FMG Pilbara Pty Ltd and Another v Yindjibarndi #1
[2014] NNTTA 79
•31 July 2014
NATIONAL NATIVE TITLE TRIBUNAL
FMG Pilbara Pty Ltd and Another v Yindjibarndi #1 [2014] NNTTA 79 (31 July 2014)
Application Nos: WF2013/0015-WF2013/0016
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 Pilbara Pty Ltd (grantee party)
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Thomas Jacob, Stanley Warrie, Allum Cheedy, Kevin Guiness, Angus Mack, Michael Woodley, Joyce Hubert, Pansy Sambo, Jean Norman, Esther Pat, Judith Coppin and Masie Ingie on behalf of Yindjibarndi #1 (WC2003/003) (native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Member Helen Shurven
Place: Perth
Date of decision: 31 July 2014
Hearing date: 25 March 2014
Grantee party Mr Kenneth Green, Green Legal Pty Ltd
representatives: Ms Nerolie Nikolic, Fortescue Metals Group Ltd
Native title party Mr George Irving, Yindjibarndi Aboriginal Corporation RNTBC
representative:
Government party Ms Rosanna Hill, State Solicitor’s Office
representatives: Mr David Crabtree, Department of Mines and Petroleum
Mr Jason Diss, Department of Mines and Petroleum
Mr Dennis Jacobs, Department of Mines and Petroleum
Catchwords: Native title – future acts – no agreement with native title party – application for determination for the grant of mining leases – s 39 criteria considered – whether the future acts must not be done – whether the future acts may be done – whether the future acts can be done subject to conditions – determination that the acts may be done subject to conditions
Legislation:Native Title Act 1993 (Cth), ss 3, 23F, 26, 28, 29, 30, 31, 35, 36, 36A, 38, 39, 41, 66B, 76, 77, 109, 150, 151, 238
Aboriginal and Torres Strait Islanders Heritage Protection Act 1984 (Cth)
Aboriginal Heritage Act1972 (WA)
Acts Interpretation Act 1901 (Cth), s 36
Environment Protection and Biodiversity Conservation Act1999 (Cth)
Environmental Protection (Clearing of Native Vegetation) Regulations2004 (WA)
Environmental Protection Act1986 (WA)
Mining Act1978 (WA), ss 82, 84, 85
Mining Regulations1981 (WA)
Rights in Water and Irrigation Act 1914 (WA)
Wildlife Conservation Act 1950 (WA)
Cases:Australian Manganese Pty Ltd v State of Western Australia and Others (2008) 218 FLR 387; [2008] NNTTA 38 (‘Australian Manganese v Stock’)
Australian Manganese Pty Ltd/Western Australia/David Stock and Ors on behalf of the Nyiyaparli People [2010] NNTTA 101 (‘Australian Manganese v Stock 2’)
Cheinmora v Striker Resources NL & Ors; Dann v State of Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21 ('Cheinmora v Striker Resources NL')
Evans v Western Australia (1997) 77 FCR 193 (‘Evans v Western Australia’)
FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 91 (‘FMG Pilbara v Cheedy’)
FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2011] NNTTA 107 (‘FMG Pilbara v Yindjibarndi 1’)
FMG Pilbara Pty Ltd/NC (Deceased) and Others on behalf of the Yindjibarndi People/Western Australia [2012] NNTTA 142 (‘FMG Pilbara v Yindjibarndi 2’)
FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of Yindjibarndi People/Western Australia [2012] NNTTA 11 (‘FMG Pilbara v Yindjibarndi 3’)
FMG Pilbara Pty Ltd/Wintari Guruma Aboriginal Corporation/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 99 (‘FMG Pilbara v Wintari’)
Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia, [2011] NNTTA 80 (‘Magnesium Resources v Slater’)
Minister for Lands, State of Western Australia/Marjorie May Strickland and Anne Joyce Nudding on behalf of the Maduwongga People; Brian and Dave Champion, Cadley and Dennis Sambo, George Wilson and Clem Donaldson for their respective (Gubrun) families; Dorothy Dimer, Ollan Dimer and Henry Richard Dimer on behalf of Mingarwee (Maduwonjga) People [1998] NNTTA 2 (‘Minister for Lands v Strickland’)
Minister for Mines (WA) v Evans and Others (1998) 163 FLR 274; [1998] NNTTA 5 (‘Minister for Mines v Evans’)
Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (‘Re Koara’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 ('Silver v Northern Territory')
Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji, [2011] NNTTA 172; (2011) 258 FLR 9 (‘Weld Range v Simpson’)
Western Australia v Thomas and Others (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)
Western Australia v Thomas (1999) 164 FLR 120; [1999] NNTTA 99 (‘Western Australia v Thomas 2’)
Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; [2009] NNTTA 49; (2009) 2 ARLR 214 (‘Western Desert Lands v Holocene’)
WMC Resources Ltd/Western Australia/Richard Evans on behalf of the Koara people [1999] NNTTA 372 (‘WMC Resources v Koara’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
REASONS FOR DECISION
Background
[1]This decision has been made in the context of a vast amount of material consisting of many thousands of pages from the grantee party and native title party, inclusive of sworn affidavits, signed statements, reports, photographs, maps and other materials, as well as documentation from the Government party. The leases which are the subject of the inquiry form part of the larger project of the Solomon Iron Ore Mine in northwest Western Australia, as outlined in more detail throughout this decision. The careful assessment of these materials, in the context of the requirements of the Native Title Act 1993 (Cth) (‘the Act’), has taken time, and the decision that the acts can be done with conditions has been weighed in the context of relevant criteria under the Act. This is detailed further throughout this decision. Overall, I have been guided by the main objects of the Act relevant to this matter, being ‘to provide for the recognition and protection of native title’ (s 3(a)), and ‘to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings’ (s 3(b)).
[2]The Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Act of its intention to grant the tenements as mining leases 47/1475 (‘the first proposed lease’) and 47/1473 (‘the second proposed lease’) to FMG Pilbara Pty Ltd (‘the grantee party’). The notice for the first proposed lease specified the notification day as 11 July 2012, and the notice for the second proposed lease specified the notification day as 19 September 2012 (see s 29(5) of the Act).
[3]Each notice provides that any person who, four months after the notification day, is a registered native title claimant in relation to any of the land or waters that will be affected by the future act, has a procedural right to negotiate in relation to the future act (see ss 30(1)(a) and 31 of the Act). The notification period ended on 11 November 2012 for the first proposed lease, and 19 January 2013 for the second proposed lease (the four month date for each lease was moved to the next working day of 12 November 2012 and 21 January 2013 respectively, due to s 36(2) of the Acts Interpretation Act1901 (Cth)). At the end of each notification period, the Yindjibarndi #1 claim (WC2003/003) wholly overlapped each proposed lease. As there were no other claims or determinations overlapping the proposed leases on those dates, Yindjibarndi #1 (‘the native title party’) are the only native title party for the purpose of this determination (see s 29(2)(b)(i) and s 30(1) of the Act). The native title party are represented by the Yindjibarndi Aboriginal Corporation (‘YAC’). My consideration of the effect of the acts on factors relevant to the native title party is inclusive of consideration of the wider claim group which the native title party represents. I shall have regard to any evidence submitted by those who can speak for the relevant area of Yindjibarndi country.
[4]According to the s 29 notices, the grant of each proposed lease would authorise the grantee party to mine for minerals for a term of 21 years from the date of grant, with the right of renewal for 21 years. The notices also specify the size of the first proposed lease to be approximately 8.1 square kilometres (809.76 hectares) and the size of the second proposed lease to be approximately 4.85 square kilometres (485.13 hectares). A portion of the first proposed lease (approximately 2.85 square kilometres) is to be excised on grant, as outlined in detail at [13] and [26]-[28] of this decision. To avoid doubt and in consideration of the evidence presented, the Tribunal will impose a condition on the grant of the first proposed lease that this area is to be excised. The proposed leases are located in the Ashburton Shire, approximately 65 and 66 kilometres north of Tom Price respectively.
[5]The proposed leases are future acts covered by s 26(1)(c)(i) of the Act and so, unless there is compliance with s 28 of the Act, the future acts will be invalid to the extent that they affect native title. In this case, s 28(1)(g) of the Act is the relevant requirement, that is, invalidity of the future acts can be avoided if ‘a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with’.
The section 35 future act determination application
[6]Following the notification of the proposed leases, the Government party commenced negotiations with parties by letter dated 7 November 2012. Parties exchanged correspondence and attended mediation on 10 October 2013 convened by President Raelene Webb QC of the National Native Title Tribunal (‘the Tribunal’). Neither negotiation between parties or mediation assistance led to an agreement of the kind specified in s 31(1)(b) of the Act.
[7]On 11 October 2013, the grantee party applied for the Tribunal to make a determination under s 38 of the Act. The negotiation parties had not been able to reach agreement of the kind mentioned in s 31(1)(b) and at least six months had passed since the notification day specified in each s 29 notice (see s 35 of the Act). On 15 October 2013, President Webb appointed me for the purpose of making the determination in respect of the proposed leases. I considered the conditions outlined in s 76 of the Act and subsequently accepted the determination applications, pursuant to s 77 of the Act, on 18 October 2013.
[8]On 29 October 2013, parties were provided with a map prepared by the Tribunal’s Geospatial Services showing the proposed leases, the claim boundary, topography, Aboriginal communities and Aboriginal sites recorded with the Department of Indigenous Affairs (‘DIA’, now Department of Aboriginal Affairs, ‘DAA’). At the preliminary conference held on 1 November 2013, the grantee party representative, Mr Green, raised that the map did not clearly distinguish whether the DAA sites on the map were ‘registered’ sites or ‘other heritage places’. This relates to the DAA’s administrative assessment as to whether a site is categorised as a ‘registered’ site or as an ‘other heritage place’ (the latter further categorises the sites as ‘stored data’, ‘insufficient information’ or ‘lodged’). In response, the Tribunal’s Geospatial Services prepared two new maps clarifying the category of each of the DAA sites in relation to the proposed leases. The first map (‘NNTT Map 1 – leases with distant view’) showed the DAA sites marked according to their specific status (that is, a registered site or other heritage place). The second map (‘NNTT Map 2 – leases with close view’) showed a closer view of the proposed leases and the status of DAA sites (with the Site ID of the DAA sites clearly marked). These two maps replaced the earlier version and were distributed to parties on 11 November 2013. Parties were informed the two maps would form part of the decision-making process; comments were invited for consideration and no comments were received.
The inquiry
[9]If the native title party alleged that either the Government or grantee party’s conduct had not been in good faith, the Tribunal would have to consider contentions and evidence on that issue. The Tribunal would then only have power to determine the substantive issue under s 39 of the Act if satisfied that the relevant party had negotiated in good faith. At the preliminary conference for the inquiry held on 1 November 2013, the native title party indicated it did not intend to submit that the grantee party or Government party had not negotiated in good faith (see ss 31(1)(b) and 36(2) of the Act).
[10]During the preliminary conference, I asked parties whether they saw benefit in participating in a s 150 conference to try and resolve any matter relevant to the inquiry. Parties were agreeable to this endeavour. Accordingly, President Raelene Webb QC directed the holding of a s 150 conference and appointed herself as the Member for the purposes of that conference process. She conducted a conference on 20 November 2013 and terminated the process on that day as parties were unable to reach any agreement.
[11]Immediately following the preliminary conference, I made directions in relation to the inquiry, requiring parties to submit contentions and evidence in relation to the criteria outlined in s 39 of the Act. These directions required, among other things, native title party compliance by 7 February 2014. This is noted in view of the amendment requests made by the native title party, as outlined below (at [15]). Due to the size and volume of documentation provided, the initial compliance from parties is listed in detail in Attachments A, B and C to this decision. For convenience, a summary is provided at [12]-[16] immediately below.
[12]In compliance with the 1 November 2013 directions:
(a)on 12 December 2013 (earlier than its compliance date of 10 January 2014), the grantee party provided its statement of contentions, together with Annexure materials 1-45 (‘GP Doc’ 1-45), as listed at Attachment A; and
(b)on 10 January 2014, the Government party submitted its statement of contentions, together with Annexure materials 1-21, as outlined at Attachment B.
[13]On 21 January 2014, the grantee party’s representative, Mr Green, provided additional material to the Tribunal and other parties, as he wished to clarify that, after it submitted its contentions, the grantee party had received confirmation from DMP that its application to reduce the area of the first proposed lease had been processed successfully. The additional material consisted of:
(a)a letter from DMP to the grantee party dated 24 December 2013 confirming that, as of 24 December 2013, the tenement application for the first proposed lease no longer encroached upon an area known as Satellite Springs (and detailing that the public tengraph screens would not show the updated reduced area until grant). Accompanying this letter was a tengraph map of the updated area. This became Annexure 46 to the grantee party materials; and
(b)an email from DMP to Mr Green dated 21 January 2014 attaching an updated Tengraph Quick Appraisal generated on 21 January 2014, showing the area of the first proposed lease had changed from 809.76 to 525.27 hectares (approximately 5.25 square kilometres). This became Annexure 47.
[14]This additional material was provided to the Tribunal after the grantee party compliance date of 10 January 2014. No party objected to these materials, and I decided that this additional material could be accepted as it related to a vital aspect of the inquiry and clarified the submissions already provided by the Government party and grantee party. However, as the additional material needed to be considered by the native title party, and to allow the Government party an opportunity to amend its contentions in view of the updated area of the first proposed lease, I issued amended directions on 22 January 2014, extending the remaining compliance dates. On 28 January 2014, the Government party provided by email a copy of the DMP letter and map (as described in [13(a)] above), stating that ‘the Government party seeks to rely’ on that letter and map ‘in respect of the proposed tenement area of M47/1475’. Accordingly, its contentions submitted on 10 January 2014 were read in conjunction with the confirmation that the tenement would not overlap Satellite Springs on grant of the first proposed lease.
[15]Directions were amended again on 26 February 2014 and 7 March 2014 following requests from the native title party. A witness statement (‘NTP Witness Statement’) was received from the native title party on 7 March 2014 but the native title party’s contentions (‘NTP Contentions’), and an affidavit, were received on 12 March 2014. Parties were given the opportunity to make submissions on the late receipt of the contentions and affidavit and no submissions were received. Having considered the timing and nature of the contentions and affidavit, I accepted them on the basis that it would cause undue prejudice not to in the circumstances.
[16]The material received from the native title party on 12 March 2014 consisted of a statement of contentions, together with the Annexure materials 1-20 as outlined in Attachment C.
[17]On 12 March 2014, I issued amended directions to alter the date for the listing hearing to take into account a request from the native title party for an on country hearing (as detailed further at [18] below).
On country hearing request
[18]On 6 March 2014, the native title party made a request for an on country hearing. A listing hearing was held on 25 March 2014 in relation to that request. It is not necessary to outline the request, or the Tribunal process in considering the request, as this is detailed in my decision not to grant the request, as extracted below. The on country hearing decision was sent to parties on 28 March 2014. Further directions were issued in relation to parties’ provision of evidence, as outlined below.
Request for on country hearing
The Tribunal processes
Since WA v Thomas (1996) 133 FLR 124, the factors the Tribunal will take into account in an inquiry matter have been very clearly outlined. Parties have a central role to play in the conduct of right to negotiate inquiries. Parties have various procedural rights, including a reasonable opportunity to present their case (as per s 142 of the Act). These rights are guided by directions, issued by the Tribunal, which assist the Tribunal in conducting the inquiry and all parties in presenting their contentions and evidence in a timely and efficient manner. Directions are one of the ways the Tribunal fulfils its statutory mandate of s 109(1). In addition, the Tribunal is not required to make out a party's case for it where that party chooses not to produce evidence. The Tribunal must take into account a native title party’s cultural and customary concerns (s 109(2)), but not so as to unduly prejudice any party to the proceedings. The Tribunal must also make the decision as soon as practicable (s 36).
Background to the request
The present inquiry commenced by the grantee party lodging the future act determination application on 11 October 2013. At the preliminary conference on 1 November 2013, the native title party advised it did not take issue with good faith, and directions were set down for the substantive inquiry. Taking into account the upcoming vacation period in December, and to provide all parties with sufficient time to gather their evidence, the Government and grantee party compliance dates were set at 10 January 2014, and the native title party for 7 February 2014. The grantee party and Government party complied (with the grantee party lodging their documents on 12 December 2013). The native title party then had these documents to consider and take instructions on from early December and early January respectively. In addition, a s 150 conference with another Member was undertaken on 20 November 2014.
On 21 January 2014, the grantee party provided a short further statement in relation to some tenure developments which would apply to this matter. As such, the native title party compliance dates were extended to enable them to consider this point, along with other party’s substantive contentions and evidence. Their compliance date then became 28 February 2014.
On 24 February 2014, the native title party emailed the Tribunal and parties to say they did wish to file 'evidence and contentions' but required an extension due to a suicide in the community. The extension was not opposed by other parties and it was granted, such that their compliance date became 4 March 2014. It was not until 6 March 2014 that the native title party representative wrote to the Tribunal, having missed the compliance date due to a health issue, and further advising that 'I should also advise that, following discussion in Roebourne last week, the native title party instructed me to request a hearing on country in this matter'. On 7 March, the native title party representative sent a further email, with an attached witness statement signed by 28 ‘Yindjibarndi persons’- I note that 2 of these signatories appear to be persons on the register of native title claims for the claim group.
Due to the health issue of the native title party representative, a further extension was granted to 10 March 2014, and submissions (in the form of contentions) and evidence (in the form of an affidavit from Anthropologist Mr Davies and the re-submitted statement signed by 28 persons) were not received until 12 March 2014. No objection was received from other parties to these later submissions, and they were accepted by the Tribunal.
Whether to hold an oral hearing
The Tribunal must hold hearings ‘if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties’ (s 151 of the Act - emphasis added). The native title party have provided a great deal of information which runs to well over 1000 pages (several lever arch files), some of which relates to areas outside of the tenements under this inquiry process. That information also includes the sworn affidavit of Mr Davies, anthropologist (mentioned above), showing areas said to be within the proposed licence.
Mr Davies’ affidavit details certain sites he has visited and received information in relation to, and how the registered rights and interest of the native title party are exercised and enjoyed. These are issues which the Tribunal must turn its mind to in making the determination in this matter (as per s 38 and s 39 of the Act).
The statement signed by 28 persons includes the following (at paragraph 3):
‘this statement describes the kind of evidence we wish to give to the tribunal on our country, Yindjibarndi country, where these tenements will be located....the evidence we wish to give to the Tribunal needs to come from...our collective knowledge and our collective beliefs...we believe the best way to give that evidence is as a group on our country where we can demonstrate to the Tribunal the significance of what we will lose if these Tenements are granted...’
The question of an oral hearing was canvassed with parties at a hearing on 25 March 2014. Broadly speaking, the native title party representative indicated his clients had lost confidence in the system, and sought to give evidence on country. The grantee party representative raised the issue of prejudice to his client in relation to further delays in the matter due to this late request, and the grantee and Government party representatives both raised the issue of resources in taking parties and the Tribunal to an on country hearing.
As outlined under 'The Tribunal processes' above, resources are an important issue for the Tribunal. Nevertheless, that consideration will not over-ride the need for an on country or an oral hearing should there be a demonstrated need for such. In the present matter, the native title party has been on notice of this matter for some 5 months - the 6 month statutory timeframe for the decision to be made will be upon us in approximately 2 weeks. The on country request was made very late in the process. While the timing of the request in itself is not fatal to such a request, the Tribunal takes it into account as one of the factors to balance in making the decision.
In this matter, taking into account the balancing of all factors as outlined above, the Tribunal's view is that a clear case had not been made out that there are issues to be determined which cannot be adequately determined in the absence of parties in person or on country.
Bearing in mind the balance of prejudice to the grantee party in lengthening this inquiry process, and that the native title party held out hope that an on country hearing would be granted and that evidence could be produced in a collective manner, rather than from a single individual, so have not provided any evidence in support of Mr Davies affidavit, Member Shurven issues the following additional directions in this inquiry matter:
Direction 1 - the native title party has liberty to provide the Tribunal and parties, in affidavit, statement, DVD or audio recording, from an individual or collectively, further evidence in relation to s 39, and in relation to any conditions they seek to be imposed in relation to this matter, by close of business on Monday 14 April 2014.
Direction 2 - the Government party and grantee party has liberty to provide the Tribunal and parties further contentions or evidence by way of reply, to the native title party’s contentions and evidence filed 12 March 2014 and any further material submitted as per direction 1, by Monday 5 May 2014.
As a guide, in relation to Direction 1, the Tribunal will consider accepting material from an individual which is supported by a group of identified persons, or evidence given collectively, whether by affidavit, statement, DVD or audio media. The Tribunal is not bound by rules of evidence (as per s 109(3)) and takes a pragmatic approach to materials submitted.
[19]In compliance with direction 1 made on 28 March 2014, the native title party provided to the Tribunal and parties additional evidence consisting of:
(a)a statement of evidence by members of the native title party (‘NTP Joint Statement’) dated 14 April 2014, signed by 19 Yindjibarndi persons;
(b)a map entitled ‘DIA Registration with tenements’ showing the proposed leases and a red marking around an area, with various points of interest marked by star symbols; and
(c)twenty electronic files (MapInfo and shape files) containing data to accompany the NTP Joint Statement. The data from the MapInfo and shape files is said to show the Ganyjingarringunha Ngurra site complex (an area the native title party indicated they unsuccessfully attempted to have registered with the DAA). It also showed ‘additional sites of significance in the Tenements that are identified in the affidavit of our anthropologist Philip Davies, filed in this inquiry’ (at paragraph 13 of the NTP Joint Statement).
[20]On 15 April 2014, the native title party sent to the Tribunal and other parties:
(a)another copy of the map referred to in [19(b)] above with the name of the PDF file re-titled as ‘NTP Doc 21 - Ganyjingarringunha Nurra’. I have confirmed that the map itself is the same as the map provided the previous day (and note also various spellings of this area which include Ganyjingarringunha Ngurra’); and
(b)the affidavit of Mr Ned Cheedy, sworn 7 April 2010, which was referred to at paragraph 8 of the NTP Joint Statement, marked as NTP Doc 22.
[21]As there were some potential access problems with the shape files, the Tribunal’s Geospatial Services compiled the data from the files into a single PDF map and associated Excel spreadsheets. Parties were provided with a copy of these Geospatial Services products on 23 April 2014, and the Tribunal sought verification from the native title party that the Geospatial products represented the files submitted. No party took issue with this process or with the data produced by the Tribunal Geospatial Services. On 15 May 2014, a staff member from YAC wrote to the Tribunal to confirm that the Tribunal’s Geospatial products are an accurate representation of the files submitted. Later that day, the Tribunal advised parties that the Geospatial product would form part of the decision-making process. For ease of reference, I shall refer to the Geospatial product as ‘NNTT Map 3 – NTP Data’.
[22]On 8 May 2014, the grantee party noted it had not complied with the directions date of 5 May 2014 for its reply, due to an administrative error, and requested an extension to 19 May 2014. The other parties were given the opportunity to respond to the request. No responses were received and, noting the nature of the request and prior extensions granted to the native title party and no dissent from other parties, I granted the request. On 19 May 2014, the grantee party submitted a reply (‘GP Reply’) together with the following:
(a) Affidavit of Mr Christopher Ian Leonard Oppenheim, employed by Fortescue Metals Group Ltd as a Specialist Hydro-Geologist, affirmed 19 May 2014. The affidavit was accompanied by the following:
(i) Annexure CILO1 – Map showing Satellite Springs, prepared by Fortescue Metals Group Limited and entitled ‘Solomon Mine Satellite Spring, FMG’s Current and Pending Mining Leases and Sub Catchment Area’;
(ii) Annexure CILO2 – Diagram ‘Figure 1 Satellite Springs Hydrological Setting’, prepared at Mr Oppenheim’s instruction; and
(iii) Annexure CILO3 – Diagram ‘Figure 2 Satellite Springs Hydrological Setting’, prepared at Mr Oppenheim’s instruction.
(b) Affidavit of Mr Ken Sandy, an initiated Yindjibarndi man and a member of Wirlu-Murra Yindjibarndi Aboriginal Corporation (‘WMYAC’), affirmed 16 May 2014. The following accompanied the affidavit:
(i) Annexure KS1 – Affidavit of Ken Sandy affirmed 28 February 2011; and
(ii) Annexure KS2 – Map provided by Mr Michael Gallagher showing the proposed lease and ‘new mining leases and old mining leases’ (at paragraph 6 of Mr Sandy’s affidavit).
(c) Affidavit of Mr Luke Patrick May, an anthropologist employed by Terra Rosa Cultural Resource Management Pty Ltd, affirmed 19 May 2014. The following accompanied the affidavit:
(i) Annexure LMP1 – Assessment by Alpha Archaeology Pty Ltd entitled ‘4.2.55 YIN11-062 (Rock Shelter, Artefact Scatter, Stone Arrangement)’; and
(ii) Annexure LMP2 – Assessment by Alpha Archaeology Pty Ltd entitled ‘4.2.53 YIN11-058 (Rock Shelter, Grind Stone)’.
[23]The Government party did not submit a reply.
[24]After considering the material submitted by parties, I decided it would be beneficial to be able to view the Tribunal’s Geospatial Services maps already circulated to parties (see ‘NNTT Map 2 – leases with close view’ referred to at [8] and ‘NNTT Map 3 – NTP Data’ referred to at [21] above) in terms of the reduced area for the first proposed lease. That is, taking into account the excising of Satellite Springs. Consequently, on 16 June 2014, using the map prepared by DMP (GP Doc 46) showing the reduced area as of 24 December 2013, parties were sent an additional version of both ‘NNTT Map 2 – leases with close view’ and ‘NNTT Map 3 – NTP Data’, showing the reduced area superimposed onto each of those original products. Parties were invited to comment on the additional maps. No comments were received in relation to the superimposed version of ‘NNTT Map 3 – NTP Data’ (the superimposed version shall be referred to as ‘NNTT Map 4 – NTP Data (reduced area)’). In relation to the updated version of ‘NNTT Map 2 – leases with close view’, following a comment from Mr Green regarding the labelling of native title claims, a final superimposed version of the ‘NNTT Map 2 – leases with close view’ was sent to all parties on 24 June 2014 (to be referred to as ‘NNTT Map 5 – leases with close view (reduced area)’). It was confirmed that each of these superimposed maps would also form part of the decision-making process in this inquiry, subject to consideration of any comments received by 30 June 2014.
[25]No further comments were received from parties. Subsequently, in making my decision I have taken into consideration the following five maps involving assistance from the Tribunal’s Geospatial Services as described thus far in the decision:
(a)‘NNTT Map 1 – leases with distant view’
(b)‘NNTT Map 2 – leases with close view’
(c)‘NNTT Map 3 – NTP Data’
(d)‘NNTT Map 4 – NTP Data (reduced area)’
(e)‘NNTT Map 5 – leases with close view (reduced area)’
Size of the first proposed lease
[26]At the time of lodging the future act determination application on 11 October 2013, the size of the first proposed lease reflected the tenement application received by DMP on 26 March 2012 (approximately 810 hectares). The future act determination application foreshadowed that the grantee party intended to apply to alter the size of the tenement application in order to avoid the Aboriginal site ‘Satellite Springs’. On 22 November 2013, Ms Denice Johns of Fortescue Metals Group Limited wrote to DMP notifying them of this intention, based on the understanding that Satellite Springs ethnographic site should be avoided due to its significance to the Yindjibarndi People (see GP Doc 39).
[27]On 21 January 2014, the grantee party provided additional information to the Tribunal and other parties (see [13] above) confirming the tenement application had been amended as at 24 December 2013 so the area reduced to 525 hectares (or 5.25 square kilometres), would no longer encroach upon Satellite Springs, and the tengraph screens would show the updated reduced area, upon grant. The specific coordinates for this area had been exchanged between the grantee and Government parties, but not provided to the Tribunal. On 15 July 2014, the Tribunal sent an email to parties referring to DMP’s letter to the grantee party dated 24 December 2013 (GP Doc 46). The Tribunal’s email requested the provision of the coordinates for the reduced area to be granted, being those coordinates mentioned in DMP’s letter as follows: ‘the Department is now showing M47/1475 in Tengraph based on the coordinates supplied by you [the grantee party] and reflected on the attached Status Plan’. In response, on 18 July 2014, the Government party supplied to the Tribunal and parties a document showing ‘the revised coordinates of the boundaries of M47/1475’. The document consisted of a diagram of the revised tenement area and a page of corresponding coordinates and other data (ID numbers, Geographic Coordinates, Grid Coordinates, Azimuths and distances). The diagram and associated coordinates/other data are at this decision as Attachment G.
[28]As described above, I accepted the grantee party’s additional material and the subsequent material from the Government party relating to the size of the lease. The native title party did not raise any argument in relation to the issue of this area being excised on grant. Subsequently, for the purposes of my consideration of the s 39 criteria, the first proposed lease shall be taken as the amended and reduced area, exclusive of Satellite Springs, as per the confirmation from DMP on 18 July 2014 (see Attachment G and [197] below).
Project information and proposed mining activity
[29]No previous mining appears to have been conducted on either of the proposed leases. Upon grant, the proposed leases would be subject to open pit mining, and form part of the grantee party’s Solomon Project (also referred to as Solomon Hub or the Project), which comprises the Firetail mine and Kings mine. Mining for ore deposits at Firetail mine commenced in late 2012 and mining at Kings mine commenced in March 2014. According to information provided by the grantee and Government parties, Fortescue Metals Group Limited and its subsidiaries is collectively Australia’s third largest iron ore producer (see, for example, the Department of State Development’s Iron Ore Profile published in 2012 at GP Doc 9).
[30]As an aside, it is noted that much of the material provided by the grantee party refers to Fortescue Metals Group Limited, as opposed to the grantee party, FMG Pilbara Pty Ltd. President Webb QC dealt with this issue in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [32]-[35]), and concluded that ‘the conduct and actions of the grantee party’s controlling entity, Fortescue Metals Group Limited, and of its other wholly owned subsidiaries, are relevant to the Tribunal’s consideration in this matter.’ I accept and adopt that reasoning (at [35]) for the purposes of this decision.
[31]The grantee party’s Mining Act Statement (as attached to GP Doc 13 and see s 74(1)(a) of the Mining Act) suggests that the lease areas hold ‘strategic iron ore resources to the overall project,’ as well as ‘land required for infrastructure’ (at page 4). According to the Mineralization Report, this infrastructure is likely to be major in nature, including haul roads, communication towers and similar facilities (at page 4). This appears to apply equally to both leases, although the Mining Statement is not as clear about the infrastructure to be placed in the first proposed lease. Mining operations were intended to commence ‘within four years’ (as at December 2010). Ore will be extracted ‘by conventional drill and blast methods’ (at page 7).
[32]As noted in the grantee party Mining Act Statement, the intended mining methods and dewatering requirements for both leases is as follows:
5.2 Mining Methods
Mining at Solomon will be carried out using open pit mining methods. The ore body is predominantly a flat tabular body and will be mined by conventional shovel and truck mining methods, which are used throughout the Pilbara. In-pit and overland conveying systems are likely to complement the trucking transport system in order to increase mining efficiency. Detailed geotechnical and hydro geological investigations are being conducted with respect to the ore, internal waste and the overburden throughout the mining areas.
5.6 Dewatering requirements
It is anticipated that because a fair portion of this mineralisation is below cover that there will be a reasonable level of dewatering required to mine the ore by open cut methods. An assessment of dewatering requirements will be undertaken and dewatering strategies considered meeting demand for “best possible” mining conditions and provision of a local water supply.
[33]The Project’s capital expenditure, as at December 2013, exceeded $5.9 billion. Solomon Railway opened in 2012; it stretches 129 kilometres and links the Solomon Project to Fortescue’s mainline, to Herb Elliot Port in Port Hedland. The grantee party supplied an aerial photograph of the Solomon Project to the Tribunal and all parties, showing already granted mining leases and mining activities near the proposed leases (Document 44). That map showed the first proposed lease was at the northern end of areas where mining activities were being undertaken in the Kings section of the Solomon Project. The second proposed lease was adjacent to the first proposed lease, and also to the northern end of areas where mining activities are being undertaken in the Firetail section of the Solomon Project. Prior to the excision of Satellite Springs, both proposed leases shared a common north/south boundary. Following the excision, the boundary of the first proposed lease was shifted some 500 metres or so to the west of the second proposed lease, so the leases share no common boundary with each other, but both do share common east/west boundaries with the already granted tenements to the south. The grantee party also provided information of its wider developments in the Pilbara, including the 620 kilometre railway track and the construction of the aforementioned Herb Elliot Port.
[34]The grantee party refers to the restrictions on the acts, by way of the proposed endorsements and conditions to be imposed by the Government party (as outlined at [50]-[51]), and the operation of the Mining Act. The Government party noted the rights conferred under s 85 of the Mining Act are subject to the covenants and conditions in s 82 of the Mining Act, and the conditions and endorsements which can be imposed under s 84 of the Mining Act.
[35]The native title party draws attention to, among other things, that ‘there will be a reasonable level of dewatering required to mine the ore by open cut methods’ (paragraph 5.2 NTP Contentions, referring to the grantee party’s mining statement (GP Doc 13)).
[36]Mining and dewatering activities are dealt with in more detail later in this determination.
Overview of underlying tenure and usage
First proposed lease – M47/1475
[37]The Tengraph Quick Appraisal provided by the Government party indicates:
(a)the underlying tenure comprises unallocated Crown land;
(b)the proposed lease area is subject to three current tenements as follows:
(i)exploration licence 47/1319, overlapping by 3.8 per cent;
(ii)exploration licence 47/1334, overlapping by 96.2 per cent; and
(iii)miscellaneous licence 47/362, overlapping by 0.1 per cent;
(c)the proposed lease area was previously the subject of various dead/expired tenements, as follows:
(i)miscellaneous licence 47/355 (withdrawn May 2011, which overlapped by 0.1 per cent);
(ii)temporary reserve 70/2703 (cancelled 11 October 1966, which overlapped by 100 per cent);
(iii)temporary reserve 70/6662 (cancelled 15 December 1979, which overlapped by 62.4 per cent);
(iv)temporary reserve 70/1807 (expired 28 September 1961, which overlapped by 24.4 per cent);
(v)exploration licence 47/228 (surrendered 25 June 1986, which overlapped by 32.9 per cent);
(vi)exploration licence 47/806 (surrendered 17 May 1999, which overlapped by 0.5 per cent);
(vii)miscellaneous licence 47/396 (surrendered on 4 April 2012, which overlapped by 26.7 per cent); and
(viii)mining lease 47/1304 (withdrawn on 19 September 2008, which overlapped by less than 0.1 per cent).
Second proposed lease – M47/1473
[38]The Government party provided the Tengraph Quick Appraisal, indicating:
(a)the underlying tenure is unallocated Crown land;
(b)the proposed lease area is subject to the following other current tenements:
(i)exploration licence 47/1334, overlapping by 5.8 per cent;
(ii)exploration licence 47/1447, overlapping by 94.2 per cent; and
(iii)miscellaneous licence 47/362, overlapping by 38.5 per cent;
(c)the proposed lease area was previously the subject of various dead/expired tenements, as follows:
(i)miscellaneous licence 47/355 (withdrawn May 2011, which overlapped by 38.4 per cent);
(ii)temporary reserve 70/2703 (cancelled 11 October 1966, which overlapped by 100 per cent); and
(iii)temporary reserve 70/6662 (cancelled 15 December 1979, which overlapped by 100 per cent).
[39]The Government party contend that given the prior existence of underlying tenure, including TR70/2703 which entitled the holder to a right of occupancy, a claim for exclusive possession cannot be sustained over the area of the proposed leases. The native title party have not disputed this, and based on the available evidence, while any exclusive rights and interests would be likely to have been extinguished in such areas, non-exclusive rights and interests may still exist.
Overview of relevant cultural heritage material
[40]The Government party submitted evidence that heritage surveys have been carried out within portions of each proposed lease. Search results provided by the Government party from DAA’s Aboriginal Heritage Inquiry System (Documents 21 and 22), show heritage surveys as follows:
(a)Six heritage surveys were recorded within the first proposed lease, with relevant details as follows:
(i)Archaeological survey 5666 with start date 28 July 2013. The proponent was Fortescue Metals Group Limited and the consultants were Eureka Heritage and also Veritas Archaeology & History. ‘Aboriginal people’ were consulted, though the record does not provide any identifying information;
(ii)Ethnographic survey 5692 with start date 11 February 2013. The proponent was Fortescue Metals Group Limited and the consultant was Terra Rosa Cultural Resource Management Pty Ltd. ‘Aboriginal people’ were consulted and the summary of the related report (ID 27888) provides more detail as follows: ‘Report on a Heritage Assessment of Heritage Place YIN10-095 within the Fortescue Metals Group Solomon Mining and Infrastructure Phase 13 Section 18 Application area, conducted by the Yindjibarndndi [sic] Traditional Owners and Terra Rosa Cultural Resource Management Pty Ltd for Wirlu-Murra Tableland Heritage Pty Ltd on behalf of WMYAC and the Yindjibarndi traditional owners and prepared for Fortescue Metals Group Ltd’;
(iii)Ethnographic survey 5370, with start date 27 June 2011. The proponent was Fortescue Metals Group Limited and the consultant was Brad Goode & Associates Consulting Anthropologists and Archaeologists. ‘Aboriginal People’ were consulted, though the record does not provide any identifying information;
(iv)Archaeological survey 5661, with start date 9 May 2011. The proponent was Fortescue Metals Group Limited and the consultant was Alpha Archaeology Pty Ltd. ‘Aboriginal People’ were consulted, though the record does not provide any identifying information;
(v)Archaeological and ethnographical survey 4387, with start date 1 July 2008. The proponent was Fortescue Metals Group Limited and the consultant was Western Heritage Research Pty Ltd. ‘Aboriginal People’ were not consulted; and
(vi)Archaeological and ethnographical survey 1454, with start date 1 August 1996. The proponent and consultant was Hamersley Iron Pty Ltd and the survey was conducted in relation to a proposed exploration drilling program in respect of two exploration licences. ‘Aboriginal People’ were consulted though the record does not provide any identifying information.
(b)Four heritage surveys were recorded within the second proposed lease, with relevant details as follows:
(i)Archaeological survey 5666, with start date 28 July 2013. It is the same survey as described above in relation to the first proposed lease;
(ii)Ethnographic survey 5692, with start date 11 February 2013. It is the same survey as described above in relation to the first proposed lease;
(iii)Ethnographic survey 5370, with start date 27 June 2011. It is the same survey as above for the first proposed lease; and
(iv)Archaeological survey 5661, with start date 9 May 2011. It is the same survey as above for the first proposed lease.
[41]These surveys recorded with DAA are not necessarily an exhaustive representation of all heritage surveys that have been conducted. The native title party has not specifically addressed the surveys which have been done over the proposed leases, apart from in broad terms as outlined later in this decision.
[42]The grantee party, as part of its evidence in this matter, provided a copy of the native title party’s s 31(1)(a) statement (as GP Doc 15), which the native title party provided to DMP at the outset of negotiations. I refer to that statement in this decision, as it contains information from the native title party which is relevant to this matter, even though the native title party itself did not provide the document. They raised no objection when the grantee party did so. In that statement, the native title party has submitted viewpoints in relation to particular heritage surveys that the grantee party carried out with the involvement of WMYAC (see pages 5-6 of the NTP’s s 31(1)(a) statement). For example, they state that heritage surveys have not been undertaken with the native title party, the Yindjibarndi People who, in accordance with traditional law and custom, have the relevant authority to speak for the areas of the proposed leases. The native title party say that WMYAC is not authorised by YAC or the Yindjibarndi #1 Applicant to undertake heritage surveys or provide advice in relation to heritage or the registered native title rights and interests of the Yindjibarndi #1 Applicant.
[43]Details about heritage surveys conducted by the grantee party are set out in a letter from Mr Green on behalf of Fortescue Metals Group Limited to YAC (copying in Mr Crabtree from DMP) dated 12 March 2013 (GP Doc 13). Relevant portions are as follows:
Aboriginal heritage surveys
1.8 I am pleased to advise that portions of the Mining Tenements have been the subject of
Aboriginal heritage surveys. In this regard, pleased find the following maps enclosed:
(1) map entitled M47/1473 & M47/1475 Archaeological Survey Status as of 2nd November 2012) Solomon which shows the portion of the Mining Tenements which has been the subject of archaeological survey (“Archaeological Survey Map”); and
(2) map entitled M47/1473 & M47/1475 Ethnographic Survey Status as of 2nd November 2012) Solomon which shows the portion of the Mining Tenements which has been the subject of ethnographic survey (“Ethnographic Survey Map”).
1.9 Analysis of the above maps shows that of the:
(1) 482.83 Ha area of M47/1473:
(a) 67.12 Ha has been the subject of archaeological survey; and
(b) 482.83 Ha has been the subject of ethnographic survey; and
(2) 777.43 Ha area of M47/1475:
(a) 352.99 Ha has been the subject of archaeological survey; and
(b) 777.24 Ha has been the subject of ethnographic survey
1.10 As is apparent from the Archaeological Survey Map and the Ethnographic Survey Map, the Aboriginal heritage surveys undertaken have identified that the northern portion of M47/1475 encroaches upon an ethnographic Aboriginal site.
1.11 Following discussions with Wirlu-Murra Yindjibarndi Aboriginal Corporation, FMG has agreed to adjust the northern portion of M47/1475 such that it no longer encroaches upon that Aboriginal site. FMG is currently investigating how the adjustment can best be made.
1.12 As you are aware from previous matters, FMG recognises its obligations under the Aboriginal Heritage Act 1972 (WA).
Policies or Relevant Information
1.13 I am pleased to enclose a copy of FMG’s:
(1) Procedure for Ground Disturbance Permits; and
(2) Cultural Heritage Management Plan for Projects in the Pilbara region of WA.
[44]It is clear that heritage surveys are a contentious issue from examining the submissions made for this inquiry. The native title party s 31(1)(a) statement, together with the contentions of the native title party, demonstrate the native title party’s views as communicated to the grantee party’s parent company (Fortescue Metals Group Limited) on taking part in heritage surveys involving WMYAC and related organisations. In a letter from YAC to Fortescue Metals Group Limited Board of Directors dated 27 May 2013, the YAC representative stated ‘please ensure all notices of future acts in the Yindjibarndi #1 claim area, including notices of Heritage Surveys, Heritage Work Instructions and s 18 applications are forwarded in the first instance to YAC’s Future Act Unit.’ The letter goes on as follows:
please also be advised that YAC will not be taking up any invitations issued by FMG to be involved in heritage surveys which are being undertaken by the Wirlu-Murra Tableland Heritage Service, who YAC understands to be FMG’s preferred heritage manager. In the absence of a heritage protection agreement between YAC and FMG, YAC reiterates that it will not be participating in the heritage surveys or providing heritage information to FMG.
Attached to the letter were the following (with relevant aspects summarised):
(a)A Federal Court notice of change in name, contact details or address for service of agent which states ‘by resolutions made on 26 March 2013 and passed by the members of the Applicant jointly’, Yindjibarndi Aboriginal Corporation RNTBC (‘Registered Native Title Body Corporate’) has been appointed to act as agent on behalf of the Applicant for Yindjibarndi #1.
(b)A letter from all persons comprising the Applicant (as per the newly appointed Applicant) to the Chairman and Directors of Fortescue Metals Group Limited dated 26 March 2013. This letter referred to orders made on 15 February 2013 under s 66B of the Act by the Honourable Justice McKerracher replacing the Applicant for the Yindjibarndi #1 claim so the replacement Applicant comprised Thomas Jacob, Stanley Warrie, Allum Cheedy, Kevin Guiness, Angus Mack, Michael Woodley, Joyce Hubert, Pansy Sambo, Jean Norman, Esther Pat, Judith Coppin and Masie Ingie on behalf of the Yindjibarndi People. These are the currently listed Applicants for the native title party involved in this inquiry. The letter explains that on 26 March 2013, the newly authorised Applicant met and passed many resolutions, inclusive of a resolution to appoint YAC as agent of the Applicant ‘in respect of all other matters that touch upon or relate to the land and waters the subject of the Yindjibarndi #1 Application including … all matters, issues or things arising under the State or Federal Aboriginal heritage protection Acts’, effective from 15 February 2013 (page 2 of the letter, found at NTP Doc 4). Later in the letter, the persons comprising the Applicant go on to inform FMG that:
...none of (i) Wirlu-Murra Yindjibarndi Aboriginal Corporation (ii) Wirlu-Murra Tableland Heritage Pty Ltd; or (iii) any person or entity engaged with either of those companies – is authorized or otherwise has been or is appointed or approved by us to represent the Yindjibarndi native title claim group in relation to any action taken or proposed to be taken on or over any of the land or waters within the area claimed in the Yindjibarndi #1 determination application, including any action sought to be taken under the Aboriginal Heritage Act 1972 (WA) or the Mining Act 1978 (WA).
Further, we wish to inform you that in relation to aboriginal heritage and cultural heritage work to be undertaken over any land or waters within the area claimed in the Yindjibarndi #1 determination application over which any company in your Group has an interest none of - (i) Wirlu-Murra Yindjibarndi Aboriginal Corporation (ii) Wirlu-Murra Tableland Heritage Pty Ltd; (iii) the directors or members of the Wirlu-Murra Yindjibarndi Aboriginal Corporation or Wirlu-Murra Tableland Heritage Pty Ltd; nor (iii) any person or entity engaged with either of those companies – is authorized to speak for, or on behalf of, us or the Yindjibarndi native title claim group as a whole. Moreover, we do not consider any of those entities or persons has or holds the requisite traditional and customary knowledge, authority and experience to properly carry out such aboriginal heritage work or provide accurate information that will properly protect and preserve the traditional laws and customs of the Yindjibarndi People and their traditional sites, cultural materials and practices in a manner that is in the best interests of the whole of the Yindjibarndi native title claim group.
The letter requires for all future correspondence in relation to activities or proposed activities on the land be sent to YAC RNTBC.
[45]The issue then for the native title party is that, in their view, the WMYAC does not hold the ‘requisite traditional and customary knowledge...’ to undertake heritage work in relation to the native title party claim area. The native title party perspective on this issue must be considered within the framework of native title and cultural heritage, which operate under separate legislation and separate jurisdictions. There simply are no legislative requirements as to who participates in cultural heritage surveys, or who is a party to heritage agreements.
[46]Legislation does not outline the appropriate persons who may or may not be consulted for cultural heritage surveys. For example, the AHA does not provide a legislative requirement for who is to participate in heritage surveys or enter into heritage agreements. The conduct of heritage survey's and the entering into heritage agreements has evolved as part of corporate due diligence in ensuring compliance with the provisions of the AHA, assisting in the application for consent under s 18 of that Act, and as part of the building of relationships with the relevant traditional owners, rather than being a product of statute. There is, therefore, no specific requirement as to who should conduct such surveys.
[47]A heritage survey may be relevant where a land owner, inclusive of a mining tenement holder, wishes to use the land for a purpose which, unless the Minister gives consent under s 18 AHA, would result in a breach of s 17 of the AHA (which sets out circumstances when an offence is or is not committed in relation to an Aboriginal site). Section 18(2) of the AHA provides:
Where the owner of any land gives to the Committee notice in writing that he requires to use the land for a purpose which, unless the Minister gives his consent under this section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land, the Committee shall, as soon as it is reasonably able, form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation in writing as to whether or not the Minister should consent to the use of the land for that purpose, and, where applicable, the extent to which and the conditions upon which his consent should be given.
[48]The relevance of a heritage survey to the s 18 AHA process is further demonstrated by the contents of the s 18 notice which proponents must complete. A number of these forms (from previous s 18 applications) have been provided as attachments to the native title party contentions (see for example Attachments 5A-5G). The form requires a description on how sites and places were identified, and also asks for a list of all places on the land that are the subject of the s 18 notice that have already been entered on the DAA register, or are reasonably believed to be Aboriginal sites (see page 5 of the Form). It also asks for details of all parties consulted and informed of the s 18 notice or provided a copy of the s 18 notice (see pages 6-7 of the Form).
[49]While statute can regulate the conduct of parties in some instances, the difficulties with the s 18 process are highlighted in this matter. Nevertheless, the key to building relationships between a grantee party and the relevant traditional owners also lies in the behaviour of those parties towards each other, and the actions which result from those behaviours. Only the relevant parties can judge for themselves the appropriate behaviours toward each other to facilitate the smooth running of complex mining operations for many years to come.
Conditions of grant
[50]Under the Mining Act, the holder of a mining lease can exercise the rights set out in s 85, subject to the lessee covenants and various conditions set out in s 82. It is also possible for the Minister to impose further conditions under s 84 relating to the ‘prevention or reduction of injury to land’. Endorsements can also be placed on the leases - these differ from conditions in that the licencee will not be liable to forfeit of the lease if endorsements are breached. For the first proposed lease, M47/1475, the Government party has indicated it intends to impose the conditions set out in the draft tenement endorsement and conditions extract, 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.
In respect to Water Resource Management Areas (WRМA) the following endorsements apply:
3. The Lessee [sic] attention is drawn to the provisions of the:
•Waterways Conservation Act, 1976
•Rights in Water and Irrigation Act, 1914
•Metropolitan Water Supply, Sewerage and Drainage Act, 1909
•Country Areas Water Supply Act, 1947
•Water Agencies (Powers) Act 1984
•Water Resources Legislation Amendment Act 2007
4. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the Department of Water's relevant Water Quality Protection Notes and Guidelines for mining and mineral processing
In respect to Artesian (confined) Aquifers and Wells the following endorsements apply:
6. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for the activities has been issued by the DoW.
In respect to Waterways the following endorsements apply:
7. Advice shall be sought from the DOW if proposing any mining/activity in respect to mining operations within a defined waterway and within a lateral distance of:
•50 metres from the outer-most water dependent vegetation of any perennial waterway, and
•30 metres from the outer-most water dependent vegetation of any seasonal waterway.
8. Measures such as effective drainage controls, sediment traps and stormwater retention facilities being implemented to minimise erosion and sedimentation of receiving catchments and adjacent areas.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
9. The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
10. All activities to be undertaken with minimal disturbance to riparian vegetation.
11. No mining/activities in respect to mining operations being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
12. Advice shall be sought from the DoW and the relevant service provider if proposing mining/activities in respect to mining operations being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
13. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DOW.
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 disturbances to the surface of the land made as a result of exploration, including costeans, 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.
[51]For the second proposed lease, M47/1473, the draft tenement endorsement and conditions extract reads 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.
In respect to Water Resource Management Areas (WRМA) the following endorsements apply:
3. The Lessee [sic] attention is drawn to the provisions of the:
•Waterways Conservation Act, 1976
•Rights in Water and Irrigation Act, 1914
•Metropolitan Water Supply, Sewerage and Drainage Act, 1909
•Country Areas Water Supply Act, 1947
•Water Agencies (Powers) Act 1984
•Water Resources Legislation Amendment Act 2007
4. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the Department of Water's relevant Water Quality Protection Notes and Guidelines for mining and mineral processing
In respect to Artesian (confined) Aquifers and Wells the following endorsements apply:
6. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for the activities has been issued by the DoW.
In respect to Waterways the following endorsements apply:
7. Advice shall be sought from the DOW if proposing any mining/activity in respect to mining operations within a defined waterway and within a lateral distance of:
•50 metres from the outer-most water dependent vegetation of any perennial waterway, and
•30 metres from the outer-most water dependent vegetation of any seasonal waterway.
8. Measures such as effective drainage controls, sediment traps and stormwater retention facilities being implemented to minimise erosion and sedimentation of receiving catchments and adjacent areas.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
9. The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
10. All activities to be undertaken with minimal disturbance to riparian vegetation.
11. No mining/activities in respect to mining operations being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds of [sic] banks issued by the DoW.
12. Advice shall be sought from the DoW and the relevant service provider if proposing mining/activities in respect to mining operations being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
13. Measures such as effective drainage controls, sediment traps and stormwater retention facilities being implemented to minimise erosion and sedimentation of receiving catchments and adjacent areas.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
14. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DOW.
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 disturbances to the surface of the land made as a result of exploration, including costeans, 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.
7. The rights of ingress to and egress from Miscellaneous Licence 47/362 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
[52]Other conditions which I find to be of relevance in this matter are a set of conditions the Government party has raised in various matters before the Tribunal, commonly referred to as ‘Extra Conditions’. They have not been raised by the Government party in this inquiry, though I do consider Extra Conditions 1-3, and appropriate amendments to those conditions in this matter, for reasons outlined later in this decision.
[53]Those Extra Conditions are as follows:
1. 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 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 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.
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
Legal Principles
[54]The Tribunal must determine whether the act must not be done, or that the act may be done, or that the act may be done subject to conditions (see s 38 of the Act). Section 38(2) prohibits the Tribunal from imposing a profit-sharing condition with its decision. The Tribunal must assess the evidence provided by each party in terms of the criteria in s 39 of the Act, which reads as follows:
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.
[55]The Tribunal must weigh the various s 39 criteria, and the Act does not require greater weight to be given to some criteria over others. It is a discretionary exercise in assessing the criteria, and the outcome of the assessment will depend on the evidence provided in relation to each criterion (see Western Desert Lands v Holocene at [37]). In addition, for example, in Western Australia v Thomas, the Tribunal explained (at 165-166):
We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of the evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interest of the Aboriginal people concerned.
The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any other matter we consider relevant.
The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.
[56]Section 36(1) of the Act requires the Tribunal to take all reasonable steps to make a determination as soon as practicable (subject to s 37 of the Act). Section 109(3) of the Act outlines the Tribunal is not bound by technicalities, legal forms or rules of evidence. Although there is no burden of proof incumbent on any of the parties during a future act determination inquiry, the Tribunal relies on the evidence provided in relation to the criteria (see Western Australia v Thomas at 157-158). Ultimately, a common sense approach to evidence is required and the determination will be based on logically probative evidence and application of the law (see Western Australia v Thomas at 162-163).
Summary of Contentions
[57]The grantee party and the Government party are each seeking a determination that the future act may be done (without conditions) (at paragraph 60 Government party contentions and paragraph 19.1 GP contentions). The grantee party also specifically states the imposition of a condition requiring the grantee party to secure a specified amount of money by bank guarantee (see s41(3) of the Act) is not an appropriate course of action, and provides reasons for this view.
[58]The native title party is seeking a determination that the future act may be done subject to three conditions (at paragraph 17 NTP Joint Statement). Those conditions, which are described fully under ‘Conditions on the Acts’ below, are expressed somewhat ambiguously. Due to their expression, including a form of commentary with them, I have summarised the native title party conditions in the following terms:
1.The grantee party is not to interfere with or change Ganyjingarringunha Ngurra without the prior consent of the native title party (this area is explained in more detail at [111] of this decision);
2.Protection is to be given to sites of particular significance (referring to site numbers provided by the native title party and captured in ‘NNTT Map 3 – NTP Data’)
i. M47/1475: 14-19, 27, 29, 30, 45, 48;
ii. M47/1473: 8, 13, 19, 25, 32, 34, 35, 46, 64; and
3.The grantee party enters into a Regional Standard Heritage Agreement (‘RSHA’) with the native title party and undertakes certain ethnographic and archaeological surveys.
[59]The grantee party has submitted reply material opposing the imposition of each of those conditions. Further details are set out under the section ‘Conditions on the Acts’ later in this decision.
[60]The grantee party raises a number of arguments about the weight to be given to the NTP Joint Statement (at 3.1-3.7 of GP Reply). However, I accept the joint statement as being evidence of the native title party interests in this matter, and give it similar weight to sworn evidence, as it is said to be from a number of members of the native title party, including three of the named Applicants for this claim, who all have signed that they agree with the information contained in the document.
Section 39 Criteria
[61]The grantee party initial evidence and materials focus on the native title party’s s 31(1)(a) statement and its perceived shortcomings, as the grantee party sees it, in relation to the s 39 criteria. However, the native title party did provide a substantial amount of evidence subsequent to the grantee party’s initial evidence. In the grantee party reply, the contentions and evidence focus on addressing the three conditions suggested by the native title party (as summarised at [58] earlier in this decision), and the sites which the native title party said were significant or of particular significance. As such, section 39 criteria were not explicitly referred to in the grantee party reply.
Appendix 19: Report of an archaeological excavation program and heritage assessment prepared for Fortescue Metals Group Limited by Terra Rosa Cultural Resource Management Pty Ltd dated December 2013;
Appendix 20: Letter dated 18 September 2013 on behalf of WMYAC to DAA’s Aboriginal Cultural Materials Committee in relation to various matters inclusive of WMYAC’s non-objection to Fortescue Metals Group Limited’s s 18 AHA submissions for consent to use of specific land;
Appendix 21: Pie graph entitled ‘Solomon Project Heritage Protection Overview as at 2 September 2013’, prepared by Fortescue Metals Group Limited
Appendix 22: Pie graph showing the Solomon Project Heritage Protection Overview, as at 28 November 2013;
NTP 19A – WMYAC General Report to ORIC as at 30 June 2012, dated 27 May 2013;
NTP 19B – WMYAC General Report to ORIC as at 30 June 2013, dated 14 January 2014;
NTP 20 – Letter dated 27 January 2012 from the Honourable Peter Collier MLC, Minister of Indigenous Affairs, to Ms Roberta Molson, Heritage Approvals Superintendent at Fortescue Metals Group Limited, responding to FMG Pilbara Pty Ltd and The Pilbara Infrastructure Pty Ltd’s s 18 Notice (dated 16 September 2011 to the ACMC under s 18(2) of the AHA in relation to M47/1409, M47/1413 and M47/1431) and granting use of the land subject to conditions 1-6.
ATTACHMENT D
Registered native title rights and interests from the Register of Native Title Claims
for Yindjibarndi #1 (WC2003/003)
REGISTERED NATIVE TITLE RIGHTS AND INTERESTS (AS ENTERED 8 AUGUST 2003)
Where an area is covered by a previous non exclusive possession act (s.23F), the native title claim group, does not claim possession, occupation, use and enjoyment of the area to the exclusion of all others.
The native title claim group does not claim native title rights and interests that are extinguished by operation of law.
The applicants do not claim ownership of minerals, petroleum or gas wholly owned by the Crown.
AREA A (Where a claim to exclusive possession can be sustained).
RIGHTS
(1)The right to possess, occupy, use and enjoy the area as against the world.
(2)A right to occupy the area;
(3)A right to use the area;
(4)A right to enjoy the area;
(5)A right to be present on or within the area;
(6)A right to be present on or within the area in connection with the society's economic life;
(7)A right to be present on or within the area in connection with the society's religious life;
(8)A right to be present on or within the area in connection with the society's cultural life;
(9)A right to hunt in the area;
(10)A right to fish in the area;
(11)A right to make decisions about the use of the area by members of the Aboriginal society to which the native title claim group belong;
(12)A right to make decisions about the use of the area by persons who are not members of the Aboriginal society to which the native title claim group belong;
(13)A right to make decisions about the enjoyment of the area by members of the Aboriginal society to which the native title claim group belong;
(14)A right to make decisions about the enjoyment of the area by persons who are not members of the Aboriginal society to which the native title claim group belong;
(15)A right of access to the area;
(16)A right to live within the area;
(17)A right to reside in the area;
(18)A right to erect shelters upon or within the area;
(19)A right to camp upon or within the area;
(20)A right to move about the area;
(21)A right to engage in cultural activities within the area;
(22)A right to conduct ceremonies within the area;
(23)A right to participate in ceremonies within the area;
(24)A right to hold meetings within the area;
(25)A right to participate in meetings within the area;
(26)A right to teach as to the physical attributes of the area;
(27)A right to teach as to the significant attributes of the area;
(28)A right to teach upon the area as to the significant attributes of the area;
(29)A right to teach as to the significant attributes within the area of the Aboriginal society connected to the area in accordance with its laws and customs;
(30)A right to control access of others to the area.
(32)A right to take resources, other than minerals and petroleum, used for sustenance from the area;
(33)A right to take resources, other than minerals and petroleum, used for sustenance within the area;
(34)A right to gather resources, other than minerals and petroleum, used for sustenance within the area;
(35)A right to use and/or enjoy resources, other than minerals and petroleum, for sustenance within the area;
(36)A right to use and/or enjoy resources, other than minerals and petroleum, for food, on, in or within the area;
(37)A right to use and/or enjoy resources, other than minerals and petroleum, for shelter, on, in or within the area;
(38)A right to use and/or enjoy resources, other than minerals and petroleum, for healing on, in or within the area;
(39)A right to use and/or enjoy resources, other than minerals and petroleum, for decoration on, in or within the area;
(40)A right to use and/or enjoy resources, other than minerals and petroleum, for social purposes on, in or within the area;
(41)A right to use and/or enjoy resources, other than minerals and petroleum. for cultural, religious, spiritual, ceremonial and/or ritual purposes on, in or within the area;
(42)A right to take fauna;
(43)A right to take flora (including timber);
(44)A right to take soil;
(45)A right to take sand;
(46)A right to take stone and/or flint;
(47)A right to take clay;
(48)A right to take gravel;
(49)A right to take ochre;
(50)A right to take water;
(51)A right to control the taking, use and enjoyment by others of the resources of the area, including for the said purposes (set out at sub-paragraphs (32) - (41) above) and/or in the said form (set out at sub-paragraphs (42) - (50) above), other than minerals and petroleum and any resource taken in exercise of a statutory right or common law right, including the public right to fish;
(53)A right to receive a portion of the said resources (other than minerals and petroleum) taken by other persons who are members of the Aboriginal society from the area;
(55)A right, in relation to any activity occurring on the area, to
i.maintain,
ii.conserve; and/or
iii.protect significant places and objects located within the area, by preventing, by all reasonable lawful means, any activity which may injure, desecrate, damage, destroy, alter or misuse any such place or object;
(56)A right, in relation to any activity occurring on the area, to -
i.maintain
ii.conserve; and/or
iii.protect significant ceremonies, artworks, song cycles, narratives, beliefs or practices by preventing, by all reasonable lawful means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such ceremony, artwork, song cycle, narrative, belief or practice;
(57)A right, in relation to a use of the area or an activity within the area, to:
i.(i) prevent any use or activity which is unauthorised in accordance with traditional laws and customs
ii.(ii) prevent any use or activity which is inappropriate in accordance with traditional laws and customs in relation to significant places and objects within the area or ceremonies, artworks, song cycles, narratives, beliefs or practices carried out within the area by all reasonable lawful means, including by the native title holders providing all relevant persons by all reasonable means with information as to such uses and activities, provided that such persons are able to comply with the requirements of those traditional laws and customs while engaging in reasonable use of the area and are not thereby prevented from exercising any statutory or common law rights to which that person may be entitled;
(59)A right of individual members of the native title holding group or groups to be identified and acknowledged, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area;
(60)A right of the group or groups who hold common or group native title rights and interests to identify and acknowledge individual members of the native title holding group, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area.
AREA B (Where a claim to exclusive possession cannot be sustained).
RIGHTS
(2)A right to occupy the area;
(3)A right to use the area;
(4)A right to enjoy the area;
(5)A right to be present on or within the area;
(6)A right to be present on or within the area in connection with the society's economic life;
(7)A right to be present on or within the area in connection with the society's religious life;
(8)A right to be present on or within the area in connection with the society's cultural life;
(9)A right to hunt in the area;
(10)A right to fish in the area;
(11)A right to make decisions about the use of the area by members of the Aboriginal society to which the native title claim group belong;
(13)A right to make decisions about the enjoyment of the area by members of the Aboriginal society to which the native title claim group belong;
(15)A right of access to the area;
(16)A right to live within the area;
(17)A right to reside in the area;
(18)A right to erect shelters upon or within the area;
(19)A right to camp upon or within the area;
(20)A right to move about the area;
(21)A right to engage in cultural activities within the area;
(22)A right to conduct ceremonies within the area;
(23)A right to participate in ceremonies within the area;
(24)A right to hold meetings within the area;
(25)A right to participate in meetings within the area;
(26)A right to teach as to the physical attributes of the area;
(27)A right to teach as to the significant attributes of the area;
(28)A right to teach upon the area as to the significant attributes of the area;
(29)A right to teach as to the significant attributes within the area of the Aboriginal society connected to the area in accordance with its laws and customs;
(32)A right to take resources, other than minerals and petroleum, used for sustenance from the area;
(33)A right to take resources, other than minerals and petroleum, used for sustenance within the area;
(34)A right to gather resources, other than minerals and petroleum, used for sustenance within the area;
(35)A right to use and/or enjoy resources, other than minerals and petroleum, for sustenance within the area;
(36)A right to use and/or enjoy resources, other than minerals and petroleum, for food, on, in or within the area;
(37)A right to use and/or enjoy resources, other than minerals and petroleum, for shelter, on, in or within the area;
(38)A right to use and/or enjoy resources, other than minerals and petroleum, for healing on, in or within the area;
(39)A right to use and/or enjoy resources, other than minerals and petroleum, for decoration on, in or within the area;
(40)A right to use and/or enjoy resources, other than minerals and petroleum, for social purposes on, in or within the area;
(41)A right to use and/or enjoy resources, other than minerals and petroleum for cultural, religious, spiritual, ceremonial and/or ritual purposes on, in or within the area;
(42)A right to take fauna;
(43)A right to take flora (including timber);
(44)A right to take soil;
(45)A right to take sand;
(46)A right to take stone and/or flint;
(47)A right to take clay;
(48)A right to take gravel;
(49)A right to take ochre;
(50)A right to take water;
(53)A right to receive a portion of the said resources (other than minerals and petroleum) taken by other persons who are members of the Aboriginal society from the area;
(55)A right, in relation to any activity occurring on the area, to
i.maintain,
ii.conserve; and/or
ii.protect significant places and objects located within the area, by preventing, by all reasonable lawful means, any activity which may injure, desecrate, damage, destroy, alter or misuse any such place or object;
(56)A right, in relation to any activity occurring on the area, to -
i.maintain
ii.conserve; and/or
iii.protect significant ceremonies, artworks, song cycles, narratives, beliefs or practices by preventing, by all reasonable lawful means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such ceremony, artwork, song cycle, narrative, belief or practice;
(59)A right of individual members of the native title holding group or groups to be identified and acknowledged, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area;
(60)A right of the group or groups who hold common or group native title rights and interests to identify and acknowledge individual members of the native title holding group, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area.
AREA C (Where a claim to exclusive possession cannot be sustained over land and waters which are a ‘nature reserve’ or ‘wildlife sanctuary’ (as those terms are defined in the Wildlife Conservation Act 1950 (WA)) created before 31 October 1975).
RIGHTS
(2)A right to occupy the area;
(3)A right to use the area;
(4)A right to enjoy the area;
(5)A right to be present on or within the area;
(6)A right to be present on or within the area in connection with the society's economic life;
(7)A right to be present on or within the area in connection with the society's religious life;
(8)A right to be present on or within the area in connection with the society's cultural life;
(11)A right to make decisions about the use of the area by members of the Aboriginal society to which the native title claim group belong;
(13)A right to make decisions about the enjoyment of the area by members of the Aboriginal society to which the native title claim group belong;
(15)A right of access to the area;
(16)A right to live within the area;
(17)A right to reside in the area;
(18)A right to erect shelters upon or within the area;
(19)A right to camp upon or within the area;
(20)A right to move about the area;
(22)A right to conduct ceremonies within the area;
(23)A right to participate in ceremonies within the area;
(24)A right to hold meetings within the area;
(25)A right to participate in meetings within the area;
(26)A right to teach as to the physical attributes of the area;
(27)A right to teach as to the significant attributes of the area;
(28)A right to teach upon the area as to the significant attributes of the area;
(29)A right to teach as to the significant attributes within the area of the Aboriginal society connected to the area in accordance with its laws and customs;
(32)A right to take resources, other than minerals and petroleum, used for sustenance from the area;
(33)A right to take resources, other than minerals and petroleum, used for sustenance within the area;
(34)A right to gather resources, other than minerals and petroleum, used for sustenance within the area;
(35)A right to use and/or enjoy resources, other than minerals and petroleum, for sustenance within the area;
(36)A right to use and/or enjoy resources, other than minerals and petroleum, for food, on, in or within the area;
(37)A right to use and/or enjoy resources, other than minerals and petroleum, for shelter, on, in or within the area;
(38)A right to use and/or enjoy resources, other than minerals and petroleum, for healing on, in or within the area;
(39)A right to use and/or enjoy resources, other than minerals and petroleum, for decoration on, in or within the area;
(40)A right to use and/or enjoy resources, other than minerals and petroleum, for social purposes on, in or within the area;
(41)A right to use and/or enjoy resources, other than minerals and petroleum for cultural, religious, spiritual, ceremonial and/or ritual purposes on, in or within the area;
(43)A right to take flora (including timber);
(44)A right to take soil;
(45)A right to take sand;
(46)A right to take stone and/or flint;
(47)A right to take clay;
(48)A right to take gravel;
(49)A right to take ochre;
(50)A right to take water;
(53)A right to receive a portion of the said resources (other than minerals and petroleum) taken by other persons who are members of the Aboriginal society from the area;
(55)A right, in relation to any activity occurring on the area, to
i.maintain,
ii.conserve; and/or
iii.protect significant places and objects located within the area, by preventing, by all reasonable lawful means, any activity which may injure, desecrate, damage, destroy, alter or misuse any such place or object;
(56)A right, in relation to any activity occurring on the area, to -
i.maintain
ii.conserve; and/or
iii.protect significant ceremonies, artworks, song cycles, narratives, beliefs or practices by preventing, by all reasonable lawful means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such ceremony, artwork, song cycle, narrative, belief or practice;
(59)A right of individual members of the native title holding group or groups to be identified and acknowledged, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area;
(60)A right of the group or groups who hold common or group native title rights and interests to identify and acknowledge individual members of the native title holding group, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area.
The rights found at paragraphs (44) - (48) in Areas A, B and C are found on the basis that the substances referred to are not interpreted as "minerals and petroleum" for the purposes of the Act.
Attachment E
| FIRST PROPOSED LEASE (M47/1475) | ||||||
| Site no | Site asserted to be of ‘particular significance’ | Summary of relevant material from NTP contentions of 12 March and supporting evidence (inclusive of Mr Davies’ affidavit sworn 4 March 2014 and the NTP Witness Statement dated 4 March 2014) | Summary of relevant material from NTP additional evidence of 14 April 2014 (NTP joint statement and Affidavit of Ned Cheedy sworn 7 April 2010) | Summary of relevant material from the grantee party reply of 19 May 2014 | Summary of relevant material from the affidavit of Mr Ken Sandy affirmed 16 May 2014 (provided with grantee party reply) Mr Sandy is a Heritage Compliance Officer employed by FMG, an initiated Yindjibarndi man and a member of Wirlu-Murra Yindjibarndi Aboriginal Corporation. | Summary of relevant material from the affidavit of Mr Luke May affirmed 19 May 2014 (provided with grantee party reply) Mr May is an anthropologist employed by an independent consultancy company, Terra Rosa Cultural Resource Management Pty Ltd. |
| 14, 15 & 16 | Scar trees Note: sites are not within the reduced area of M47/1475 | · Coordinates and a photograph of each are provided in Mr Davies’ affidavit. · Mr Davies deposes that scar trees are ‘constant reminders of how Yindjibarndi people utilise the resources offered to them by Minkala (the Yindjibarndi name for God). I have been told by the Yindjibarndi People that Burndud Law demands that when the resource is cut from the tree, the scar does not permanently damage the tree. The wood was cut from these trees to make a Yarra (shield), mirru (spearthrower) or mirrurdu (dish)’ (page 22 Mr Davies’ affidavit). | · Scar trees are stated to be ‘of particular significance to us in accordance with our traditions because they are proof of our ancestors’ possession, occupation, use and enjoyment of our country and they remind us that their spirits remain ever-present in the country and watch over us’ (paragraph 26 NTP Joint Statement) | · The grantee party states the sites ‘Undeniably lie outside the area proposed’ (paragraph 6.4) | [Not addressed] | [Not addressed] |
| 17 | Jinbi (spring/ permanent water) Note: site is not within the reduced area of M47/1475 | · Coordinates and a photograph are provided in Mr Davies’ affidavit. · Mr Davies states it is ‘associated with religious song and narrative and is a named place of particular aesthetic and ethnographic significance for Yindjibarndi people’ (page 23 Mr Davies’ affidavit) | [Not addressed] | [Not addressed] | [Not addressed] | [Not addressed] |
| 18 | Rock shelters/ ochre sources | · Coordinates and photograph provided in Mr Davies’ affidavit. · Mr Davies states ‘ochre plays an integral part in the religious, cultural and spiritual life of the Yindjibarndi People’ (page 24 Mr Davies’ affidavit) | · The native title party states ochre sources are ‘of particular significance because they are needed by the Ngurrara who come from Garliwinyji Ngurra so they can perform the religious ceremonies and rituals, which must be performed under our traditional law’ (paragraph 22 NTP Joint Statement) | · The grantee party contends Mr Davies’ affidavit (a) does not establish that ochre is obtained from the site or is used for ceremonial purpose (paragraph 6.58) and (b) does not suggest that site 18 contains evidence of historical human occupation (paragraph 6.59) · The grantee party contends Mr Sandy and Mr May’s affidavits cast doubt on whether site 18 is an ochre source for ceremonial purpose (paragraph 6.60) · The grantee party contends that paragraph 6.16-6.20 (in relation to site 8 within M47/1473) also apply to this site (paragraph 6.61) | · Mr Sandy states he visited site 18 on 1 April 2014 with the other Yindjibarndi men [assumedly Jimmy Horace, Rodney Adams, Glen Toby and Dillon Locker] (paragraph 15). · Mr Sandy states that he and the other Yindjibarndi men agreed, during 1 April 2014 discussions, that they have never collected ochre from this site and it is unlikely that Yindjibarndi people would collect ochre from there because (a) they are too difficult to get to and (b) the ochre was too hard (paragraphs 17-18). · Mr Sandy states that he and the Yindjibarndi men did not see anything left by their ancestors (paragraphs 15 & 17). | · Mr May states that he and others (see paragraph 20 for list) attended the site on 1 April 2014, during which: o Mr May inspected yellow or white-coloured sediment layers in the walls of the rock shelters. o Mr May concluded the sediment layers were not of a nature he would normally associate with an ochre source (they were fibrous where as typical ochre in Yindjibarndi country is of the nature of a fine ground powder located in and near creek beds) (paragraph 29). o The Yindjibarndi men told him (a) it may be possible but very time consuming to extract ochre there and (b) the ochre they use for ceremony is very different (paragraphs 29 & 30). · Mr May states on 1-2 April 2014 he discussed the site with Yindjibarndi men, laying out a map, and was informed it was not a traditional place for gathering ochre (paragraph 32). |
| 19 | Rock shelters/ ochre sources | · Coordinates and a photograph are provided in Mr Davies’ affidavit. · Mr Davies states ‘ochre plays an integral part in the religious, cultural and spiritual life of the Yindjibarndi People’ (at page 24 Mr Davies’ affidavit). | · The native title party states ochre sources are ‘of particular significance because they are needed by the Ngurrara who come from Garliwinyji Ngurra so they can perform the religious ceremonies and rituals, which must be performed under our traditional law’ (paragraph 22 NTP Joint Statement). | · The grantee party contends it is not apparent from the photograph that the site contains an ochre source (paragraph 6.62). · The grantee party contends that Mr Sandy’s and Mr May’s affidavits cast doubt on whether the site is an ochre source for ceremonial purposes (paragraph 6.63). · The grantee party contends that paragraph 6.16-6.20 (in relation to site 8 within M47/1473) also apply to this site (paragraph 6.64). | · Mr Sandy states that he and the other attendees visited site 19 on 1 April (paragraphs 10 & 15) · Mr Sandy states that he and the other Yindjibarndi men agreed, during their 1 April 2014 discussions, that they have never collected ochre from this site (paragraphs 15 & 17) and it’s unlikely that Yindjibarndi people would collect ochre from there because (a) of difficulty of access and (b) the ochre was too hard (paragraph 18). · Mr Sandy states he and the other Yindjibarndi men did not see anything left by their ancestors (paragraph 17). | · The comments in relation to site 18 are applicable (see paragraphs 29-33). |
| 27 | Stone arrangement/grinding stone | · Coordinates and a photograph are provided in Mr Davies’ affidavit. · Mr Davies states they are ‘highly significant features’ and are often places inside rock shelters/caves (at page 25 Mr Davies’ affidavit). | · The native title party regards the stone arrangement and grinding stone as being particularly significant as they ‘are proof of our ancestors’ possession, occupation, use and enjoyment of our country and they remind us that their spirits remain ever-present in the country and watch over us’ (paragraph 26 NTP Joint Statement). | · The grantee party contends it is not apparent from the photograph that the site contains grinding stone or a stone arrangement (paragraph 6.65), however, the grantee party accepts Mr Sandy’s and Mr May’s views that the site contains a stone arrangement and is an Aboriginal site (paragraph 6.68). · The grantee party states that Mr Davies does not actually assert (a) that the site contains a stone arrangement or (b) why he holds that view (if he does) (paragraphs 6.66-6.67). · The grantee party contends it is not a site of particular significance and should not be subject to a condition (paragraph 6.69) | · Mr Sandy states that he and the other Yindjibarndi men visited the site [on 1 April 2014; see paragraph 10] (paragraph 29) · Mr Sandy states that he and the other Yindjibarndi men saw the stones and agreed they were put there by their ancestors (paragraphs 29-30). | · Mr May states that this site was subject to an Alpha Archaeology Report in 2011 (extracts attached at LMP1); Alpha Archaeology formed the opinion that the site was an Aboriginal Site under AHA and disturbance to the sites was acceptable to the relevant Yindjibarndi Traditional Owners (paragraphs 15-17). · Mr May states that he inspected the site on 1 April 2014 with Ms Golden and the traditional owners and they could not identify (a) the single flaked artefact identified by Alpha Archaeology and (b) the grinding stone referred to in Mr Davies’ affidavit (paragraphs 20 & 45). · Mr May states that the Yindjibarndi men informed him that the stone arrangement represented traditional cultural use (paragraph 46). |
| 29 | Walled niche | · Mr Davies’ affidavit provides coordinates and a photograph. · Mr Davies describes the walled niche being situated in a gully with small stones placed to form a barrier; behind the barrier is a large chamber ‘that may well hold highly significant religious artefacts; or the skeletal remains of Yindjibarndi persons’ (at page 26 Mr Davies’ affidavit). · Mr Davies describes Yindjibarndi people informing him to be cautious when investigating or discussing walled niches, stone arrangements or material stored in the shelter/cave due to powerful supernatural forces associated with some of the stores items (page 26). · He states the locations of the niches are only disclosed in highly unusual circumstances (page 26 Mr Davies’ affidavit). · The Heritage Information Submission Form (Doc 8 accompanying the native title party’s contentions) contains a description of Yamararra (rock-shelters and caves), indicating many of the caves have ‘walled niches, behind which sacred artefacts have been hidden that were used in Birdarra Law ceremonies by senior Yindjibarndi Lawmen of previous generations. The objects in these Yamararra should not be disturbed because they are very dangerous’ (at 7 of NTP Doc 8) | [Not addressed] | · The grantee party contends it is not apparent from the photograph that the site is actually walled (paragraph 6.70). · The grantee party states Mr Davies does not explain why he holds the view that the stones have been placed rather than having fallen (paragraph 6.72). · GP contends less weight should be given to Mr Davies’ evidence as he is employed by YAC and has shown a ‘lack of reasoning’ (paragraph 6.72). · The grantee party states that Mr Davies only says the larger chamber may well hold highly significant religious artefacts or skeletal remains (paragraph 6.73). · The grantee party contends the affidavits of Mr Sandy and Mr May cast doubt on whether the site is a walled niche (paragraph 6.74). | · Mr Sandy states that he and other Yindjibarndi men visited the site [on 1 April 2014; par 10] (paragraph 32) and agreed the stones inside the rock shelter were roof-fall; they did not believe it to be a walled niche (paragraph 33). | · Mr May states that he inspected the site on 1 April 2014 with Ms Golden and traditional owners (paragraph 20). · Mr May states the Yindjibarndi men expressed the view that the stones most likely represented roof-fall and had not been modified for traditional use (paragraph 48). |
| 30 | Cave/rock shelter, ochre source, artefact scatter, Gandi (sacred stones) | · Photograph and coordinates are provided in Mr Davies’ affidavit. · Mr Davies describes the site as containing sacred stones and providing a source of ochre (page 27 Mr Davies’ affidavit). · He also states that, as the sites are highly sensitive for religious and cultural purposes, ordinarily, Yindjibarndi men would not divulge the location of these sites or publicly discuss them (page 27 Mr Davies’ affidavit). | · The native title party states ochre sources are ‘of particular significance because they are needed by the Ngurrara who come from Garliwinyji Ngurra so they can perform the religious ceremonies and rituals, which must be performed under our traditional law’ (paragraph 22 NTP Joint Statement). | · The grantee party contends it is not particularly significant and should not be subject to a condition (paragraph 6.82) · The grantee party asserts it is not clear whether Mr Davies’ statement that the site contains gandi is personal knowledge or something he has been told (paragraphs 6.76-6.77) · The grantee party states that Mr Davies does not assert that (a) ochre is obtained from the site (b) that ochre there obtained is used for ceremonial purpose (c) that gandi are obtained or (d) that gandi obtained are used for ceremonial purpose (paragraph 6.78) · The grantee party assumes the alleged presence of gandi within the site is the reason why disclosing the location is a sensitive matter (paragraph 6.79) · The grantee party notes (a) Mr Sandy’s affidavit states that Yindjibarndi men do not collect gandi from the site or tenement and (b) Mr May’s affidavit is similar (paragraphs 6.80-6.81) | · Mr Sandy states he visited the site with other Yindjibarndi men [on 1 April 2014; par 10] (paragraph 35) · Mr Sandy states no ceremonial preparations (of the kind described in Mr Woodley’s affidavit dated 4 February 2011 (at 6.7-6.8 therein)) take place at Woodbrook; Mr Sandy re referred to par 44 of his own earlier affidavit dated 28 Feb 2011 which contained the same statement (paragraph 36). · Mr Sandy indicates initiated men do not collect resources for initiation ceremonies from the area covered by the old leases (M47/1409, M47/1411, M47/1413, M47/1431) or the two proposed leases (paragraph 37). · Mr Sandy states that he and the other Yindjibarndi men agreed that they have never collected ochre from the site, are unaware of others gathering ochre from the site and they didn’t see anything left by their ancestors (paragraph 38). | · Mr May states this site was subject to an Alpha Archaeology Report in 2011 (extracts attached at LMP1); Alpha Archaeology formed the opinion that the site was an Aboriginal Site under AHA and disturbance to the sites was acceptable to the relevant Yindjibarndi Traditional Owners (paragraphs 15-17) · Mr May does not state that he and the others visited the site (but assumedly he did as the site is not included in his list of sites that were not visited). · Mr May states the Yindjibarndi men advised him that (a) the site was not a traditional area to source ochre and (b) gandi (sacred stones) were not present (paragraph 50). |
| 45 | Gurdiwirnd-anha Wurndu | · The perimeter, area in hectares and a photograph are all provided in Mr Davies’ affidavit. · Mr Davies describes it as a natural landscape feature 150 metres in length, 12-15 metres in width and 10 metres in height (page 28 Mr Davies’ affidavit) · Mr Davies states it was formed during the creation times when a spear was placed on the ground for battle and it has religious, ceremonial, song and spiritual narratives associated with it. He also states the Gurdinirndanha is located just outside the first proposed lease and the Wurndu is a gorge that was created by the action of the spear being placed on the ground creating cliff edges; it is within the first proposed lease . Yindjibarndi narrative about the site is provided (page 28 Mr Davies’ affidavit) | · The native title party states it ‘is a sacred site for us because it was created by the actions of a Marrga as described in the affidavit of Philip Davies’ (paragraph 27 NTP Joint Statement) | · The grantee party states it was described by Mr Davies as being an area, not a site, and no spatial coordinates are provided in the Davies affidavit for areas (paragraph 6.4(2)(b)(c). · The grantee party regards the photograph and description on page 28 of Mr Davies’ affidavit as insufficient to identify where the area is (paragraph 6.4(2)(c)). | [Not addressed] | [Not addressed] |
| 48 | Ganyjingar-ingunha Wurndu (Kanjeenari-na Creek) Note: site does not fall in the reduced area of M47/1475 | · Perimeter, area in hectares and a photograph are provided in Mr Davies’ affidavit. · At this site Mr Davies witnessed the Wathamardu (Marban) reciprocity ceremony being performed by Mr Michael Woodley with Mr Tom Jacobs. Further details could not be provided due to cultural sensitivities (page 30 Mr Davies’ affidavit). | · The grantee party states it was described by Mr Davies as being an area, not a site, the significance being that no coordinates are provided in the Davies affidavit in relation to areas (paragraph 6.4(2)(b)(d)). · The grantee party contends this creek lies outside the tenement (referring to GP Doc 44) and states the native title party has failed to appreciate the amendment to the area of the tenement (paragraph 6.4(2)(d)). | [Not addressed] | [Not addressed] | |
Attachment F
| SECOND PROPOSED LEASE (M47/1473) | ||||||
| Site no | Site of ‘particular significance’ | Summary of relevant material from NTP contentions of 12 March and supporting evidence (inclusive of Mr Davies’ affidavit sworn 4 March 2014 and the NTP Witness Statement dated 4 March 2014) | Summary of relevant material from NTP additional evidence of 14 April 2014 (NTP joint statement and Affidavit of Ned Cheedy sworn 7 April 2010) | Summary of relevant material from the grantee party reply of 19 May 2014 | Summary of relevant material from the affidavit of Mr Ken Sandy affirmed 16 May 2014 (provided with grantee party reply) Mr Sandy is a Heritage Compliance Officer employed by FMG, an initiated Yindjibarndi man and a member of Wirlu-Murra Yindjibarndi Aboriginal Corporation. | Summary of relevant material from the affidavit of Mr Luke May affirmed 19 May 2014 (provided with grantee party reply) Mr May is an anthropologist employed by an independent consultancy company, Terra Rosa Cultural Resource Management Pty Ltd. |
| 8 | Group of caves (Yamarrara) with ochre | · Coordinates and photograph are provided in Mr Davies’ affidavit. · Mr Davies states the ochre makes this site significant (page 12 Mr Davies’ affidavit). · Mr Davies states Yindjibarndi people told him on the 18/05/2013 field trip that (a) ochre is an integral component of ritualised religious ceremonies for Yindjibarndi people and (b) only the Ngurrara or the Tharngungarli, the Yindjibarndi boss for that Ngurra [a specific home area as Yindjibarndi country is divided into 13 Ngurra], can sanction others to gather the ochre, which needs to come from an area close to the ceremony site (page 13 Mr Davies’ affidavit). · Mr Davies states ‘the rich source of ochre from Site 8 ensures that Yarna (ochre) is available for ceremonies performed, while the rock shelters/caves hold the spirits, knowledge and physical remains of the Yindjibarndi ancestors’ (page 13 Mr Davies’ affidavit). | · The native title party states ochre sources are ‘of particular significance because they are needed by the Ngurrara who come from Garliwinyji Ngurra so they can perform the religious ceremonies and rituals, which must be performed under our traditional law’ (paragraph 22 NTP Joint Statement). | · The grantee party contends it is not a site of particular significance and it should not be subject to a condition (paragraph 6.20). · The grantee party contends the photographs of the four caves in Mr Davies’ affidavit ‘may be misleading’ and further notes: o Site 8 appears to have the same coordinates as site 62 in the Heritage Submission Form (NTP Doc 8). The grantee party also notes a discrepancy between Mr Davies’ affidavit and the Heritage Form when they are describing Figure 1 and 2 (paragraphs 6.5 -6.11 grantee party reply). o Mr Davies’ affidavit does not assert that ochre (a) is in fact obtained from site 8 or (b) is in fact used for ceremonial purpose (paragraphs 6.13 – 6.16). · The grantee party refers to evidence given for a Tribunal inquiry over M47/1431, E47/1398 and E47/1399 where Member O’Dea was unable to find that ochre was collected or ceremonies conducted within the tenement; the grantee party states M47/1431 and the proposed leases are contiguous (paragraphs 6.17-6.18). | · Mr Sandy states that he and the others did not visit this specific site on their 1 April 2014 visit, but talked about the site while on the tenement (paragraph 16). · Mr Sandy states that he and other Yindjibarndi men agreed, during their 1 April 2014 discussions, that they have never collected ochre from this site (paragraph 17) and it’s unlikely that Yindjibarndi people would collect ochre from there because (a) of difficulty accessing it and (b) the ochre was too hard (paragraph 18). | · Mr May states that he and the others (see paragraph 20 for list) did not visit this site on 1 April 2014 due to accessibility and the Yindjibarndi men saying they had sufficient knowledge to discuss the cultural values of those sites in relation to the broader landscape (paragraph 25). · Mr May describes discussing the site, on 1 & 2 April 2014, with the Yindjibarndi men by laying out a map; he was informed it was not a traditional place for gathering ochre and that they know the ochre collection places within the wider area (paragraph 32). |
| 13 | Group of two caves with ochre | · Mr Davies states there is a permanent water source known as Kanjeenarina Creek located a few hundred metres from this ochre site, which makes the ochre site significant in terms of the ability to carry out ceremonies (page 14 Mr Davies’ affidavit). · Mr Davies describes a Galharra boss called Mirduwarra, whose knowledge of and access to ochre within each quarter of the 13 Ngurra [home areas] of Yindjibarndi country is essential for carrying out ceremonies specific to the Mirduwarra’s home area and Galharra (page 13 Mr Davies’ affidavit). | · In relation to ochre sources, the native title party states that they are ‘of particular significance because they are needed by the Ngurrara who come from Garliwinyji Ngurra so they can perform the religious ceremonies and rituals, which must be performed under our traditional law’ (paragraph 22 NTP Joint Statement). | · The grantee party challenges Mr Davies’ statement (about the ochre source being significant for carrying out ceremonies, due to being a few hundred metres from Kanjeenarina Creek) by saying the creek is 600m away (paragraphs 6.22-6.23). · The grantee party asserts that Mr Davies’ affidavit does not establish that ochre is in fact obtained nor is in fact used for ceremonial purpose at the site (paragraph 6.24) · The grantee party asserts that paragraphs 6.16 to 6.20 (in respect of Site 8 above) are applicable to this site (paragraph 6.25) | · Mr Sandy states that and the others did not visit the site on their 1 April 2014 visit, but talked about the site while on the tenement (paragraph 16). · Mr Sandy states that he and the other Yindjibarndi men agreed, during the 1 April 2014 discussions, that they have never collected ochre from this site and it’s unlikely that Yindjibarndi people would collect ochre from there because (a) of difficulty of access and (b) the ochre was too hard (paragraphs 17- 18). | · Mr May states that he and the others did not visit this site on 1 April 2014 due to (a) accessibility and (b) the Yindjibarndi men saying they had sufficient knowledge to discuss the cultural values of those sites in relation to the broader landscape (paragraph 25). · Mr May states that on 1-2 April 2014 he discussed the site with the Yindjibarndi men and lay out a map; he was informed it was not a traditional place for gathering ochre and that they know the ochre collection places within the wider area (paragraph 32). |
| 19 | Cave ochre source | · Coordinates are provided but there is no photograph or written description provided in Mr Davies’ affidavit. | · The native title party states ochre sources are ‘of particular significance because they are needed by the Ngurrara who come from Garliwinyji Ngurra so they can perform the religious ceremonies and rituals, which must be performed under our traditional law’ (paragraph 22 NTP Joint Statement). | · The grantee party notes no photograph is provided in Mr Davies’ affidavit. · The grantee party asserts that paragraphs 6.16 to 6.20 (in respect of Site 8 above) are applicable to this site (paragraph 6.28). | [Not addressed] | [Not addressed] |
| 25 | Rock shelter/cave with ochre | · Photograph and coordinates provided in Mr Davies’ affidavit. · Mr Davies states that Mr Michael Woodley and Mr Thomas Jacobs told him that the site is significant due to the ochre’s role in ritualised Yindjibarndi ceremony. Mr Davies states participants ‘adorn themselves in a culturally appropriate manner with the natural properties of their homeland in a demonstration of understanding and respect for everyone the country and their ancestors (whose spirits live within the country) provide’ (page 14 Mr Davies’ affidavit). | · The native title party states that ochre sources are ‘of particular significance because they are needed by the Ngurrara who come from Garliwinyji Ngurra so they can perform the religious ceremonies and rituals, which must be performed under our traditional law’ (paragraph 22 NTP Joint Statement). | · The grantee party asserts that Mr Davies’ affidavit does not establish that ochre (a) is in fact obtained or (b) is in fact used for ceremonial purpose at the site (paragraphs 6.30-6.31). · The grantee party asserts that paragraphs 6.16 to 6.20 (in respect of Site 8 above) are applicable to this site (paragraph 6.32). | · Mr Sandy states that he and the others did not visit the site on their 1 April 2014 visit, but talked about the site while on the tenement (paragraph 16). · Mr Sandy states that he and the other Yindjibarndi men agreed, during their 1 April 2014 discussions, that they have never collected ochre from this site and that it’s unlikely that Yindjibarndi people would collect ochre from there because (a) of difficulty with access and (b)the ochre was too hard (paragraphs 17 & 18). | · Mr May states that he and the others did not visit this site on 1 April 2014 due to (a) accessibility and (b) the Yindjibarndi men saying they had sufficient knowledge to discuss the cultural values of those sites in relation to the broader landscape (paragraph 25). · Mr May describes discussing this site on 1-2 April 2014 with the Yindjibarndi men; he lay out a map and was informed it was not a traditional place for gathering ochre and that they know the ochre collection places within the wider area (paragraph 32). |
| 32 | Rock shelter/cave with ochre | · Photograph and coordinates provided in Mr Davies’ affidavit. · Mr Davies describes how Yindjibarndi informants explained to him that obtaining ochre is essential for the maintenance of religious and spiritual life, that it must be extracted in accordance with Birdarra Law to avoid the Ngurrara being disciplined, and he states he has witnessed traditional songs used during the collection process at Ganyjingarringunha (page 15 Mr Davies’ affidavit). | · The native title party states that ochre sources are ‘of particular significance because they are needed by the Ngurrara who come from Garliwinyji Ngurra so they can perform the religious ceremonies and rituals, which must be performed under our traditional law’ (paragraph 22 NTP Joint Statement). | · The grantee party asserts that Mr Davies’ affidavit does not establish that ochre is in fact (a) obtained at the site or (b) used for ceremonial purpose at the site (paragraphs 6.34-6.35) · The grantee party asserts that paragraphs 6.16 to 6.20 (in respect of Site 8 above) are applicable to this site (paragraph 6.36) | · Mr Sandy states that he and others did not visit the site on their 1 April 2014 visit, but talked about the site while on the tenement (paragraph 16) · Mr Sandy and other Yindjibarndi men agreed, during 1 April 2014 discussions, that they have never collected ochre from this site and that it’s unlikely that Yindjibarndi people would collect ochre from there because (a) of difficulty with access and (b)the ochre was too hard (paragraphs 17 & 18). | · Mr May states that he and the others did not visit this site on 1 April 2014 due to (a) accessibility and (b) the Yindjibarndi men saying they had sufficient knowledge to discuss the cultural values of those sites in relation to the broader landscape (paragraph 25). · Mr May describes discussing this site on 1-2 April 2014 with the Yindjibarndi men; he lay out a map and was informed it was not a traditional place for gathering ochre and that they know the ochre collection places within the wider area (paragraph 32). |
| 34 | Manggurla Thalu | · A photograph and coordinates are provided in Mr Davies’ affidavit. · The Heritage Submission Form (at page 13-14 of NTP Doc 8) states it is a requirement under Birdarra Law for those who work the Manggurla Thalu to get painted up with local ochre (referred to at paragraph 9.9 NTP Contentions) · Mr Davies describes witnessing (on 18/5/2013) Mr Michael Woodley demonstrating how to ritually work a men’s fertility site known as Manggurla Thalu which involved being painted up in ochre and, depending on who the ceremony is directed towards, may involve collecting a specific kind of bark to wear as a mask (page 16 Mr Davies’ affidavit). | · The native title party states it is particularly significant because it is a fertility site (paragraph 23 NTP Joint Statement) | · The grantee party emphasises that all Mr Davies saw was a demonstration from Mr Woodley (paragraph 6.38) · The grantee party notes Mr Woodley hasn’t given evidence in relation to the site or demonstration (paragraph 6.39). · The grantee party states little particularisation was provided about the significance of the site in Mr Davies’ affidavit and also in NTP Joint Statement (paragraph 6.40). · The grantee party contends the affidavits of Mr Sandy ([19]-[21]) and Mr May ([34]-[36]) cast doubt on site 34 being a Manggurla Thalu (paragraph 6.43). | · Mr Sandy and other Yindjibarndi men visited the site [on 1 April 2014; see par 10] (paragraph 20) and they don’t believe it is a thalu site because their grandfathers never told them about it and they don’t know any stories about it (paragraph 21). | · Mr May states that he and the others inspected the site on 1 April 2014 (paragraph 35). · Mr May describes the Yindjibarndi providing reasons to him why the site is not believed to be a manggurla thalu (reasons include: grandfathers hadn’t told them about it; lack of archaeological or aesthetic evidence; features of the stone; lack of flaked stone artefacts in the area; paragraph 36(1)-(4)) |
| 35 | Yamararra (cave) with potential engraving | · A photograph and coordinates are provided in Mr Davies’ affidavit. · Mr Davies describes the potential engraving having been identified by two Yindjibarndi men on 17 May 2013 who saw the figures of two Marrga on a large flat rock inside the cave, which is part of a gorge (page 17 Mr Davies’ affidavit.) · Mr Davies indicates he could not see the Margga figures himself, but noted the two Yindjibarndi men saw them when the sunlight was at a particular angle. The cave is regarded as easily accessible and holding evidence of Yindjibarndi occupation. The Yindjibarndi people informed Mr Davies they do not want the cave and its contents disturbed (page 17 Mr Davies’ affidavit). | · The native title party states this site ‘contains a boulder upon which there is an engraving of two Marrga that can only be seen when the sun is at a certain angle. We believe the engraving is sacred and that it should be protected and not moved’ (paragraph 24 NTP Joint Statement). | · The grantee party asserts it is impossible to verify whether the shape seen by John and Hayden Woodley (but not by Mr Davies) actually exists as a description of the shape representing the two Marrga was not provided (paragraph 6.46). · The grantee party notes that neither John nor Hayden Woodley signed the NTP Joint Statement (paragraph 6.47). · The grantee party asserts it is impossible to verify Mr Davies’ evidence that site 35 shows evidence of occupations (paragraph 6.48). · The grantee party contends the affidavits of Mr Sandy and Mr May cast doubt on whether site 35 contains an engraving (paragraph 6.49) | · Mr Sandy states that he and the other Yindjibarndi men visited the site [on 1 April 2014; paragraph 10] and they couldn’t see any engraving on the slab of roof-fall (paragraph 23). | · Mr May states that he and the others inspected the site on 1 April 2014 (paragraph 38). · Mr May states that he, along with Ms Golden and Yindjibarndi men, did not believe the engravings existed (Ms Golden attributed discolouration of the surface to water movement; there was no indentation, groove or polish; the discolouration bore no resemblance with other engravings in the Solomon Hug project area) (paragraph 38). |
| 46 | Wundu (watercourse/spring) | · Coordinates and a photograph are provided in Mr Davies’ affidavit. · Mr Davies was told by the Yindjibarndi informants that the watercourse and associated Jinbi (spring) are believed to be sacred and should not be disturbed; it is a significant feature as it is associated with Ganyjingarringunha Wurndu (Kanjeenarina Creek) and has numerous Yamamarrara (caves) located within it (page 18 Mr Davies’ affidavit). | · The native title party states ‘these Yamararra are sacred to us because they contain either the physical remains of our deceased ancestors or their sacred gear, which they used in our Law ceremonies and which remain highly dangerous. They should not be approached unless in the company of a senior Yindjibarndi Lawman. We believe the Wurndu is sacred because it runs into Ganyjingarringuna Wundu and is therefore part of Barrimirndi’s Ngurra’ (paragraph 25 NTP Joint Statement). | · The grantee party contends the photograph in Mr Davies’ affidavit does not show a spring and is not conclusive as to the existence of a watercourse (paragraph 6.50). · The grantee party contends it is arguable whether the site falls within the tenement boundary (comparing coordinates in Mining Tenement Register Search and Mr Davies’ coordinates; the grantee party states the site is located 6.12 metres to the north of the tenement (paragraphs 6.51-6.53). · Even if it is located within tenement, the grantee party does not accept it is particularly significant (paragraph 6.56) because: o The basis of sacredness is not explained in Mr Davies affidavit (paragraph 6.54) o The grantee party regards the affidavits of Mr Sandy and Mr May as casting doubt on whether the site is a spring or is significant (paragraph 6.55). | · Mr Sandy stated he and the other men did not visit the site, but talked about it when they were at site 34 (paragraph 26). · Mr Sandy states that based on those discussions, they agreed (a) there may be rock holes but no spring as a spring requires an underground source (b) the site had no sacred value (paragraph 27). | · Mr May states that he and the others did not visit this site on 1 April 2014 due to (a) accessibility and (b) the Yindjibarndi men saying they had sufficient knowledge to discuss the cultural values of those sites in relation to the broader landscape (paragraph 25). · Mr May describes the Yindjibarndi men informing him, while at site 34, that (a) there may be pools of water at site 46, but there was no spring fed by an underground aquifer and (b) the site had no sacred values (paragraphs 41-42). |
| 64 | Ganyjingarringunha Wurndu (Kanjeena-rina Creek) | · Perimeter, area in hectares and photograph provided in Mr Davies’ affidavit · Mr Davies stated it has particular aesthetic value and his Yindjibarndi informants said it holds cultural, religious and environmental significance. It is regarded as a source of life as it is a ‘permanent water supply in an arid environment’. Mr Davies describes his own knowledge of a deceased Yindjibarndi elder using the creek to travel between his place of birth, his place of work and a law ground (page 20 Mr Davies’ affidavit) | · ‘Ganyjingarringunha Wundu is the Yindjibarndi name for the watercourse that runs through the middle of Ganyjingarringunha Ngurra. In this permanent watercourse, lives Barrimirndi – the Marrga who, in the form of a great Warlu (serpent), created all the Wundu in Yindjibarndi Country. Barrimirndi is central to Yindjibarndi religious beliefs and Ganyjingarringuna Wundu is sacred because it is home’ (par 19). An extract from the Heritage Submission Form is included. See par 19 NTP Joint Statement. | See comment for site 48 in First proposed lease | [Not addressed] | [Not addressed] |
(i)
ATTACHMENT G
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