the mining leases will provide employment and business opportunities to the native title party and that many members of the native title party are already employed in the mining industry, including with FMG (GPSC, para 7.5-7.6)
The native title party contends that the grant of the proposed leases, without the grantee party having a contractual or conditional obligation to engage with them, is likely to have no effect or a negative effect on the native title party’s socio-economic structures (NTPSC, para 22). The native title party disputes the grantee party’s contention that FMG’s approach to indigenous employment will provide opportunities to the members of the claim group. The native title party refers to employment commitments made by FMG during the negotiations for the underlying exploration licences which it says were not honoured (NTPSC, paras 27-28). The native title party contends that this highlights a discrepancy between the grantee party’s commitments and their actual conduct. The native title party and grantee party’s submissions contain further contentions and evidence regarding the employment obligations, including claims of breach of contract, under the exploration agreement entered into by Njamal and FMG on 6 August 2007.
It is not necessary for me to ascertain whether a breach of contract has occurred. While of greater importance when determining the question of good faith, parties past behaviour does bear some relevance to the determination. In analysing the material thrown up by the debate in which the native title party and grantee party engaged in through their further contentions I have come to the view that it is not clear cut as to which party was responsible for the failure to deliver employment outcomes to the native title party. I tend to the view that the evidence suggests the representatives of both parties were dilatory in their behavior. Suffice it to say it is possible that the native title party may benefit from increased employment opportunities through contractual obligations owed by the grantee party, or simply through the general increase in employment opportunities in the area. However, this is speculative and there is insufficient evidence to find that the native title party’s social, cultural and economic structures will be affected in any positive way. There will be greater business and employment opportunities as a result of the mine, however even to the extent that those opportunities are quarantined for Aboriginal people, there is no evidence provided by the grantee party in this matter which suggests that those benefits will flow to the members of the native title party.

Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies

There is insufficient evidence that the native title party regularly frequents the project area or that rites, ceremonies or other activities of traditional cultural significance are currently carried out there. In practical terms, access to the project area will be restricted, and access to the area of actual mining will be almost entirely impractical. Further, as the native title party has noted at paras 34 and 35 of its contentions, the area of land will be altered by the mining activities. This is in terms of its shape, in circumstances of the alteration of the existing geomorphology of the area, and its structure, in the sense of the existence of the detritus of open pit mining upon the landscape. Clearly, such changes will have a significant impact upon the native title party given the nature of their beliefs concerning the intrical nature of landscape and law. That, however, does not alter the fact that there has been no evidence about the conduct of rights and ceremonies on the area by the native title party. Further, the grant of the proposed tenements does not confer exclusive possession of the area on the grantee party and continuing access to some extent at least may be preserved by the Government party’s Extra Condition 1.

Section 39(1)(a)(v) – sites of particular significance

The question to be considered here is whether there are areas or sites of particular significance (i.e. of special or more than ordinary significance to the native title party) that will be affected by the future acts (Cheinmora v Striker Resources NL and Others (1996) 142 ALR 21; [1996] FCA 1147 at 34–35). The Tribunal will have to make a value judgment about whether, from the native title party’s point of view and according to their traditions, the area or site is special or different from other land in which the native title party has, or claims to have, native title rights and interests (see Holocene and Weld Range).
Much of the native title party’s contentions on this criteria centers on the possible disturbance of Strelley Gorge (Wantiwanjarlunya) and the Strelley Pool formation. The native title party describes Strelley Gorge as a permanent pool (home to a spirit snake) that may be within the cone of depression associated with the bores and/or dewatering processes at the mine site (see NTPSC para 36(a)). The native title party submissions outline their concern that the bores and/or dewatering processes at the proposed mine site could result in this permanent pool drying up, the sites being within the cone of depression or suffering from other disturbances due to being downstream from the mine site. The native title party also raises concerns regarding caves and rock engravings, contending that the proposed mine is ‘within an area where there is a high density of rock engravings’ (NTPSC, para 36(b)) and ‘within an area where there are caves’ (NTPSC, para 36(c)). The native title party contends that the rock engravings and some of the caves are of high cultural significance and that the caves can house spirits and artifact scatters. The native title party cites the proximity of the Abydos/Woodstock Reserves (approximately 10 kilometres south) as evidence that these proposed leases are within a site rich area. The Abydos/Woodstock Reserves are listed on the Register of the National Estate (Place ID Number 10061). The statement of significance on the register states ‘Aboriginal people from the area have traditions and songs associated with the engravings. The site complex on the Abydos/Woodstock Reserves is part of one of the richest rock art centres of the world. Site components include engravings, paintings, grinding patches, gnamma holes and artefacts.’
Tribunal mapping shows that the Abydos/Woodstock Reserve has a large number of DIA registered sites within its boundaries and could be described as ‘site rich’. As previously stated, there are no DIA registered sites within the area of the proposed leases, however I accept that the Site Register is not an exhaustive list of all Aboriginal sites and that other sites might exist and be affected by the proposed activities. Over areas where there are no registered sites there must be other sources of evidence to satisfy the Tribunal that there are areas or sites of particular significance that will be affected by the doing of the act. In this matter there is very little evidence of this sort. The native title party does not provide any basis for an assertion that the area of Abydos/Woodstock Reserve would be in any way impacted by the grant of the proposed tenements, nor is there any ecological basis proposed by the native title party to support their allegation that the water at Strelley Gorge may be affected by mining activities.
In relation to the question of the potential impact of mining activities on Strelley Gorge, in particular the impact on the pool, the native title party has expressed its concerns that (NTPSC para 36(a)) ‘[i]n a worst-case scenario the pool could completely dry up as a result of the water table diminishing. On the other hand, the pool is down-stream of the mine and may be affected by changes to the hydrology of the river system, including from earth works at the mine site, or from run-off associated with the dewatering system.’ I have not been referred to any evidentiary basis for this fear. The native title party did, with its submissions, provide an article headed The 3426–3350 Ma Strelley Pool formation in the East Strelley greenstone belt — a field and petrographic guide: Geological Survey of Western Australia, Wacey, D, McLoughlin, N, Stoakes, CA, Kilburn, MR, Green, OR and Brasier, MD 2010, Record 2010/10, 64p. The native title party did not make specific contentions about this article, but it appears to confirm that the Strelley area is known to contain one of the world’s oldest putative coniform stromatolites, which had been found to contain putative biogenic micro tubular structures. There is no reference in the native title party’s contentions to the relevance of this material. I infer that it is an area of great scientific significance, as well as significance to the traditional owners. The Government party, in its contentions in reply, asserts that the native title party’s expressed concerns in relation to Strelley Gorge are ‘speculative’. I have no evidence to inform me one way or the other whether there is any significant danger that the mining operations which are to be undertaken, if the tenements are granted, will have any potential impact upon the Strelley Gorge area. As I understand the situation, prior to the Minister giving final approval to the creation of the mine, the grantee party will be required to meet stringent standards in relation to all environmental matters, in particular those concerning the use of water and the impact of mining operations on ground water (see Condition 6 and Extra Condition 3 at [14] and [15] above). Extra Condition 3 also enables the native title party to have an opportunity to raise issues of an environmental nature prior to the commencement of mining. In its contentions in reply, the native title party does little more than to reassert its speculative assertion that, as the Strelley Gorge is downstream from the mining leases, dewatering is likely to occur. It also adds that it is concerned that there will be a greater number of people brought into the area because of the mining operations (see NTP Reply1 paras 26-27, and declaration of Mr Jumbo at para 8). The native title party also asserts in those contentions in reply that it would be wrong for the Tribunal to confine its considerations solely to those areas within the mining lease, citing Holocene at [21] and [64]. I wholly agree that that is the case, however, there needs to be cogent evidence about the impacts or potential impacts of the grant of the proposed tenements on the exercise of rights conveyed to the tenement holders. In this instance the evidence must demonstrate the impact the grant will have on sites of particular significance to the native title party, including sites outside the area of the proposed tenements.
The grantee party has provided copies of a number of different heritage survey reports (see GP97 to GP103). The surveys, commissioned by the grantee party and involving Njamal claim group representatives, were conducted between October 2007 and June 2008 over areas of the underlying exploration licences, including the areas the subject of this determination. The grantee party also provided a map which specifically details the areas within the proposed leases which were covered by these surveys (see GP104). During the course of these surveys three sites were identified and recorded on the report (GP102). The map provided at GP104 shows that of these three sites, one is located within the area of M45/1184 and the other two are located just outside the southern boundary of the same tenement. The report describes all three sites as rockshelters and states that access should be restricted and FMG should avoid any damage or disturbance to these sites. The native title party’s contentions make reference to caves and rock paintings located in the area of the proposed mine (NTPSC para 36(b)-(c)) however there is no detail regarding location or specific knowledge of these sites.
The evidence in this matter is notably different from that in Holocene where there were clearly identified sites of particular significance within and surrounding the relevant tenements or Weld Range where there were sites of particular significance located close to and within the relevant tenements. The Tribunal has, on numerous occasions, considered the protective provisions of the AHA. Pursuant to s 146(b) of the Act I adopt the Tribunal’s findings in Waljen on this topic (at 209-211). I also adopt the findings of the Tribunal in Parker on behalf of Banyjima/WA/Ammon [2006] NNTTA 65 at [31]–[38], [40]-[41]. The protective provisions of the AHA together with the Government party’s Extra Condition 2 will ensure that any sites are identified and any affect on them minimised. The grantee party is now aware of the location of the rockshelters and the possibility of further caves and rock paintings in the area and will need to ensure it complies with the AHA.

Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters

The evidence adduced by the native title party regarding their interests, proposals, opinions or wishes in relation to the management, use or control of the area of the land are in the most part contained in their letter, dated 7 June 2011. The native title party state that they prefer the proposed tenements not be granted (NTPSC, para 46). The letter states that if they cannot stop the mine from going ahead then, at a minimum, their proposed conditions should be imposed. These proposed conditions are reiterated at NTPSC para 46 and set out in [60] below. I will address the appropriateness of those conditions below.
The evidence indicates that the native title party is not opposed to mining but only wishes it to proceed if a satisfactory agreement with the grantee party can be reached. It is well established that the Act does not give the native title party a right of veto over mining proposals (AustralianManganese at [55]-[57] and [71]-[72]). Nevertheless, there are circumstances where the evidence, including the interests, proposals, opinions or wishes of the native title party, in opposition to a future act, supports a determination that the act may not be done. The fact that a native title party is not opposed to mining but has not reached a satisfactory agreement in relation to it does not automatically justify a determination that the act can be done (Holocene at [162]). The Tribunal is required to take into account all evidence and give appropriate weight to the interests, proposals, opinions or wishes of the native title party in that context. The facts on which the Holocene determination was based are clearly distinguishable from the present facts. There was evidence of direct and substantial interference with a site of particular significance to the native title party in accordance with their traditions. There is no such evidence in this case and the evidence of other adverse effects of the kind referred to in s 39(1)(a) is minimal or non-existent.

Section 39(1)(c) – economic or other significance

The grantee party’s contentions state (GPSC, para 11.1) that the grant of the tenements will assist the local economy, by:
·Allowing improved management and use or development of a local resource and minerals (land); and
·Engaging local or proximate communities to provide services to the grantee party’s project.

Assist the state:

·Indirectly by way of such improved management and use or development of the land; and
·Directly by payment of royalties in accordance with the Mining Act.

And assist the nation:

·By the earning of foreign capital from the sale of iron ore; and
·By the contribution to the national tax base.

In its contentions (GVPSC, para 51), the Government party submits that the tenements are of great economic significance to the nation and State in terms of the production of royalties for the State and export income for the nation. They also submit that it is likely to benefit the local economy in and around the area in general and they cite Australian Manganese at [58] as authority for that proposition.
The native title party’s contentions in relation to this limb of s 39 are in no material way different to that put forward for s 39(1)(a)(iii).The native title party contends that the proposed mine is likely to have no economic effect, or a negative economic effect, on the Aboriginal people who live in the area. They submit that this is evidenced through the fact that years of mining activity in the Pilbara has so far provided no benefits to the local Aboriginal communities, and in many respects has had negative effects (NTPSC, paras 41-42).
The Tribunal has previously acknowledged that mining has had a detrimental effect on Aboriginal society (see Holocene at [92]) however in terms of factors to consider, I must also have regard to the Australian and Western Australian economies. I adopt the Tribunal’s findings in Waljen at 215-216 on the significance of the mining industry to Western Australia. The grantee party’s mining project involves exploitation of a mineral resource and employment of a significant number of people and I generally accept the Government and grantee parties’ contentions as to its economic significance.

Section 39(1)(e) – public interest

The grantee party considers that the use, development and management of a local resource is in the public interest (GPSC, para 12.1). The Government party says the public interest is served by the development of a mine or mines over the area of the proposed leases as a result of the economic benefits on a local, state and national level.
The native title party does not raise any points in relation to s 39(1)(e) that I have not considered previously in this determination and I am satisfied that the public interest is served by the development of the proposed mine and its potential economic significance (WMC/Evans at 214-215 and Waljen at 215-216).

Section 39(2) – existing non-native title interests

As noted previously, the area of the proposed leases is unallocated Crown land. Other than the grantee party’s underlying exploration licences which, pursuant to s 238, are subject to the non extinguishment principal, there are no other non native title rights and interests in the areas subject to the proposed leases.

Native title party proposed conditions

The native title party has sought the imposition of the following conditions:
1. The Grantee Party must engage the Njamal People for the conduct of heritage surveys over any area within the Mining Leases where they intend to conduct ground disturbing activities, or other activities which might affect sites of cultural significance. The Grantee Party must avoid impacting culturally significant sites where reasonably possible. Where the Grantee Party cannot help but disturb or destroy culturally significant sites it should be under an obligation to consult with the Njamal People prior to applying for any statutory approval for that disturbance or destruction.
2. The Grantee Party must develop, in consultation with the Njamal People, a heritage management plan for the Mining Lease, which provides for the ongoing protection and management of heritage sites in around them, including protection and management of the pool at Wantiwanjarlunya, shown on English maps as Strelley Gorge.
3. Where ground is being disturbed for the first time the Grantee Party must engage Njamal monitors, to ensure that any cultural sites or objects discovered during the disturbance are dealt with in a culturally appropriate manner.
4. Where the Grantee Party intends to extract ground water by bore or well or for a dewatering process it should be required to engage the Njamal People to conduct a heritage survey within the area of the likely cone of depression as well as any area likely to be affected by run-off. Particular attention should be given to any possible impact on Wantiwanjarlunya.
5. The Grantee Party must not prevent the Njamal People from accessing the Mining Leases.
6. The Grantee Party must establish a properly resourced cultural awareness program, employing or contracting Njamal people as teachers, for all staff and contractors of Grantee [sic] Party who will be working on the Mining Leases.
7. The Grantee Party must establish a properly resourced liaison committee to ensure that there is a clear channel of communication between it and the Njamal People. Such a liaison committee must be structured in such a way that there is regular, clear communication between the Njamal People and the Grantee Party about matters such as the protection of cultural sites, the conduct of heritage surveys, protection of the environment in and around the mine site, employment and training of interested Njamal people on the mine site, and contracting and tendering opportunities for Njamal people on the mine site.
8. The Grantee Party must involve the Njamal People in the preparation of baseline data for any environmental impact assessment of the mine project on the Mining leases. The Grantee Party must include within its environmental management systems, systems for the protection of Wantiwanjarlunya, and for the protection of the Strelley Pool Formation (previously known as the Strelley Chert).
9. The Grantee Party must notify the Njamal People prior to making any applications for environmental approvals, licences or permits.
10. The Grantee Party must be required to develop an employment and training policy, with measurable performance indicators, for the encouragement of the employment and training of Njamal People in its operations on the Mining Leases.
11. The Grantee Party must develop a contracting policy, with measurable performance indicators, to encourage Njamal People to take up contracting opportunities on the Mining Leases.
12. The Grantee Party must pay the Njamal People an annual payment of $100,000 per tenement, to assist with the development of the Njamal People’s social, cultural and economic structures including in relation to the maintenance of their culture, protection of their country, education of their children and improvement of their health.

The native title party’s proposed Conditions set out in (i), (ii), (iii), and (vi) are matters which relate specifically to the conduct of surveys and the protection of the native title party’s heritage values within the area of the proposed tenements. Condition (i) would require the grantee party to conduct Heritage Surveys over any land where ground disturbing activities are likely to take place or other activities which might affect cultural sites. Thus, the grantee must avoid impacting cultural or significant sites where reasonably possible, and if they cannot avoid that disturbance, consult with Njamal prior to applying for statutory approval to make that disturbance. The native title party, in Condition (ii), seeks to require the grantee party develop a Heritage Management Program for the mining leases and the Strelley Gorge area in consultation with them. Condition (iii) requires that members of the native title party be engaged as monitors when any sites are being disturbed for the first time. Condition (vi) requires the grantee party establish a properly resourced cultural awareness program, employing members of the native title party to give cultural awareness training to the grantee party staff and contractors. As has been noted above, the grantee party has already conducted a range of heritage surveys in the area of the proposed leases, apparently under the terms of earlier agreements relevant to previously granted exploration licences (see [49] above). Similarly, the State’s Extra Condition 2 requires that the grantee party, at the same time as it lodges a notice with the Aboriginal Cultural and Materials Committee (‘ACMC’), provide the same material to the native title party. Such provision would allow the native title party to participate fully in the proceedings of the ACMC if it desired, in opposition to the grantee party’s application. It seems to me that to a large extent the native title party’s proposed conditions relating to heritage matters are at least partially met by the circumstances as described above, and the State’s Extra Condition 2. No doubt the native title party will not be fully satisfied. The proposal that there should be monitors at first disturbance of areas of significance may be culturally appropriate, however it would seem to me that in the absence of the identification of any particular areas in the evidence before me, that would be a matter best addressed by the ACMC and the imposition of its conditions on its s 18 Certificate. Similarly, a cultural awareness program conducted by the members of the native title party on behalf of the employees and contractors of the grantee party would seem to be a sensible precaution on the part of the grantee party, however, in the absence of any specific evidence as to why it should be imposed on the grant of the tenement, I don’t believe it appropriate to do so at this juncture. The same general observations might be made about the usefulness of the liaising committee proposed in the native title party’s proposed Condition (vii).
In relation to the native title party’s proposed Condition (v), to the effect that the grantee party must not prevent the Njamal people from accessing the mining lease, the State’s Extra Condition 1 is directly relevant. That condition will ensure that the native title party has a right to access and use the land the subject of the mining leases without restriction, except in relation to those parts of the land which are used for exploration or mining operations, or for safety and security reasons relating to those activities. In my view, that will permit access to the area of the mining leases, except where there are activities being conducted by the miner which directly impact the safety or security of the native title party. Of course the nature of the operation proposed means that potentially significant areas of the mine, most importantly the open cut pit, will be inaccessible to the native title party permanently. That, however, is the reality of the sort of mining being conducted, and would in any event not have been assisted by the imposition of proposed native title party Condition (v), unless that condition was taken literally, which it can’t possibly have been intended to be.
Proposed native title party Condition (viii), where the native title party seeks to be involved in the preparation of baseline environmental impact data, including the native title party’s environmental management systems for the project area as well as the area of Strelley Gorge and Strelley Pool formation, and proposed Condition (ix), to be notified of any applications for environmental approvals, licences and permits, are directly addressed under the State’s Extra Condition 3. The grantee party is required to provide all materials which would otherwise be provided to the Director of Environment at the Department of Mines and Petroleum, for assessment and written approval prior to the development of productive mining, to the native title party. This will allow the native title party to participate by making submissions to the Director of Environment at the Department of Mines and Petroleum about the proposed operations. Again, the terms of the proposed Extra Condition 3 will not fully satisfy the native title party, however they go a significant way to addressing concerns raised by the proposed native title party conditions relevant to the environment.
Proposed native title party Condition (x) would require the grantee party to develop an employment and training policy with measurable performance indicators to encourage employment of the native title party in the operations on the mining lease. Similarly, proposed native title party Condition (xi) would require an identical policy relevant to contracting. Finally, proposed native title party Condition (xii) would require the payment of an annual sum of $100 000 per tenement, in this case, there being five tenements, an annual sum of $500 000 in total. In relation to the question of the proposed employment condition, the native title party submits, at para 37 of its contentions in reply, that the imposition of such condition would be consistent with normal industry policy. Further, earlier in paras 35 and 36 of those contentions in reply, the native title party makes the point that previous employment commitments made by the grantee party have not been honoured, and in the absence of a condition being imposed it is unlikely to honour those commitments in the future. That contention is disputed by the grantee party in its contentions. I have made reference to the situation above and indicated that in my view it would appear that both parties had not taken proactive steps to affect the purpose of clause 6 of the exploration agreement between the grantee party and the native title party executed on 6 August 2007 (see GP105). The native title party, however, has submitted no other evidence as to why such condition should be imposed in circumstances such as this. Similarly, there is no evidence or contentions made by the native title party in relation to the proposed contracting provision.
In relation to proposed native title party Condition (xii), there is no evidence or explanation as to the basis upon which they have requested the payment of the sum of $100 000 per annum per tenement in order to make provision for the wellbeing of the Njamal people. As is well understood, the Tribunal is statutorily prevented from making a determination that compensation may be payable under a determination pursuant to s 38. In particular s 38(2) relevantly states that the arbitral body must not determine a condition as to the effect that the native title parties are to be entitled to payments worked out by reference to the amount of profits made, income derived or things produced by the grantee party as a result of doing anything in relation to the land and waters concerned after the act is done. The current proposed compensation condition is not framed in that way, and appears to be compensation at large for the alleged disturbance to the native title party’s registered rights and interests, and the other factors to be taken into account under s 39.
The Federal Court has determined that the Tribunal has the power under s 38(1)(c) of the NTA to make the determination that a future act may be done subject to a condition that a sum of money is to be paid to the native title party by the grantee party. This form of compensation is known as ‘negotiated compensation’ (see Evans and Another v Western Australia and Others (1997) 77 FCR 193; [1997] FCA 741). However, to date, the Tribunal has not made such a condition relating to such payment in a s 35 application. If such a condition is imposed in circumstances where native title has not been determined by the Federal Court, the money is payable either into a trust account (ss 41(5) and 52A of the Act) or by way of bank guarantee (ss 41(3) and 52 of the Act). The Tribunal has considered a range of criteria which may be used to base a calculation of compensation payable should it be deemed appropriate, including expenditure on mining operations, loss, diminishment, impairment or other effect on native title interests, or applying the criteria for relevant compensation in the relevant Mining Act, in this case, s 123 of Mining Act 1978 (WA) (see Minister for Mines (WA) v Evans and Others (1998) 163 FLR 274; [1998] NNTTA 5 at [14]-[16]). The native title party in this matter made no submissions as to either the criteria upon which it based its calculation of $100 000 per annum per tenement, nor the reasons why, in this particular circumstance, a compensation condition should be imposed. Both the grantee party and the Government party oppose the making of such condition. In my view, without further explanation of the basis of the calculation of the figure or the particular grounds for the imposition of such a condition, it would be inappropriate for the Tribunal to impose such a condition, and I decline to do so (see also Australian Manganese at [63]-[68]). The native title party is of course entitled to pursue compensation, either pursuant to the Native Title Act or West Australian Mining legislation of some appropriate juncture.

Conclusion

In weighing the various factors which the Tribunal is required to take into account, I have had regard particularly to the fact that there is minimal evidence that the grant of the proposed tenements will have an effect on the enjoyment by the native title party of their native title rights and interests or other factors in s 39(1)(a) of the Act.

Determination

The determination of the Tribunal is that the act, namely the grant of Mining Leases M45/1180, M45/1181, M45/1182 and M45/1183 to FMG Magnetite Pty Ltd, and M45/1184 to FMG North Pilbara Pty Ltd may be done subject to the following conditions:
Any right of the native title party (as defined in sections 29 and 30 of the Native Title Act 1993 (Cth)) to access or use the land the subject of the mining lease 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 Act1972 (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 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 lease the assignee shall be bound by these conditions.

Daniel O’Dea
Member
20 December 2011

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Citations

FMG Magnetite Pty Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal [2011] NNTTA 213

Most Recent Citation

Pilbara Stone Pty Ltd/Angelina Cox and Ors on behalf of Puutu Kunti Kurrama and Pinikura 2/Western Australia [2012] NNTTA 114

Cases Citing This Decision

1

Pilbara Stone Pty Ltd/Angelina Cox and Ors on behalf of Puutu Kunti Kurrama & Pinikura 2/Western Australia [2012] NNTTA 114

Cases Cited

16

Statutory Material Cited

0

Fortescue Metals Group Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal [2011] NNTTA 66

FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aboriginal Corporation/Western Australia [2009] NNTTA 69

Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15