FMG Pilbara Pty Ltd v Yindjibarndi Ngurra Aboriginal Corporation RNTBC
[2020] NNTTA 8
•5 February 2020
NATIONAL NATIVE TITLE TRIBUNAL
FMG Pilbara Pty Ltd v Yindjibarndi Ngurra Aboriginal Corporation RNTBC and Another [2020] NNTTA 8 (5 February 2020)
Application No: | WF2019/0004 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
FMG Pilbara Pty Ltd
(grantee party)
- and -
Yindjibarndi Ngurra Aboriginal Corporation RNTBC (WCD2017/010)
(native title party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 5 February 2020 |
Catchwords: | Native title – future act –– future act determination application ––application for determination for the grant of mining lease – previous decision over area – application of s 40 – s 39 criteria considered – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect of the act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – determination that the act may be done subject to conditions |
Legislation: | Native Title Act 1993 (Cth), ss 29, 30, 31, 35, 36, 38, 39, 40, 146, 151 Mining Act 1978 (WA), ss 73, 75, 76, 78, 82, 85 Mining Regulations 1981 (WA) Aboriginal Heritage Act 1972 (WA) ss 5, 18 |
Cases: | Albert Little & Others on behalf of Badimia/Western Australia/Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (‘Little v Lake Moore Gypsum’) Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker Resources’) Ted Comanoo Evans & Anor on behalf of the Koara People v Western Australia & Ors [1997] FCA 741; (1997) 77 FCR 193 (‘Evans v Western Australia’) FMG Pilbara Pty Ltd v Yindjibarndi Ngurra Aboriginal Corporation RNTBC and Another [2018] NNTTA 64 (‘FMG v YNAC 2018’) Minister for Immigration and Border Protection v WZARH 256 CLR 326 Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (‘Minister for Lands v Thalanyji’) Re: Parker; Ex Parte: Mullavey [1989] WAR 233; [1988] WASC 129 (‘Mullavey’) Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia(No 2) [2017] FCA 1299 (‘Warrie v Western Australia’) Western Australia/Jidi Jidi Aboriginal Corporation/Paladin Resources Ltd [2002] NNTTA 114 (‘Western Australia v Jidi Jidi’) Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (Wa) Ltd (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’) Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu)/Western Australia/Holocene Pty Ltd, [2009] NNTTA 49 (‘Holocene’) |
| Representatives(s) of the native title party: | Mr George Irving, Yindjibarndi Aboriginal Corporation RNTBC |
| Representative(s) of the grantee party: | Mr Ken Green, Green Legal |
| Representatives(s) of the Government party: | Mr Domhnall McCloskey, State Solicitor’s Office Ms Donna Vicensoni, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the State of Western Australia (State) may grant mining lease M47/1570 (lease) to FMG Pilbara Pty Ltd (FMG) and, if so, whether the grant is to be done subject to any conditions.
The lease forms part of FMG’s Solomon Hub project in the Pilbara region of Western Australia. Yindjibarndi Ngurra Aboriginal Corporation (YNAC) holds native title in trust in relation to the whole of the lease area.
FMG applied for M47/1570 under the Mining Act 1978 (WA) (Mining Act) on 29 March 2018. FMG had previously applied for another mining lease, M47/1513-I, over the same area, which totals about 1032.40 hectares. On 25 October 2018, the Tribunal decided in FMG v YNAC 2018 that M47/1513-I may be granted subject to conditions. M47/1513-I was subsequently granted but only over part of the area subject to the mining lease application, being about 700 hectares. The relevance of FMG v YNAC 2018 and M47/1513-I is discussed further below.
In this case, the State gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant M47/1570, with a notification day of 25 January 2019. The negotiation parties, being the State, FMG and YNAC, were then required to negotiate in good faith with a view to obtaining YNAC’s agreement to the grant of the lease
(s 31(1)(b) NTA).
The parties did not reach agreement and, on 31 July 2019 (being at least 6 months after the notification day), FMG lodged a future act determination application under
s 35 of the NTA, for a determination under s 38 of the NTA. That application was accepted by the Tribunal on 5 August 2019.
The President of the Tribunal has directed me to constitute the Tribunal for the purposes of conducting an inquiry into the future act determination application.
For the reasons outlined below, my determination is that the grant of the lease may be done, subject to conditions to be complied with by the parties.
Issues for consideration
I must not make a determination on the application in this matter if YNAC satisfies me that the State or FMG did not negotiate in good faith (s 36(2) NTA). In this case, YNAC was clear from the outset that it was not seeking to challenge the other parties’ good faith, so it is not necessary for me to further consider that issue.
I am therefore required to make one of the following determinations:
(a)that the grant of the lease must not be done;
(b)that the grant of the lease may be done; or
(c)that the grant of the lease may be done, subject to conditions to be complied with by any of the parties. (s 38 NTA)
The matters that I must take into account in making a determination are those set out in s 39(1) of the NTA. The NTA does not specify the weight to be afforded to each matter listed in s 39 – that will depend on the evidence (see Western Australia v Thomas at 166.)
In this case, there were no issues relevant to s 39 on which the parties agreed (see s 39(4) NTA) and therefore I have considered each of the s 39(1) criteria.
Determination on the papers
I made a number of directions for the provision of submissions and evidence by the parties.
Following the preliminary conference, I made directions with a view to ascertaining the extent of agreement between the parties about the relevance of the Tribunal’s decision in FMG v YNAC 2018 and the extent to which any findings or the determination in that matter should be adopted here. While there were some initial indications of agreement, parties could not agree on the approach and therefore I subsequently made directions for the provision of contentions and evidence relevant to the matters listed in s 39.
All parties have provided contentions and evidence for the Tribunal’s inquiry in this matter. Both FMG and YNAC rely, in part, on evidence provided in FMG v YNAC 2018.
All parties agreed to the matter being determined on the papers as permitted by
s 151(2) of the NTA. Having reviewed the material, I am satisfied that the issues can be adequately determined without requiring a hearing.
The proposed future act
M47/1570 is a mining lease proposed to be granted under s 75 of the Mining Act. FMG’s material includes a mining lease tenement register search and the mining proposal and mineralisation report lodged with the application. The lease is stated to relate to the Pinnacle deposit.
As outlined in the State’s contentions at paragraphs 29 – 32, the initial term of the lease is 21 years and under s 78 of the Mining Act it may be renewed. The rights of the holder of a mining lease are set out in s 85 of the Mining Act. In addition, s 82 of the Mining Act, and regulation 28 of the Mining Regulations 1981 (WA) set out certain statutory conditions to which any lease granted will be subject.
The Tengraph Quick Appraisal provided by the State shows that the lease area is 1032.40 hectares. The land is also subject to a number of granted mining tenements, including miscellaneous licences, held by FMG or related entities.
It is common ground between the parties that FMG’s application for the lease relates to the same area as the application for M47/1513-I considered by the Tribunal in FMG v YNAC 2018.
The parties also agree that M47/1513-I was granted over only part of that area, totalling about 700 hectares. An area of about 333 hectares was excluded from M47/1513-I upon grant. I note that s 73 of the Mining Act provides that the area over which a mining lease is granted may be less than the area sought.
The parties differ, however, about what the grant of M47/1513-I means for this inquiry in relation to the proposed grant of M47/1570.
FMG and the State argue that the grant of M47/1513-I over part of the application area for M47/1570 means that only the remaining (about) 333 hectares is available for grant and therefore this inquiry is limited to consideration of that area.
The authority FMG cites for this proposition is Mullavey, although that case turned on very different facts to those here. Section 76 of the Mining Act, mentioned in Mullavey, provides that “where an application for a mining lease includes any portion of land included in a current mining tenement held by a person other than the applicant, any mining lease granted on the application shall not include any such portion of land” – suggesting that a grant to the same person, as is proposed here, is permitted.
In any case, the State has provided a copy of its proposed endorsements and conditions to be imposed on the lease which are Annexure 1 to this determination. Endorsement 4 provides that the area of M47/1570 will exclude the area of
M47/1513-I.
Therefore, regardless of whether it would be possible under the Mining Act for the tenements to overlap, the State’s clear intention is that they will not.
In contrast, YNAC argues that, having received a future act determination application in relation to the whole of the area of the proposed lease, I am bound to inquire into its effect on the whole of that area.
I agree, in part, with both positions. YNAC is correct that the subject matter of the inquiry is the future act as notified in the s 29 notice. This is also a point made by FMG at paragraph 4.2 of its contentions. In this case, the act as notified covers the entire 1032.40 hectares.
However, the fact that the lease will not, according to the State’s proposed endorsement, include the area of M47/1513-I, is clearly a relevant factor in my consideration of the effect of the lease under s 39 of the NTA, and I have taken the proposed reduced area into account in that context below.
The decision in FMG v YNAC 2018
The decision in FMG v YNAC 2018 concerned the grant of a mining lease over the same area as M47/1570 and involved the same parties, so it is worth noting at the outset a number of matters concerning the Tribunal’s determination in that case.
As set out in the Tribunal’s reasons at [5]-[20], FMG v YNAC 2018 involved a somewhat complicated procedural history and YNAC did not initially provide evidence and contentions concerning the matters in s 39 (see [21]). However, the Tribunal made later directions requiring YNAC to produce evidence and contentions for the inquiry, which it did (see FMG v YNAC 2018 at [22]-[23]). YNAC has relied on the same evidence, together with some additional material, in this case.
Additionally, the parties provided an agreed statement of issues and facts which stated that FMG and the State sought a determination that the act may be done and YNAC sought a determination that the act may be done subject to two conditions (FMG v YNAC 2018 at [25]).
Notwithstanding the parties’ agreed statement, the Tribunal considered each of the matters in s 39 having regard to the evidence provided by each of the parties, and made findings about those matters.
Ultimately, the Tribunal determined that M47/1513-I may be done subject to conditions, although the conditions determined by the Tribunal were not the conditions sought by YNAC.
Application of section 40 NTA
In light of the decision in FMG v YNAC 2018, it is necessary to consider s 40 of the NTA which provides as follows:
40 No re‑opening of issues previously decided
If:
(a)the arbitral body is making a determination in relation to an act consisting of the creation of a right to mine in relation to an area; and
(b)an agreement, or a determination by an arbitral body, under this Subdivision involving the same negotiation parties was previously made in relation to a future act consisting of the creation of a right to mine in relation to the same area; and
(c)an issue was decided in the agreement or during the inquiry;
the negotiation parties must not, without leave of the arbitral body that is making the determination, seek to vary the decision on the issue.
On the face of it, s 40 applies here because the determination in FMG v YNAC 2018 involved the same parties and covered the same area as the proposed area of M47/1570 (notwithstanding that the State’s intention is for M47/1570 to apply to only part of that area).
None of the parties in this case has sought leave to reopen any issue decided in FMG v YNAC 2018, although YNAC had foreshadowed doing so during the course of the inquiry.
YNAC does argue (at paragraphs 3.3 and 3.4 of its contentions) that no compelling reasons are required for leave to be granted. It says this is because, if the interests of fairness and justice require, then the Tribunal clearly has a power to reconsider a previously determined issue, as s 146 merely provides a discretion to adopt previous findings or decisions.
The State says in reply that, while it is not necessary to decide the issue, it does not accept the causal link between ss 40 and 146 impliedly drawn by YNAC. I agree with the State on this point. A clear distinction between ss 40 and 146 is that s 40 is directed at the parties and what is required for them to seek to reopen any issues previously agreed or determined, whereas s 146 deals with the Tribunal’s discretion to, amongst other things, adopt any previous finding or decision.
Ultimately however, no leave has been sought and the issue does not arise for consideration. Therefore, I will proceed to consider each of the matters under s 39 below.
Consideration of section 39 criteria
Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
Native title has been determined to exist in relation to the lease area and therefore the registered native title rights and interests are those described in the relevant entry on the National Native Title Register (s 30(3) NTA).
According to the State’s material, YNAC holds exclusive native title rights and interests in relation to approximately 24.58% of the lease area and non-exclusive rights to the balance (being the Mt Florance pastoral lease). I note that YNAC sought to amend its contentions by correspondence to state that 777 hectares of the total lease area is unallocated Crown land and the remaining 333 hectares is pastoral lease. As the State points out at paragraph 5 of its reply, this is in error. The State’s evidence clearly shows the majority of the lease area is subject to the Mt Florance pastoral lease.
The grant of M47/1513-I covers the whole of the area subject to exclusive native title, as well as part of the pastoral lease area. This means that the whole of the proposed area of M47/1570 is located within the Mt Florance pastoral lease and is subject to the following non-exclusive native title rights:
(a)A right to access (including to enter, to travel over and remain);
(b)A right to engage in ritual and ceremony (including to carry out and participate in initiation practices);
(c)A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;
(d)A right to fish from the waters;
(e)A right to collect and forage for bush medicine;
(f)A right to hunt and forage for and take fauna;
(g)A right to forage for and take flora;
(h)A right to take and use resources;
(i)A right to take water for drinking and domestic use;
(j)A right to cook on the land including light a fire for this purpose;
(k)A right to protect and care for sites and objects of significance in the Determination Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others).
In its contentions in relation to this criterion, YNAC draws a distinction between claimed and determined native title rights. It says that “it is axiomatic that a future act cannot affect native title if there has not yet been a determination, which recognises the existence of those rights”.
In my view, that it not correct. As YNAC itself submits (at paragraph 5.6), a determination of native title merely recognises that which already exists. Therefore an act may affect native title, regardless of whether it has yet been determined.
The definition of registered native title rights and interests in s 30(3) covers both claimed and determined native title rights. The difference is that the registered rights in the context of a claim are assumed to exist for the purposes of weighing the s 39 criteria, while the determined rights have been recognised through the Court’s determination.
YNAC further argues that, having satisfied the Court in Warrie v Western Australia, it “would be oppressive to require the common law holders of native title to prove the same again and again, each time a portion of their land becomes the subject of a future act” (YNAC contentions paragraph 7.3).
However, the issue here is not the existence of native title in the areas concerned, whether exclusive or non-exclusive. The issue is the extent to which those determined rights are in fact enjoyed in the area of the lease, which the Tribunal needs to understand in order to assess the effect of the lease. This then forms one of the factors the Tribunal must weigh in deciding if the lease should be granted and if so, any relevant conditions.
This approach is reflected in the following paragraph from Western Australia v Jidi Jidi at [27]:
These determined interests apply to the claim area generally and could potentially be affected by exploration. It is ordinarily the responsibility of the native title party to produce evidence of how these registered rights and interests are enjoyed and exercised so that the Tribunal can consider the likely impact of the future act (WMC Resources Ltd/State of Western Australia/Evans (NNTT WF99/4, 23 December 1999 at p 10-11)). Although WF99/4 dealt with claimants not holders of native title, the principle is the same. Section 39(1)(a)(i) talks of the effect of the act on the enjoyment of the registered native title rights and interests which includes determined native title rights described on the National Native Title Register (s 30(3)(a)). While the native title rights and interest specified on the Register exist over the whole area covered by the determination, how they are enjoyed in practice in a particular locality may vary. For this reason the principles outlined in WF99/4 about evidence of the enjoyment of native title rights and interests, so that the effect of a future act can then be assessed remains applicable.
YNAC also says, in relation to the land subject to the lease, that because it is the prescribed body corporate for the Yindjibarndi determination, it cannot itself “enjoy” the native title rights but keeps the determination area, to the extent possible, “in a virgin state” for the enjoyment of the common law holders. (YNAC contentions paragraph 7.1)
This is not the first occasion the Tribunal has considered the enjoyment of native tile rights where the native title party is a registered native title body corporate. In Holocene, the Tribunal observed at [64] that:
The Tribunal’s task is to examine the effect of the proposed mining activities over the area of the proposed lease on the enjoyment of the native title rights and interests of the native title party. Although by definition the native title party is WDLAC, it is self-evident that the Tribunal is concerned with the effect of the act on the Martu native title holders. The issue is considered by examining the evidence relating to the actual exercise or enjoyment of the rights in the relevant area not by reference to a worst case scenario which assumes the existence and enjoyment of all the registered native title rights equally over the whole of the determined area including the particular locality under consideration (Waljen (at 166-167); WMC/Evans (at 339-341); Australian Manganese Pty Ltd v State of Western Australia & Others [2008] NNTTA 38; (2008) 218 FLR 387 (‘Australian Manganese/Nyiyaparli’) (at 400-403 [36]-[39]).
[emphasis added]
I agree with the observations in Holocene. To take the narrow view proposed by YNAC would render nugatory the very assessment the Tribunal is required to undertake and be a grave disadvantage to native title parties.
In FMG v YNAC 2018, Member McNamara considered s 39(1)(a) at [35]–[43]. Of relevance to this matter is the discussion at [40]–[43] regarding the exercise of rights in the Mt Florance pastoral lease area. In particular, Member McNamara took account of evidence from Mr Michael Woodley in Warrie v Western Australia regarding the wutheroo ritual, particularly in relation to the watercourse Tharndibirndinha Wurndu which traverses the M47/1570 application area. I note only a small portion of that watercourse appears to be located within the approximate 333 hectares proposed for grant in this case.
Ultimately, in FMG v YNAC 2018, the Tribunal found that the effect of the proposed mining lease on the enjoyment by the Yindjibarndi people of their native title rights and interests did not, on its own, give rise to a conclusion that the mining lease should not be granted.
There is no additional relevant material provided in this matter and in my view, it is appropriate to adopt the same finding here.
Effect on way of life, culture and traditions: s 39(1)(a)(ii)
Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)
Effect on freedom of access to the land or waters and freedom to carry out rites, ceremonies or other activities of cultural significance in accordance with traditions: s 39(1)(a)(iv)
I will deal with ss 39(1)(a)(ii)–(iv) together as YNAC makes the same contention in relation to each.
Similar to its position discussed above in relation to s 39(1)(a)(i), YNAC says that these factors are irrelevant because it is YNAC, as the RNTBC, which holds the native title, rather than the Yindjibarndi people as the common law holders.
Consequently, YNAC says that there are no such matters that can be affected by the grant of the lease.
As discussed above, I don’t accept the basis of YNAC’s proposition in the context of the Tribunal’s task in weighing the matters listed in s 39.
In relation to s 39(1)(a)(ii), the Tribunal in FMG v YNAC 2018 was, in the absence of any evidence, satisfied that the grant of the lease would not affect the way of life, culture and traditions of Yindjibarndi (FMG v YNAC 2018 at [46]).
Similarly, in relation to s 39(1)(a)(iii), the Tribunal said there was no evidence to conclude that the lease would have any adverse effect on the Yindjibarndi’s social, cultural or economic structures (FMG v YNAC 2018 at [49]).
In relation to s 39(1)(a)(iv), I expect there may be some effect on the freedoms of the common law holders from the conduct of mining activities, however YNAC has not made any specific contentions in that respect.
In FMG v YNAC 2018, Member McNamara took account of YNAC’s evidence in relation to the performance of the wutheroo ritual when they approach a wundu, including the watercourse known as Tharndibirndinha Wurndu. However, the Member was ultimately satisfied that the effect on the freedom of access and freedom to carry out rites and ceremonies did not (on its own) give rise to a decision that the act must not be done (FMG v YNAC 2018 at [56]).
As noted previously, the State’s mapping shows the majority of Tharndibirndinha Wurndu within the lease area to be located within the area of the granted mining lease M47/1513-I. Only a small section of that watercourse would appear to be located within the proposed area of M47/1570.
Again, in my view it is appropriate to adopt the findings in FMG v YNAC 2018 in relation to each of these criteria.
Effect on any area or site of particular significance: s 39(1)(a)(v)
Section 39(1)(a)(v) concerns the effect of the proposed lease on “any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions.” This requires the site to be of special or more than ordinary significance to the native title party (Cheinmora v Striker Resources at 34-35).
For the reasons already noted, YNAC contends that this consideration is “irrelevant and unnecessary given the proprietary right of the NTP to keep the land in its natural state, so the common law holders can protect sites and objects of significance to them, in accordance with their traditional laws and customs”.
The Aboriginal Heritage Inquiry System (AHIS) searches provided by the State reveal that there are no sites registered under the Aboriginal Heritage Act 1972 (WA) (AHA) within the area of M47/1570. However, sites do not need to be registered to be of particular significance (see Little v Lake Moore Gypsum at [67]).
The State’s AHIS searches for M47/1570 also disclose seven Other Heritage Places, which it says have been lodged with the Registrar of Aboriginal Sites since the provision of evidence in FMG v YNAC 2018. However, the State has also provided AHIS searches for the granted mining lease M47/1513-I which it says show the seven sites fall within the area of that lease.
I accept that is the case for the six artefact scatters listed, however the mapping, including FMG’s document no. 59, indicates that the site ID 37622, being the watercourse Tharnidibirndinha Wurndu, does extend into the proposed area of M47/1570. The site type is described as “Mythological, Natural Feature, Water Source”, but its status is described as “Stored Data/Not a Site” which means it has been assessed as not meeting the requirements of s 5 of the AHA.
YNAC describes the significance of Tharnidibirndinha Wurndu at paragraphs 7.2–7.5 of its contentions, but acknowledges at 7.4 that there is a disparity between the significance of this site to Yindjibarndi people, the requirements of s 5 of the AHA, and what is required for the site to be of particular significance under s 39(1)(a)(v).
In FMG v YNAC 2018, Member McNamara considered in some detail the significance of Tharnidibirndinha Wurndu (and a number of other sites found to be outside the lease area). While accepting Tharnidibirndinha Wurndu was a wundu associated with the wutheroo ceremony, Member McNamara was unable to conclude that it was a site or area of particular significance within the meaning of this criterion.
There is no information before me which would lead to a different conclusion and therefore I adopt that finding in relation to this matter.
Interests, proposals, opinions or wishes of YNAC in relation to the management, use or control of land or waters affected by the lease: s 39(1)(b)
YNAC does not raise any specific intentions in relation to the lease area, other than its stated desire for the land to remain untouched to the greatest extent possible.
Under this criterion, YNAC argues for a determination that the “grant should not be made without the written consent of the NTP, as the owner and concurrent occupier of the land”. It says that the practical effect of such a condition would require FMG to re-apply for a mining lease over the portion of the land that is covered by the pastoral lease. In the alternative, YNAC argues that:
.. if the Tribunal is minded to allow the grant the NTP asks the Tribunal to impose a condition which requires FMG to execute field surveys over the land, at FMG’s expense, so that the NTP can work with the common law holders to comprehensively document and record the geographic and physical manifestations of the spirituality of Yindjibarndi country, in the land, and spiritual, cultural and social connections between the land and the common law holders. Such a condition is not intended to operate as a veto on the grant; instead its objective would be to ensure that field surveys are arranged by the body that manages the native title; that the reasonable costs of the field surveys and recordings are met by the proponent; and, that the field surveys are executed within a reasonable time and that the records of the field surveys remain the property of the NTP.
No further explanation is given regarding either determination sought by YNAC.
In reply to YNAC’s contentions, the State disputes that YNAC is the owner, given some of the land is unallocated Crown land and the balance is pastoral lease.
FMG says there is no evidence or insufficient evidence to ground a determination that M47/1570 should not be granted.
Neither of the outcomes sought by YNAC is consistent with FMG v YNAC 2018 and as noted previously, no party has sought leave to reopen any of the issues decided in that case. There is, in any event, no justification for either determination sought by YNAC.
There are a number of difficulties with YNAC’s primary contention that the grant should not be made without its written consent.
Firstly, I am mindful that in FMG v YNAC 2018, YNAC agreed that the grant may be done.
Secondly, regardless of whether it holds exclusive or non-exclusive native title, the right to negotiate process does not amount to a veto, which is what appears to be suggested by YNAC. As the Federal Court has observed, it is now for the Tribunal to decide the issues between the parties (see Evans v Western Australia at 214).
Thirdly, it is not clear why such a determination would force FMG to apply for a tenement over only the pastoral lease land and, as has been noted, the State’s clear intention is that M47/1570 will apply only to the pastoral lease land in any event.
YNAC’s alternative proposal appears to be borne from issues canvassed in FMG v YNAC 2018 (at [29]–[34]) regarding FMG’s cultural heritage management practices. Those issues were considered at length in FMG v YNAC 2018 and I agree with Member McNamara’s observations at [34] in that case. Ultimately the Tribunal imposed the conditions noted below, rather than the conditions sought by YNAC. There is no reason given, nor any apparent basis, for the conditions now proposed by YNAC in this case.
Economic or other significance of the lease: s 39(1)(c)
Under s 39(1)(c) I am required to take into account the economic or other significance of the lease to Australia, the State, the area in which the lease is located and to the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the lease, rather than consideration of the significance of exploration or mining generally (Western Australia v Thomas at 175-176).
This issue was considered in FMG v YNAC 2018 at [72]–[76]. In that case the Tribunal accepted the contentions of FMG and the State and found that the proposed lease would be of economic benefit to the State as well as the regional and local areas.
YNAC does not dispute that finding here and the State and FMG advocate for similar findings. It is therefore appropriate to adopt the finding on this issue in FMG v YNAC 2018 at [76].
Public interest in the grant of the lease: s 39(1)(e)
Section 39(1)(e) requires the Tribunal to determine whether the proposed future act is ‘in the public interest’. This expression has been described as importing a discretionary value judgment made by reference to undefined factual matters, and only confined by the subject matter, scope and purpose of the legislation (see Minister for Lands v Thalanyji at [266]). There can be a public interest in the act proceeding or not proceeding, and the public interest is not limited to economic considerations: Western Australia v Thomas at 176.
In FMG v YNAC 2018, the Tribunal adopted the findings in Western Australia v Thomas at [215]-[216] and accepted that there was public interest in the grant of M47/1513-I because the mining industry is of considerable economic significance to the State and Australia (see [77]-[80]).
The State argues that I should adopt and apply that finding here (State’s contentions paragraph 43). FMG argues for a similar finding on the basis of its evidence regarding the significance and success of its operations, particularly the Solomon Project.
Again, YNAC does not dispute the finding in FMG v YNAC 2018 but argues, citing the Preamble to the NTA, there is also public interest in ensuring that the native title rights of the common law holders achieve full recognition and status.
The native title rights of the Yindjibarndi people have been recognised through the determination of native title in Warrie v Western Australia. However, just as the NTA provides for the recognition of native title, it also provides for the doing of acts that affect native title subject, in this case, to the right to negotiate process.
It is in that context that I must weigh the matters in s 39, including any public interest in the grant of the lease. In my view it is again appropriate that I adopt the finding on this issue in FMG v YNAC 2018.
Any other matter the Tribunal considers relevant: s 39(1)(f)
FMG argues that because previous determinations relating to Solomon Hub project tenements have resulted in a determination that the relevant act may be done, or may be done subject to conditions, it “has a legitimate expectation that the lease may be granted or may be granted subject to conditions such that an exceptional reason would be needed to reach a different decision to those previous determinations”.
I don’t accept that proposition. In Australia, the notion of legitimate expectation has been roundly rejected by the High Court (see Minister for Immigration & Border Protection v WZARH at [28]-[30]) and, in any event, was relevant to the procedural rights to which a party may be entitled. FMG appears to be suggesting not just that its expectation as to the outcome of this determination entitles it to procedural fairness, but that its expectation is a factor relevant to my decision.
YNAC takes issue with FMG’s assertion of a legitimate expectation and contends that “it has an equal, if not more important legitimate interest in ensuring that its proprietary interests are honoured and fully respected now that they have been finally determined after 16 years of legal battles”.
My task is to weigh the matters in s 39 relevant to the tenement under consideration, having regard to the evidence. If there are findings or evidence in previous decisions that are also relevant here, then I am able to have regard to them and adopt them as appropriate.
Accordingly, I do not consider the issues raised by FMG and YNAC under this criterion to be relevant factors for consideration.
Should the lease be granted and, if so, should conditions be applied?
I have weighed the likely effect of the grant of the lease on the matters in
s 39(1)(a) and the interests of the native title parties at s 39(1)(b), against its economic significance, the public interest in the grant of the proposed tenement and other relevant matters at ss 39(1)(c)-(f).
In FMG v YNAC 2018, the Tribunal determined that the grant of the mining lease may be done subject to two conditions to be complied with by the parties, as follows:
(a)If the grantee party gives a notice to the Aboriginal Cultural Material Committee under s18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice on the native title party.
(b)Within 14 days of receipt of a copy of any notice given to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA), the native title party will inform the grantee party in writing if they wish to engage in consultation concerning the proposed use of the land. If so informed, the grantee party will promptly supply details of the proposed use and meet with the native title party to explain it.
The State contends that the determination in this matter should be consistent with the determination in FMG v YNAC 2018 (State’s contentions paragraph 17 and 45) and I agree with that contention. There is nothing before me which would require a different determination to that made in FMG v YNAC 2018.
Determination
I determine that the grant of M47/1570 may be done, subject to the conditions set out at [99].
Ms Nerida Cooley
Member
5 February 2020
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