India Bore Diamond Holdings Pty Ltd and Another v Bunuba Dawangarri Aboriginal Corporation RNTBC
[2021] NNTTA 5
•12 February 2021
NATIONAL NATIVE TITLE TRIBUNAL
India Bore Diamond Holdings Pty Ltd and Another v Bunuba Dawangarri Aboriginal Corporation RNTBC [2021] NNTTA 5 (12 February 2021)
Application No: | WF2020/0007 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
India Bore Diamond Holdings Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
- and -
Bunuba Dawangarri Aboriginal Corporation RNTBC
(WCD2012/0006, WCD 2015/0009)
(native title party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 12 February 2021 |
Catchwords: | Native title – future act – application for determination in relation to proposed grant of mining lease – 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, 31, 35, 38, 39 Mining Act 1978 (WA) ss 74, 78, 82(1)(g), 85 |
Cases: | Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 (Bunuba #2 v WA) Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193 Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 Shirley Purdie & Others on behalf of Yurriyangem Taam v Peter Romeo Gianni & Another [2020] NNTTA 43 Watson on behalf ofNyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (Nyikina Mangala v Backreef Oil) Western Desert Lands Aboriginal Corporation v Western Australia and Another [2009] NNTTA 49; (2009) 232 FLR 169 (Holocene) White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales [2011] NNTTA 110 (White Mining v Franks) Wurrunmurra v State of Western Australia [2012] FCA 1399 (Wurrunmurra v WA) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
Representatives of the native title party: | Meredith Brown and Gemma Acland, Kimberley Land Council |
| Representatives of the grantee party: | Kim Graves and Peter McNally, India Bore Diamond Holdings Pty Ltd |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office Dennis Jacobs, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
On 21 December 2018, the State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant mining lease M04/473 (the lease) to India Bore Diamond Holdings Pty Ltd (India Bore). The Bunuba Dawangarri Aboriginal Corporation RNTBC (Bunuba/NTP) are a native title party because they hold native title in trust for the Bunuba people over an area which includes the lease (see Wurrunmurra v WA and Bunuba #2 v WA). Under s 31 of the Act, the State and India Bore are required to negotiate in good faith with Bunuba with a view to obtaining their agreement. No agreement has been reached and so India Bore exercised their right to apply to the National Native Title Tribunal (the Tribunal) for a determination that the act be done (that is, the grant be made, as per ss 35, 38(1)(b) of the Act).
If any negotiation party satisfies the Tribunal that any other negotiation party (other than a native title party) did not negotiate in good faith (as mentioned in paragraph 31(1)(b) of the Act), I must not make the determination. No party contended that the other parties had failed to negotiate in good faith, and I am satisfied that I can make a determination.
As outlined in Yindjibarndi v WA (which, at [20], approved Waljen (at 165-166)) a s 38 determination is of a discretionary nature which:
... involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us ... The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.
The Act indicates I ‘must take into account’ each of the s 39 criteria and I must consider any factual material before me that goes to those criteria. There is no ‘specific methodology or formula’ about how I must go about this task (Nyikina Mangala v Backreef Oil at [30]).
Bunuba argue I should determine the act must not be done (s 38(1)(a)) or, in the alternative, done with conditions (s 38(1)(c)). The State argue their regulatory regime, including proposed endorsements and conditions (see [9] below), will mitigate any effect on native title rights and interests. In their reply, the State (at 11) emphasise their view that my decision should be that the act may be done with no conditions.
If conditions are to be imposed, then their subject matter is shaped by the requirements of s 39 (Evans v Western Australia). I have considered the materials provided by parties addressing the s 39 criteria and, having weighed up the material, I have determined the act may be done with conditions. Further information about conditions is outlined at [10] and [52]-[69] below.
The inquiry process
India Bore provided contentions, three heritage survey reports (dated May 2017, July 2018, and December 2019), a draft Cultural Heritage Protection and Management Plan, a draft Community Engagement Framework (see more on these documents at [64]-[67] below), and maps of the area. Following the Bunuba materials, India Bore provided a statement in reply, and the affidavit of Peter Eugene McNally, Managing Director of India Bore.
The State provided contentions with nine annexed documents, which included proposed draft endorsements and conditions to be imposed on the lease as well as four extra conditions (outlined respectively at Annexure C and D to this determination). A mining lease is liable to be forfeited if the holder breaches a condition (see s 82(1)(g) of the Mining Act 1978 (WA)). The State also provided a reply to the Bunuba contentions and materials.
Bunuba provided contentions and the affidavits of Mr Jimmy Dilliny Andrews, Mr Jimmy Shandley, Mr Kevin Oscar, Ms Mary Aiken and Mr Fabian Street (all of whom I am satisfied can speak on behalf of Bunuba people for the country the subject of this inquiry). In their final submissions, Bunuba noted Mr Shandley had requested that material from his affidavit not be published. I confirm Mr Shandley’s evidence was consistent with evidence from the other affidavits, and have accommodated that request in this decision. Bunuba also provided a report by Kimberley Land Council Anthropologist, Mr Leo Hayward, entitled Anthropological assessment of the potential impacts of mining lease M04/473 in the Bunuba and Bunuba #2 Part A native title determination areas’; the Jalangurru Muwayi: Bunuba Healthy Country Plan 2018-2028 (Healthy Country Plan); and the Bunuba Dawangarri Aboriginal Corporation Rule Book (BDAC Rule Book).
Following my reading and consideration of the parties’ submissions, I provided the parties with draft proposed conditions (as outlined at Annexure A) and allowed them time to provide their view on those conditions, and to make any final submissions in relation to materials which had been filed in this inquiry. The State and Bunuba provided such submissions, and I provided proposed final conditions having considered those submissions, and allowed all parties a final hearing to air any submissions and argument on those proposed final conditions. Following consideration of parties submissions at the hearing, I settled the final conditions to be imposed as part of this determination, outlined at Annexure B to this decision. Parties indicated they had no further comment in relation to those proposed final conditions.
The s 39(1) criteria
Section 39(1)(a)(i) – the effect of the act on the enjoyment of Bunuba’s registered native title rights and interests
India Bore’s rights and interests
The rights conferred by the grant under the Mining Act 1978 (WA) are:
85. Rights of holder of mining lease
(1) Subject to this Act and to any conditions to which the mining lease is subject, a mining lease authorises the lessee thereof and his agents and employees on his behalf to —
(a) work and mine the land in respect of which the lease was granted for any minerals; and
(b) take and remove from the land any minerals and dispose of them; and
(c) take and divert subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act, water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes, and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with mining for minerals on the land; and
(d) do all acts and things that are necessary to effectually carry out mining operations in, on or under the land.
(2) Subject to this Act and to any conditions to which the mining lease is subject, the lessee of a mining lease —
(a) is entitled to use, occupy, and enjoy the land in respect of which the mining lease was granted for mining purposes; and
(b) owns all minerals lawfully mined from the land under the mining lease.
The lease comprises 22.92 square kilometres. India Bore outline in their contentions (at 11) they propose to process 16.4 million tonnes of diamondiferous alluvial gravels via open cut mining from the lease over 10-12 years. Seventy per cent of the material excavated would be returned to the excavation, with the remaining material processed at 200 tonnes per day (at 14). The contentions outline (at 12, 15-16) that equipment and infrastructure will include:
… a 50t Cat excavator, 1 x 45t & 1 x 50t Cat dump trucks, a 50t Cat loader, 50t Cat scraper, 140H Cat grader, a D7 dozer, 1 road train, 30,000l water cart and service trucks and maintenance equipment … a self-bunded 50,000l diesel fuel tank and filling station … a water supply system, a sedimentation ponding & water recirculation system, a run-of-mine pad and diesel generated power supply (350kVa and 175kVa generator sets) …
A 16 person mining camp site has been constructed including an office, first aid facility and an ablutions block. An upgrade of some infrastructure will be required if a commercial scale mining operation is approved.
On this basis, I conclude India Bore will exercise their rights and interests to the full.
I note that India Bore’s contentions (at 26), outlines that:
Access to the project is via the Gibb River Road and Roberts Road site is strictly controlled. Use of Roberts Road through what is known as the s.19 Area is covered by a Protocol with the Department of Mines, Industry Regulation and Safety (DMIRS). No IBDH personnel or contractors are to leave the access road without specific approval. Movement onto and around the site is restricted to authorised personnel only.
Bunuba’s registered native title rights and interests
According to the Tribunal’s geospatial data, Bunuba hold non-exclusive native title rights and interests over the lease. The National Native Title Register (NNTR) notes the following registered non-exclusive native title rights and interests:
(a) the right to access and move freely through and within the area;
(b) the right to live, being to enter and remain on, camp and erect shelters and other structures for those purposes;
(c) the right to:
(i) hunt, gather and fish for personal, domestic, cultural and non-commercial communal purposes;
(ii) take and use flora and fauna for personal, domestic, cultural and non-commercial communal purposes;
(iii) take, use, share and exchange the natural resources including soil, sand, clay, gravel, ochre, timber, charcoal, resin and stone for personal, domestic, cultural and non-commercial communal purposes;
(iv) light fires for domestic purposes but not for the clearance of vegetation;
(v) engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
(vi) conduct and participate in ceremonies;
(vii) conduct burials and burial rites and other ceremonies in relation to death;
(viii) hold meetings;
(ix) visit, maintain and protect from physical harm, areas, places and sites of importance; and
(x) access, take, use, share and exchange water for personal, domestic, cultural or non-commercial communal purposes.
Bunuba’s non-exclusive rights do not confer possession, occupation, use and enjoyment of the area to the exclusion of all others or a right to control the access of others. Further, the NNTR notes the relationship between Bunuba’s native title rights and interests, and other interests, is that:
(a) to the extent that any of the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency during the currency of the other interests; and other wise
(b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to the operation of s 24JB(2) of the Native Title Act, do not extinguish them.
In comparing the rights and interests that will be conveyed to India Bore by the grant of the lease against the registered rights and interests of Bunuba as outlined above (including the exceptions) it appears that, for the duration of the lease, India Bore’s rights will be inconsistent with, and will prevail over, Bunuba’s non-exclusive native title rights and interests.
Other considerations regarding the effect of the act on the enjoyment of Bunuba’s registered native title rights and interests
Bunuba’s Healthy Country Plan targets (as summarised in the Bunuba contentions (at 111)) include:
a. appropriate enterprise development;
b. sustainable resource use;
c. improving water planning and allocation;
d. developing a broad scale fire management program; and
e. planning and developing tourism management strategies.
The Healthy Country Plan (at page 37) outlines there is a high risk to Bunuba’s healthy country targets by mining and by Bunuba ‘not being consulted’.
Mr Hayward’s anthropological report (at 2), outlines that the grant of this mining lease would, in particular, have a negative impact on the area in terms of Bunuba’s:
·right to access and move freely;
·right to live, being to enter and remain on, camp and erect shelters and other structures for those purposes;
·right to hunt, gather and fish for personal, domestic, cultural and non-commercial communal purposes and take and use flora and fauna for personal, domestic, cultural and non-commercial communal purposes;
·right to engage in cultural activities in the area, including the transmission of cultural heritage knowledge; and
·right to visit, maintain and protect from physical harm, areas, places and sites of importance.
Mr Hayward (at 4) concludes that ‘Specifically, I find that the determined Native Title rights as outlined in the Bunuba Native Title determinations relating to resource use and access to country, the transmission of cultural knowledge and the protection of sites of significance are particularly vulnerable in the event that a lease is granted’. I note the State’s Tengraph information (GVP3) shows there are five tracks on the lease, and one minor road, which appear to be in addition to the Stock Route which is a C Class Reserve running through the middle of the lease (and covering approximately 10 per cent of the lease). The State intends to impose a condition on the lease whereby ‘No mining activities being carried out on Stock Route Reserve 12475 which restrict the use of the reserve’ (See Annexure C, Condition 8). As such, I am satisfied Bunuba could access the lease via the Stock Route or other tracks ordinarily, although it appears there is an additional access issue in relation to the lease, relating to Roberts Road (see further information at [14] above and [45] below).
From the affidavit material, there is general evidence about the flora and fauna on the lease and surrounding area which are useful for hunting, gathering and using for food, tools and medicines (Mr Oscar at 9, 11-12). However, this evidence is presented as a descriptive account of the resources in the area generally, and also of past use of the area generally. Therefore, I cannot conclude these activities will be affected by the grant of the lease in particular. Similarly, there is evidence about the importance and responsibility of transmitting cultural knowledge to the younger generation (for example, Mr Street at 7-8; Ms Aiken at 13-14). This is also cast in general terms, and it is not possible for me to conclude where such activities occur on the licence, or how they would be affected by the grant of the lease.
However, I do accept there are places of significance on the lease (see [37]-[42] below), and that in relation to the exploration activities permitted on the lease, I accept Bunuba’s native title rights to access the lease and to visit, maintain and protect from harm places and sites of significance will be substantially affected. The affidavit evidence from Bunuba contains express wishes and proposals about how to address and protect these rights should I determine the act may be done. I address these further below under my consideration of s 39(1)(b) (the effect of the act on Bunuba’s interests, proposals or wishes).
Section 39(1)(a)(ii) – the effect of the act on Bunuba’s way of life, culture and traditions
This criteria requires me to consider the tangible effect on ‘the contemporary way of life, culture and traditions’ of a native title party (White Mining v Franks (at [47]-[48]). As outlined in Yurriyangem Taam v Gianni (at [34]):
In Yindjibarndi v FMG at [17], the Tribunal observed:
(d) …It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. Examples given in Silver v Northern Territory at [89] are ‘construction of roads, truck movements to and from the proposed licence etc’
By this reasoning, a native title party’s way of life, culture or traditions outside the area of the proposed future act could be affected in a similar way. Bunuba’s contentions (at 25) outline that Bunuba people ‘continue to enjoy their native title rights and interests in the M04/474 application area, and that the area has significance for Bunuba’s way of life, culture and traditions’.
In relation to looking after country and checking on sites, the affidavit evidence refers to the area generally, and to the Oscar Ranges which are 2-3 kilometres to the north east of the lease, including a deep concern about the ‘mess’ left by the Ellendale mine (which I understand to have been directly north of the lease). Bunuba’s contentions (at 38) express this as follows:
The NTP also notes that in this case, the prevention of access that the doing of the act would cause in area of M04/473 is compounded by the existing restrictions on access to the area of the old Ellendale mine site (to which an exemption area under section 19 of the Mining Act applies) (as referred to in the GP’s contentions at [26]), adjacent to the M04/473 area. Because of this, the doing of the act would have the effect the NTP will be unable to enjoy its native title rights and interests in a large area near to the Oscar Range, where there exist important sites and areas of dreaming stories to the NTP, and where members of the NTP have expressed a clear desire to continue exercising their native title rights.
Bunuba’s affidavit evidence expresses clear interests, wishes and proposals about how to mitigate the effect of the grant on this criteria. I will address these below under s 39(1)(b).
Section 39(1)(a)(iii) – the effect of the act on the development of Bunuba’s social, cultural and economic structures
Bunuba contentions (at 24-26) argue the nature of the act (involving significant ground disturbing work and trenches up to 25 metres) ‘would diminish or entirely remove Bunuba’s ability to enjoy their native title rights and interests in the area, [and] the ability to develop cultural, social and economic structures…’ (at 26, emphasis added). Bunuba argue that if I determined the act may be done, then the evidence ‘clearly demonstrates that the Future Act must only be done subject to conditions’ (at 27).
Bunuba contend (at 93):
Bunuba people currently undertake activities on the tenement area that promote their social, cultural and economic structures. The advancement of these objectives is an object of the Bunuba Dawangarri Aboriginal Corporation Rule Book (Rule Book) and the Bunuba Dawangarri Aboriginal Corporation is required to consult native title holders in regard to native title decisions [emphasis added]
I consider that the requirement in the Rule Book to ‘consult native title holders in regard to native title decisions’ is more relevant to the negotiations between parties, than to my decision making under s 38 of the Act. Bunuba go on to contend (at 94) that:
In Ngadju Native Title Aboriginal Corporation v Norseman Resources Pty Ltd and Another [2020] NNTTA 47 the Tribunal found that the contents of the Native Title Party’s Corporation Rule book, which contained “information on social and economic structures and obligations to consult” with native title holders generally, supported the Native Title party’s argument “that the native title holders have obligations which are relevant to their way of life and to their members’ wishes and intents”.
There has been no suggestion that consultation has not occurred, or that there has been a lack of good faith. A mechanism for communications between parties is possible under conditions imposed on the grant of the lease as part of this determination.
There is general evidence about use of the wider area for hunting and gathering activities, caring for sites, tourism and strong aspirations for inter-generational teaching (for example, children from town coming to country to learn about culture). However, there is no particular evidence that Bunuba currently undertake these activities on the area of the proposed lease. The evidence supports that these activities and aspirations are more relevant to the area in general and the neighbouring Oscar Ranges. As the State contends (at 49):
The Government Party contends the NTP has not established why the desire of native title holders and the NTP in relation to intergenerational teaching and related matters, including pursuant to the Healthy Country Plan, described in NTP Contentions [97] – [102] must be conducted on the Tenement Area rather than at one or more other places on the Determination Areas.
In support of economic structures relevant to the activities on the lease, Bunuba refer to the Healthy Country Plan (at 102-103):
102. The Healthy Country Plan expresses an intention to expand the Bunuba Rangers’ scope to “the whole of Bunuba country”.
103. Members of the NTP have demonstrated their willingness to work with the GP towards positive outcomes and the evidence demonstrates Bunuba people’s desire for positive social, cultural and economic benefits to flow for example open communication with the GP, cultural awareness training for GP staff, employment for local Bunuba people, training, fee for service opportunities for Bunuba Rangers, preference for local Bunuba contractors.
The above is relevant to this criteria and also to s 39(1)(b) (the interests, wishes and proposals of Bunuba in relation to this area). I consider there is evidence to support conditions for employment, contracting and training opportunities. For example, in the Bunuba contentions (at 105-106):
105. Bunuba people express a desire for the NTP, through the Bunuba Rangers, to have fee for service opportunities in the area around M04/473. The Affidavit of Mary Aiken suggests that “the Bunuba Rangers could go out and do some rehabilitation to bring it [the Ellendale mine site] back to how it was like tree planting and bringing in animals”.
106. The grant of M04/473, without an agreement to employ and train local Aboriginal people and use local contractors, would negatively impact on the economic structures of the NTP. The NTP’s evidence highlights a desire for more employment opportunities for members of the NTP should M04/473 be granted, which cannot be guaranteed without an agreement or condition to this effect.
In addition, I note Mr Hayward’s comment (at 69) that:
On the basis of [the] reports and statements from Bunuba Traditional Owners, it seems reasonable to suggest that the granting of a mining lease is likely to impact the development of the social, cultural and economic structures of Bunuba people as they relate to management of country and the health of the natural environment in muway Mawanban. Crucially, this management of country is strongly linked to the determined native title rights and interests of Bunuba people.
Section 39(1)(a)(iv) – the effect of the act on Bunuba’s freedom of access to the land and waters, and freedom to carry out rites, ceremonies or other activities of cultural significance
There is no evidence that rites, ceremonies or other activities of cultural significance are currently carried out on the lease area. There is some evidence of women’s activities at a women’s site ‘nearby to the Tenement Area at Merong Spring’ (Mr Andrews at 12) and men’s activities at Mt North (Jurrguna Hill) (Mr Oscar at 8). There is also evidence of how an important story for the area is actively ‘passed down’ to give Bunuba people ‘strength’ and ‘connection to country’ (Mr Dilliny at 8). It is unclear whether these activities currently occur, their frequency, or how the grant of the lease might affect the activities. The evidence does indicate the cultural significance of the area around the lease, which will be considered in terms of the importance of access to the area under the s 39(1)(b) criteria.
Section 39(1)(a)(v) – the effect of the act on any site or area of particular significance to Bunuba in accordance with their traditions on the land or waters concerned
The term ‘sites or areas of particular significance’ is also used in s 237(b) of the Act (in relation to whether the expedited procedure applies to a future act). For a site or area to be of ‘particular significance’ it must be known and able to be located, and be of special or more than ordinary significance to the native title holders (Yindjibarndi v FMG at [17]-[18]).
The Bunuba deponents refer to three stories from the dreamtime (Ngarranggani) that run through the area of the lease. These are also outlined and explained in Mr Hayward’s anthropological report. The first relates to a Bowerbird who ‘hunted all the other birds away from the water … and where that water was, diamonds formed. That water can move through the land in that area, and the diamonds form where that water is’. ‘The story is connected to all of the country where the Tenement is located. That story doesn’t start and end at a particular place, it is connected to all that country … That bowerbird made the waterholes all the way from Brooking Spring up to Mt North’ (Mr Andrews at 6-7; Mr Street at 6). Mr Hayward explains the Bowerbird story is the ‘main story’ for the area (at 33).
Another story is ‘an Emu story that comes through from the south west of the Tenement Area … That emu is connected to all that black soil country around the Tenement Area … The bush plums that he dropped became part of the Oscar Range’ (Mr Andrews at 10; Mr Oscar at 6). The third story relates to ‘a fresh water crab that … started down at the Erskine Range and moved up through that country around where the Tenement Area is … to all of that black soil country near the Tenement Area’ (Mr Andrews at 17; Mr Oscar at 7).
Given the detailed evidence about them, the Bowerbird and the Emu dreaming lines meet the definition of areas of ‘particular significance’. The information about the Crab dreaming is less detailed, but given multiple deponents refer to it and explain it consistently, I am satisfied the Crab dreaming also meets the definition.
I am satisfied the grant of the lease, given India Bore is likely to exercise their full suite of rights, could have an adverse effect on these areas, unless appropriate conditions are placed on the grant of the lease.
Although less information is provided about the men’s site at Mt North (Jurrguna Hill) and the women’s site at Merong Spring, I appreciate these areas are gender specific and of a sensitive nature. Given that multiple deponents refer to these sites, and the evidence is consistent, I am satisfied that overall, even though the evidence is on the sparse side, these sites are of ‘particular significance’ (Mr Andrews at 12; Mr Oscar at 8). However, given these sites are not located within the lease area I cannot conclude the grant of the lease would have an adverse effect on them.
Section 39(1)(b) – Bunuba’s interests, proposals or wishes in relation to the management, use or control of the land or waters where there are native title rights and interests that will be affected by the act
In Nyikina Mangala v Backreef Oil (at [48]), the Federal Court noted:
…it is to be inferred that Parliament did not intend to isolate the strength of the cultural belief of the level of harm that would befall persons consequent upon an interference with sites of significance, as a specific mandatory consideration to be taken into account as a separate consideration. Rather, in my view, evidence of such a nature would properly be taken into account as part of the consideration of the general mandatory considerations referred to in s 39(1)(a) and s 39(1)(b) of the NTA.
The above guidance provides support for considering the s 39(1)(a) and s 39(1)(b) mandatory criteria holistically rather in isolation. I have already considered the evidence in relation to s 39(1)(a) (noting, where relevant, the overlap with s 39(1(b)), and here I consider s 39(1)(b). As many Tribunal decisions have noted, a native title party does not have a veto over mining or exploration work – that is not what the deponents have raised in this inquiry. To the contrary, Bunuba and India Bore have provided information and evidence which suggests a history of good relations and communications.
I have considered the evidence of the Bunuba deponents, as well as Mr Hayward’s anthropological report, in putting together my understanding and conclusions in relation to my assessment of the s 39(1)(b) criteria. In this context, the deponents for Bunuba provide strong and consistent evidence about their interests, wishes and proposals in relation to the lease. In summary, Bunuba assert:
(a)The importance of access to and around the lease, particularly for looking after special places (for example, Mr Andrews at 34 and Mr Street at 7). Mr Oscar (at 18) noted that it is ‘Checking up, it’s like a house inspection’. Deponents note there is a locked gate at Roberts Road and permission is needed to access the area of the lease. Mr Hayward notes (at 53) that ‘In my opinion, the granting of the mining lease application M04/473 is likely to impact Bunuba Traditional Owner’s control over access and protection of sites of significance’. He provides information about sites and areas in the lease area, the area north of the lease, and the Oscar Ranges (at 54-62). The Oscar Ranges are some 2-3 kilometres from the lease and appear to be part of a complex series of sites and dreamings which criss-cross the area. In relation to the lease area, Mr Hayward explains how the Bowerbird dreaming is particularly vulnerable to disturbance by virtue of the area of the lease and the access roads to the lease. Mr Hayward also provides some broader information about the Emu dreaming (at 34-36) and the Crab dreaming (37-38), which highlights and is consistent with the evidence provided by the Bunuba deponents.
(b)Intergenerational teaching and support is important to pass on cultural knowledge to the younger generation of Bunuba in the area of the lease and surrounds, including camping and resourcing of programs for that purpose (for example, Mr Andrews at 23-25; Ms Aitken at 7 and 13)
(c)Providing cultural training to India Bore and their contractors is important so ‘that they don’t do the wrong thing on country and get sick or harmed from spirits’ (Mr Andrews at 35; Mr Oscar at 16).
(d)The importance of heritage in the form of surveys and monitoring. All deponents refer to this, in terms of the ability to undertake cultural mapping and caretaking on and around the lease area. Some deponents provide further detail, such as Ms Aitken (at 18) refers to the importance of stopping work should something be ‘dug up’, and Mr Andrews (at 18) outlines the cultural responsibility that comes with being a Bunuba person. The emphasis on heritage also merges into an emphasis on communication regarding land care and consultation through meetings (Mr Andrews at 30).
(e)Bunuba deponents also expressed a strong desire for employment in relation to the project, either through training (Mr Andrews at 31; Ms Aitken at 17; Mr Street at 11) or through contracting opportunities (Mr Oscar at 16) including involvement in rehabilitation work (Ms Aikin at 9; Mr Street at 10).
Bunuba have clearly outlined their interests, wishes and proposals regarding the use, management and control of the land and waters where there are native title rights and interests that will be affected by the grant of the lease. This is particularly as they relate to access, cultural training for India Bore, heritage, communication regarding land care and consultation, and the development of their economic structures via employment, contracting and training. As such, I have included conditions which address these. However, there is no such clear connection relating to Bunuba’s aspirations for support for intergenerational teaching. These aspirations are cast in general terms without reference to the grant of the lease.
Section 39(1)(c) – The economic or other significance of the act to Australia, the State, the area and Aboriginal peoples who live in the area; and Section 39(1)(e) – Any public interest in the doing of the act
India Bore contentions (at 18) state that, based on work undertaken, the mining lease has ‘a diamond resource of 1.3 million carats with an estimated in ground value of $1.2 billion’. More broadly, India Bore (at 20) state the project will provide:
i)5 per cent royalties to the State, as well as taxes to the Australian Government,
ii)rates and other charges to the Shire,
iii)direct employment and contracting opportunities for the Derby and Fitzroy Crossing communities nearby,
iv)increased regional infrastructure including communication systems, emergency first aid and medical evacuation facilities (ambulance and airstrip), and emergency bush fire assistance.
In the medium term, India Bore consider ‘the first stages of development would have 40-45 personnel, not all of whom would be on site, either generally or at the one time’ (at 16).
The Bunuba deponents emphasise the importance of education, employment and training in the context of this project, and I have included conditions to extend the economic significance of the project to Bunuba people (as per their interests, wishes and proposals).
While the Bunuba contentions refer briefly to the continuation and promotion of the Bunuba culture as being in the public interest, nothing substantive was provided for my consideration of s 39(1)(e). Issues of culture and heritage are dealt with by my consideration of the other s 39(1) criteria.
Section 39(1)(f) – Any other matter the Tribunal considers relevant
I am of the view that there are no other relevant matters that have not already considered above or incorporated below in my consideration regarding conditions.
Conditions
Scope and purpose for conditions
The Federal Court has noted, ‘there is nothing in s 38(1)(c) which expressly limits the nature of conditions other than s 38(2)’ except that the ‘subject matter of the conditions appears to be shaped by … the requirements of s 39 that in making its determination the arbitral body must take into account the criteria there listed’ (Evans v Western Australia at 213). Therefore, in imposing conditions, there should be material which supports that course of action. For example, in deciding the act can be done, then conditions can be imposed to minimise any adverse effect on the native title holders’ rights and interests if the material before me justifies it (see, for example, Re Koara People at 93).
In making conditions, I note, in particular, the guidance from the Federal Court (Evans v Western Australia at 213-214):
the evident purpose of s38 … is to have the arbitral body finally determine the issues where negotiations between the parties have failed to do so... I regard it as inherent in s38 the arbitral body not leave the outstanding issues between the parties unresolved.
I conclude conditions needed to be imposed because the following issues are unresolved between Bunuba and India Bore and the evidence supports their imposition:
a)Cultural heritage
b)Cultural awareness
c)Communications
d)Employment, contracting and training
e)Access
In their submissions regarding the proposed draft conditions, the State indicated they proposed to add an endorsement on the lease in the following form:
The Lessee's attention is drawn to National Native Title Tribunal determination [2021] NNTTA #TBA1 (DD/MM/2021) and the conditions set out in that determination at Annexure # TBA2.
The State (as noted at [8] above) indicated it will impose four extra conditions (described at Annexure D of this decision) on the grant of the lease, in addition to the conditions and endorsements it intends to impose on each of the leases (at Annexure C, and at [54] above). I do not intend to impose these endorsements and conditions outlined by the State, or the extra four conditions also proposed by the State, as the State have indicated they will impose these upon grant of the lease.
I do intend to impose the conditions outlined at Annexure B to this decision, for the reasons outlined below.
(a) Cultural heritage and (e) Access
The July 2018 Heritage survey report (at 1.1), provided by India Bore, outlines that:
IBDH and Bunuba Dawangarri Aboriginal Corporation RNTBC (BDAC) signed a Native Title, Heritage Protection and Mineral Exploration Agreement that outlines agreed procedures for consultation and heritage management between the parties. The conduct of this survey was in accordance with legislation and the negotiated agreement between IBDH and BDAC
It appears that the agreement referred to above was entered into in 2016. It is referred to in the India Bore contentions (at 7 for example). Bunuba contentions (at 132-139) refer to the India Bore Heritage Protection Agreement (HPA) and assert that HPA ‘relates to the previous exploration tenement that covered the area of the Mining Tenement E04/2398. Heritage surveys undertaken under the HPA related to exploration rather than Mining’. This was not contested by India Bore and the agreement was not provided as part of the materials for the inquiry. It is reasonable for me to conclude the agreement does not cover the mining operations that will be permitted under the lease. Further, the 2018 survey report conducted under the agreement was for the purposes of clearing the area for exploration works. It was not for the purposes of considering mining works. In the report, it is noted several times that ongoing access is important, and in the conclusion (on page 12), that:
…in discussions with Bunuba survey team members, the consultant Robin Stevens noted that many were concerned about continuing access to their traditional country when works are in progress (not within the vicinity of the works themselves but the wider area). It would be fruitful for IBDH to engage with BDAC regarding an ongoing relationship of cooperation in these matters
This information is reiterated in the December 2019 Heritage report provided by India Bore which, as well as referencing exploration tenements, also referenced the lease which is the subject of this inquiry. That report stated (at page 17):
While no heritage ‘sites’ or objects were located, Bunuba have a wider view of their heritage than is generally recognised under the Aboriginal Heritage Act 1972. Though such a perspective is clearly within the framework of native title. That is, Bunuba consider that Care for Muwayi (Country) is an important part of their cultural heritage, where they continue to manage the country in a respectful and appropriate manner. It is centred on the notion of cultural Respect. In practical terms, for a proponent, this involves minimising disturbance to natural vegetation and fauna habitats, limiting pollutants and industrial debris littering the environment, and generally capping unused drill holes or backfilling sumps and trenches no longer in use.
The May 2017 Heritage report covered proposed works on the exploration licence on which the lease overlaps. That report made recommendations such as:
It is recommended that India Bore Diamond Holdings Pty Ltd employ two Bunuba Heritage Monitors (who could also act as Field Assistants) from the Mowanbun muway through the Bunuba Dawangarri Aboriginal Corporation Registered Native Title Body Corporate, to be present during the conduct of the Work Program in order to ensure that the correct cultural protocols and procedures are observed and that impacts on Bunuba country including the removal of vegetation and the protection of particular species of tree including Boabs, is minimised.
It is recommended that India Bore Diamond Holdings Pty Ltd establish a “Cultural Heritage Stop Works Procedure” that will be enforced should any unforseen and/or sub-surface cultural material including artefacts and/or human remains, be located and/or uncovered during the conduct of the Work Program.
Finally, it is recommended that India Bore Diamond Holdings Pty Ltd keeps the Bunuba Traditional Owners, through the Bunuba Dawangarri Aboriginal Corporation Registered Native Title Body Corporate, informed of the progress and the results of the Work Program.
Mr Hayward’s report notes (at 7) that, in his view, the 2018 and 2019 reports ‘were undertaken using a “site avoidance model”’. He states ‘the difficulty with this model is that it does not take into account the impact of the proposed work program of exploration activities on registered native title rights and interests’.
In the absence of any agreement to cover heritage surveys and access to the lease and the surrounding area to care for heritage, and on the balance of the evidence provided, I conclude that conditions relating to cultural heritage and access should be imposed.
(b) Cultural awareness
The materials and evidence provided by Bunuba support the imposition of conditions for a program by which India Bore and its consultants and associated entities can familiarise themselves with the traditions and culture of the Bunuba common law holders. Such awareness programs also serve to promote knowledge and understanding of, and respect for, the traditions and culture of the Bunuba common law holders and be a mechanism for fostering good relationships between the Bunuba Dawangarri Aboriginal Corporation RNTBC, the Bunuba common law holders and India Bore.
(c) Communications
In the India Bore Draft Cultural Heritage Protection and Management Plan (‘the Plan’) (at 8.1, Version 6), the grantee outline that:
IBDH acknowledges the principle of right people speak for right country and respects and recognises the responsibility of BDAC to appoint the appropriate knowledge holders for cultural management and protection activities. IBDH also recognises the need for appropriate resourcing and details of arrangements are contained or intended to be contained within the various native title and hertitage agreements and arrangements to which IBDH is a party.
In addition, the India Bore Draft Community Engagement Framework (‘the Framework’) (at page 8) outlines:
The Bunuba Native Title holders and IBDH have been working together on the project from the very outset of operations. IBDH takes its responsibilities to both Bunuba people as Traditional Owners and the environment very seriously. Bunuba’s Healthy Country Plan is integral in IBDH’s steering committee implementation meetings and also guides the company in keeping in mind Bunuba’s key healthy country targets.
India Bore’s contentions (at 32) outlines that:
The grantee party draft Community Engagement Framework sets out priorities for cooperation with the Bunuba Traditional Owners. The current focus areas suggested in the framework are:
a. Employment, training and education
b. Enterprises;
c. Health;
d. Cultural heritage in the Ellendale area and development of a Heritage Management Plan;
e. Environmental management; and
f. The expectations of the Bunuba in regard to participating in any ongoing mining activities.
There is no doubt India Bore has engaged in preparing and considering the Plan and Framework documents, and from their content, India Bore is focused on minimising the impact of the grant of the lease, while also pursuing their mining activities. Mr McNally reinforces that in his affidavit, (at 6 for example), where he outlines that the Plans’ ‘…value and practicality will be enhanced through discussion and ongoing development with the Native Title Party’. Mr McNally also states (at 9) the ‘positive and co-operative working relations’ with Bunuba since 2015 has included:
·Presenting regular project updates on ongoing activities and work plans for the project to the BDAC Board and members in Fitzroy Crossing;
·Arranging visits to site for Bunuba people,
·Contracting Bunuba workers through BDAC for exploration and field environmental studies.
·Offering Bunuba people the opportunity to invest in the project at an early stage.
·Providing since 2015 detailed Heritage Impact Assessment Notices outlining the 3 proposed Programs of Work to be applied for and the extent of the goals and development proposals for the project prior to the heritage surveys being undertaken and before any ground disturbing work. The Survey teams have included members of the Native Title Party nominated by the Native Title Party.
·Engaging with larger groups of Bunuba than provided for in the Heritage Protection Agreement have been engaged to undertake the Heritage Surveys. This is particularly the case for the 2nd Heritage Survey over the area of the proposed mining operations in the Tenement Area.
·Offering to provided transport, camp accommodation and meals for the groups wishing to
·Visit the site and for those undertaking the surveys.
·Issuing standing invitations in presentations and site visits to the Native Title Party and to members of the heritage clearance teams that they are welcome to visit the Project site, albeit that notice was required in order for the Company to comply with its regulatory obligations.
The conditions relating to communications are intended to capture the essence of what India Bore had developed in the Plan and Framework, and incorporating the interests, wishes and proposals that Bunuba put forward in this inquiry.
(d) Employment, contracting and training
There is evidence to support the conditions for employment contracting and training which are consistent with the development of Bunuba’s economic structures (at [28]-[35], and [46]) and their interests, wishes and proposals (at [34], [45]-46] and [49]). Such conditions are intended to capture those aspects of India Bore’s draft Framework which relate to these issues and a continuation of what they currently do. I note India Bore’s contentions (at 31) outline that:
The grantee party currently engages native title participant contractors for a range of site work. The grantee party and native title party have commenced a TAFE training program for Bunuba personnel. The program funded by IBDH is proving to be successful.
Conclusions regarding conditions
For the reasons outlined above, I impose the conditions outlined at Annexure B to the grant of M04/473, which are in addition to the conditions and endorsements the State intends to impose on the grant (which are outlined at Annexure C and D, and [54] above).
Determination
I determine the grant of mining lease M04/473 to India Bore Diamond Holdings Pty Ltd may be done subject to the conditions set out in Annexure B.
Helen Shurven
Member
12 February 2021
ANNEXURE A: DRAFT PROPOSED CONDITIONS TO BE IMPOSED ON M04/473
The State’s Extra Conditions
The State of Western Australia (the State) must impose the following proposed extra conditions:
(a)Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the mining tenement is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.
(b)If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
(c)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 Executive Director Resource and Environmental Compliance at the Department of Mines Industry Regulation and Safety for 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.
(d)Upon assignment of the mining tenement the assignee shall be bound by these conditions.
Cultural heritage
The grantee party must comply with the Aboriginal Heritage Act 1972 (WA) (AH Act) and any regulations thereunder.
Following the grant of mining lease M04/473 (the lease/the mining tenement), India Bore Holdings Pty Ltd (the grantee party) must not conduct mining over part or whole of the lease unless it has first caused a survey to be conducted over that area. Mining is defined as per s 8 of the Mining Act 1978 (WA).
The survey must be conducted by:
(a)a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional, agreed between the Bunuba Dawangarri Aboriginal Corporation RNTBC (the native title party) and the grantee party, engaged and paid for by the grantee party, and
(b)up to three Bunuba common law holders (as defined on the National Native Title Register and in Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 and Wurrunmurra v State of Western Australia [2012] FCA 1399) nominated by the native title party (nominated persons).
Nomination by the native title party must be in writing and include full contact particulars of the nominated persons.
The grantee party must pay the reasonable costs of the nominated persons’ attendance and participation in the survey. This is not intended to include the professional costs of legal or other representation or advice, nor the cost of inter-State travel. Other Bunuba common law holders may attend as observers to the survey.
The grantee party must give written notice to the native title party of its intention to conduct the survey and when giving notice must include a suitable topographical map showing the areas proposed to be surveyed, and the location of the lease. If, within 30 days of receipt of the notice, the native title party fails to nominate any persons for the survey, then the grantee party need not conduct such survey.
Subject to any law, the survey required under condition 3 must be completed within 60 days of the native title party’s nomination with the parties cooperating in good faith on the conduct of the survey. If the survey is not carried out in this time due to the failure of the native title party to cooperate in good faith with the grantee party, then the grantee party need not conduct such survey.
The grantee party must not disclose to any person any confidential information given to it by the native title party or the Bunuba common law holders regarding Aboriginal heritage or cultural information, during or as a result of the survey, except (and only then on a confidential basis):
(a)with the written consent of the native title party; or
(b)to a bona fide prospective assignee of the lease; or
(c)to an actual assignee of the lease; or
(d)to its employees, agents, contractors and consultants for the sole purpose of ensuring that no Aboriginal sites or cultural heritage are interfered with and as far as the information relates only to the location of those areas; or
(e)as required by law; or
(f)for a purpose under the AH Act.
Within 30 days of receipt of a copy of a s 18 notice given by the grantee to the Aboriginal Cultural Material Committee (ACMC) over any part of the lease, the native title party must inform the grantee party in writing if the native title party wishes to be consulted concerning the proposed use of the land in that notice. If so informed, the grantee party must make itself available to meet with the native title party to describe that proposed use within 30 days of the native title party giving it notice. The native title party will organise for interested Bunuba common law holders to attend the meeting.
Upon receipt of a recommendation from the ACMC in respect of a s 18 notice, the State must without delay give a copy of the recommendation and any related report to the native title party and the grantee party (excluding any confidential information provided to the ACMC by persons other than the native title party).
Where the Minister under the AH Act gives or declines to give consent to the proposed use of the land the subject of a s 18 notice and recommendation from the ACMC, the State must without delay inform the native title party and the grantee party of the decision.
Cultural awareness
Following the grant of the lease, the grantee party must ensure that all persons whom the grantee party reasonably believes are not Bunuba common law holders and who are engaged directly or indirectly by or on behalf of the grantee party and who may enter the lease area in relation to the exploration or mining thereon are provided with appropriate information for the following purposes:
(a)to familiarise such persons with the traditions and culture of the Bunuba common law holders;
(b)to promote a knowledge and understanding of and respect for the traditions and culture of the Bunuba common law holders; and
(c)to foster good relationships between the native title party, the Bunuba common law holders and others.
The native title party or their nominee and the grantee party must consult with each other in formulating and directing the communication of the information.
Communications
Subject to condition 15, within 30 days after the grant of the lease, the grantee party must establish and continue a liaison committee (committee) with members comprising:
(a)up to two persons nominated by the grantee party; and
(b)up to two Bunuba common law holders nominated by the native title party.
The grantee party must give written notice to the native title party of its intention to form the committee and invite written nominations from the native title party in respect of its members on the committee. If, within 60 days of the receipt of the notice, the native title party fails to nominate in writing any such persons to the grantee party, or if at any time the native title party notifies the grantee party in writing that they do not wish the committee to be formed or to continue, the grantee party is not obliged to form or continue the committee as the case requires.
Each party may replace members on the committee by giving at least 24 hours prior written notice to the other party. Where a member on the committee is temporarily not available to attend meetings of the committee, the member may, by giving at least 24 hours prior written notice, substitute another person to represent their interests during the period when the member is unavailable.
The functions of the committee will be to provide a forum for the exchange of information between the parties concerning:
(a)mining on the lease, related infrastructure including access routes, and proposed changes to those operations; and
(b)matters of importance to either the native title party or the grantee party as they relate to those operations.
The native title party, through the committee, may from time to time provide the grantee party with a list of businesses or companies which have the capacity to perform contract work and/or fee for service work in respect of the grantee party mining operations and associated works on and around the lease. This condition is subject to condition 22.
The committee must meet at least annually. If none of the committee members nominated by the native title party or their substitutes attend three committee meetings in a row, without giving at least three days prior written notice to the grantee party, the grantee party is not required to continue the committee. Subject to any law, the committee meetings must be open to the following who may attend as observers if they wish to do so:
(a)a total of up to five other grantee party representatives, and
(b)a total of up to five other representatives of the native title party and/or Bunuba common law holders.
The location of the committee meetings will be on the lease unless agreed otherwise by the committee members.
The reasonable costs incurred by committee members in attending a committee meeting each year must be paid by the grantee party. This is not intended to include the professional costs of legal or other representation or advice, nor inter-state travel, and each party will bear their own such costs.
Employment, training and contracting
As soon as possible following the grant of the lease, and subject to the requirements of the grantee's business and availability of Bunuba common law holders, the grantee must take reasonable steps to employ, train, and/or contract, Bunuba common law holders.
Access
Permission is not to be unreasonably withheld by the grantee party or the State for the native title party and the Bunuba common law holders to use Roberts Road to access the lease and surrounding areas.
General
For the purpose of condition 1(a) safety or security reasons means any belief held on reasonable grounds that there is a hazard to the health or safety of any person, or a reasonable risk of destruction to property or damage to property or unauthorised use of facilities or equipment on the lease.
The grantee party must take all reasonable action to ensure compliance with these conditions by its employees, agents and contractors.
Upon assignment of the lease, the grantee party must ensure the assignee is bound by these conditions as if it were the grantee party.
For the purpose of condition 22 and 23, grantee party includes any assignee and assignment includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession.
ANNEXURE B: CONDITIONS TO BE IMPOSED ON M04/473
Cultural Heritage
The grantee party must comply with the Aboriginal Heritage Act 1972 (WA) (AH Act) and any regulations thereunder and any Act which amends, repeals or replaces the AH Act.
Following the grant of mining lease M04/473 (the lease/the mining tenement), India Bore Holdings Pty Ltd (the grantee party) must not conduct mining over part or whole of the lease unless it has first caused a survey to be conducted over that area, if such survey is required by Bunuba Dawangarri Aboriginal Corporation RNTBC (the native title party – see condition 5). Mining is defined as per s 8 of the Mining Act 1978 (WA).
The survey must be conducted by:
(a)a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional, agreed between the native title party and the grantee party, engaged and paid for by the grantee party, and
(b)up to three Bunuba common law holders (as defined on the National Native Title Register and in Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 and Wurrunmurra v State of Western Australia [2012] FCA 1399) nominated by the native title party (nominated persons).
Nomination by the native title party must be in writing and include full contact particulars of the nominated persons.
The grantee party must pay the reasonable costs of the nominated persons’ attendance and participation in a survey. This is not intended to include the professional costs of legal or other representation or advice. Other Bunuba common law holders may attend as observers to a survey.
The grantee party must give written notice to the native title party of its intention to conduct a survey and when giving notice must include precise information about the activities the grantee party proposes to be conducted on the area, a suitable topographical map showing the area proposed to be surveyed, and the location of the lease. Within 35 days of receipt of the notice, the native title party must communicate the type of survey to be conducted, if any.
Subject to any law, a survey required under condition 2 must be completed within 42 days of the native title party’s communication under condition 5, or as soon as practicable thereafter, with the parties cooperating in good faith on the conduct of a survey.
The native title party must provide the grantee party with a written report, including a map within 28 days of completion of the survey. The report must state which of the grantee party’s proposed activities are:
(a)Cleared
(b)Cleared with conditions; and
(c)Not cleared
in relation to the survey area, and mark the accompanying map accordingly.
The grantee party must not disclose to any person any confidential information given to it by the native title party or the Bunuba common law holders regarding Aboriginal heritage or cultural information, during or as a result of the survey, except (and only then on a confidential basis):
(a)with the written consent of the native title party; or
(b)to a bona fide prospective assignee of the lease; or
(c)to an actual assignee of the lease; or
(d)to its employees, agents, contractors and consultants for the sole purpose of ensuring that no Aboriginal sites or cultural heritage are interfered with and as far as the information relates only to the location of those areas; or
(e)as required by law; or
(f)for a purpose under the AH Act.
Within 30 days of receipt of a copy of a notice under s 18 of the AH Act given by the grantee to the Aboriginal Cultural Material Committee (ACMC) over any part of the lease, the native title party must inform the grantee party in writing if the native title party wishes to be consulted concerning the proposed use of the land in that notice. If so informed, the grantee party must make itself available to meet with the native title party to describe that proposed use within 30 days of the native title party giving it notice. The native title party will organise for interested Bunuba common law holders to attend the meeting.
Upon receipt of a recommendation from the ACMC in respect of a s 18 notice, the State of Western Australia (the State) must without delay give a copy of the recommendation to the native title party and the grantee party (excluding any confidential information provided to the ACMC by persons other than the native title party).
Where the Minister under the AH Act gives or declines to give consent to the proposed use of the land the subject of a s 18 notice and recommendation from the ACMC, the State must without delay inform the native title party of the decision.
Cultural awareness
Following the grant of the lease, the grantee party must ensure that all persons whom the grantee party reasonably believes are not Bunuba common law holders and who are engaged directly or indirectly by or on behalf of the grantee party and who may enter the lease area in relation to the exploration or mining thereon are provided with appropriate information (the information) for the following purposes:
(a)to familiarise such persons with the traditions and culture of the Bunuba common law holders;
(b)to promote a knowledge and understanding of and respect for the traditions and culture of the Bunuba common law holders; and
(c)to foster good relationships between the native title party, the Bunuba common law holders and others.
The native title party or their nominee and the grantee party must consult with each other in formulating and directing the communication of the information.
The information is to be formulated and communicated by suitably credentialed Bunuba common law holders nominated and provided by the native title party.
The grantee party must pay the native title party the reasonable costs (including refreshments and meals, fuel and accommodation) for the suitably credentialed Bunuba common law holders to provide the information. Such reasonable costs may also include the hire of a venue when cultural awareness training is not at the grantee party’s site.
Communications
Within 30 days after the grant of the lease, the grantee party must establish and continue a liaison committee (committee) with members comprising six members, two of whom shall be nominated by the grantee party and four of whom shall be nominated by the native title party.
Each party may replace members on the committee by giving at least 24 hours prior written notice to the other party. Where a member on the committee is temporarily not available to attend meetings of the committee, the member may, by giving at least 24 hours prior written notice, substitute another person to represent their interests during the period when the member is unavailable.
The functions of the committee will be to facilitate identification and realisation of opportunities for the creation of value and benefit to the native title party and Bunuba common law holders and to provide a forum for the exchange of information between the parties concerning:
(a)mining on the lease, related infrastructure including access routes, and proposed changes to those operations; and
(b)matters of importance to either the native title party or the grantee party as they relate to those operations.
The native title party, through the committee, may from time to time provide the grantee party with a list of businesses or companies which have the capacity to perform contract work and/or fee for service work in respect of the grantee party mining operations and associated works on and around the lease.
The committee must meet at least twice each year. If none of the committee members nominated by the native title party or their substitutes are available to attend a meeting, the grantee party is released from the twice yearly commitment for that particular year, and need only meet once in that year.
The position of a committee member becomes vacant if he or she:
(a)resigns in writing; or
(b)is absent, without leave, for three consecutive meetings of which he or she has had notice; or
(c)is deceased.
Subject to any law, the committee meetings must be open to the following who may attend as observers if they wish to do so:
(a)a total of up to five other grantee party representatives, and
(b)a total of up to five other representatives of the native title party and/or Bunuba common law holders.
The location of the committee meetings will be on the lease unless agreed otherwise by the committee members.
The reasonable costs incurred by committee members in attending the committee meetings must be paid by the grantee party. This is not intended to include the professional costs of legal or other representation or advice, nor inter-state travel, and each party will bear their own such costs.
Employment, training and contracting
As soon as possible following the grant of the lease, and subject to the requirements of the grantee's business and availability of Bunuba common law holders, the grantee must take reasonable steps to advertise employment and contracting opportunities to the native title party, and to employ, train, and/or contract, Bunuba common law holders.
Subject to any law, the grantee party should advertise positions in such a way as to encourage Aboriginal people to apply, and where an Aboriginal candidate is assessed as having adequate skills and experience for a position, the grantee party shall give preference to an Aboriginal candidate.
The grantee party shall not be obligated to employ any person not capable of carrying out the particular work required in a satisfactory manner and who does not meet the grantee party minimum requirements for the particular position.
The grantee party shall give the native title party reasonable advance notice of its intention to seek tenders for the provision of services in relation to the mining operations.
The grantee party will give favourable consideration to the native title party and Bunuba common law holders contracting entities and will develop meaningful training programs for Bunuba common law holders to facilitate employment and contracting opportunities.
Access
Permission is not to be unreasonably withheld by the grantee party or the State for the native title party and the Bunuba common law holders to use Roberts Road to access the lease and surrounding areas.
General
The grantee party must take all reasonable action to ensure compliance with these conditions by its employees, agents and contractors.
Upon assignment of the lease, the grantee party must ensure the assignee is bound by these conditions as if it were the grantee party.
For the purpose of condition 25-30, grantee party includes any assignee and assignment includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession.
ANNEXURE C: DRAFT ENDORSEMENTS AND CONDITIONS PROPOSED FOR THE GRANT OF M04/473 BY THE STATE
ANNEXURE D: EXTRA CONDITIONS OFFERED FOR THE GRANT OF M04/473 BY THE STATE
Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the mining tenement is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.
If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
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 Executive Director Resource and Environmental Compliance at the Department of Mines Industry Regulation and Safety for 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.
Upon assignment of the mining tenement the assignee shall be bound by these conditions.
1