FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia

[2012] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2012] NNTTA 11 (7 February 2012)

Application No:               WF11/10

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

Fortescue Metals Group Ltd (grantee party/applicant)

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Ned Cheedy and Others on behalf of the Yindjibarndi People WC03/3 (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:  7 February 2012

Catchwords:  Native title – future act – application for determination for the grant of an exploration licence – s 39 criteria considered – effect on registered native title rights and interests – 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 subject to conditions.

Legislation:Native Title Act 1993 (Cth) ss 18, 29, 30, 31, 35, 36, 38, 39, 66, 109, 146, 238

Mining Act 1978 (WA) ss, 24, 25, 63

Aboriginal Heritage Act 1972 (WA) s 18

Environmental Protection Act 1986 (WA)

Wildlife Conservation Act 1950 (WA)

Cases:Australian Manganese Pty Ltd v State of Western Australia (2008) 218 FLR 387; [2008] NNTTA 38

Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690

Doxford & Ors, Re [2003] QLRT 58

FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2011] NNTTA 107

FMG Pilbara Pty Ltd/Ned Cheedy and Ors OBH Yindjibarndi People/Western Australia [2009] NNTTA 38

FMG Pilbara Pty Ltd/Ned Cheedy and Ors OBH Yindjibarndi People/Western Australia [2009] NNTTA 91

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

FMG Pilbara Pty Ltd/ Wintawari Guruma Aborginal Corporation/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2009] NNTTA 63

FMG Pilbara Pty Ltd v Cox and Others (2009) 175 FCR 141; (2009) 255 ALR 229; [2009] FCAFC 49

Minister for Mines (WA) v Evans on behalf of the Koara People & Sons of Gwalia Ltd (1998) 163 FLR 274; [1998] NNTTA 5

Neowarra v Western Australia [2003] FCA 1402

Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87; [1999] NNTTA 361

Roe v Kimberley Land Council [2010] FCA 809

Tigan and Others v Western Australia (2010) 188 FCR 533; [2010] FCA 993

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 [2003] NNTTA 82

Ward and Others v State of Western Australia and Another (1996) 69 FCR 208; (1996) 136 ALR 557; [196] FCA 1452

Western Australia v Thomas and Others (1996) 133 FLR 124; [1996] NNTTA 30

Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; (2009) 2 ARLR 214; [2009] NNTTA 49

WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 372

Hearing date:                   18 October 2011

Representatives for        Mr Simon Millman/Ms Marnie Parkinson, Slater and Gordon

The native title party:     Lawyers

Representatives for        Mr Ken Green, Green Legal Pty Ltd

the grantee party:            Mr Tom Weaver, Fortescue Metals Group Ltd

Representatives for        Mr Matthew Pudovskis and Mr Griff Ranson

the Government party:    State Solicitor’s Office

Ms Paola O’Neill, Department of Mines and Petroleum

REASONS FOR DECISION

Background

1. On 23 April 2008, the State of Western Australia (the Government party) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act/NTA) of a future act, namely the grant of exploration licence E47/1319 (the proposed tenement) under the Mining Act 1978 (WA) to Fortescue Metals Group Ltd (the grantee party).

2. The proposed tenement comprises 69.81 square kilometres located 53 kilometres north west of Wittenoom in the Shire of Ashburton and is completely overlapped by the Yindjibarndi #1 native title claim (WC03/3, registered from 8 August 2003) (the native title party).

3. On 9 January 2010 the grantee party sought s 31(3) mediation assistance from the Tribunal with respect to the proposed tenement (designated Tribunal file number WM10/13). President Graeme Neate was appointed Member to assist the parties and whilst the content of the mediations are without prejudice, Tribunal listings and mediation outcome records are not. These records note that seven mediation conferences were convened between 25 May 2010 and 5 April 2011 with the Government party, the grantee party and the native title party, including one in Roebourne with members of the native title party claim group. On 15 April 2011 the mediation was terminated by the Member for non participation of the native title party.

4. On 27 June 2011, being a date more than six months after the s 29 notice was given, the grantee party made a future act determination application pursuant to s 35 of the NTA (the s 35 application).

5. On 6 July 2011, parties were notified of the s 35 application via email and advised that a preliminary conference would be held for the purpose of settling matters for an inquiry into the s 35 application. The email notification included draft standard directions which, amongst other things, proposed a timeframe that provided the native title party with the opportunity, if they chose, to lodge submissions relating to the Government and/or grantee party’s negotiation in good faith as required by s 31(1)(b) of the NTA, for the Government and/or grantee party to lodge replies to those submissions, and for all parties to lodge submissions regarding s 39 of the NTA. The email notification also advised the native title party representative that at the preliminary conference they ‘should be prepared to address orally the issue of whether the native title party contends that the Government party and Grantee party (as applicable) have negotiated in good faith’ and encouraged all parties ‘to discuss these draft directions with the other parties to explore the possibility of their adoption or modification by consent’.

6. On 7 July 2011, I was appointed by the Hon C J Sumner, Deputy President, as the Member to constitute the Tribunal for the purpose of conducting an inquiry into the s 35 application.

7. In settling the date for the preliminary conference, considerable liberty was extended to the Government and native title party representatives who, owing to other commitments, advised they were unable to attend a number of dates that were initially proposed by the Tribunal.  The final date proposed was 2 August 2011 and subsequently all parties confirmed their ability to attend that day, including the native title party representative who confirmed via email on 20 July 2011 that she would attend the conference in person.

8. On 2 August 2011 the preliminary conference was held at which all parties were represented with the exception of the native title party. In the absence of any contention from the native title party that the grantee party and/or Government party had failed to negotiate in good faith with it, the draft directions were amended to remove those pertaining to a s 36(2) good faith inquiry. In summary, the directions made at the preliminary conference required the Government party to lodge site, tenure and mapping information for the proposed tenement by 16 August 2011, the native title party to lodge submissions relating to the effect of the grant upon the matters referred to in s 39(1) of the NTA by 13 September 2011, the Government and grantee parties to lodge their submissions by 27 September 2011, and a listing hearing to be held on 11 October 2011. The directions also allowed all parties, including the native title party, liberty to apply to vary the directions or for a re-listing of any hearing. The directions were emailed to all parties on the same day. The native title party representative acknowledged receipt of the directions via email on 10 August 2011.

9. The Government party lodged its site, tenure and mapping information for the proposed tenement on 16 August 2011 and, following a request for a one day extension, its statement of contentions and supporting documents on 28 September 2011.  On the same day the Grantee party lodged a statement relying on the Government party’s contentions.  No contentions, evidence or other documents were received from the native title party by the due date of 13 September 2011.

Native title party representation during the proceedings

1. At the time the s 35 application was lodged, Mr Simon Millman of Slater and Gordon Lawyers was noted as the solicitor on the record in the native title proceedings WC03/3 (WAD6005/03) in the Federal Court and as the native title party’s representative in the Address for Service field on the Tribunal’s Register of Native title Claims.

2. However, the Tribunal has for some time been aware of the dissent amongst the persons comprising the native title party Applicant and amongst the native title claim group (FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2011] NNTTA 107 (FMG Pilbara).  I adopt the principles noted in [14]-[16] in that determination and cases cited therein.

3. On 5 September 2011 three of the living persons comprising the native title party Applicant (Ms Mavis Pat, Ms Aileen Sandy and Ms Sylvia Allen) made application to the Federal Court under s 66B of the NTA to remove the remaining living persons (Mr Ned Cheedy, Mr Thomas Jacobs, Mr Alum Cheedy and Mr Michael Woodley). On 16 November 2011 a hearing for that application was held at which directions were made. On 14 December 2011 further directions were made and the matter listed for early April 2012.

4. On 29 September 2011, the Tribunal was advised that Slater and Gordon Lawyers had lodged a Form 8 with the Federal Court of Australia to remove themselves as the representative for the native title party.

5. On 30 September 2011 the Tribunal received a letter from the Yindjibarndi Aboriginal Corporation (YAC) the registered native title body corporate for the Yindjibarndi portion of the Ngarluma/Yindjibarndi Determination Area (WC99/14, WAD6017/96).  The letter is signed by Mr Stanley Warrie, Mr Michael Woodley and Mr Thomas Jacobs and states:

   ‘Late yesterday afternoon YAC was provided with copies of the contentions that were filed yesterday by the Government Party in the above matter.  As you may know, the Native Title Party is no longer represented by Slater & Gordon in this or any other matter; and, unfortunately, the receipt of these contentions was the first notice received by YAC of the application, apparently made by FMG on 27 June 2010, for a determination allowing the grant of exploration E47/1319.

   We are currently in Perth on other pressing business (until the end of this week); and we request the Tribunal provide an opportunity to consult with other members of the Native Title Party, on Monday of next week; and, an opportunity for the Native Title Party to provide evidence to the Tribunal in this matter before the Tribunal makes a determination.

   To our knowledge there have been no negotiations at all between FMG and the Native Title Party in relation to the grant of E47/1319.’

6. On 4 October 2011, in the absence of any advice of a new Address for Service for the native title party, the Tribunal’s Register of Native Title Claims was amended to note the known addresses of each of the living persons comprising the native title party Applicant.

7. On 5 October 2011 a letter attaching all documents and submissions relevant to the s 35 application was sent via registered post to each of the addresses noted for the native title party on the Tribunal’s Register of Native Title Claims. On the same day a copy of the letter was also sent to the Government and grantee parties via email. Between 7 and 19 October 2011, delivery of the letter was confirmed for all living persons comprising the native title party Applicant with the exception of Mr Ned Cheedy.

8. The 5 October 2011 letter drew attention to the directions made on 2 August 2011 and that no contentions or submissions had been lodged on behalf of the native title party by the previous native title party representative, Slater and Gordon Lawyers.  The letter also advised that the Listing Hearing noted in the directions was postponed to 18 October 2011 to allow for adequate time to receive the letter.  It also requested the receiver to provide a telephone number to the Tribunal in order to attend the hearing via telephone if they were unable to attend in person.  No response was received from any of these persons.

9. On 18 October 2011 the listing hearing was held, attended by representatives of the Government party in person, the grantee party in person and Mr Philip Davies on behalf of YAC by telephone. At the hearing, I outlined to Mr Davies the history of the matter, including the fact that the Tribunal had provided s 31(3) mediation assistance in relation to the proposed tenement. That assistance included mediation meetings convened by the President of the Tribunal in locations at Perth and Roebourne on 25 May 2010, 15 June 2010, 21 July 2010, 13 August 2010, 10 September 2010, 21 September 2010, and 5 April 2011. Attendees included members of the native title party claim group, the grantee party and the Government party. I advised Mr Davies that at the time the original directions were made on 2 August 2011 the native title party was still represented by Slater and Gordon who had acknowledged that the preliminary conference was held and that the directions had been made. It was not until 29 September 2011 that the Tribunal was advised that Slater and Gordon lawyers had ceased to act for the native title party. I told Mr Davies that I did not believe YAC had any capacity to represent the native title party in these proceedings. Mr Davies informed the Tribunal that YAC had been appointed as the agent of the native title party in 2008 and that the authorisation had not been revoked by the native title party. I also advised Mr Davies that the Tribunal was aware of internal difficulties within the native title party claim group which had been addressed in the earlier decision relating to the same parties as in this matter, being FMG Pilbara.  Mr Davies indicated that he would take further instructions from the directors of YAC and respond to the Tribunal.  I suggested to Mr Davies that even if it were the case that YAC had been properly appointed as agent for the native title party, the Tribunal could not consider submissions or evidence from that party, unless that evidence was lodged on behalf of all the persons who jointly comprise the Applicant of the native title party’s claim, acting as a whole.

10. On 3 November 2011 the Tribunal received an email from Mr Philip Davies which asserted that, by virtue of a notice filed under Order 78 Sub Rule 42(2) of the Federal Court Rules some time in 2008, YAC was the appointed agent of the applicant in the Federal Court proceedings WAD6005/2003, which is the native title party’s relevant claim application in this matter.  The document is undated save for the reference to 2008, and is signed by eight of the living persons who comprised the Applicant for the native title party.  Mr Davies also advised in the email that he had instructions from the directors of YAC to ‘submit an affidavit on behalf of the Yindjibarndi Aboriginal Corporation (YAC) to establish that the YAC does in fact have standing to be heard on this matter’.  Finally, Mr Davies indicated in the email that he would submit the affidavit by 9 November 2011.  No such affidavit was received.  In any event, in my opinion, the 2008 notice appointing YAC establishes very little that is relevant and was probably overridden by the subsequent notice appointing Slater and Gordon, the now previous solicitors of the native title party.  Notwithstanding that matter, the appointment of an agent does not address the difficulties confronted by the native title party relating to the inability of the persons who comprise the Applicant to act in concert in making submissions to the Tribunal.

Native title party’s opportunity to make submissions (s 31(1)(a))

1. During the course of the listing hearing, the Government party advised the Tribunal it had become aware of the fact that, contrary to its general practice, it had not provided the native title party with its standard letter provided to native title parties in right to negotiate matters, offering them the opportunity to make submissions regarding the future act, which in this case is the proposed tenement E47/1319. The Government party proposed that notwithstanding that departure from normal practice, given that all parties had the opportunity to participate in s 31(3) mediation before the Tribunal, the requirement to provide the opportunity under s 31(1)(a) had been made and the failure to provide its standard letter to the native title party did not in any way impinge the process or deprive the Tribunal of its power to hear the s 35 application. In those circumstances I gave the Government party the opportunity to file written submissions in support of that proposition, and an opportunity for any party to respond to the Government party’s submissions.

2. The Government party’s submissions in relation to s 31(1)(a) were received by the Tribunal on 26 October 2011. No submissions in response were received from the grantee or native title parties. In essence, the Government party proposes that firstly, compliance with s 31(1)(a) is not a jurisdictional prerequisite to the Tribunal’s determinative functions and that secondly, in any event, the Government party has complied with s 31(1)(a) in this matter. On the first issue, the Government party makes a distinction between the implications for a failure to comply with s 31(1)(b) of the Act, by virtue of s 36(2), and the decision of the Full Court in FMG Pilbara Pty Ltd v Cox and Others (2009) 175 FCR 141 (Cox). In that matter it was accepted that if a party raises an issue concerning a failure of either the Government party or grantee party to negotiate in good faith and establishes as much, the Tribunal is deprived of its power to make a determination under s 38. In my view, I do not have to determine whether or not I accept first proposition because I do accept the second proposition advanced by the Government party that they have, in any event, complied with the provisions of s 31(1)(a) in this matter. The Government party submits that the plain words of s 31(1)(a) only require that the Government party provide the native title party with an opportunity to make submissions to it regarding the doing of the future act and does not specify the manner or form in which the opportunity must be provided. I agree with the Government party’s submission that any inquiry as to whether s 31(1)(a) has been complied with must be a factual one that considers all the circumstances of the particular case. Similarly I agree that it would be putting a gloss on the plain words of s 31(1)(a) if it was read into that section that the Government party was required to invite the submissions in writing. In my opinion, in the current matter, the Government party did invite and provide an opportunity for the native title party to express its views and opinions on the proposed tenement via s 31(3) mediation before the Tribunal.

Negotiation in good faith (s 31(1)(b))

1. As has been determined in the past, the question of whether a party (other than the native title party) to a s 35 application before the Tribunal has failed to negotiate in good faith is determinative of the power of the Tribunal to proceed to make a determination (see Cox at [143]). Notwithstanding when the matter is raised, and any consequent inconvenience or expense to the parties, it is incumbent upon the Tribunal to resolve the issue before proceeding to make any determination under s 38 of the NTA (see 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 [2003] NNTTA 82 at [15]). If any party satisfies the Tribunal that any other party (other than the native title party) did not negotiate in good faith, as mentioned in s 31(1)(b) of the NTA, the Tribunal must not make a determination (s 36(2) of the NTA). The practical effect of s 36(2) is to place burden of proof on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on the burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on (Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 at [21]-[28]).

1. On 29 November 2011, the Tribunal wrote to all parties, including each of the living persons noted as the native title party Applicant, with a proposal to impose four extra conditions similar to those imposed on exploration licences E47/1398 and E47/1399 which are located in the vicinity of the proposed tenement and were the subject of FMG Pilbara (at [114] after corrigendum). It was requested that parties lodge any submissions regarding that proposal by 9 December 2011. On 7 December 2011, the Tribunal received a substantial affidavit from Mr Davies, purportedly on behalf of YAC, which did not address the proposal of the four extra conditions. The affidavit attached a number of lengthy documents and addressed a range of other issues including what appeared to amount to a contention that the grantee party had failed to negotiate in good faith.

2. On 9 December 2011, the Government party requested an extension of time in order to address the matters raised in Mr Davies’ affidavit.  The Government and the grantee parties were granted leave until 16 December 2011 in order to reply.  On 16 December 2011, the Tribunal received the Government party’s further contentions, which addressed the Tribunal’s proposal of 29 November 2011, and the contents of the Mr Davies’ affidavit.  On 20 December 2011 the representative for the grantee party advised the Tribunal via telephone that it did not intend to lodge submissions and would rely on the Government party’s.

3. The 7 December 2011 affidavit of Mr Davies deals with a wide range of issues, including that he had been authorised to swear the affidavit on behalf of the Chief Executive Officer and Directors of YAC (para 1.1).  At para 1.3, Mr Davies deposes to the fact that he holds senior management positions inside YAC and associated corporations.  At para 1.6, Mr Davies deposes to the fact that YAC is the registered native title body corporate for the Yindjibarndi Native Title Determination Area.  Throughout para 2, Mr Davies gives a history of the involvement of YAC with the Yindjibarndi Native Title Determination Area, and the native title party’s current application WC03/3, in particular the fact that the native title claim group endorsed YAC unanimously as their agent on 30 January 2008 (para 2.2(d)).  He deposes that consequently, a Form 164 Notice of Appointment of Agent was lodged with the Federal Court, as required by Order 78 Rule 42(1) of the Federal Court Rules, and pursuant to s 84B of the NTA, and was signed by all living persons comprising the native title party Applicant.  In April 2008, Slater and Gordon became the solicitors on the record for the native title party, until they filed a Notice of Ceasing to Act in September 2011 (see para 2.5).  Mr Davies maintains that the native title party’s decision to appoint YAC as an agent has never been rescinded.  At para 3.2, Mr Davies asserts that in previous negotiations the grantee party had recognised YAC as the agent of the native title party.

4. The lengthy paragraphs 3 and 4 of Mr Davies’ affidavit set out in some detail the course of negotiations which have taken place between YAC, the native title party, and the grantee party over the last three to four years.  Much of the information contained in these paragraphs concerning negotiations has been previously raised by the native title party and addressed by the Tribunal in previous decisions involving the same parties (see FMG Pilbara Pty Ltd/Ned Cheedy and Ors OBH Yindjibarndi People/Western Australia [2009] NNTTA 38; FMG Pilbara Pty Ltd/Wintawari Guruma Aboriginal Corporation; FMG Pilbara Pty Ltd/ Wintawari Guruma Aborginal Corporation/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2009] NNTTA 63; FMG Pilbara). At para 4.45, Mr Davies makes reference to some recent disputes between the Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC) and YAC, and some recent newspaper articles concerning the controversy between the Yindjibarndi peoples and FMG. At para 5 of Mr Davies affidavit, he purports to raise the question of good faith in this matter. Mr Davies notes that the grantee party’s application for the proposed tenement was lodged on 16 October 2003, that notice under s 29 of the NTA was not given until 23 April 2008, and that it was part of the broad, unspecified ‘Project’ referred to in each of the grantee party’s drafts for a proposed ‘Whole of Claim Land Access Agreement’ (see para 5.1). At para 5.2, Mr Davies speculates about the grantee party’s motives for lodging the application for the proposed tenement, and not proceeding with it until recently. He also notes that the grantee party has suffered from no loss as a result of the delay in the grant of the proposed tenement. At para 5.3, Mr Davies acknowledges that YAC had received, through its former legal representative Slater and Gordon, a draft agreement specifically in relation to the proposed tenement, but that it had not come to the attention of the YAC directors until after the hearing on 18 October 2011. Mr Davies then states that this delay may be explained by the ‘tactics, employed by FMG over the past 18 months in the Yindjibarndi community’ that ‘YAC simply does not have the resources to keep up with’. Mr Davies concedes ‘[i]t appears this particular draft agreement got lost in the ever growing mountain of paperwork sent to YAC by FMG’. Further, Mr Davies notes that the grantee party had not provided any offer of funding to assist YAC in negotiations over the proposed tenement. At para 5.4, Mr Davies deposes to the fact that the draft agreement in relation to the proposed tenement was an edited version of the standard agreement approved by YAC. He notes, at para 5.5, that one of the major differences between the agreements was that the YAC standard agreement did not allow for s 18 applications under the Aboriginal Heritage Act 1974 (WA) to be made without the prior consent of YAC.  The agreement offered by the grantee party allowed the s 18 application to be made subject only to ‘consultation’ with YAC.  At para 5.6, Mr Davies deposes to the fact that the grantee party had been informed by YAC on many occasions that it will not agree to such provisions, and concludes that the action of forwarding such a proposal to YAC, in the knowledge that it would not be accepted, amounted to a lack of good faith in negotiations.

5. At para 5.7, Mr Davies deposes to the effect ‘[t]he Full Federal Court has said that it is proper for good faith negotiations to proceed on a “broad project” basis, since that approach allows regard of the “big picture” ’. At para 5.8, Mr Davies deposes to the fact that negotiations in relation to the proposed tenement have been conducted primarily on the basis of the proposed broad ‘Project’ agreement. At para 5.9, Mr Davies contends that where a mining company adopts a broad project approach to future act negotiations it should be judged by that approach in subsequent s 35 applications for particular tenements. At para 5.10, Mr Davies deposes to the effect that the Tribunal should take the grantee party’s broad project negotiations into account in determining whether they negotiated in good faith in relation to the proposed tenement. At para 5.11, Mr Davies deposes to the assertion that:

   ‘YAC contends that the actions of FMG, which had been directed towards securing its broad project agreement, with the Yindjibarndi People, demonstrate an absence of good faith in negotiations with YAC.  YAC further contends that, given the now known scope of FMG’s broad project, and FMG’s apparent goal of subordinating the interests of the Yindjibarndi People to the interests of FMG, and third parties, for as long as FMG desires, a precondition to the grant of any further tenements in Yindjibarndi country should be the completion of a comprehensive and independent social impact study, funded by FMG.’

6. The entirety of para 5 of Mr Davies affidavit would probably be inadmissible in a Court, is irrelevant, and in any event is more in the form of a set of contentions than an affidavit.  It relies heavily on hearsay, speculations and submissions of a legal nature (as contended in the Government party’s further contentions at para 15).  In any event, the affidavit does not, in my opinion, raise any specific issue which might relevantly be the subject of a challenge to the good faith negotiations of the grantee party.

7. As indicated in 26 above, the circumstances of negotiations between the grantee party and native title party has been addressed comprehensively in three earlier decisions of the Tribunal involving the same parties.  Further, at the listing hearing on 18 October 2011, Mr Davies failed to indicate that any issue relating to good faith would be raised and in his subsequent letter suggested that an affidavit would be filed by 9 November 2011, and it was only in this affidavit, filed in response to the Tribunal’s proposal to impose the four extra conditions, that the issue was raised.

8. I do not disagree with Mr Davies’ contention in para 5.10 that the Tribunal should take the grantee party’s broad project negotiations into account when determining whether they acted in good faith in respect of the proposed tenement.  That is a principle which I would accept as relevant to the consideration of the question of whether parties have negotiated in good faith, however there is nothing in the following paragraph (5.11), which appears to set out the grounds on which the Tribunal may make a finding of lack of good faith.  In my opinion Mr Davies does not provide any basis of fact for the assertion that the grantee party has failed to negotiate in good faith. 

9. In its further contentions, the Government party firstly contends that ‘negotiation in good faith is not a jurisdictional precondition to the exercise of the Tribunal’s power under section 38 of the NTA: FMG Pilbara Pty Ltd v Cox and Others [2009] 175 FCR 141 at [11]’. Consequently, it contends that ‘the Tribunal has a discretion to refuse to consider an allegation of failure to negotiate in good faith, subject to the Tribunal’s obligations to afford procedural fairness’ (see para 5 of further contentions). It contends that the native title party was afforded procedural fairness by being given the opportunity to raise the matter of good faith prior to 2 August 2011, and that the native title party did not in fact raise the issue until 7 December 2011 (paras 6, 7 and 8). At para 13, the Government party notes that the Tribunal has already addressed the subject matter contained in Mr Davies’ affidavit in relation to the question of good faith, and found that in those circumstances the grantee party had not failed to act in good faith. Finally the Government party contends, at para 14, that in any event the native title party has failed to articulate how it was that the grantee party failed to negotiate in good faith. In general, I accept all these contentions. If however, there appeared to be any arguable basis for the assertion of a failure to negotiate in good faith, the Tribunal would be obliged to decide the issue. In this case I find there has been no arguable basis for such an assertion made out.

10. Secondly, the Government party contends that despite Mr Davies’ explanation at para 2 of his affidavit, there remain ‘serious doubts’ about the ability of YAC to act for the native title party in this matter (para 9).  With reference to [14]-[16] of FMG Pilbara, the Government party notes the Tribunal has already received and considered affidavits from three persons comprising the native title party Applicant who ‘categorically state that they were not consulted by Mr Woodley about his participation in these proceedings, they did not authorise Mr Woodley to participate in these proceedings, and if they had been approached by Mr Woodley in relation to these proceedings they would not, in their capacity, jointly as members of the applicant group, have agreed to such involvement’ (FMG Pilbara at [15]). They submit correctly, in my view, that nothing in Mr Davies’ affidavit advances the argument that YAC has the authority to adduce evidence or make contentions before the Tribunal in this matter. There is nothing in Mr Davies’ affidavit which indicates that the dispute within the native title party as noted in FMG Pilbara at [14]-16] has been addressed or changed.

11. The question of whether YAC remains the agent of the native title party by virtue of the filing of the notice of appointment of agent in the Federal Court in 2008 is problematic.  As has been noted, a subsequent notice appointing Slater and Gordon was lodged.  Mr Davies’ argument appears to be that the appointment of YAC as agent survived the appointment of Slater and Gordon Lawyers and was revived once Slater and Gordon Lawyers ceased to act for the native title party.  I find this argument difficult to accept.  It cannot have been intended that a native title party could simultaneously be represented by an agent and a solicitor, two actors performing the same function.  I have been pointed to nothing in the Federal Court Rules which would suggest that upon the cessation of a firm of solicitors to act for a party, a previously appointed agent can resume their former capacity, without reappointment.  In any event, even if it was accepted that YAC continue to be the agent of the native title party, the Tribunal has actual notice that the principal of that agent, i.e. the persons comprising the Applicant for the native title party, are in dispute with that agent.  The Federal Court has clearly determined that a native title party Applicant must act as a whole in order to be able to give proper instructions to a representative.  A sub group within the Applicant, even if it be a majority, does not have the capacity to make decisions on behalf of the Applicant (Tigan and Others v Western Australia (2010) 188 FCR 533; [2010] FCA 993 per Gilmour J at para 12 and 28 and Roe v Kimberley Land Council [2010] FCA 809 per Gilmour J at para 42). Finally, there is nothing in Mr Davies’ affidavit that the persons who comprise the Applicant (as principal) have provided YAC (the purported agent) with any instructions in relation to the adducing of evidence or the making of contentions in this matter. Even if I considered that the question of whether or not the grantee party negotiated in good faith required further examination, I would not be in a position to accept submissions from YAC because I do not believe that YAC has the authority to raise the matter on behalf of the native title party.

12. Consequently, there is no evidence before me which establishes that Mr Davies or YAC has any authority to act on behalf of the native title party in these proceedings or to produce evidence or contentions on its behalf. In any event, even if authority were established, there doesn’t appear to be anything in the material provided by Mr Davies which could possibly justify a finding of a lack of good faith against the grantee party. Consequently I am empowered to make the determination of the s 35 application pursuant to s 38 of the NTA.

The Inquiry

1. The following submissions were provided in relation to the inquiry:

   ·      Government party’s supporting documents for site, tenure and mapping GVP1 to GVP7 lodged 16 August 2011;

   ·      Government party’s statement of contentions and supporting documents GVP8 to GVP11 lodged 28 September 2011;

   ·      Grantee party’s statement of contentions lodged 28 September 2011; and

   ·      Paragraph 6 and annexure M of the affidavit of Philip James Davies sworn 7 December 2011 entitled ‘Evidence in respect of the Grant’

Native title party submissions

1. In para 6 of his affidavit, Mr Davies makes reference to a trip ‘through the area of the proposed E47/1319’ with a number of senior Yindjibarndi men, including Mr Woodley and Mr Jacobs, who are persons comprising the native title party Applicant group.  Mr Davies deposes to the fact that ‘the visit was brief’ and the men identified sites in the area including ‘Yamararra (caves and rock shelters)’ and ‘ochre quarries (Yarna)’ in the area the subject of the proposed tenement.  Mr Davies attaches, at Annexure M, a map which purportedly shows ‘seven distinct areas of significance’ within the proposed tenement.  The map is a colour map of the proposed tenement which shows seven distinct areas, marked with cross hatching, which comprise approximately 50 per cent of the proposed tenement and are largely located in the northern and eastern portions.  Areas 1 and 4 are contained in the north eastern and north western corners of the proposed tenement respectively, and are separated from the other areas.  Areas 2 and 3 are contiguous in the northern part of the proposed tenement area, as are Areas 5, 6 and 7, in the south eastern part of the proposed tenement area.  At para 6.2, Mr Davies deposes to the fact that the Yindjibarndi men who travelled with him are accepted and respected within the Yindjibarndi community of senior lawmen, and that they have advised that in light of recent cultural disputes, that all evidence in relation to those seven particular areas should be the subject of evidence on country rather than affidavit evidence, and consequently Mr Davies requested, on behalf of the YAC Directors, a hearing on country for that purpose.

2. In relation to the request for an on country hearing, such a request must be denied as there is no evidence before me which establishes that Mr Davies or YAC has any authority to act on behalf of the native title party in these proceedings.  In any event, I note that the evidence relating to the seven distinct areas is very general.  No evidence has been provided by any person within the native title party Applicant or claim group as to the specific nature of the evidence which they would seek to give on country.  Given the lateness of the request, the generality of the evidence before me, and the opposition of the Government party, I do not consider that it would be appropriate to hold an on country hearing of this juncture, even if it were established that Mr Davies or YAC had the authority to make such a request.

3. The Tribunal has previously been confronted with the difficult situation of having to make a decision in the absence of any material being provided by a native title party in a closely related area (FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Gurama Aboriginal Corporation/Western Australia [2009] NNTTA 69)(Flinders Mines). In that matter, the Tribunal noted the difficulties in applying the criteria set out in s 39 to determine whether the act may or may not be done or what conditions, if any, should be imposed, in the absence of any input from the native title party ( at [52]). However, in that matter the native title party chose not to participate in the proceedings, whereas in this matter there are divisions within the native title party which prevent them from being in a position to file evidence or contentions which could be accepted by the Tribunal. The Tribunal has considered closely related s 35 applications within the vicinity of the proposed tenement, notably FMG Pilbara Pty Ltd/Ned Cheedy and Ors OBH Yindjibarndi People/Western Australia [2009] NNTTA 91 (Ned Cheedy) and FMG Pilbara, where extensive evidence was adduced by the native title party.  However, as can be seen from the latter of those two decisions, the conflicting evidence submitted by a number of the persons who comprise the native title party Applicant, as well as senior members of the native title claim group, led the Tribunal to the conclusion that the evidence of the significance of the area could not be accepted (see [85]-[86], [90]-[91], [112] of FMG Pilbara).  That evidence, had it been accepted, may have been of general relevance to the decision in this inquiry, however, given the circumstances, I am unable to rely upon it in reaching my conclusions in this matter.

Government party submissions

1. Government party documentation establishes the underlying tenure of the proposed tenement to be unallocated crown land.  There are no Aboriginal communities or Aboriginal Heritage Act 1972 (WA) (AHA) registered sites or heritage places identified within or in the near vicinity of the proposed tenement. The area was subject to five Temporary Reserves held at various times between 1960 and 1988 for periods ranging from 16 months to 9 years. In particular, the Government party provided information concerning TR70/1807, held for 16 months between 1960 and 1961 which overlapped 100 per cent of the proposed tenement and entitled the holder to a right of occupancy. The Government party asserts in its contentions that ‘[a]ny native title rights to manage and control the area of the tenement have been extinguished by the prior grant of temporary reserves under section 276 of the Mining Act 1904 (WA) (repealed) prior to the enactment of the Racial Discrimination Act 1975 (Cth)’ (para 34, citing Neowarra v Western Australia [2003] FCA 1402 at [607] in support of its contention). There is no evidence of any previous or current mining activity other than two active exploration licences, E47/475 and E47/585, granted in 1988 and 1991 to Hammersely Exploration Pty Ltd and overlapping at 16 and 4.5 per cent.

2. The Mining Act entitles the grantee party to exercise the rights set out in s 66 subject to the covenants and conditions referred to in ss 24, 24A and 25.

3. The Government party proposes the following endorsements and conditions on the grant of the proposed tenement:

   Endorsements

   1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

   2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

   3.Pursuant to the Savings and Tansitional Provisions of the Mining Amendment Acts 1990 and 1994 all land surrendered, forfeited (other than by plaint action) or expiring from a non-graticular exploration licence will either:

   ·Automatically be included into a graticular exploration licence, provided the surrender, forfeiture or expiry occurred after the grant of the graticular exploration licence;

   ·Automatically be included into an application for a graticular exploration licence provided the surrender, forfeiture or expiry occurred after 14 October 1995.

   4.The grant of this licence does not include the land subject of prior Exploration Licence 47/585. If the prior licence expires, is surrendered of forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 title “Transitional provisions relating to Geocentric Datum of Australia”.

   5.The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.

   Conditions

   1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.

   2.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.

   3.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.

   4.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. 

   5.No interference with Geodetic Survey Station SSM – JM 51 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

4. On 28 September 2011 the Government party filed an extensive statement of contentions in relation to s 39 criteria to which I will reference when addressing each of the s 39 criteria below.

Grantee party submissions

1. In its statement of contentions dated 28 September 2011 the grantee party states it ‘adopts the contentions of the Government party’ and that ‘[t]he Tribunal should determine that the act may be done’.

Interpretation of ss 38 and 39 of the Act

Legal principles

1. I rely on the principles enunciated in the following Tribunal future act determinations:

   ·Western Australia v Thomas and Others (1996) 133 FLR 124; [1996] NNTTA 30 (Waljen);

   ·WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 372 (WMC/Evans);

   ·Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; (2009) 2 ARLR 214; [2009] NNTTA 49;

   ·Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690 (Cheedy v Western Australia); and

   ·I also rely on the principles set out in Flinders Mines.

2. 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.’

1. The making of a determination involves the exercising of discretionary power 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 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.’

2. 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.

3. 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 these are peculiarly within their knowledge (Waljen at 154-163; Ward and Others v State of Western Australia and Another (1996) 69 FCR 208; (1996) 136 ALR 557; [196] FCA 1452 at 215-218). This approach has been endorsed by the Land and Resources Tribunal, Queensland (Doxford & Ors, Re [2003] QLRT 58 at [7]-[12]).

Findings on the Section 39 criteria

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

1. The extract from the Register of Native Title Claims in relation to the Yindjibarndi #1 Claim, WAD6005/03 (WC03/3), sets out three areas where native title rights and interests have been registered: area A (where a claim for exclusive possession can be sustained), area B (where a claim for exclusive possession cannot be sustained), and area C (where a claim to exclusive possession cannot be sustained over land and waters which are ‘nature reserves’ or ‘wildlife sanctuaries’, as those terms defined in the Wildlife Conservation Act 1950 (WA) created before 31 October 1975). The difference between these sets of rights appears to be that area A includes 60 listed rights, areas B and C, 59 listed rights. Area A includes a different ‘right number one’, which is expressed as ‘the right to possess, occupy, use and enjoy the area as against the world’. Areas B and C do not contain this right, but otherwise the rights in all three are identical. Given the prior existence of Temporary Reserves which, according to the Government party’s documentation, entitled at least one holder to a right of occupancy, it appears that the proposed tenement falls within area B.

2. The Government party, at paragraph 23 of its contentions, submits that ‘unless and until the Tribunal receives evidence [from the native title party] of the effects of the act on the factors identified in section 39(1)(a) it must conclude that there will be no effects’. I agree with this contention.

3. Whilst the native title party has not provided the Tribunal with any evidence or contentions as to the impact of the grant of the proposed tenement upon its registered native title rights and interests, I do note that the underlying tenure of the proposed tenement is unallocated Crown land.  Historically there appears to be no previous tenure, mining or pastoral activity that would have impacted on the native title party’s enjoyment of the proposed tenement area in any more than an insubstantial or temporary way.  I do, however, note that the proposed tenement is an exploration licence, not a mining lease, and the Tribunal has found on numerous occasions that, given the intermittent nature of exploration activities which generally occur over small areas or short periods of time, the interference with the exercise of registered native title rights and interests is only temporary.  Should a viable resource be identified, the grantee party will need to pursue the grant of a mining lease over some part of the proposed tenement, and that will trigger the full right to negotiate provisions of the NTA.

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

Section 39(1)(a)(iii) – effect of the tenements on the development of social, cultural and economic structures of the native title party

Section 39(1)(a)(iv) – freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance

1. The Government party contends that in the absence of any evidence provided by the native title party, the Tribunal should conclude that the grant of the proposed tenement will have little or no effect on the above (paras 35-40). With reference to my findings at Section 39(1)(a)(i), I cannot conclude that there will be a significant impact on the above, particularly given the extra conditions I will impose.

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

Section 39(1)(b) – effect on interests, proposals, opinions and wishes

1. As noted in 36 above, the evidence provided by Mr Davies’ at para 6 of his affidavit, of ‘seven distinct areas of significance’ within the proposed tenement is of too general a nature to be taken into account, even if it were established that Mr Davies or YAC had the authority to lodge such evidence and that the Tribunal could therefore accept it.  Nor can the evidence noted in FMG Pilbara (at [85]-[86], [90]-[91], [112]), which may have been of assistance in this matter be accepted.

2. The Government party submits that it is ‘entirely appropriate’ for the Tribunal to take into account the AHA regime ‘and other government measures’ (para 43) when considering the effect of the grant of the proposed tenement on areas or sites of particular significance, citing Cheedy v Western Australia at [145].  In relation to the native title party’s interests, proposals or wishes, the Government party contends that its regulatory regime makes it likely that the native title party will continue to be able to access and use the area of the proposed tenement upon grant (para 45).  In both of the matters referred to in 26 above, being Ned Cheedy and FMG Pilbara, the latter of those two matters is of particular significance because the Government party agreed to impose additional conditions beyond those referred to in its contentions in relation to two exploration licences which were the subject of that determination application.  Those extra conditions were as follows:

   i. Any right of the native title party (as defined in ss 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the exploration licence 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 and security reasons relating to those activities.

   ii. If the grantee party gives a notice to the Aboriginal Culture Material Committee, under s 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 data), on the native title parties.

   iii.     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.

   iv.     Upon assignment of the mining lease, the assignees shall be bound by these conditions.

3. While the Government has not currently proposed that it would impose those conditions, it is open to the Tribunal to determine the conditions upon which the proposed tenement should be granted, if it is of the view that that should be the case.  In circumstances where exploration licences in the vicinity of this area have been granted on those conditions, it seems to me that, as a matter of consistency, similar conditions should be applied in this case.  In any event, I do not believe that the imposition of such conditions is either onerous or unwarranted from the perspective of the Government party or the grantee party.  I do, however, note that condition IV makes reference to a mining lease rather than an exploration licence.

Section 39(1)(c) - economics and other significance

1. The Government party contends that the grant of the proposed tenement will be of economic benefit to the State which ‘will include investment in minerals exploration which may lead, or contribute to, a viable mining project ... [and] will also improve the State’s knowledge of the nature and extent of mineral fields’ (para 46).  I accept that contention.

Section 39(1)(e) – public interest

1. The Government party cites WMC/Evans at [215] and Australian Manganese Pty Ltd v State of Western Australia (2008) 218 FLR 387 at [59], as authorities to contend that the public interest is served ‘due to the economic benefits that will accrue at a local and State level’ (para 47). I adopt the findings of the Tribunal in Waljen at [215]-[216] on matters relating to public interest: the Tribunal accepts that the mining industry is of considerable economic significance to Western Australia and Australia and I conclude that the public interest is served by the grant of the proposed tenement.

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

1. The Government party submits that the effect of the grant of the proposed tenement on the environment may be a relevant factor, and cites WMC/Evans at [81]. It submits that any impact on the environment will be regulated and minimised by the effect of the Mining Act and mining regulations, in particular s 63 of the Mining Act, by the extra conditions and endorsements proposed, and the State and Federal regulatory regime with respect to environmental protection and the protection of Aboriginal heritage.  In relation to this matter I adopt the findings of Waljen at [212]-[214] relating to the effect of the proposed acts on the natural environment, and to Minister for Mines (WA) v Evans on behalf of the Koara People & Sons of Gwalia Ltd (1998) 163 FLR 274 at [53]-[62] regarding the provisions of the Environmental Protection Act 1986 (WA).

Section 39(2) criteria – existing non-native title rights and interests and use of the land

1. As noted previously, the area of the proposed tenement is unallocated Crown land. Other than two underlying exploration licences overlapping at 16 and 4.5 per cent, which pursuant to s 238 are subject to the non extinguishment principal, there are no other non native title rights and interests in the area subject to the proposed tenement.

Conclusion

1. The task of the Tribunal in an inquiry such as this is to thoroughly analyse the evidence and submissions before it in relation to the criteria set out in s 39 of the NTA. The Tribunal may also refer to evidence in any other proceedings before the Tribunal (s 146). The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms, or the rules of evidence (s 109(3) of the NTA). It must also be fair, just, economical, informal and prompt (s 109(1) of the NTA), and it may take into account the cultural and customary concerns of Aboriginal Torres Strait Islanders, but not so as to prejudice unduly any party to the proceedings (s 109(2) of the NTA). In this matter, no evidence has been presented by members of the native title party, and, as noted, even if it were presented, there would be difficulties in accepting that evidence given the Tribunal’s knowledge of the dissent amongst the native title party Applicant and claim group.

2. As noted above, on 29 November 2011, submissions from the parties were sought regarding the imposition of four extra conditions similar to those which had been proposed in relation to E47/1398 and E47/1399 in FMG Pilbara ([113]-[114]).  The Tribunal receievd no submissions from the grantee party and an affidavit from Mr Davies on behalf of YAC which did not address the issue.  In its further contentions, the Government party indicates its opposition to the four extra conditions on the basis, as a matter of general principle, that the Tribunal should only impose conditions if they are justified by cogent and relative evidence, and they contend no such evidence was provided by the native title party in this case (see para 19).  At para 20, the State explicitly suggests that it is not material that these conditions have been provided for in related proceedings, on the basis that in those proceedings there was a different evidentiary basis and it cannot be assumed that the same facts are applicable.  I do not accept the Government’s contentions.

3. In this matter, I have come to the view that it is appropriate to impose the four extra conditions which were imposed by the Tribunal on the grant of E47/1398 and E47/1399 in FMG Pilbara, with the same modifications made in that matter.  I do this for a number of reasons, many of which are the same reasons noted in FMG Pilbara (at [113]). The extra conditions will assist the native title party in ensuring that any important sites or areas within the proposed tenement are protected. The first extra condition makes it clear that the native title party may access and use the land the subject of the proposed tenement without restriction, except in circumstances where mining or exploration operations, safety or security require their exclusion. The second extra condition requires the grantee party to give notice of any proposed application under s 18 of the AHA, including the provision of all information that it intends to submit to the Aboriginal Cultural and Materials Committee, except sensitive commercial data, to the native title party. The third extra condition requires the grantee party to provide to the native title party with any plans or proposals relating to development, productive mining or construction activity in relation to those proposed activities, including material relevant to access routes, to the native title party at the time it presents it to the Director of Environment at the Department of Mines and Petroleum. The fourth extra condition binds any successor entitled to the proposed tenement to all the conditions imposed. The imposition of these extra conditions will provide substantial additional protection for the native title party in circumstances which will enable them, as far as is possible, to continue their activities, if any, on the land the subject of the proposed tenement, protect any sites or areas of significance and allow them to participate in further discussions as to how productive mining is to be progressed on the area the subject of the proposed tenement.

Determination

1. The determination of the Tribunal is that the act, being the grant of exploration licence E47/1319 to Fortescue Metals Group Ltd may be done subject to the conditions and endorsements proposed by the Government party in [42] above, and the following extra conditions as imposed on the grant of E47/1398 and E47/1399 in FMG Pilbara ([114] after corrigendum) being:

   i.Any right of the native title party (as defined in ss 29 and 30 of the Native Title Act 1993 (Cth)) to access or use the land the subject of the exploration licence 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 and security reasons relating to those activities.

   ii.If the grantee party gives a notice to the Aboriginal Culture Material Committee, under s 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 data), on the native title parties.

   iii.Where, prior to commencing any development or productive mining or construction activity, the grantee party submits a plan of proposed operations and measures to safeguard the environment or any addendums thereafter to the Director of Environment at the Department of Mines and Petroleum for their 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.

   iv.Upon assignment of the exploration licence, the assignees shall be bound by these conditions.

Daniel O’Dea
Member
7 February 2012