FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia
[2011] NNTTA 107
•17 June 2011
NATIONAL NATIVE TITLE TRIBUNAL
FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2011] NNTTA 107 (17 June 2011)
Application No: WF10/19
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
FMG Pilbara Pty Ltd (grantee party/applicant)
- and -
Ned Cheedy and Others on behalf of the Yindjibarndi People WC03/3 (Yindjibarndi native title party)
-and-
Maitland Parker and Others on behalf of the Martu Idja Banyjima People WC98/62 (Martu Idja Banyjima native title party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 9 July 2011
CORRIGENDUM
REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CODUCT AN INQUIRY
Background
The determination of the Tribunal in this matter was made on 17 June 2011. At [114], the Tribunal determined that E47/1398 and E47/1399 may be granted subject to, inter alia, the extra conditions which had been proposed by the State (see paragraph 44). The third of those conditions read as follows:
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.
The Tribunal further determined that M47/1431 may be done subject to conditions proposed by the State including inter alia, the extra conditions, which had been proposed by the State. The third of those conditions read as follows:
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 safe guard the environment or any addendums thereafter to the Director of Environment at the Department of Mines and Petroleum for his assessment and written approval; the grantee party must at the same time give to the native title party a copy of the proposal or addendums, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
On 1 July 2011 a solicitor from the State Solicitor’s Office wrote to the Tribunal indicating that there was a difficulty with the condition imposed in [114] in that the ‘State Mining Engineer’ no longer existed. Consequently the condition imposed for the benefit of the native title party might not be able to take proper or full effect. The letter of the State Solicitor’s Office accepted that the discrepancy in the wording between that contained in 114(iii) and 115(iii) arose as a result of an oversight by the Government party in providing the wording to the Tribunal. The State suggests the determination of the Tribunal be amended to delete the condition at 114(iii) and replace it with a condition identical to that at 115(iii). The State maintains that the change of wording would not affect the substance of that condition (4). On 1 July 2011, in response to the letter received from the State Solicitor’s Office, the Tribunal sought the views of the native title party and grantee party requesting them to provide their views on whether it was appropriate to amend the condition as proposed by the State by 4 July. On 7 July the grantee party wrote to the Tribunal indicated that it agreed to the proposed correction requested by the Government party. Despite repeated attempts to elicit a response from the native title party, no response has been received. In my opinion, the proposed correction does not alter the substance of the condition, remove any doubt that the condition will operate to the benefit of the native title party and can be simply achieved by substituting paragraph 115(iii) for 114(iii).
Decision
The decision in application WF10/19 made by the Tribunal on 17 June 2011 and cited as FMG Pilbara Pty Ltd/Ned Cheedy and Ors on behalf of the Yindjibarndi People/Western Australia [2011] NNTTA 107 be amended so that the extra condition referred to in paragraph 114(iii) is deleted and replace with a condition identical to that at paragraph 115(iii)
Daniel O’Dea
Member
11 July 2011
NATIONAL NATIVE TITLE TRIBUNAL
FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2011] NNTTA 107 (17 June 2011)
Application No: WF10/19
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
FMG Pilbara Pty Ltd (grantee party/applicant)
- and -
Ned Cheedy and Others on behalf of the Yindjibarndi People WC03/3 (Yindjibarndi native title party)
-and-
Maitland Parker and Others on behalf of the Martu Idja Banyjima People WC98/62 (Martu Idja Banyjima native title party)
- and -
The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 17 June 2011
Catchwords: Native title – future acts – application for determination for the grant of a mining lease –applications for determination for the grant of exploration licences – negotiation in good faith – authorisation of the native title party – length of negotiation period – conduct subsequent to bringing of determination application – grantee party negotiated in good faith – 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 acts may be done subject to conditions.
Legislation:Native Title Act 1993 (Cth) ss 29, 30, 31, 35, 36, 38, 39, 62, 66, 109, 238, 253
Mining Act 1978 (WA) ss 63, 82, 84, 85
Aboriginal Heritage Act 1972 (WA) s 18
Environmental Protection Act 1986 (WA)
Wildlife Conservation Act 1950 (WA)
Cases:Ankamuthi People v State of Queensland (2002) 121 FCR 68; [2002] FCA 897
Australian Manganese Pty Ltd v State of Western Australia (2008) 218 FLR 387; [2008] NNTTA 38
Butchulla People v State of Queensland (2006) 154 FCR 233; [2006] FCA 1063
Cheedy obh Yindjibarndi People v State of Western Australia [2010] FCA 690
Cheinmora v Striker Resources NL and Others (1996) 142 ALR 21; [1996] FCA 1147
Daniel v State of Western Australia [2003] FCA 666
Doxford, Re [2003] QLRT 58
FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 38
FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aboriginal Corporation/Western Australia [2009] NNTTA 69
FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia [2009] NNTTA 91
FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; (2009) 255 ALR 229; [2009] FCAFC 49
Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corp (2005) 196 FLR 52; [2005] NNTTA 88
Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation (NSW) [2003] FCA 981
Minister for Mines (WA) v Evans on behalf of the Koara People & Sons of Gwalia Ltd (1998) 163 FLR 274
Mt Gingee Munjie Resources Pty Ltd v State of Victoria (2003) 182 FLR 375; [2003] NNTTA 125
Ned Cheedy and Others on behalf of Yindjibarndi People 1/FMG Pilbara Pty Ltd/Western Australia [2011] NNTTA 30
Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87
Roe v Kimberley Land Council Aboriginal Corp [2010] FCA 809
Tigan v State of 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 Taylor and Another (1996) 134 FLR 211; [1996] NNTTA 34
Western Australia v Daniel (2002) 172 FLR 168; [2002] NNTTA 230
Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30
Western Australia v Ward (2000) 99 FCR 316; (2000) 170 ALR 159; [2000] FCA 191
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 dates: n/a
Representatives for
the Yindjibarndi Mr George Irving, John Toohey Chambers
native title party: Mr Simon Millman/Ms Kate House, Slater and Gordon
Representatives for Mr Ken Green, Green Legal Pty Ltd
the grantee party: Mr Sukhpal Singh, FMG Pilbara Pty Ltd
Representatives for Mr Matthew Pudovskis and Simon Taylor, State Solicitor’s Office
the Government party: Ms Paola O’Neill, Department of Mines and Petroleum
REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CODUCT AN INQUIRY
Background
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 and exploration licences (‘the proposed tenements’) under the Mining Act 1978 (WA) to FMG Pilbara Pty Ltd (‘the grantee party’):
· 12 January 2005 – E47/1398 comprising 222.07 square kilometres located 63 kilometres south west of Marble Bar in the Shire of Ashburton;
· 18 January 2006 – E47/1399 comprising 215.65 square kilometres located 22 kilometres north west of Wittenoom in the Shire of Ashburton; and
· 26 August 2009 – M47/1431 comprising 2964.66 hectares located 45 kilometres west of Wittenoom in the Shire of Ashburton.
E47/1398 is 100% within the Yindjibarndi #1 claim (WC03/3, registered from 8 August 2003). E47/1399 is 71.2% within the Martu Idja Banyjima claim (WC98/62, registered from 29 September 1998) (‘the MIB claim’) and 28.8% within Yindjibarndi #1. M47/1431 is 100% within the Yindjibarndi #1 claim.
MIB apparently reached an agreement with the grantee party in relation to E47/1399 and did not participate in these proceedings.
A reference to the native title party in these proceedings is a reference to the registered native title claimant for the Yindjibarndi #1 claim group.
The future act determination application was made pursuant to s 35 by the grantee party on 25 August 2010, a point in time at least six months after the notification date (s 35(1)(a) of the NTA).
On 27 August 2010, Deputy President Sumner appointed me as the Member to constitute the Tribunal for the purpose of conducting the future act determination inquiry. The original directions in this matter were set by me on 10 September 2010. Those directions accommodated the fact that the native title party contended that the grantee party and Government party had failed to negotiate in good faith with it as required by s 31 of the Native Title Act.
The protracted process of compliance with those initial directions, as extensively amended, is set out in a decision that I made in relation to some of the later amendments to the directions in Ned Cheedy and Others on behalf of Yindjibarndi People 1/FMG Pilbara Pty Ltd/Western Australia [2011] NNTTA 30 (1 March 2011) (‘Cheedy 2011’), and I do not intend to repeat that history in this decision. Those reasons related to orders which were made by me on 11 February 2011. Subsequent to that, there was a further amendment sought by the grantee party in order that it might be in a position to file properly sworn affidavits, filed on behalf of the grantee party, sworn by some of the persons who formed the Yindjibarndi #1 applicant group and members of the claim group. Neither the Government party nor the native title party objected to the short extension of four days sought by the grantee party, and upon the receipt of those documents, a listing hearing was called by the Tribunal for 11 March 2010. By that stage, all the material, including the affidavits, had been provided to the Tribunal and served on the other parties. At the directions hearing, in response to my enquiry as to whether any party sought an on country hearing or to cross examine any of the witnesses that had provided evidence to the Tribunal, I was advised by the solicitor for the native title party, Ms Katharine Estelle House, that she was content for the matter to be determined on the papers, and the representatives of the other parties concurred in that view. Consequently, I determined that the matter would be determined on the papers.
On 18 March 2011, the Tribunal received an email from Mr Simon Millman, a solicitor with Slater and Gordon, the solicitors for the native title party, indicating that the position adopted by the native title party at the Tribunal, to the effect that the matter could be determined on the papers was, in fact, not correct. Mr Millman stated that he would be filing an application urgently seeking to list this matter for further directions where the native title party would seek leave to file further affidavit material and ‘to have the matter proceed to hearing, so that the deponents of the affidavits filed by the Grantee Party can be cross examined, prior to determination’. Subsequently, an affidavit of Ms Katharine Estelle House was filed, supporting an application for relisting of the matter. In that affidavit Ms House deposed to the fact that she had forwarded the material that had been served on Slater and Gordon on 4 March to Mr Irving of counsel on 9 March. On 11 March she had spoken to Mr Irving by phone seeking his advice on how to proceed. Mr Irving provided instructions to proceed on the papers unless the grantee party sought to cross examine Mr Woodley. According to Ms House’s affidavit, Mr Irving at that stage had been unaware of the existence of the additional affidavits and had given his advice while unaware. Apparently Mr Irving contacted Ms House on Monday 14 March and indicated that, in light of the affidavits that had been filed by the grantee party, responsive affidavits should be filed. Subsequently, the listing hearing was relisted for 24 March. The grantee party and the Government party opposed any extension of time or alteration to the existing orders. At the listing hearing, the native title party did not seek a hearing on country or a right to cross examine any of the members of the native title party claimant group who had filed affidavits on behalf of the grantee party, but they did initially seek the right to file responsive affidavits. After some argument between the parties, the native title party withdrew that request and reasserted its position of 11 March that it agreed to the matter being dealt with on the papers with the existing material. Consequently, I again agreed to determine that matter on the papers.
As is noted in Cheedy 2011, the native title party withdrew its assertion of a failure to negotiate in good faith against the Government and grantee parties on 18 November 2010. This was after all parties had filed contentions, but before the native title party had filed contentions in response. In early January 2011, the native title party sought to again raise the issue of the failure of the grantee party to negotiate in good faith, on the basis that it had become aware of information it did not previously possess, which materially changed its view of the alleged behaviour of the grantee party. As has been determined in the past, the question of whether a party to a s 35 proceeding before the Tribunal has failed to negotiate in good faith, other than the native title party, is critical to the power of the Tribunal to proceed to make a determination (see FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; (2009) 255 ALR 229; [2009] FCAFC 49 (‘Cox’) at [143]). Notwithstanding the fact that the matter has been raised for a second time after being abandoned, and the consequent inconvenience and expense to the parties, it is incumbent upon the Tribunal to resolve the issue before proceeding to make any determination under s 35 (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 per Hon CJ Sumner at [15]). When the native title party’s second statement of contentions in relation to good faith was filed on 28 January 2011, they included the statement to the effect that the native title party did not seek to rely on its previous contentions regarding good faith nor, except in respect of parts expressly identified, did it seek to rely on the affidavit of Michael Woodley, sworn on 16 October 2010 (native title party contentions at para 1.5). Significantly, the native title party stated (at para 1.1 of its contentions) that its contentions were filed on behalf of four of the seven people who jointly comprise the applicant in the Yindjibarndi #1 claim, the native title party in this matter. The grantee party did continue to rely on the documents that it had filed in relation to the first assertion of the failure to negotiate in good faith, as well as the documents it filed subsequently in relation to the second such assertion.
THE GOOD FAITH ISSUE
For the sake of clarity I set out below the documents that I had before me when making the determination in relation to the question of good faith:
· Native title party’s statement of contentions in relation to good faith negotiations, undated, filed on 28 January 2011, including attachments;
· Affidavit of Michael Woodley sworn on 17 January 2011;
· Affidavit of Michael Woodley sworn on 4 February 2011;
· Affidavit of Michael Woodley sworn on 16 October 2010, to the extent that it is referred to in the native title party’s contentions of 28 January 2011;
· Grantee party’s statement of contentions for good faith hearing dated 2 November 2010;
· Grantee party’s list of documents dated 2 November 2010;
· Grantee party’s statement of facts dated 2 November 2010;
· A DVD containing a large image of each document contained in the grantee party’s list;
· Grantee party’s second statement of contentions for good faith hearing dated 4 February 2011;
· Government party’s statement of contentions regarding the negotiation in good faith of the grantee party dated 28 October 2010; and
· Affidavit of Paola O’Neill sworn 28 October 2010.
I have also had reference to the affidavits of Aileen Sandy, Sylvia Allan, and Mavis Pat, all affirmed on 28 February 2011, in relation to the question of the native title party’s authorisation to raise the issue of the grantee party’s failure to negotiate in good faith.
I adopt the relevant legal principles from Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corp (2005) 196 FLR 52; [2005] NNTTA 88 (at [55]-[60]) (‘Gulliver Productions’), for the purposes of this enquiry, unless in conflict with the full Federal Court decision in Cox (see also Mt Gingee Munjie Resources Pty Ltd v State of Victoria (2003) 182 FLR 375; [2003] NNTTA 125 (‘Mt Gingee Munjie’), and Western Australia v Taylor and Another (1996) 134 FLR 211; [1996] NNTTA 34 (‘Taylor’)).
Having examined the documents filed by the parties in relation to the question of good faith, I have identified the four core issues which need to be addressed:
a)The capacity of the native title party to assert that the grantee party has failed to negotiate in good faith;
b)The question of whether the grantee party brought the s 35 application in relation to M47/1431 before the expiry of the requisite six month period;
c)Whether the grantee party commenced negotiations with persons other than the registered native title claimants for the native title claimant group, and that such actions amounted to a failure to negotiate in good faith; and
d)Whether the grantee party encouraged dissent within the claimant group in a manner which constituted a failure to negotiate in good faith.
The negotiation parties, under the right to negotiate provisions, are the Government party, the grantee party and the native title party (see s 30A of the NTA). If any negotiation party satisfies the Tribunal that any other negotiation 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 an evidentiary burden 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]).
AUTHORISATION
As noted above at [9], contentions were filed on behalf of four of the seven people who jointly comprise the applicant in the Yindjibarndi #1 claim. It is those seven people who comprise the native title party in this matter. Therefore, there is an issue which goes to the question of how I should determine this challenge to the question of good faith, and that relates to the capacity of the native title party in these circumstances to mount such a challenge. Section 30A states that the parties to a future act negotiation or determination pursuant to Part 2 Division 3, Subdivision P, are the Government party, the native title party and the grantee party. Pursuant to the definition of native title party in s 253 of the NTA, the words native title party has the meaning given by ss 29(2)(a) and (b), and 30. Relevantly in this claim, where a determination of native title has not been made, and where a registered native title claim exists, the native title party, pursuant to s 29(2)(b)(i) is any registered native title claimant. The note to that section states:
‘Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimants in section 253.’
Section 253 defines a registered native title claimant as:
‘...a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the lands or waters.’
Again, s 253 states that the applicant has the meaning given to it by s 61(2). Subsection 61(2) states that:
‘(2) In the case of:
(a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or
(b) a compensation application made by a person or persons authorised to make the application by a compensation claim group;
the following apply:
(c) the person is, or the persons are jointly, the applicant; and
(d) none of the other members of the native title claim group or compensation claim group is the applicant.’
In Roe v Kimberley Land Council Aboriginal Corp [2010] FCA 809 (‘Roe’), Gilmour J stated (at [42]) that:
‘… it is only the applicant in the GJJ native title claim, Mr Roe and Mr Shaw acting jointly, who was standing to sue the KLC on behalf of the GJJ native title claim group.’
In that case, Gilmour J referred to the decision of Drummond J in Ankamuthi People v State of Queensland (2002) 121 FCR 68; [2002] FCA 897, and quotes [7] and [8] thereof to the following effect:
‘[7] The provisions of that Act are clear. Section 61 makes provision for, among other things, a person authorised by all members of the native title claim group to bring an application for determination of native title on behalf of the claim group. Such a proceeding is obviously a representative proceeding. By s 61(2), it is provided that where a person authorised by a claim group to bring an application of native title on behalf of the group makes such an application, that person is the applicant and none of the other members of the claim group is the applicant.
[8] It is clear enough from that provision that it is only the named applicant who has control of the litigation instituted by the filing the application for a determination of native title on behalf of the claim group. The other members of the group, so far as the Court is concerned and so long as the applicant remains the applicant in these proceedings, have no authority to take any step in the proceedings. That follows, by implication from s 61(2), from identifying the person who makes the application as the applicant and declaring that no other member of the claim group is the applicant. But if more were needed, it is to be found in s 62A, which explicitly states that to be the position.’
Gilmour J also quoted with approval from the judgment by Stone J in Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation (NSW) [2003] FCA 981 (at [8]), where she said:
‘The history of the Pooncarie Barkandji (Paakantyi) People #8 shows that there have been persistent problems in the relations between Dorothy and Philip Lawson and other applicants. In the proceedings presently under consideration there have been attempts to have the applicants separately represented; that is to have Mr Dengate represent the Lawsons with the other applicants represented by someone else. These attempts reveal a fundamental misunderstanding of the role, of applicants in native title determination applications. Such applicants are representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation is inappropriate and unacceptable.’
Gilmour J quoted Kiefel J in Butchulla People v State of Queensland (2006) 154 FCR 233; [2006] FCA 1063 (at [38]) to the effect that:
‘The evident purposes of s 61 are to provide for representation of the claim group, to limit the number of persons who act as ‘the applicant’ in the proceedings and when, more than one person is authorised, to require them to act in concert with each other. It may be assumed that since the persons authorised have a common interest in the subject matter of the claim acting jointly should not present a difficulty. Regrettably this is not always the case. In any event the section seeks a workable and efficient method of prosecuting claims for native title determination, one which limits the potential for dispute which might stifle the progress of claims.’
In Tigan v State of Western Australia (2010) 188 FCR 533; [2010] FCA 993 (‘Tigan’), Gilmour J (at [11]) specifically rejected a submission from the second respondent to the effect that:
‘... while the applicant is, relevantly, pursuant to s 61(1) the persons, jointly, who are authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, there is no requirement that the persons who jointly are the Applicant must be unanimous in order for them to make a valid decision.’
Gilmour J, in rejecting that proposition, repeated what he said in Roe to the effect that by virtue of s 62A of the Act, it is the applicant who may deal exclusively with all matters arising under the Act in relation to the claimant application. I take that to mean, in these circumstances, that there is a serious question as to the status of the participation of the native title party in these proceedings in circumstances where it is clear that there is a dispute between the persons who jointly comprise the applicant group as to the course of action to be adopted. The affidavits of Aileen Sandy, Sylvia Allan, and Mavis Pat state categorically 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. Mr Woodley now, in his affidavit sworn on 17 January 2011 (at para 1.4) acknowledges that it is sworn on behalf of four of the members of the applicant group, on behalf of senior Yindjibarndi Lawmen and the majority of members of the native title party. His situation is also acknowledged at para 1.1 of the statement of contentions of the native title party in good faith negotiations of 28 January 2011. In those circumstances, it may well have been open to me to make a determination that there was no validly raised assertion of a failure to negotiate in good faith in these proceedings. I have not adopted that course because the affidavits that were sworn by Aileen Sandy, Sylvia Allan, and Mavis Pat were not in the possession of the native title party until they were filed in this Court after the affidavit of Mr Woodley of 17 January and subsequent contentions had been filed, albeit that such a situation was anticipated in both the affidavit and the contentions. In light of the decisions in Roe and Tigan, it is clear that the question of the views of the majority of the claimant group in these circumstances is not relevant. The course of action in circumstances where the views of the majority of the claimant group conflict with some or all of the persons who make up jointly the applicant is to bring a s 66B application to remove those dissenting members of the applicant.
The Tribunal has dealt with a similar situation as this in the matter of Mt Gingee Munjie. In that matter, similar to this, factions had emerged amongst the persons who jointly comprised the applicant. Negotiations had been pursued separately and one of the groups, but not the other, in the context of a s 35 application, sought to assert that the grantee party had failed to negotiate in good faith. In that matter, Deputy President Sumner made the following findings (at [36]):
‘…individual persons named as part of the applicant or factions within it are not a native title party and do not have standing to make a contention that the Government or grantee parties have not negotiated in good faith unless authorised to do so by the claim group…’
In light of the most recent decisions of Gilmour J in Roe and Tigan, it would appear to me that while the first part of that finding remains unaltered, the qualification is no longer available. In other words, even if the claimant group as a whole had authorised one or more of the persons that jointly comprised the applicant to assert the contention of a failure to negotiate in good faith against the grantee party, they would still not have the capacity to make such a contention. Of course, if, in light of that decision of the broader claim group, the persons who comprised the applicant, who were opposed to the making of such a contention, decided to change their minds and follow the views of the claimant group, that would be a different matter. In this case, there was neither such a meeting, nor a change of mind. Notwithstanding that, for the reason set out above I have chosen to address the substance of the complaint that the grantee party has failed to negotiate in good faith on the basis that substance of the complaints came to the Tribunal before the question of authorisation was clear. I note also that neither the Government Party nor the grantee party made submissions to the effect that I should not entertain the matter.
THE SIX MONTH PERIOD
Under the scheme of the right to negotiate provisions of the Act, any of the parties to the right to negotiate provisions, being the Government party, the grantee party, or the native title party, can bring a s 35 application seeking a s 38 determination only if two criteria have been met. Firstly, s 35(1)(a) requires that a period of six months has passed since the notification day, specified pursuant to s 29(4). Pursuant to s 29(6) of the Act, the notification day must be the day that, in the Government party’s opinion, it is reasonable to assume all notices under s 29(2) and (3) in relation to the doing of the act will have been received or otherwise have come to the attention of the persons who must be notified. Secondly, pursuant to s 35(1)(b), there must be no agreement made of the kind mentioned in s 31(1)(b). If those two conditions have been met, a party may bring the s 35 application by lodging the requisite form with the Tribunal. Once the application has been lodged with the Tribunal, the Act gives the parties an opportunity to challenge the power of the Tribunal to make the determination of the application under s 38 by alleging that one or more of the parties has failed to negotiate in good faith as required by s 31(2) (see s 36(2)). If any party can satisfy the Tribunal that any other party, other than the native title party, has failed to negotiate in good faith, the Tribunal does not have the power to make a determination of the application under s 38. The proposition that there is a requirement under the Act that in order to satisfy the requirements of negotiating in good faith, there must be some form of engagement, lasting for a period of six months, is misconceived. As I explained in FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 38 (at [67]) (‘Cheedy 2009’), there is no obligation:
‘…to negotiate in any physical sense for a period of six months. What is required is that the parties negotiate in good faith with a view to obtaining an agreement with the native title party to the doing of the Act upon conditions and those negotiations are confined to matters related to the effect of the Act on the registered native title rights and interests of the native title party. The actual period of the negotiations which would need to take place in order to establish that the parties had negotiated in good faith, is not necessarily related to the length of time spent negotiating. Rather it is the quality of the process that will be determinative of the question of whether the parties have engaged in the process in good faith.’
The parties are not required to negotiate for six months. They are required to genuinely engage in a process of attempting to reach an agreement about the doing of the act with or without conditions in a manner which has been variously described by Members of the Tribunal and the Federal Court (see Taylor and Gulliver Productions). There is no required duration for the unfolding of this process. The critical issue is the quality of the behaviour of the parties as the process unfolds. That process must occur prior to the lodgement of any s 35 application, which can only occur by virtue of s 35(1)(a), six months after the notification date. Subject to a challenge to the power of the Tribunal to make a decision in relation to a s 35 application, the s 35 application can be brought six months after the notification date, and in circumstances where no agreement pursuant to s 31(1)(b) has been agreed to. The simple fact that negotiations do not commence a minimum of six months before the bringing of any s 35 application is immaterial. It may be that the more truncated the process of negotiation between the parties becomes, the greater the possibility that there may have been a failure by one party or another to negotiate in good faith, and again that would depend on the nature of the conduct of the parties. The first condition for the bringing of a s 35 application is tied to the six month period after the notification date and is not affected in any way by the conduct of the negotiations or their date of commencement.
In respect of the matters currently before the Tribunal, the notification date for application E47/1398 was 12 January 2005 and consequently the six month period expired on 13 July 2005. For application E47/1399, the notification date was 18 January 2006 and consequently the six month period expired on 19 July 2006, and for M47/1341, the notification date was 26 August 2009 and consequently the six month period expired on 27 February 2010.
The native title party submits that the negotiations in relation to E47/1398 and E47/1399 did not commence until the native title party received a draft agreement from the grantee party on 23 July 2009, and consequently that that was the start of the six month negotiation period (see para 2.4 of the native title party’s contentions in relation to good faith negotiations of 28 January 2011). As explained above, this is a misunderstanding of the operation of the Native Title Act. More importantly, the native title party, in its submissions, asserts that there was a failure to negotiate in good faith in relation to M47/1431, because the grantee party did not commence negotiations until it forwarded a draft agreement on 21 April 2010 (see paras 1.3 and 1.4 on page 4 of the native title party’s contentions in relation to good faith negotiations of 28 January 2011). The inference apparently drawn is that the period of required negotiations in relation to that tenement did not expire until 22 October 2010, some two months after the s 35 application was brought, and therefore that application was brought in contravention of s 35(1)(a). This contention must be rejected.
It may well be that the actual negotiations did not commence until 21 April 2010 in relation to M47/1431, but there is no obligation on any party, pursuant to the NTA, to negotiate in good faith for a period of six months. In relation to M47/1431, the notification date was 26 August 2009, and the six month period expired on 27 February 2010. Negotiations did not commence until 21 April 2010, and the application for the determination, in relation to M47/1431 and the others, was brought on 25 August 2010. The question that I will need to address in this matter relates to whether there were good faith negotiations between the native title party and the grantee party in relation to M47/1431 between the notification date and 25 August 2010. The position in relation to this point was reiterated by the Full Federal Court in Cox (at [21]), where Their Honours said:
‘[21] The scheme of the relevant provisions of the Act recognises Parliament’s intention that there must be a good faith period of negotiation in relation to the future act before there is any arbitral determination in relation to the future act. The period of six months provided for in s 35 of the Act ensures that there is reasonable time to enable those negotiations to be conducted. At the same time it permits the matter to be taken forward at the end of the six-month period by way of an arbitral determination if the negotiations do not result in agreement. The ongoing protection provided for “negotiation parties” as defined by s 30A of the Act is that if any such party satisfies the arbitral body, in this case the Tribunal, that another negotiation party (other than the native title party) did not negotiate in good faith, the arbitral body must not make the determination on the application: s 36(2).
[22] There are two obligations, therefore, spelt out in the statutory scheme. The first is that the negotiations which are directed to reaching an agreement are to be carried out in good faith and the second is that a period of not less than six months has passed since the date on which the s 29 notice is given.’
As the Full Court said in Cox (at [20]):
‘It has been repeatedly recognised that the requirement for good faith is directed to the quality of a party’s conduct. It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of mind as manifested by its conduct in the negotiations.’
Consequently, if it be the case in this matter that there had been no approach by the grantee party to the native title party to negotiate on these matters until 21 April 2010, which was some two months after the six month period required by the act had expired, there is no necessary implication that there has been a failure to negotiate in good faith. That question will be addressed at the time the s 35 application was made, in assessing the conduct of all the negotiation parties in the period prior to the bringing of the s 35 application. The fact that negotiations, after they were initiated, were conducted for only four months prior to the bringing of the application under s 35 is not a matter of itself which is indicative of any party’s failure to negotiate in good faith. What the Tribunal must focus on is the quality of the conduct displayed by all the negotiation parties up until the time of the bringing of the s 35 application, which must be more than six months after the notification date but may, as in this case, be significantly longer.
The decision of the Full Court in Cox is also authority for the proposition that the negotiations need not have reached any particular stage in order to be characterized as having been conducted in good faith. Therefore the fact that negotiations have only reached an embryonic stage does not mean that there has been a failure to negotiate in good faith. As the Full Court said (at [23]) ‘it puts a gloss on the statutory revisions and places a fetter on the negotiation party’s entitlement to make an application under s 36 in order to obtain an arbitral determination’. In these circumstances, by its own contentions, the native title party accepts that a proposal was put forward by the grantee party in relation to M47/1431, and was rejected by the native title party (see paras 1.3 and 1.6 of the native title party’s contentions in relation to good faith negotiations). In any event, the factual matters relating to notification dates and commencement of negotiations were matters known to the native title party prior to the withdrawal to its original contentions in relation to the failure to negotiate in good faith, and they cannot have been said to have arisen subsequent to the bringing of the s 35 application, or to events which occurred in December 2010 onwards. Notwithstanding that, the conduct of the grantee party, which the native title party alleges it is now aware occurred prior to the lodgement of the s 35 application, is still relevant to the question of whether the negotiation of good faith in relation to this tenement took place.
THE NEGOTIATIONS
Apart from the matter relating to the notification date concerning M47/1431, the native title party’s assertion of a failure to negotiate in good faith is based on ‘information that came to light after the previous allegation was withdrawn’ (see para 1.4 of the native title party’s contentions of 28 January 2011). The central allegation contained at para 2.1 of the native title party’s contentions is that the grantee party, in the absence of the native title party, negotiated an agreement which concerned the grant of the tenements with certain individuals who are members of the Yindjibarndi native title claimant group. They contend that while they do not know when those negotiations commenced, they infer, on the basis of a letter from Blair McGlew to Michael Woodley, dated 30 November 2010 (attachment 1 to NTP contentions) that ‘it appears they had been occurring for some time’. The native title party contends (at para 2.5) that Mr Woodley responded to Mr McGlew’s letter on 8 December 2010 (attachment 2 to NTP contentions) ‘refuting among other things the proposition that a clear majority of Yindjibarndi people were in favour of concluding an agreement with FMG’. At para 2.6, there is a suggestion that other evidence provided by Mr Woodley ‘suggests that negotiations, in the absence of the NTP ... may have commenced prior to the meeting between FMG, the NTP and the Yindjibarndi community, which was convened by the President of the Tribunal, in Roebourne on 10 August 2010.’ The native title party contends at para 2.7 that on the basis of the evidence provided by Mr Woodley, at paras 52 and 55 of his affidavit of 16 October 2010, that the offer put at the meeting in August 2010 was the same as that put by FMG in 2008, save for a proposal in relation to a payment of $500,000 to ‘Yindjibarndi Elders’. The contentions quote Mr Woodley at para 54 of the affidavit, where he says the following:
‘Throughout the course of our negotiations with FMG, neither the Native Title Party, nor any other members of our negotiating team has ever asked for compensation payments to be directed towards particular Yindjibarndi individuals or groups. Instead the focus has been on securing outcomes for the benefit of the Yindjibarndi community as a whole – outcomes directed towards self-determination and autonomy as a means of gaining control over the social problems that have afflicted our community since colonisation.’
This statement of the outcomes sought in negotiations between the native title party and the grantee party is apparently corroborated in a letter written by Mr Irving, counsel for the Yindjibarndi people to President Graeme Neate on 14 July 2010 (grantee party document 110). The final two contentions of the native title party in relation to good faith sum up the substance of what they allege founds the failure to negotiate in good faith by the grantee party in these negotiations. At para 2.9, it is suggested that Mr Woodley’s affidavit of 17 January and the material set out in the contentions are sufficient to allow the Tribunal to conclude that the grantee party commenced negotiations, with persons other than the native title party, regarding the grant of the tenements prior to the end of the required negotiation period. This is an argument based on the assertion by the native title party that the six month negotiation period in relation to M47/1431 expired on 21 October 2010. As noted above, I have already rejected this contention.
The second significant contention of substance, as expressed in paragraph 2.10, is that the grantee party failed to negotiate in good faith because it encouraged dissent within the claim group (presumably by commencing negotiations with individual members of the Yindjibarndi claim group), which led to a breakdown in relations between those persons who jointly formed the applicant group. This had the further consequence of the native title party not being able to make joint decisions, and consequently needing to resort to a s 66B application to the Federal Court, in order to reconstruct a functioning applicant group. Tigan at [28] per Gilmour J is cited as a reference.
At this point it is useful to set out the affidavit of Mr Woodley, sworn on 17 January 2010, in full below:
I, Michael Woodley, Chief Executive Officer of Yindjibarndi Aboriginal Corporation; and, Chief Executive Officer of Juluwarlu Aboriginal Corporation, of 664 Lockyer Way, Roebourne, in the State of Western Australia, make oath and say as follows:
1.Introduction
1.1.I am a member of the Yindjibarndi People, the society of Aboriginal people whose native title rights and interests were recognised in the Determination of the Federal Court of Australia (in Daniel v State of Western Australia [2005] FCA 536 [the “Yindjibarndi Native Title Determination”]) and upheld, on appeal, in Moses v State of Western Australia [2007] FCAFC 78), in an area of land and waters in the Pilbara region of Western Australia (“Yindjibarndi Determination Area”).
1.2.The native title rights and interests that were recognised in the Yindjibarndi Native Title Determination are held in trust, for the benefit of the Yindjibarndi People, by the Yindjibarndi Aboriginal Corporation (“YAC”), a Prescribed body[sic] Corporate (“PBC”) under the Native Title Act 1993 (Cth).
1.3.I am also a member of the Applicant for the Yindjibarndi #1 Native Title Determination Application, which was lodged in the Federal Court on 9 July 2003 (Federal Court ref: WAD6005/03), and entered on the Register of Native Title Claims, in the National Native Title Tribunal (“Tribunal”), on 8 August 2003 (Tribunal ref: WC03/3).
1.4.I am authorised to make this affidavit on behalf of the senior Yindjibarndi Lawmen, and, for reasons that will be explained below, the majority of the members of the Native Title Party, for the Inquiry by the Tribunal into whether or not two Exploration Licences, E47/1398 and E47/1399, and one Mining Lease, M47/1431([sic]the “Tenements”) should be granted by the State of Western Australia (“Government Party”) to FMG Pilbara Pty Ltd (“Grantee Party”); and if so upon what, if any, conditions they should be granted.
1.5.Except where I say otherwise, the facts set out in this affidavit are within my own knowledge and belief; and, to the best of my knowledge and belief, they are true and correct.
1.6.I know the Tribunal in this inquiry has to consider how the grant of these Tenements will affect the enjoyment of our registered native title rights, as well as some other issues; and I will address those issues in a separate affidavit. However, the Native Title Party and the senior Yindjibarndi Lawmen, along with the majority of people in the Yindjibarndi #1 claim group, are very upset about what FMG has been doing since we withdrew earlier allegation[sic] about the absence of good faith negotiations and I wish to address that first.
1.7.In the second week of December 2010 it became clear that FMG had been negotiating about the Tenements with certain members of the Yindjibarndi community, behind the back of both the Native Title Party and YAC; and had reached an agreement with those people which would affect both the Yindjibarndi #1 Claim area and the Yindjibarndi Native Title Determination Area. Some of those people set up a new Aboriginal Corporation to receive the benefits of that agreement and then tried to stop the Native Title Party from going on with this inquiry.
2.Background
2.1.FMG’s negotiating position with the Native Title Party in respect of the grant of the Tenements has been the same as it was in 2008 in respect of the grant of three mining leases (M47/1409, M47/1411 and M47/1413), which were the subject of the Tribunal’s Determinations in 2009 (the “three mining leases”).
2.2.FMG wants what it calls a Whole of Country Land Access Agreement (“WOCLAA”) under which:
a. FMG can “manage” our cultural heritage through a cultural management regime that is based on mitigating damage to our sacred sites and areas of significance but ultimately allows FMG, without our consent and against our opposition, to obtain the Minster’s consent under s 18 of the Aboriginal Heritage Act 1972 (“AHA”) to damage or destroy any of our sites or areas that stand in the way of FMG’s development plans in Yindjibarndi country;
b. Yindjibarndi must not object to the grant of:
·any of the tenements and other interests FMG wants for its Solomon Project;
·all the Exploration Licences FMG has already applied for, in both the Yindjibarndi #1 claim area and the Yindjibarndi Determination Area;
·any other tenements or interests that may, in the future, be desired by either FMG, or any other person with whom FMG has or may have an agreement, which affects the land and waters of the Yindjibarndi #1 Claim Area, the Yindjibarndi Determination Area or any other area that might be claimed by Yindjibarndi.
2.3.FMG has insisted, for the sake of “consistency”, that it will not go beyond a compensation package that is equal to what it has previously offered to other indigenous groups in the Pilbara; namely, a fixed annual payment, (worth far less than what is offered by other iron ore mining companies to indigenous groups in the Pilbara); and, an annual VTEC allowance to train indigenous people to work in the mining industry, which potentially provides FMG with the benefit of a “local” work force.
2.4.FMG’s alternative to a whole of country land access agreement is for separate agreements for clusters of tenements as required. However, the agreements proposed by FMG in those circumstances adopt the same approach to heritage management as for a WOCLAA and the same approach to compensation.
2.5.FMG’s WOCLAA offer was rejected in 2008 by both the Native Title Applicant and the YAC Board, with the unanimous endorsement of the Yindjibarndi Community – and we have continued to reject this offer for three reasons:
a. FMG’s agreement would make FMG the master of both our country and our cultural heritage, because the agreement makes sure FMG will always win if there is any conflict between our interests and what FMG wants to do;
b. FMG’s compensation package is based on our agreement to give up our “procedural” rights, under the Native Title Act; but FMG’s agreement would stop us from ever seeking any further compensation for the loss or impairment of our substantive native title rights and interests once they have been determined to exist by the Court; and,
c. the compensation package offered by FMG does not take into account the effect that FMG’s operations will have on the religious observances and practices we carry out on our country and the effect this will have on our community.
2.6.Because we refused to sign up to what FMG wants, FMG adopted a strategy to create dissent in our community.
2.7.In February 2010, FMG”s[sic] Blair McGlew asked me to organise an[sic] Yindjibarndi community meeting, so that FMG could satisfy itself that all members of our community knew we[sic] were doing by rejecting FMG’s WOCLAA offer. Mr McGlew threatened to organise his own community meeting if I didn’t comply with that request. I reminded Mr McGlew that FMG’s offer had been rejected unanimously at the community meeting he attended in 2008; and, since the terms of that offer remained unchanged, there was no point in arranging another meeting. Mr McGlew told me that he would go ahead and arrange his own community meeting. Mr McGlew confirmed this in writing by way of a letter to Slater & Gordon, by letter dated 26 February 2010 (attached as “MW1”).
2.8.Mr McGlew held his meeting in Roebourne on 8 March 2010 against the opposition of the Native Title Party and YAC. This was during the time when the Tenements were in mediation, as part of a WOCLAA, before Member Catlin in the Tribunal.
2.9.At this meeting FMG handed out a flyer, with the title “Yindjibarndi – Fortescue Information Paper” (attached as “MW2”). It is apparent from that flyer that the purpose of the meeting was to create dissent in the Yindjibarndi community by convincing our members that their elected representatives on YAC, and the Native Title Party, were wrong when they rejected FMG’s WOCLAA offer and were wrong when they refused to take part in heritage surveys, because in the end FMG will get what it wants anyway and “under the law, no financial compensation is payable to Yindjibarndi” if FMG goes through the Tribunal’s process as it did for the three mining leases.
2.10.The meeting caused serious disputes in our previously unified community, so the Native Title Party held another community meeting, on 30 April 2010, to try to reach consensus. The meeting was difficult but eventually it was unanimously agreed that the Native Title Party and YAC should continue to:
a. reject FMG’s offer; and,
b. refuse to participate in heritage surveys, because doing so will give FMG the information it needs to make section 18 applications.
2.11.Three weeks after this meeting, FMG stationed its in-house anthropologist, Michael Gallagher, in Roebourne four days a week. I asked Mr Gallagher what he was doing and he told me his brief was to “continue to explain FMG’s project and proposal agreement to any interested members of the Yindjibarndi community”.
2.12.On Tuesday 6 July 2010, Michael Gallagher and Alexa Morecombe held a second meeting in Roebourne with members of the Yindjibarndi community. The Native Title Party and the YAC Board were not informed of, nor invited to attend, this meeting.
2.13.This second meeting was conducted during the period when the Native Title Party and FMG were in mediation about the Tenements (as part of a WOCLAA) before the President of the Tribunal.
2.14.Bigali Hanlon attended this meeting and told me after it finished that she had believed she was going to a VTEC employment and training workshop run by FMG but that when she arrived she was told that FMG would pay her $500 if she stayed and listened to what Alexa Morcombe and Michael Gallagher had to say.
2.15.Bigali told me that Alexa Morecombe introduced herself as a lawyer and that she and Michael Gallagher then told the meeting that:
a. Yindjibarndi would not succeed in their appeals against the grant of the three mining leases because a single judge of the Federal Court had already dismissed those appeals;
b. Yindjibarndi would not succeed in their native title claim for exclusive possession rights, in the unallocated Crown land FMG needs for its “Solomon Project”, because the Yindjibarndi are not physically occupying that part of their country; and,
c. if Yindjibarndi did not participate immediately in heritage surveys for the Solomon Project, FMG would do the surveys anyway and Yindjibarndi would lose the opportunity to protect any sites on areas of significance in the project area.
2.16.Bigali said that her son, who works for FMG at the Christmas Cheek[sic] mine, also attended the meeting and was helping FMG to persuade our people; and, that FMG had promised him a new home in Roebourne and a promotion to the position of “heritage officer” at the Solomon mine, if the project went ahead.
2.17.Bigali said that by the end of the end of[sic] this meeting, a group of about 10 Yindjibarndi members had decided to form a breakaway group and four men were going to start doing Heritage Surveys for FMG in the Solomon Project area.
2.18.The first of these Heritage Surveys was planned for the weekend of 10 and 11 July; so I quickly organised for another community meeting to be held on Thursday 8 July 2010. I attended that meeting and, for a short time, so did Michael Gallagher. Prior to his arrival Bigali informed the 40 members present of what had happened at the FMG meeting on Tuesday.
2.19.After he arrived at the meeting, I asked Mr Gallagher, why FMG was meeting with Yindjibarndi members instead of the Native Title Party and the YAC Board. Mr Gallagher told the meeting that FMG took the view that it was entitled to arrange and conduct the Tuesday meeting, without informing the Native Title Party or YAC, because the meeting “concerned heritage issues, rather than native title issues”.
2.20.The legal representative of the Native Title Party was also present at this meeting and he advised Mr Gallagher that:
a. the Yindjibarndi #1Native[sic] Title Applicant has a registered native title right to protect sacred sites and areas of significance in the area of the proposed Solomon Project;
b. the seven members of the Applicant, acting together as the Native Title Party, are the only people who are authorised to make agreements about things that affect the registered native title rights of the Yindjibarndi People; and,
c. FMG was, at its request, engaged in mediation with the Native Title Party in the Native Title Tribunal to resolve all native title and heritage issues as part of its proposed WOCLAA.
Mr Gallagher said FMG obviously took a different view.
2.21.I asked Mr Gallagher if he could confirm where the heritage survey was to be conducted over the weekend and confirm the names of the four men who had agreed to participate in the survey. Mr Gallagher did so; and I informed him that:
a. the senior Yindjibarndi Lawmen who have both the right, and the authority, under Yindjibarndi Law to speak for the survey area were present;
b. that the four men who had agreed to take part in the survey had no such right or authority and would not know the location of sites of particular significance in the survey area because they had not gone far enough through Yindjibarndi Law to learn about them; and,
c. if the survey went ahead as planned, it would be likely to cause serious problems in the Yindjibarndi community because if the four men took part in the survey, without the senior Lawmen and against their wishes, they would be breaking Yindjibarndi Law and be liable to punishment.
I then pleaded with Mr Gallagher to ring the bosses of FMG and to pass on an urgent request to call off the heritage survey. Mr Gallagher left the meeting to do so, but returned later to say that the survey would go ahead as planned.
2.22.FMG has, since that meeting, apparently conducted a number of Heritage Surveys in the Yindjibarndi #1 Claim area; and, in mid December 2010, I received a copy of a section 18 application, which had been made by FMG on 10 December. The section 18 application concerns an area of land in the Yindjibarndi #1 Claim area that will be affected by FMG’s proposed “Solomon railway”. I know that area well; and I know that there are sites and areas that are of particular significance to the Yindjibarndi People in accordance with our laws and customs. Those sites have not been identified in the ethnographic reports that form part of FMG’s section 18 application.
2.23.The section 18 application does identify a large number of archaeological sites, many of which also have ethnographic significance because they contain the remains of our ancestors. However, the Yindjibarndi people who participated in those surveys failed to identify the ethnographic significance of those places.
3. FMG’s WOCLAA with the Breakaway Group
3.1.At some point before December 2010, FMG finished negotiating a WOCLAA (the “WMYAC Agreement”) with the breakaway group that was created at FMG’s meeting on 8 July 2010. About 16 members of that breakaway group attended a mediation session, chaired by the President of the Native Title Tribunal in Roebourne on 10 August 2010, and announced that they were resigning from YAC and the Yindjibarndi #1 claim group to form a new group that would be called “FMG Yindjibarndi”. However, the Native Title Party and the YAC Board were not advised of, or invited to attend, any negotiations for the WMYAC Agreement did[sic] not know about it until 6 December 2010, when I was given a copy by my local member of parliament. A copy of the WMYAC Agreement is attached and marked “MW3”.
3.2.I have since discovered that, on 23 November 2010, 34 members of the Yindjibarndi #1 Claim group, including one member of the Applicant, established a new Aboriginal Corporation, the Wirlu-Murra Yindjibarndi Aboriginal Corporation (“WMYAC”). A copy of the Corporation extract from the Office of the Registrar of Indigenous Corporations is attached and marked “MW4”.
3.3.It seems WMYAC was established in order to receive the benefits of the WMYAC Agreement, because in the agreement FMG promises to pay WMYAC $500,000 within 14 days of signing the WMYAC Agreement and give WMYAC the annual compensation package of $3 million, which was originally offered in the WOCLAA negotiations with the Native Title Party.
3.4.In addition, the YMYAC[sic] Agreement:
a. gives FMG a discretion to pay any amount of the $1.5 million, previously offered to the Native Title Party as a “VTEC Royalty”, to any member of WMYAC who is an FMG employee or who undergoes or have[sic] previously undergone training for employment with FMG;
b. requires FMG to spend up to $3m each year providing housing in Roebourne or Karratha, and direct flights from Roebourne to the Solomon Project, for any member of WMYAC who accepts training or employment with FMG; and,
c. requires FMG to contribute $1 million dollars[sic] each year to a foundation, to be established for the sole purpose of benefitting members of the Yindjibarndi People who have attained the age of 50 years.
3.5.The benefits offered by FMG in the WMYAC Agreement, which go beyond what was originally offered by FMG in its WOCLAA negotiations with the Native Title Party, gave a clear incentive for some of the poorest members of the Yindjibarndi community to join the breakaway group. I personally known each of the 34 members of WMYAC and I know that at least 25 of them are already over 50 years of age and one is already employed by FMG. The strategy, apparently, was to get enough of our members to join WMYAC and then undermine the authority previously given to the Native Title Party by the Yindjibarndi #1 Native Title Claim Group. I say this because the WMYAC Agreement requires execution by the Native Title Applicant; and, on 8 December 2010, a Notice was placed in the Public Notices section of the Pilbara News, under the names of three of the seven members of the Yindjibarndi Applicant, requesting all members of the Yindjibarndi #1 Native Title Claim Group to attend a meeting in Roebourne on 21 December to consider and vote on, among other things, motions to the following effect:
a. that the appeals currently before the Full Court of the Federal Court, which challenge the validity of the grant of the three mining leases to FMG, be discontinued;
b. that all objections made under the Mining Act on behalf of the Yindjibarndi #1 Native Title Claim Group, against FMG’s Solomon Hub Expansion Project land tenure, be withdrawn;
c. that all objections made under the NTA on behalf of the Yindjibarndi #1 Native Title Claim Group, against FMG’s Solomon Hub expansion project land tenure, be withdrawn;
d. that the Yindjibarndi #1 Native Title Claim Applicant give consent to the grant of the Tenements the subject of this current inquiry by the Tribunal; and
e. that the Yindjibarndi #1 Native Title Claim Applicant immediately proceed to finalise a land access agreement with FMG in terms approved by the majority of the claim group members.
3.6.A copy of the Public Notice referred to above is attached and marked “MW5”.
3.7.The WMYAC Agreement also requires execution by YAC; and, on 15 December 2010, the WMYAC members who had previously announced that they were resigning from YAC, at the Tribunal’s mediation session in August, turned up for the YAC Annual General Meeting, presumably in the hope of getting enough numbers to change the Board membership. They were refused entry to the AGM.
3.8.I attended the meeting on 21 December 2010, as an observer. The meeting was to be chaired by Mr Ron Bower, from Corser and Corser Lawyers; however, before the meeting commenced a member of YMYAC[sic] asked the whitefellas to leave the hall so that Yindjibarndi could have a private discussion. The topic of that discussion was FMG’s section 18 application. One senior Yindjibarndi Lawman, who had not been at the July meetings and had later joined the breakaway group, was shocked when he found out that the Yindjibarndi members on the survey team had given the “go-ahead” for the railway. He addressed the meeting and said that “they shouldn’t have been out there in the first place” that “people had started thinking only about the money” and that “looking after country should come first”. Just about everyone at the meeting agreed; and the meeting came to an end shortly afterwards without any consideration of the advertised motions.
3.9.The Native Title Party alleges, on the basis of what has come to light since the Native Title Party withdrew the earlier allegation regarding good faith negotiations, that FMG has failed to negotiate in good faith with the Native Title Party about the Tenements. Instead, FMG has negotiated a Whole of Country Land Access Agreement with the breakaway group that was formed after FMG’s second meeting with Yindjibarndi members, in July 2010.
3.10.Those negotiations and the WMYAC Agreement caused a serious split within both the Yindjibarndi community and the Yindjibarndi #1 Native Title Applicant; and, during the first three weeks of December the Native Title Party was kept very busy dealing with the fallout of this split. This, in addition to the Full Court Appeal on 6 and 7 December made it impossible for the Native Title Party to comply with the directions of the Tribunal for this inquiry.
It can be seen from Mr Woodley’s affidavit, that paras 2.1-2.21 deal with events which occurred prior to the bringing of the s 35 application. Paras 2.22-3.10 deal with matters subsequent to the withdrawal of the native title party’s original good faith objection, and refer to matters which occurred in December 2010 onwards. Paras 2.22 and 2.23 deal with Mr Woodley’s assertion that applications from the grantee party, pursuant to s 18 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’), which he received in December 2010, did not mention a range of important sites within the areas that were relevant to the applications. Mr Woodley asserts that the failure to identify these sites in the application is an indication that the Yindjibarndi people who participated in the early grantee party heritage surveys either did not identify them, or did not know they were there. At para 3.1 of Mr Woodley’s affidavit, he makes reference to the Whole of Claim Land Access Agreement that the grantee party had apparently been negotiating with a breakaway group of members of the native title party subsequent to the Tribunal meeting in Roebourne in August 2010. Mr Woodley goes on to depose, in the balance of his affidavit, to the fact that he became aware that a number of the members of the Yindjibarndi claim group (34) had formed a breakaway corporation known as the Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC) for the purposes of entering into an agreement with the grantee party and receiving benefits from them. At paras 3.4 and 3.5, Mr Woodley suggests that the way the agreement is structured meant it provided incentives for the older and poorer members of Yindjibarndi to enter into an agreement, and consequently undermine the authority previously vested in the native title party by the Yindjibarndi native title group. This, it is said, was reflected in the fact that a meeting was advertised for 21 December in Roebourne in which it was proposed that a range of motions be put, the effect of which would have put an end to appeals in the Full Court of the Federal Court by the native title party against the grantee party, withdrawn objections by the native title party against the grantee party and directed the applicant group of the native title party to finalise access agreements with the grantee party. The meeting of 21 December was attended by Mr Woodley, and did take place, albeit that the motions proposed were not passed, and a number of senior Yindjibarndi Lawmen were upset by the proposition that the breakaway group had given the ‘go-ahead’ for a railway. At para 3.9, Mr Woodley reaches the conclusion, on the basis of what has been said before, that FMG had attempted to negotiate a Whole of Claim Land Access Agreement with the breakaway group, behind the backs of Yindjibarndi members. Consequently, they had caused a serious rift within the Yindjibarndi community and the native title claimant applicant group, which made it difficult for the native title claimant group to deal with all the contested matters it currently had with the grantee party at that time, including the Full Court appeal which took place in early December of 2010.
In the grantee party’s contentions of 4 February 2011 (at para 8.3), the grantee party concurred in the view that the two questions which are fundamental to the allegation of its lack of negotiation in good faith are:
1.That the grantee party commenced negotiations, ‘with persons other than [some of the registered native title claimants for the FNT Group]’, about the grant of the tenements prior to 25 August 2010 (see para 2.9 of the native title party’s contentions in relation to good faith); and
2.That that behaviour had ‘encourage[d] dissent within the claim group’ (see para 2.9 of the native title party’s contentions in relation to good faith).
Accordingly, the native title party contends that the conduct referred to in one and two above constituted a failure to negotiate in good faith.
The grantee party, at para 9 of its contentions, addresses the issue, set out in 1 above, concerning the commencement of negotiations with persons other than registered native title claimants. In that submission, it places great significance on the use of the word ‘commencing’, and suggests that the mere ‘commencing’ of such negotiations could not constitute the lack of good faith in any event. I do not take the native title party to be suggesting that the mere initiation of contact with members of the claimant group constituted the lack of good faith that is alleged. The grantee party, in its submissions at paras 9.5-9.8, asserts that all agreements discussed with persons, other than the native title party as a whole, took the form of an agreement which required execution by all persons who were members of the applicant of the native title party. There is a significant question as to whether the conduct of the grantee party when it negotiates with some members of the applicant group of the native title party, or indeed other members of the claimant group, particularly in circumstances where the applicant’s legal representatives are not advised, constitutes a failure to negotiate in good faith. One critical factor may be the identity of the party that initiated the contact that led to the negotiation. In this case, there is an assumption by the native title party that that contact was initiated by the grantee party (see paras 3.1, 3.5 and 3.9 of the native title party’s contentions of 28 January 2011).
In his affidavit of 17 January 2011, Mr Woodley makes reference to the meeting which took place in February 2010, which had been organised by FMG in circumstances where Mr Woodley and the native title party had refused to convene a meeting as requested by FMG (see attachment MW1 and MW2 to Michael Woodley’s affidavit of 17 January 2011). Those meetings clearly took place well before 25 August 2010, and were within the knowledge of Mr Woodley and his solicitors at the time they withdrew their previous good faith objection. In any event, it would appear that the meeting involved the conveyance of information rather than any attempt to negotiate as such with the native title party. That being said, what may have arisen from that meeting is not elucidated by any evidence currently before me.
Again, according to Mr Woodley’s affidavit of 17 January 2011, subsequent to the meeting held by FMG with the Yindjibarndi group in March 2010, a further meeting was convened by the native title party as a community meeting to discuss the matter and try to reach a consensus. At the meeting, which was held on 30 April 2010, according to Mr Woodley, the native title party and Yindjibarndi Aboriginal Corporation rejected FMG’s offer and refused to participate in heritage surveys (see para 2.10 of Michael Woodley’s affidavit of 17 January 2011). Apparently there was a second meeting, which took place on 8 July 2010, of which the native title party and the YAC were not informed and to which they were not invited. Mr Woodley nonetheless attended at least some of this meeting, and it appears to have been related to a proposed heritage survey intended to take place on the subsequent weekend. Mr Woodley deposes to the fact that he made it clear to Mr Gallagher of FMG that none of the persons he had arranged to participate in the survey had any authority within the group or knowledge of the area over which the survey was to be conducted. At para 3.1 of his affidavit, Mr Woodley asserts that the breakaway group ‘was created at FMG’s meeting on 8 July 2010’. This statement appears to relate back to a description of events which took place at the meeting before Mr Woodley arrived, and which were reported to him by a Bigali Hanlon, who was present (see paras 2.3-2.17). All that evidence is clearly hearsay, but in any event, what paragraph 2.7 says is that:
‘Bigali said that by the end of the end of[sic] this meeting a group of about 10 Yindjibarndi members had decided to form a breakaway group and four men were going to start doing Heritage Surveys for FMG in the Solomon Project area.’
There is no suggestion in any of that evidence that the grantee party at any point suggested that a breakaway group should be created, or that the grantee party would enter into negotiations with such a breakaway group, had it been created.
Mr Woodley deposes, at para 3.2, that on 23 November 2010 he became aware of the fact that 34 members of the Yindjibarndi claim group, including one applicant, had established a new Aboriginal Corporation known as Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC), as has been mentioned above. In para 3.5, Mr Woodley comes to the conclusion that this entity was created for the purpose of undermining the native title party’s negotiations with the grantee: ‘the strategy, apparently, was to get enough of our members to join WMYAC and then undermine the authority previously given to the Native Title Party by the Yindjibarndi #1 Native Title Claim Group.’ He then proceeds to make reference to the fact that WMYAC had posted, in the public notices section of the Pilbara News, notification of a meeting which proposed to put a number of motions, which would lead to the discontinuance of Federal Court actions against the grantee party by the native title party, and a signing by the native title party of the agreements currently proposed by the grantee party. There does not appear to be any evidence proffered by the native title party which suggests that the grantee party initiated contact with any member of the native title party applicant group or other member of the Yindjibarndi native title claim group, other than in circumstances where the native title party had refused to convene meetings to explain the state of negotiations. Clearly, there had been discussions taking place between some members of the applicant, some members of the claimant group and FMG by the time that the draft WOCLAA agreement had been presented to Mr Woodley by Mr Catania in December 2010. That agreement, which is exhibited to Mr Woodley’s affidavit of 17 January 2011 as annexure MW3, is an agreement which required execution by the native title party, ie all seven surviving individuals who comprised the applicant, as well as the Yindjibarndi Aboriginal Corporation Registered Native Title Body Corporate (see pages 71-73 of MW3).
At paras 2.6, 3.5 and 3.10, Mr Woodley asserts that there had been a deliberate strategy adopted by the grantee party designed to undermine the authority of the native title party and sow the seeds of dissent within it, in order to achieve its purpose of an unsatisfactory agreement. The documentation that has been filed by both parties, and the chain of events that had commenced at least by July 2010, suggests that there was, and is, serious dissention within the native title party, ie the group of individuals who jointly comprise the applicant of the Yindjibarndi #1 claim, and the members of the Yindjibarndi claimant group as a whole, as to how they should deal with the proposals that have been put to them by the grantee party. There is no evidence as to whether any contact or discussions which took place between the grantee party and those members of the native title party who disagreed with Mr Woodley’s strategy was initiated by the grantee party or those members. Para 14.2 of the grantee party’s contentions in relation to good faith, dated 4 February 2011, refers to its first contentions in relation to good faith at para 46 where there is a reference to grantee party document 80 which is the minutes of the mediation meeting of the Tribunal in relation to E47/1398 and E47/1399, dated 26 March 2010, where it was noted that following the meeting, Mr Singh of the grantee party had advised the Tribunal that members of the grantee party had met with members of the native title party in Roebourne on 8 March 2010 at the request of ‘some members of the Yindjibarndi community who wanted to know of developments between the grantee party and the native title party.’ Further, the grantee party cites grantee party document 78, which is an email from Blair McGlew of the grantee party to Michael Woodley of the native title party, dated 10 March 2010, where he sets out that the meeting on 8 March 2010 took place at the request of members of the native title, ‘it was simply a request to Fortescue to explain the situation from our point of view.’ This evidence is not particularly compelling, but in any event, it cannot be said that a grantee party who enters into discussion with one or other, or indeed both, factions of a native title party applicant group which has fractured because of disagreement has automatically failed to negotiate in good faith. There certainly may be circumstances in which such behaviour might be indicative of a failure to negotiate in good faith. On the other hand, it may well be a rational response to the difficult situation that a grantee party finds itself in when it is required to negotiate with an entity which does not have a unanimity of purpose. The grantee party is confronted with a situation where, at least as it is currently constituted, it requires the consent of all the persons who constitute the applicant group of the native title party to execute any agreement, before an agreement as contemplated under s 31(1)(b) can be perfected. Such a situation is most unfortunate, but as the grantee party contends, relying on Western Australia v Daniel (2002) 172 FLR 168; [2002] NNTTA 230 per Hon CJ Sumner at [157]:
The Tribunal has acknowledged that it must take a reasonably robust common sense approach to what is required when examining whether a negotiation party has negotiated in good faith and not impose some unattainable, ideal standard.
In my opinion, in circumstances where a native title party has broken into factions the grantee party is entitled to enter into discussions with both groups with the view to reaching agreement with them jointly about the proposed act, so long as it does not, in that process, engage in sharp practice or unconscionable conduct. If there had been evidence that the grantee party had actively incited dissention within the native title party, I might well have taken the view that such behaviour amounted to a lack of good faith. In this matter there is no such evidence. As the evidence of the affidavits which were filed by both members of the native title applicant group and the claimant group of Yindjibarndi #1 relating to the substantive determination in this matter reveal, it is open on the facts to assume that the reason for the dissention within the native title party related not to the machinations of the grantee party, but to genuine disagreement within the group as to whether or not to accept the agreement proposed by the grantee party. In all, some three of the seven named applicants, and 13 members of the claimant group deposed to the fact that they had not been consulted about the native title party’s decision to challenge the good faith of the grantee party in the negotiation process, and they had been ignored in their assertion that the agreement proposed by the grantee was acceptable, they agreed that the current action before the Tribunal should be discontinued and the current agreement proposed by the grantee party should be entered into. It is only Mr Woodley’s evidence which is uncorroborated, including by his three fellow members of the applicant whom he deposes continue to support him. In these circumstances, I find that the native title party has failed to establish that the grantee party sought to create dissension within the group which could be regarded as a failure to negotiate in good faith.
In the circumstances the native title party has not satisfied me, on the basis of evidence produced, that the grantee party has failed to negotiate in good faith, and consequently I am empowered to make the determination of the s 35 application pursuant to s 38.
REASONS FOR FUTURE ACT DETERMINATION
On 25 August 2010, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38 (‘the s 35 Application’/’the Application’). The Application was made on the basis that the negotiation parties had not been able to reach agreement.
Directions for the Inquiry
The procedural history of this matter is set out in detail in my decision of 1 March 2011, referred to above, at [7]-[9].
In relation to the substantive inquiry the following contentions and submissions were provided:
· Government party’s statement of contentions and supporting documents GVP1 to GVP18, lodged 15 November 2010;
· Grantee party’s statement of contentions and supporting documents GP1 to GP129, lodged 18 November 2010;
· Grantee party’s statement of facts, lodged 2 November 2010;
· Yindjibarndi native title party’s statement of contentions and supporting documents, lodged progressively over the period 4 February 2011 to 14 February 2011;
· The affidavit of Michael Woodley, sworn 4 February 2011;
· Government party’s reply and supporting documents to the native title party’s contentions, lodged on 28 February 2011;
· Grantee party’s statement of contentions in reply to the native title party’s contentions and documents GP130-158, lodged on 4 March 2011;
· Grantee party’s supplementary list of documents GP159-173, lodged 23 March 2011; and
· 16 affidavits by members of the native title applicant and the Yindjibarndi #1 Claim Group on behalf of the grantee party, filed on 4 March 2011.
The Tribunal’s directions required the parties to confer with a view to agreeing issues before the inquiry, the facts and documents to be relied on, and procedures for the conduct of the inquiry. At the directions hearing on 24 March 2011, all parties agreed the inquiry could be conducted on the papers and I believe it appropriate to do so in the circumstances.
Government party’s evidence
Government party documentation submitted on 15 November 2010 establishes the underlying tenure to be:
E47/1398 – vacant Crown land and pastoral lease Mt Florance. Overlapping this proposed tenement are also four file notation areas vested in the Department of State Development, Department for Planning and Infrastructure and the Department of Regional Development and Lands.
E47/1399 – vacant Crown land, two pastoral leases; Mulga Downs and Mt Florance. Overlapping this proposed tenement is also a Crown Reserve vested in the Department of Planning and Infrastructure for use as a watering place for travellers and stock.
M47/1431 – vacant Crown land and pastoral lease Mt Florance. Overlapping this proposed tenement are also two file notation areas vested in the Department for Planning and Infrastructure and the Department of Regional Development and Lands.
There are no Aboriginal communities identified within or in the near vicinity of the proposed leases. The closest Aboriginal community is Youngaleena situated approximately 35 kilometres from the eastern boundary of E47/1399. There is evidence of an extensive history of mining and exploration activity over the proposed tenement areas. This includes two live exploration licences and one live miscellaneous licence overlapping M47/1431.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals the following registered sites under the Aboriginal Heritage Act within or near the vicinity of the proposed leases:
E47/1398
· ID 6613; Rio Tinto Gorge; Artefacts / Scatter, Archaeological Deposit, Rockshelter; Open Access;
· ID 7065; Hamersley Gorge Engraving; Man-Made Structure, Painting, Engraving, Artefacts / Scatter; Open Access; and
· ID 11267; Hamersley Gorge; Ceremonial, Artefacts / Scatter, Water Source; Open Access.
E47/1399
· ID 11267; Hamersley Gorge; Ceremonial, Artefacts / Scatter, Water Source; Open Access.
M47/1431
· ID 11267; Hamersley Gorge; Ceremonial, Artefacts / Scatter, Water Source; Open Access.
None of the 16 affidavits filed by members of the Yindjibarndi group on behalf of the grantee party challenge Mr Woodley’s description of the operation of Yindjibarndi law and custom in relation to land in the general sense, for instance the description of the structure of Yindjibarndi land tenure set out in paras 3 and 4 of Mr Woodley’s affidavit of 4 February 2011. What is essentially challenged is how that law is said to operate within the areas of the proposed tenements, and the factual basis upon which Mr Woodley asserts that the grant of those tenements will result in very great disturbance in the Yindjibarndi’s capacity to continue to comply with the fundamental precepts of its laws and culture. There is, however, a general criticism from those 16 deponents, in particular the 10 men, as to the level of detail which Mr Woodley has provided. Their view is that it is inappropriate to reveal these matters to persons other than initiated Yindjibarndi men and it was consciously something which they did not do in giving their evidence to Nicholson J in the Ngaluma Yindjibarndi trial. Mr Woodley has explained his reasons for giving the evidence he has done on the basis that he had no alternative if he wished to protect the country from being despoiled by FMG. I am sympathetic to Mr Woodley’s predicament while noting that it was open to him to seek confidentiality orders.
In relation to the question of Mr Woodley’s connection to the Garliwinyji Ngurra, and its location, I have some reservations about the evidence given by the 10 men and the three women who expressed opinions about its location. As has been said, Mr Woodley gave evidence at para 3.5 of his affidavit of 4 February 2011 as to the four Ngurra, including Garliwinyji, which he says are located within the area covered by the Yindjibarndi #1 native title claim. He indicated that they proceed west to east with Garliwinyji being the most western. Given that it is clear that Mr Woodley is one of the senior men of the Yindjibarndi group, it would be fundamental to his understanding of Yindjibarndi law and culture to know to which Ngurra he belongs, and axiomatically the location of that Ngurra. It may well be that the Garliwinyji Ngurra, being the most western, and given the extent of land to the west of the proposed tenements within the Yindjibarndi #1 claim, extends to the western boundary of the Yindjibarndi #1 claim, and consequently includes significant areas of land outside the areas the subject of the proposed tenements. On the other hand, the evidence of the 10 men, in the last sentence of para 33, is explicitly that Garliwinyji Ngurra does not extend into the Firetail Project area. Similarly Berry Malcolm, Julie Stevens and Diana Smith also say that at the meeting on 11 February all the persons agreed that the Garliwinyji Ngurra is in the west of the Yindjibarndi claim and outside the Firetail Project area. Also, in the affidavit of the 10 men, at para 33, they say that Garliwinyji Ngurra takes its name from Garliwindji Creek, which is in the western most part of the Yindjibarndi claim area, some 60 kilometres from the Firetail Project area. In the Robinson-Chambers anthropological report, at para 136 onwards, there is discussion of the site referred to there as Garliwinyji (Caliwinge Spring) where the evidence of Michael Woodley is cited to support the proposition that it is on the western edge of the Yindjibarndi claim area, where Mr Woodley says, according to an interview apparently taken on 9 November 2007:
‘It [Garliwinyji] belongs to Yindjibarndi. Garliwinyji is a Yindjibarndi word. It is a name that represents the creek and Caliwinge Spring and the river that runs through. Garliwinyji is a permanent waterhole and it is a camp for Yindjibarndi people and it also used to be a half way point for other groups to come and practise not law and culture but corroborees. And this was told to me by old Peter Stevens.’
The Appendix 1 to the report is a document entitled ‘Claimants Comments About Sites’, and there is a reference to Garliwinyji (Caliwinge Spring). The comments are made by, amongst others, Sylvia Allen, to the effect that it was a place that she went to with her parents, and Michael Woodley, who says that:
‘the Garliwinyji area for me is part of my family tree and where my great grandfathers father came from, and his brothers and sisters. And that is on my great grandmothers side Yali.’
At para 37 of the report, Gladys Walker, a non Yindjibarndi person, is quoted as saying that it was an area where non Yindjibarndi might participate in ceremonies, albeit that only Yindjibarndi law could be performed because it was on Yindjibarndi land. Mrs Walker said it was an area where the Kurrama, a non Yindjibarndi group, would come to meet with the Yindjibarndi people. Further, at para 138, Nelson Hughes, another Kurrama man, says that Garliwinyji is the boundary between Kurrama and Yindjibarndi. From this evidence I can conclude that it would appear to me that the Garliwinyji Ngurra does extend well beyond and to the west of the area the subject of the proposed tenements. None of this, however, alters the weight that I must attribute respectively to the evidence of Mr Woodley on the one hand, against the other Yindjibarndi deponents, and the 10 men in particular, on behalf of the grantee party.
I acknowledge that, in light of the affidavits of the three applicants, Mr Woodley was put in a difficult position because it did not appear that he, or the native title party, had the authorisation to file any further affidavits in response to the affidavits of the members of the Yindjibarndi group who swore affidavits on behalf of the grantee party. Be that as it may, the situation is that I am confronted with the detailed evidence of one member of the applicant, which is substantially contradicted on fundamental issues by three members of the applicant group, and 13 other members of the Yindjibarndi claim group.
In these circumstances, I am unable to find, on the balance of probabilities, that Gandi or ochre are collected in the area the subject of the three tenements, or that initiation ceremonies are conducted in those areas. I am also unclear as to what Ngurra, in terms of the 13 Ngurras that comprise Yindjibarndi country and the four Ngurras that were said to exist within the Yindjibarndi #1 Claim, actually are the subject of the three proposed tenements. It would seem to me, as discussed below, that there will be some interference with the Yindjibarndi’s capacity to exercise its registered native title rights of access to the area, and their rights to hunt, fish and camp, particularly in M47/1431, although those effects will be mitigated by the four extra conditions that the Government party has agreed to impose. As I have been unable to find that there is any significant ceremonial activity conducted on the area, the submissions made by the native title party in relation to the very great interference to the exercise of their registered native title rights and interests cannot be accepted.
Section 39(1)(a)(ii) –effect on way of life, culture and traditions
[104] In relation to this limb of s 39 the native title party contends that the Tribunal ought properly, in considering the weight to be attached to evidence relevant to s 39(1)(a)(ii), adopt a construction of the provision that is consistent with the terms of article 27 of the International Covenant on Civil and Political Rights, and the obligations each imposes on Australia. As I stated in Cheedy 2009, I did not accept this approach. My approach was approved by the Federal Court in Cheedy v Western Australia, and I continue to adopt that point of view. At para 7.4 of the contentions, the native title party suggests the grant of the mining lease and the exercise of rights under that lease will directly affect the life, culture and tradition of those members of the native title party who are members of the Garimarra and Balyirri Galharra sections of the Garliwinyji Ngurra, by preventing them having a capacity to practice their own religion and, in particular, prevent the collection of Gandi and the conduct of religious ceremonies and initiation rites within the area subject to the proposed tenements. As indicated above, in light of the 16 affidavits filed by members of the native title party on behalf of the grantee party I have come to the conclusion that I do not accept Mr Woodley’s evidence to the effect that cultural activities, including initiation processes and preparation for initiation, in fact take place on the areas the subject of the proposed tenements.
[105] The Government party, in its submissions, supports the view that the native title party has not demonstrated that there will be interference with the life, culture and traditions that has been demonstrated on the basis of Mr Woodley’s affidavit. The grantee party, in its statement of contentions in reply also cites the findings of the Federal Court in Cheedy v Western Australia at [107] in particular, rejecting the proposed approach in relation to the International Covenant on Civil and Political Rights proposed by the native title party. Again, on the basis of my findings in relation to the evidence in this matter, I cannot conclude that there will be a significant impact on the exercise of the native title party’s way of life, culture and traditions by virtue of the grant of the proposed tenements, particularly if the four extra conditions proposed by the Government are imposed.
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, Section 39(1)(a)(v) – effect on areas or sites of particular significance, Section 39(1)(b) – effect on interests, proposals, opinions and wishes
[106] With one exception in relation to s 39(1)(a)(v), in light of my findings in relation to the evidence concerning the activities conducted by the native title party on the area of the proposed tenements, I find that there is likely to be little impact on the native title party in respect of each of these considerations, particularly if it is the case that the four extra conditions proposed by the State are imposed as conditions on the grant of the proposed tenements.
[107] The one exception which I refer to is the conditions which I had initially intended to propose in relation to sites in WF08/31, which were purportedly within the area of M47/1413 (those sites being three open mines and other related sites) but upon further investigation were found to be outside M47/1413 and to the south. Those sites are YIN_09_05, YIN_09_06, YIN_09_11, and YIN_09_15. I discussed these sites in some detail in WF08/31 where I said at [70] ‘the question to be considered here is whether there are areas or sites of particular significance (i.e. of special or more than ordinary significance to the native title party) that will be affected by the future acts’ (Cheinmora v Striker Resources NL and Others (1996) 142 ALR 21; [1996] FCA 1147 at 34-35, and repeated in Holocene at 99). The Tribunal must make a value judgment about whether, from the native title party’s point of view, and according to their traditions, the area or site is special or different from other land in which the native title party has or claims to have native title rights and interests.
[108] The four relevant sites were identified in a field survey report (document NTP9 in WF08/31), an archaeological survey over the Firetail area. That survey identified these areas, including rock shelters and quarries which were the sources of ochre, which were acknowledged by the consultants as being of particular significance to the native title party in the conduct of ceremonies, and in those circumstances, on the assumption that they were within mining lease M47/1413, I was prepared to make conditions which would require that they not be interfered with without the express consent of the native title party. Acknowledgments that are made in the report to the effect that these mines are of particular significance to the native title party are, to a certain extent, at odds with the evidence of the ten male deponents who are members of the native title party who filed affidavits on behalf of the grantee party.
[109] Their evidence in relation to the obtaining of ochre for ceremonies is clear. They say that no ochre is obtained from within the area the subject of the proposed tenements, and all ochre used in ceremonies is obtained from areas in and around Millstream. At para 9 of the grantee party’s contentions in reply, they raise a range of issues in opposition to the imposition of any specific conditions relating to these four sites though, in my view, the fundamental issue is the question of the evidence of ochre usage from this area. Given that the evidence of the ten male members of the native title party who filed affidavits on behalf of the grantee party contradicts the evidence which Mr Woodley gives in relation to ochre usage in the area, and bearing in mind my inclination to impose the extra conditions proposed by the Government, I do not believe that there is likely to be any significant impact on areas of particular significance to the native title party in the areas the subject of the proposed tenements and I decline to impose conditions specific to the four sites.
Section 39(1)(c) - economics and other significance
[110] At para 11 of the grantee party’s contentions they state that the grant of the tenements is of significant importance to the local economy, by:
·Allowing improved management use or development of the local resources and minerals; and
·Engaging local or approximate communities to provide services to the grantee party’s project.
To the state by:
·Indirectly by way of such improved management or use of the development of the land;
·Direct payment of royalties in accordance with the Mining Act.
And to the nation:
·By the earning of foreign capital from the sale of iron ore and by the contribution to the national tax base.
They say that the whole of the Solomon Project is of significance to the nation.
[111] In its contentions, at para 60, the State submits that the tenements are of great economic significance to the Nation and State in terms of the production of royalties for the State and export income for the Nation. They also submit that it is likely to benefit the local economy in and around the Pilbara in general and they cite Australian Manganese at 409 [58] as authority for that proposition. The native title party does not make any submissions in relation to this matter, and I conclude that it is a project of economic significance, which will benefit the State and the Nation, and that some positive economic effect may be experienced by the local economy including by local Aboriginal people and in particular the Yindjibarndi.
Section 39(1)(e) – public interest
[112] The grantee party contends there is strong public interest in determining that the proposed tenements be granted and go ahead in allowing the management, use and development of the local resource, and they cite WMC/Evans at [215], as an authority. The State, in its submissions at para 61 essentially reiterate that position. The native title party does not make any submissions in relation to that matter. 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 lease.
Section 39(1)(f) – any other matter the Tribunal considers relevant
[113] The grantee party makes submissions in relation to this limb of s 39 at para 13 of its contentions that set out the location of the proposed tenements in relation to pastoral leases and underlying exploration licences, the import about which I am not entirely clear. The State, in its contentions at paras 62 and 63, submits that the effect on the environment of the grant of the proposed tenements is a relevant factor, and cite WMC/Evans at 357 [81]. They submit that any impact on the environment will be mitigated, minimised and regulated by the effect of the Mining Act and mining regulations, in particular ss 63 and 82 of the Mining Act, by the conditions and endorsements proposed to be imposed on the tenements by 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 WA 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
[114] As noted previously, the area of the proposed leases is unallocated Crown land and parts of the Mount Florance pastoral lease (3114/465), which overlaps in some respect all of the three proposed tenements. Other than the grantee party’s underlying exploration licences and miscellaneous licence which, pursuant to s 238, are subject to the non extinguishment principal, there are no other non native title rights and interests in the areas subject to the proposed lease.
Conclusion
[115] The task of the Tribunal in inquiries such as this is to thoroughly analyse the evidence and submissions which are placed before it by the various parties in relation to the criteria set out in s 39. In coming to a conclusion in relation to the granting of the proposed tenements, in accordance with s 38(1), the Tribunal must take into account the evidence presented by the various parties of the impact upon those parties of the doing of the act. The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms, or the rules of evidence (s 109(3) of the Native Title Act). It must also be fair, just, economical, informal and prompt (s 109(1) of the Native Title Act), 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 Native Title Act). It is always a difficult situation for the Tribunal to deal with matters such as these in circumstances where there is significant inconsistency, if not contradiction, between evidence given by members of the native title party, and even more acutely in circumstances where persons who comprise the applicant give conflicting evidence.
[116] In the circumstances of this matter it was probably open to me to find that Mr Woodley was not authorised by the native title party (ie the applicant as a whole) to file the evidence he filed on behalf of the native title party. In that circumstance I would have been confronted with the prospect of considering the criteria contained in s 39 of the Act without any evidence from the native title party, on the face that that may have been an appropriate course. However, in the circumstances of this case I believed it more appropriate to consider all the evidence that came before me in order to thoroughly consider the evidence before coming to a decision about the grant of the proposed tenements. I have considered that evidence, and I believe its weight falls clearly on the side of allowing the grant subject to the four extra conditions (subject to minor amendments) that the state has agreed to impose.
[117] In allowing the grant of the proposed tenements, as I have indicated earlier, I have come to the view that it is appropriate that the proposal of the Government to impose four extra conditions on the grant of the tenements be accepted and those conditions imposed upon the grant. These conditions will be imposed in the context of the information which has come to light in the various surveys the grantee party has conducted including the four sites discussed above. The additional conditions proposed by the Government will assist the native title party in ensuring that any such area within the tenements is protected. The first proposed condition of the Government makes it clear that the native title party may access and use the land the subject of the tenements without restriction, except in circumstances where mining or exploration operations, safety or security require their exclusion. The second proposed 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 and cultural data, to the native title party. I do not understand why it would be that the State would exclude from that condition the provision of ‘cultural data’. I can only assume that ‘cultural data’ relates to matters pertinent to Aboriginal heritage. I see no reason why the native title party should not also receive any cultural data, and therefore it is my intention to exclude that exception from the provision of extra condition two in relation to both the mining lease and the exploration licences. Special condition four binds any successors entitled to the mining tenements to all the conditions imposed on the grant of the tenement. The third extra condition in relation to the exploration licence 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 State Mining Engineer. The third condition in relation to the mining lease requires the grantee party to provide to the native title party, prior to commencing any development, productive mining or construction activity, all the materials and addendums which it is required to submit to the Director of Environment at the Department of Minerals and Petroleum at the same time as it provides materials to that office, exclusive of sensitive commercial data.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 on the land the subject of the tenements, protect sites of significance on the area and allow them to participate in further discussions as to how productive mining is to be progressed on the area the subject of those tenements.
Determination
[118] The determination of the Tribunal is that the acts may be done subject to the imposition of the extra conditions set out below. E47/1398 and E47/1399 may be granted subject to standard conditions and endorsements proposed by the state in [43] above, including the extra conditions condition contained in [44] above being:
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.
[119] The grant of M47/1431 may be done subject to the conditions proposed in [43] above and subject to the extra conditions being:
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 lands 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 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 all times 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 his assessment and written approval; the grantee party must at the same time give to the native title party a copy of the proposal or addendums, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
iv.Upon assignment of the mining lease, the assignee shall be bound by these conditions.
Daniel O’Dea
Member
17 June 2011
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