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

NATIONAL NATIVE TITLE TRIBUNAL

FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aboriginal Corporation/Western Australia, [2009] NNTTA 69 (8 July 2009)

Application No: WF08/32 and WF08/33

IN THE MATTER of the Native Title Act1993 (Cth)

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

FMG Pilbara Pty Ltd and Flinders Mines Ltd (grantee parties)

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Wintawari Guruma Aboriginal Corporation WC97/89 (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  8 July 2009

Catchwords: Native title – future acts – applications for determination for the grant of mining leases – s 39 criteria considered – effect of acts on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of acts – public interest in doing of acts – any other matters the Tribunal considered relevant – determination that the act may be done

Legislation: Native Title Act 1993 (Cth) ss 29, 30, 31, 35, 36, 37, 38, 39, 150

Mining Act 1978 (WA) ss 29, 74, 82, 84, 85
Aboriginal Heritage Act 1972 (WA) ss 18, 62

Cases:Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF07/26, [2008] NNTTA 38 (3 April 2008) Hon C J Sumner
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
FMG Pilbara Pty Ltd/ Flinders Mines Limited/ Wintawari Guruma Aboriginal Corporation/ Western Australia, NNTT WF08/32 and WF08/33, [2009] NNTTA 62 (23 June 2009) Daniel O’Dea
Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
Re C.I. Doxford & Ors [2003] QLRT 58
Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003) Hon C J Sumner
Ward v Western Australia (1996) 69 FCR 208
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Western Australia/Holocene Pty Ltd, NNTT WF08/27, [2009] NNTTA 49 (27 May 2009) Hon C J Sumner

Hearing dates: n/a

Representatives for        Mr Ronald Bower, Corser & Corser Lawyers
the native title party:      Mr Jerome Frewen, Desert Management Ltd
Representatives for        Mr Ken Green, Green Legal Pty Ltd
the grantee parties:         Mr Sukhpal Singh, FMG Pilbara Pty Ltd
Representatives for        Mr Matthew Pudovskis and Barry King, State Solicitor’s Office
the Government party:  Ms Paola O’Neill, Department of Mines and Petroleum

REASONS FOR FUTURE ACT DETERMINATION

Introduction

On the following dates, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of future acts, namely the grant of the following mining leases (‘the proposed leases’) under the Mining Act 1978 (WA) to the following grantee parties:
·10 October 2007 - M47/1407, 1769.7 hectares, to Flinders Diamonds Ltd
·10 October 2007 - M47/1408, 5773.98 hectares, to FMG Pilbara Pty Ltd
·17 January 2008 - M47/1410, 312.39 hectares to FMG Pilbara Pty Ltd
On 5 May 2008, Flinders Diamonds Ltd registered a change of name to Flinders Mines Ltd.
The proposed leases are located between 62 and 64 kilometres north west of Tom Price in the Shire of Ashburton. The underlying tenure is unallocated crown land with the exception of General Lease I123646 which overlaps M47/1407 at 0.6 percent and M47/1408 at 0.5 percent and Hamersley Pastoral Lease 3114/1277 which overlaps M47/1408 at 19.9 percent.
The proposed leases are overlapped at 99.4, 99.5 and 100 percent respectively by the Wintawari Guruma Aboriginal Corporation prescribed body corporate (established following the Federal Court making a determination of native title in favour of the Eastern Guruma People WC97/89 on 1 March 2007 – Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 (‘the Native Title Determination’). Native title is extinguished over General Lease I123646 because it is identified in the Native Title Determination as a previous exclusive possession act (First schedule of determination area A).
The native title party in respect of these proceedings is the Wintawari Guruma Aboriginal Corporation prescribed body corporate.
On 19 December 2008, being a date more than six months after the s 29 notices were given, the grantee parties made applications pursuant to s 35 of the Act for a future act determination under s 38 (‘the s 35 Applications’). The s 35 Applications were made on the basis that the negotiation parties had not been able to reach agreement within six months of the Government party giving notice of its intention to do the act.

Good faith negotiations – power of the Tribunal to make a determination

The native title party challenged the Tribunal’s power to make a determination on the basis that the grantee and Government parties had not negotiated in good faith (ss 31(1)(b), 36(2)). The challenge was rejected on 23 June 2009 (FMG Pilbara Pty Ltd/ Flinders Mines Limited/ Wintawari Guruma Aboriginal Corporation/ Western Australia, NNTT WF08/32 and WF08/33, [2009] NNTTA 62 (23 June 2009)) (‘good faith decision’).

Directions for the Inquiry

On 19 January 2009 the Tribunal made directions to deal with the good faith challenge and the substantive inquiry. Subsequent amendments were made at the request of the parties.
The Tribunal also directed pursuant to s 150 of the Act that conferences be held to attempt to resolve matters relating to the inquiry. Separate conferences were convened by an officer and a member of the Tribunal, but no agreement pursuant to s 31(1)(b) of the Act could be reached.
In relation to the substantive inquiry the following contentions and submissions were provided:
·Government party’s Statement of Contentions and supporting documents GVP1 to GVP32, lodged 29 April 2009
·Grantee parties’ Statement of Contentions and supporting documents GP1 to GP90, lodged 29 April 2009
·The Government party provided a letter clarifying some aspects of its contentions on 3 July 2009

No submissions were lodged by the native title party by the due date of 19 May 2009.

The Tribunal’s directions required the parties to confer with a view to agreeing issues before the inquiry, the facts and documents to be relied on, and procedures for the conduct of the inquiry. At the listing hearing on 8 June 2009, the representative for the native title party confirmed that the native title party declined to lodge any submissions and all parties agreed the inquiry could be conducted on the papers. I believe it appropriate to do so in the circumstances.

Government party’s evidence

Government party documentation establishes the proposed leases are 100 percent overlapped by Millstream Water Reserve 9 vested in the Department of Water and the Department of Environment and Conservation. The underlying tenure is unallocated crown land with the exception of General Lease I123646 which overlaps M47/1407 at 0.6 percent and M47/1408 at 0.5 percent and Hamersley Pastoral Lease 3114/1277 which overlaps M47/1408 at 19.9 percent. Native title is extinguished over General Lease I123646 because it is identified in the Native Title Determination as a previous exclusive possession act (First schedule of determination area A).
There are no Aboriginal communities identified within the subject area or in the near vicinity of the proposed leases.
There is a limited prior history of mining or exploration activity over the area involving the following active licences:
·Exploration licence E47/1306 held by Flinders Mines Ltd since 17 November 2005 – overlapping M47/1407 at 100 percent;
·Exploration licence E47/1372 held by FMG Pilbara Pty Ltd since 16 May 2007 – overlapping M47/1408 at 51.4 percent;
·Exploration licence E47/1524 held by FMG Pilbara Pty Ltd since 15 June 2007 – overlapping M47/1408 at 48.6 percent;
·Exploration licence E47/1333 held by FMG Pilbara Pty Ltd since 28 July 2007 – overlapping M47/1410 at 100 percent; and
·Miscellaneous licence L47/48 held by Cape Lambert Iron Associates since 5 September 2000 to conduct all activities for the design, planning, construction, operation and maintenance of a railway and all associated infrastructure in connection with mining operations to be carried out pursuant to the Iron Ore (Robe River) Agreement Act 1964 – overlapping M47/1410 at 61.9 percent.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party and further Tribunal searches of the DIA online Aboriginal Heritage Inquiry System reveal one site registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within or in the vicinity of M47/1410. The site, ID 17335, is identified as a closed access site and is described as a modified tree. It is surrounded by a square buffer zone of approximately nine square kilometres in order that its precise location is not disclosed. The north eastern corner of the buffer zone partially overlaps the south western corner of M47/1410.
The Mining Act entitles the grantee parties to exercise the rights set out in s 85 of that Act subject to the covenants and conditions referred to in s 82 and such further conditions and endorsements that the Minister may at any time impose under s 84.
The Government party proposes the following endorsements on the grant of the proposed leases:
‘●The Lessee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
●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.
●The Lessee’s attention is drawn to the provisions of:
· Water and Rivers Commission Act 1995 and any Regulations thereunder
· Country Areas Water Supply Act 1947 and any Regulations thereunder
· Metropolitan Water Supply Sewerage and Drainage Act 1909 and any Regulations thereunder’
A further endorsement proposed for M47/1407 and M47/1408 is:
‘●The grant of this Lease does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 metres form the natural surface of the land’
The Government party proposes the standard conditions applicable to mining leases:
‘1.Survey.
2.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
3.All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Industry and Resources (DoIR). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DoIR.
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, DoIR 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 operation 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, DoIR for his assessment and written approval prior to commencing any developmental or productive mining or construction activity.’
Some 24 additional conditions are proposed in respect of Millstream Water Reserve relating to Department of Water requirements for notification of activities, approval to disturb any significant waterway, wetland, fringing vegetation, public drinking water source, reservoir, well, dam, area below the water level, and restrictions on the storage and disposal of domestic and industrial waste and hazardous substances.
Furthermore, one additional condition is proposed for M47/1410, preserving the rights of ingress and egress from Cape Lambert Iron Associates’ miscellaneous licence L47/48 and prohibiting interference with the purpose or installations connected to the licence. Three additional conditions are proposed for M47/1408, two relating to notifying the holder of any underlying pastoral or grazing lease prior to undertaking activities and advising the holder of any transfer, and one prohibiting interference with Geodetic Survey station SSM-JM 44, confining mining within 15 metres of the station to below a depth of 15 metres from the natural surface. Additional conditions are proposed for both M47/1407 and M47/1408 confining mining on any road, road verge or road reserve to below a depth of 15 metres from the natural surface and prohibiting any activities on the proposed railway corridor that interfere with or restrict any rail route investigation activities being undertaken.
The Government party proposes four extra conditions on the grant all of the proposed leases:
·‘Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.
·If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
·Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental/productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
·Upon assignment of the mining lease the assignee shall be bound by these conditions.’ (GVP32)
A letter of 3 July 2009, from Mr Pudovskis, on behalf of the Government party states as follows:
‘As the heading to “GVP32” [Extra Conditions the Department of Industry and Resources is Offering to Place on the proposed leases] provides, the “extra conditions” are an offer made by the Government party in the context of a negotiation with the relevant grantee parties and native title parties. The conditions are not (and never have been) imposed as a matter of course. To the extent the Government party’s Contentions may suggest otherwise in relation to the relevant tenements in this case (by stating (at [34]) “[t]the Government Party also proposes to impose on each of the mining leases the 4 “extra conditions” listed in “GVP32”), this was unintended.
As to circumstances when the “extra conditions” are imposed, I confirm that unless the Tribunal requires the conditions to be imposed as conditions of the determination, they are not imposed unless one or more of the other parties accepts the offer. This has always been the case and does not represent a change in policy.
I am instructed that to date, it appears that neither of the grantee parties or the native title party has accepted the offer (in relation to WF08/32 or 33, or the other matters (WF08/31 and WF089/1 [sic])). This means that, unless the Tribunal requires the conditions to be imposed, the extra conditions will not be imposed unless the Government party receives written confirmation of one or more of the other parties’ acceptance of the offer before the tenements are granted. I apologise if the contentions created a contrary impression.
Should the Tribunal consider it necessary to require the conditions to be imposed as conditions of the determination, the Government party would not object though it notes that no case for this has been made by the other parties.’

In the quoted passage of the letter, the writer makes reference to one of the documents provided by the Government party, being GVP32, which is, in effect, a dummy mining lease, including all conditions that would be imposed, including the extra conditions. It also makes reference to Contention 34 which reads as follows:

‘The Government party also proposes to impose on each of the mining leases the 4 “extra conditions” listed in “GVP32”. These conditions, amongst other things, limit the ability of the grantee party to restrict access to members of the native title party, and facilitate the engagement of the native title party with respect to proposals by the grantee party that may result in disturbance to Aboriginal heritage or the environment.’

Prior to the receipt of the letter from the Government party on 3 July, it was my understanding that it was the intention of the Government party to impose the extra conditions as a matter of course, if the determination of the Tribunal was to the effect that the act could be done. For reasons that will be outlined later, it is my view that the Tribunal does require that the extra conditions be imposed on the grant of the proposed leases irrespective of whether the Government party has been in receipt of “an acceptance of its offer”.

The grantee parties’ evidence

The grantee parties’ evidence includes documentation of the history of negotiations with the native title party which has previously been described in the ‘good faith decision’ at [29]-[61]. Also included are 13 ethnographic reports which comprise ethnographic surveys of a number of exploration licences, drilling programmes and consultation following archaeological surveys; and 11 archaeological reports covering indigenous heritage assessments of a number of exploration licences and of drilling programmes on those licences. A good number of these reports do not appear to relate to those exploration licences which underlie the proposed leases (being E47/1306, E47/1372, E47/1524 and E47/1333) and little mapping is provided to ascertain which areas were surveyed. I consider the following of relevance to my considerations:
·Preliminary Report on an Ethnographic Survey Solomon East, Solomon West, Mt Sheila West and Mt McLeod Tenements, Pilbara, Western Australia: Prepared for the Guruma Mali Wartu Aboriginal Corporation and Fortescue Metals Group, by Dr Edward McDonald, dated June 2007. The report covers, amongst others, underlying exploration licences E47/1333, E47/1306, and E47/1524 (GP68)
·Preliminary Report on an Ethnographic Survey Solomon East, Mt Sheila East and Mt McCloud Tenements, Pilbara, Western Australia: Prepared for the Guruma Mali Wartu Aboriginal Corporation and Fortescue Metals Group, by Dr Edward McDonald, dated July 2007. The report covers, amongst others, underlying exploration licence E47/1333 (GP70)
·Report of an Ethnographic Survey and Consultation Regarding Archaeological Findings, Mount Sheila Exploration Area, Hamersley, Western Australia (Tenements E47/1333, E47/1372, P47/1309, M47/1417): Prepared for the Guruma Mali Wartu Aboriginal Corporation and Fortescue Metals Group, by Dr Edward McDonald and Bryan Coldrick, dated July 2008 (GP83)
·Report of an Ethnographic Survey and Consultation Regarding Archaeological Findings, Mount Sheila East Exploration Area, Hamersley, Western Australia (Tenements E47/1821, E47/1333 and M47/1417): Prepared for the Guruma Mali Wartu Aboriginal Corporation and Fortescue Metals Group, by Dr Edward McDonald and Bryan Coldrick, dated August 2008 (GP85)
·Report on an Ethnographic Survey Solomon East, Solomon West, Mt Sheila West and Mt McCloud Tenements, Pilbara, Western Australia: Prepared for the Wintawari Guruma Aboriginal Corporation and Fortescue Metals Group, by Dr Edward McDonald, dated March 2009. The report covers, amongst others, underlying exploration licences E47/1333, E47/1306, and E47/1524 (GP90)
·Report of an Indigenous archaeological assessment of the Fortescue Metals Group exploration area – Solomon East/Valley of the Queens: For Windiwari Guruma Aboriginal Corporation, by Adam Dias and Lucy Sinclair, dated March 2008. The report appears to cover underlying exploration licence E47/1333 (GP74)

The grantee parties propose to develop iron ore mines on the proposed leases and include in their submissions the Mineralisation Reports and Mining Statements prepared in accordance with s 74 of the Mining Act (GP34). Both documents were forwarded to the native title party on 13 May 2008, in anticipation of the Government party’s standard initial negotiation letters (sent 20 May 2008) requesting that such information be provided to the native title party for it to respond. The Mineralisation Reports identify targets of approximately 200 million tonnes for M47/1407, 200 million tonnes for M47/1408 and 400 million tonnes for M47/1410 located in drainage valleys on Brockman Iron Formation rocks in the Hammersley Range which vary in thickness from a few metres up to 60 metres or more in a few cases. The Mining Statements set out information about the mining operations that are likely to be carried out in, on and under the land the subject of the proposed leases. The project will employ open pit mining methods using mining strips at a minimum width of 100 metres, with a staged pit design and pit walls up to 60 metres. Over the duration of the project low and high grade stock piles will, at some stages, be required. Within the first three years it is estimated that 50 percent of waste material will be dumped externally, and some will be used to backfill once operations are completed. Mapping attached to the Mining Statements show the proposed mining operations are likely to create significant ground disturbance to the majority of the area of the proposed leases.

Native title party’s evidence

No evidence was submitted by the native title party.
Attached to the Government party’s submissions for the good faith decision is the native title party’s 18 July 2008 response to the Government party’s initial negotiation letters sent on 20 May 2008. The response is in relation to M47/1410 only and no response was received in respect of M47/1407 or M47/1408. The Government party’s letters requested information about the impact of the proposed future acts on native title rights and interests or the other matters of interest to the native title party as specified in s 39 of the Act. The native title party’s response appears to be a pro-forma letter which provides no information other than the following general statements and aspirations:
‘The native title party continues to use the application area for traditional activities. These include, inter alia, hunting for food in the application area (on a seasonal basis), and gathering local flora, edible berries and seed; gathering honey ants; gathering ochre for ceremonial purposes; practising ceremonial activities; carrying out traditional law business each year; visiting the land to repair sites and waterholes and to commune with spirits; visiting the land to teach children their culture and traditions; teaching children the traditional names of features, flora, fauna and sites; visiting sites of significance; trading in resources from the area; visiting Dreaming sites....
The Wintawari Guruma people will require the applicant to enter into a mining, Exploration and Heritage agreement under the provisions of both the Native title Act 1993 and the Aboriginal Heritage Act 1972, and to include in the agreement right to negotiate provisions under the Native Title Act, allowing for:
·      Payments to be made to the Wintawari Guruma people based upon such things as may be included in negotiations;
·      Payments for administration of these matters through the RTN system
·      Such other payments and benefits as may be agreed’

Legal principles

I rely on the principles enunciated in the following Tribunal future act determinations:
·Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’); and
·WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (‘WMC/Evans’)
·Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Western Australia/Holocene Pty Ltd, NNTT WF08/27, [2009] NNTTA 49 (27 May 2009) (‘Holocene’)
Section 38 of the Act sets out the types of determination that can be made and relevantly are:

‘38 Kinds of arbitral body determinations

(1)Except where section 37 applies, the arbitral body must make one of the following determinations:
(a)    a determination that the act must not be done;
(b)    a determination that the act may be done;
(c)     a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determinations may cover other matters
...
Profit‑sharing conditions not to be determined
(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a)    the amount of profits made; or
(b)    any income derived; or
(c)     any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.’

Section 39 lists the criteria for making such a determination:

‘39 Criteria for making arbitral body determinations

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

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

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

In making a determination of this sort, the Tribunal exercises a discretionary power informed by reference to the criteria in s 39. The Tribunal’s task was explained in Waljen (at 165-166).
‘We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of 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 enable 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.’
The Tribunal’s inquiry function is summarised in Waljen (at 162-163) and involves, among other things, the Tribunal making a determination based on logically probative evidence and application of the law.
Regardless of whether the registered native title rights and interests are determined or claimed, there is still a need for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act, and of all the other matters in s 39(1)(a) of the Act (WMC/Evans at 339-341). While there is no onus of proof as such it is ordinarily the responsibility of a native title party to produce evidence on these matters as for the most part they are peculiarly within their knowledge (Waljen at 154-163; Ward v Western Australia (1996) 69 FCR 208 at 215-218). This approach has been endorsed by the Land and Resources Tribunal, Queensland (Re C.I. Doxford & Ors [2003] QLRT 58 at [7]-[12]). In this matter the rights and interests of the native title party are determined, however, the only material before me, relevant to the exercise of those rights, is the general information contained in the first of the paragraphs quoted at [27] above, drawn from the native title party’s submission to the Government in its letter of 18 July 2008.

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

The assertions made by the native title party in its 18 July 2008 response to the Government party are general in nature. They do, however, indicate that the native title party continues to access and use the application area and exercise various different native title rights including hunting, gathering, camping and for ceremonial purposes. There is no direct evidence about the particular impact upon the native title rights and interests of the native title party which would result from the conduct of the mining activities which are proposed to be undertaken upon the land concerned. It is, however, clear from the grantee parties’ contentions, that the activities which are intended to take place on the land, will be intensive. The grantee parties propose to develop iron ore mines on the proposed leases and to that effect, it intends to use open pit mining methods using mining strips at a minimum width of 100 metres with a stage pit design and pit walls of up to 60 metres high. The mapping of the attachments in the mining statements suggests that it is likely that there will be significant ground disturbance to the majority of the area in the proposed leases. The Government party has indicated at paragraph 34 of its contentions that the “extra conditions” that it “proposes to impose” will limit the ability of the grantee parties to restrict access of members of the native title party to the area and facilitate their engagement with the grantee parties in proper management of Aboriginal heritage and environmental matters. At paragraph 42 of its contentions, it states further:
‘Should there be any interference with enjoyment of the determined rights and interests, this interference will be mitigated by the extra conditions the Government Party is proposing to impose on each of the tenements.’

Further, at 42(a), referring to the first extra condition, the Government party states:

‘In other words the Native Title Party will still be able to exercise certain native title rights unimpeded over certain parts of the mining lease’

As has been referred to earlier, it would appear that these extra conditions will only be imposed in the normal course if either the grantee parties or the native title party requests that they be so imposed prior to the grant of the tenement. The Government party has indicated that should the Tribunal take the view that such conditions should be imposed, it would not oppose that view. The grantee parties have indicated that they oppose the imposition of those conditions on the basis that there is no evidence before the Tribunal indicating their necessity and that they have not been requested by any party. While I am somewhat constrained in making any specific finding about the effect of the future acts on the enjoyment of the native title party’s registered native title rights and interests in the area, it is my view that it is clear, on the basis of the submission provided to the State on 18 July 2008 and the intensive nature of the mining activities to be conducted, that the native title party will be prevented from accessing any of the area the subject of the proposed leases during the life of the tenement if the extra conditions and, particularly the first extra condition are not imposed. The grantee parties, at 5.5 of their contentions, submit that there will be a negligible effect on the physical enjoyment of native title rights and interests due to the grant of the proposed leases. This is a submission which, even in the absence of any significant evidence from the native title party, cannot be sustained. Until the Government party clarified their position in relation to this matter, it was my understanding that the plain meaning of its contentions was that the extra conditions would be imposed as a matter of course, without the necessity to be any “acceptance of the offer”. It is also my view that the imposition of the extra conditions is integral to the Government party’s argument that the effect on the native title rights and interests of the native title party will be significantly mitigated. This is a position which has previously been taken by the Tribunal in relation to identical extra conditions. (Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF07/26, [2008] NNTTA 38 (3 April 2008) Hon C J Sumner (‘Australian Manganese’) at [22] and [70], and Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2 [2003] NNTTA 82 (9 July 2003) Hon C J Sumner (‘Townson Holdings’) at [74] and [99]). In Australian Manganese at [70], Sumner noted
‘the supplementary conditions will be imposed by the Government party’.

These conditions were identical to the extra conditions in these matters. In Townson Holdings D P Sumner states at [74]:

‘the following conditions will be placed on the mining leases ... if there is a determination by the Tribunal that the act may be done’;

and then sets out conditions identical to the extra conditions in these matters. Further, in Australian Manganese at [70], DP Sumner, in rejecting the native title party proposed conditions, says:

‘In my view the evidence does not justify the imposition of conditions. In WMC/Evans the Tribunal imposed certain conditions in circumstances where there was little evidence of the exercise or enjoyment of native title rights and interests or sites of significance on the relevant mining lease area. These conditions were substantially the same as those now to be imposed by the Government party’s supplementary conditions. If the Government party was not going to impose them I would have made conditions to a similar effect.’

In Townson Holdings DP Sumner, at [99], reaches similar conclusions. The conditions referred to in these matters were identical to the extra conditions in these matters.
It is consequently a surprise to me to read the Government party’s clarifying statement of 3 July 2009 to the effect such conditions have always only been imposed upon request. In consequence I find that there is likely to be some effect upon the enjoyment of the registered native title rights and interests of the native title party, however, with the imposition of the extra conditions, that interference will be significantly mitigated, at least in those areas of the proposed leases which are not subject to mining activities.

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

Apart from what was described in the paragraph relevant to s 39(1)(a)(i) there is no further information provided by the native title party in relation to their way of life, culture and traditions other than that set out in the letter of 18 July 2008. Particularly, in light of my view that the extra conditions ought to be imposed, I do not see that there is any basis by which the Tribunal can make any conclusions as to the adverse effect on their way of life, culture and traditions.

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

The Tribunal has previously found that mining can have an adverse impact on Aboriginal communities and I accept that that is the case (Townson Holdings at [87]). In this matter, again, the native title party has provided no evidence in relation to the impact of the grant of the proposed leases on its social, cultural and economic structures. The grantee parties contend that they have established a Vocational Training and Employment Centre to provide training to Aboriginal people with the guarantee of employment following successful completion of the course and have set a target of a minimum of 20 percent Aboriginal employees (grantee parties’ contentions, 7.4). There is no information as to whether this initiative will specifically benefit the native title party. Given the absence of evidence from the native title party to the contrary, the Tribunal cannot conclude that there will be any adverse impact in relation to these matters. Indeed, the vocational and employment programs developed by the mine may well have a beneficial impact on the material circumstances of the native title party.

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

There is no evidence that the areas of the proposed leases are used in any way to carry out rites, ceremonies or other activities of cultural significance in accordance with the traditions of the native title party. Given my findings in relation to the extent of the impact of the proposed mining operations on the area concerned, and my consequent view that the extra conditions should be imposed, I cannot conclude that there will be any adverse effect on the exercise of these grants by the native title party.

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

The question to be considered is whether there are areas or sites of particular significance (i.e. of special or more than ordinary significance to the native title party) that will be affected by the future acts (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35) and repeated in Holocene at [99]. The Tribunal will have to make a value judgement about whether, from the native title party’s point of view and according to their traditions, the area or site is special or different from other land in which the native title party has, or claims to have, native title rights and interests.
The Tribunal has, on numerous occasions, considered the protective provisions of the AHA. I adopt the Tribunal’s findings in Waljen on this topic (at 209-211). I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner at [33]-[38], [40]-[41] and other cases referred to therein which describe the regulatory regime for the protection of sites.

The native title party has again produced no evidence in relation to any sites of particular significance within the area of the proposed leases. Whilst the Register of Sites kept under the AHA only identifies one site on or in the vicinity, the grantee parties submitted a number of site reports commissioned by them (GP67-90) which identify numerous sites and contend they submitted such “as a matter of full disclosure” (9.4). Obviously, in circumstances where those particular sites will be interfered with the defences under s 62 of the AHA will not be available to the grantee parties. There may well be other sites of concern and to knowingly interfere with them would be an offence. However, the second and third extra conditions proposed by the Government party would require the grantee parties to give the native title party a copy of its proposal to undertake developmental/productive mining or construction activity and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes; and requires notice of any s 18 application. The native title party would then be in a position to consider its attitude to the proposal and decide to support or oppose it, check that it is in conformity with previous understandings, inform the grantee parties of any areas of concern and make submissions to the ACMC.
There is no evidence provided by the native title party in relation to these matters. The Government party makes reference to the generalised concerns expressed by the native title party in its submission but notes at paragraph 57 of its contentions that those concerns could be addressed by the second and third of its proposed extra conditions. I agree with that proposition, otherwise there does not seem to be any evidence which would base a finding that there would be an adverse impact upon the interests and wishes in relation to the management, use and control of the area.
There can be no question that the grantee parties fully understand their obligations under the AHA and have complied with them to date. I am satisfied they will continue to do so and take whatever action is necessary to avoid interference with sites. Any adverse effect upon the native title party will be mitigated by the extra conditions.

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

In their contentions (at 59 and 11 respectively), the Government and grantee parties contend the grant of the proposed leases will assist the local economy through the development of local resources and by it providing services to the grantee parties’ project; the State economy through the payment of royalties; and the Nation through the earning of foreign capital and contributing to the national tax base. I accept the grant of the proposed leases will create considerable positive economic effect for the State and the Nation, and that some positive economic effect may be experienced by the local economy including local Aboriginal people.

Section 39(1)(e) – public interest

I adopt the findings of the Tribunal in Waljen (at 215-216) on matters relating to the public interest. There is no need to repeat the findings in full. The Tribunal accepts that the mining industry is of considerable economic significance to Western Australia and Australia. I conclude that the public interest is served by the grant of the proposed leases.

Section 39(1)(f) – any other matter – environmental protection

The effect on the natural environment is no longer a specific factor to be taken into account under s 39(1) of the Act but the Tribunal is entitled to consider the effect on the natural environment as a relevant factor where that effect is related to other factors in s 39(1)(a) (WMC/Evans at 341). In this case there is no evidence which falls into this category.
I adopt the findings in Waljen (at 212-214) relating the effect of proposed acts on the natural environment and Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 (at 292-296 [53]-[62]) regarding the provisions of the Environmental Protection Act 1986 (WA). Again, there is no need to repeat the findings in full. They relate to environmental protection legislation and procedures in Western Australia.

Compensation

The native title party made no submissions in relation to the question of compensation. The Government party simply notes that fact. The grantee parties indicate they do not believe that in the circumstances the Tribunal would be justified in imposing on any requirement in relation to a bank guarantee. In my view, as no submission has been made requesting that matter to be considered by the Tribunal in the exercise of its discretion, I will not do so.

Conclusion

In this matter, the native title party has chosen not to file any submissions in relation to the effect of the proposed leases upon the exercise of its determined native title rights and interests. It chose to do that, notwithstanding the fact that it put a considerable effort in to preparing submissions and other materials in relation to its allegation that the grantee parties and the Government party had failed to negotiate in good faith prior to the bringing of the s 35 application. This is a most peculiar way of approaching these proceedings and puts all the parties in a difficult position, including the Tribunal, in exercising its discretionary power. In this matter, there did exist some skeletal material which had been provided in relation to one of the proposed leases earlier in the piece, which was relevant to the consideration of the criteria in s 39. I have concluded that the extra conditions proposed by the Government party ought to be included in the grant of the proposed leases and I will make a determination to that effect. The Government party indicated that it was not their intention to suggest that those conditions would be imposed as a matter of course, should the Tribunal make a determination that the act could be done without specific conditions. The Government party stated that they would be imposed should either the native title party or grantee parties request their imposition prior to the grant of the proposed leases. The Government party’s contentions are clear on their face, but if the above is a proper explanation of practice, their contentions at 34, 42, 57, 62 and 64 have a tendency to mislead. The current attitude of the native title party is unknown. The grantee parties oppose the imposition of the extra conditions on the basis that there is no evidence to support them and that they have not been requested. I take the view that there is evidence to support them, as I have indicated in my consideration of s 39(1)(a)(i).

Determination

The determination of the Tribunal is that the acts, namely the grant of mining leases M47/1407 to Flinders Mines Ltd, M47/1408 to FMG Pilbara Pty Ltd and M47/1410 to FMG Pilbara Pty Ltd, may be done subject to the imposition of the extra conditions listed in document GVP32 and set out in paragraph [22] above.

Daniel O’Dea
Member
8 July 2009