Kevin Allen and Others on behalf of Nyamal #1 v FMG Pilbara Pty Ltd

[2020] NNTTA 80

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen and Others on behalf of Nyamal #1 v FMG Pilbara Pty Ltd [2020] NNTTA 80 (23 December 2020)

Application No: WO2020/0542

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Kevin Allen and Others on behalf of Nyamal #1 (WC1999/008)

(native title party)

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FMG Pilbara Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	The Hon J.A. Dowsett, AM, QC
Place:	Brisbane
Date:	23 December 2020

Catchwords:

Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is an act attracting the expedited procedure

Legislation:

Aboriginal Heritage Act 1972 (WA) s 18

Mining Act 1978 (WA) ss 57, 63, 63AA, 66

Native Title Act 1993 (Cth) ss 29, 30, 30A, 31, 32, 39, 237

Cases:

Allen on behalf of the Nyamal People #1 v State ofWestern Australia [2019] FCA 1570

Seven Star Investments Group Pty Ltd v Western Australia (2011) 257 FLR 175; [2011] NNTTA 53

Nyamal Palyku Proceeding [2020] FCA 428

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara and Another [2014] NNTTA 8

Representative of the native title party:

John Edwards, Arma Legal

Representative of the grantee party: Abbey Shillingford, Fortescue Metals Group

Representatives of the Government party: Lauren Pike, Department of Mines, Industry Regulation and Safety, and Wanjie Song, State Solicitor’s Office

REASONS FOR DETERMINATION

INTRODUCTION

1. Kevin Allen, Willie Jumbo, Alice Mitchell, Tony Taylor and Jean Walker claim, in the Federal Court, on behalf of the Nyamal People (the “Native Title Party”), a determination as to the existence of native title pursuant to the Native Title Act 1993 (Cth) (the “Native Title Act”).  The proceedings have the Federal Court number WAD20/2019.  On 3 June 1999, the claim was entered on the Register of Native Title Claims.  It has a complex history, to some extent explained by Reeves J in Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 and in Nyamal Palyku Proceeding [2020] FCA 428. In the former matter, his Honour made a determination as to the existence of native title over part of the claim area (the “determination area”).  The Nyamal People’s claim over an adjoining area to the south of the determination area remains undetermined (the “undetermined area”).

2. On 3 April 2020 the Government of Western Australia, Department of Mines, Industry Regulation and Safety (the “State”) gave notice of its intention to grant (the “proposed grant”) an exploration licence (E45/5610) (the “proposed tenement”) to FMG Pilbara Pty Ltd, (the “Proposed Grantee”). The proposed grant is to be made pursuant to s 57 of the Mining Act 1978 (WA) (the “Mining Act”). The proposed tenement will lie within the boundaries of the undetermined area. The notice was given pursuant to s 29 of the Native Title Act. For the purposes of s 29(4) of the Native Title Act the notification day was 8 April 2020.  The notice contained a statement to the effect that the State considers that the proposed grant attracts the expedited procedure (the “expedited procedure statement”). Section 29(7) of the Native Title Act contemplates the inclusion of such a statement. Its inclusion engages s 32 of the Native Title Act.

3. Sections 30, 30A, 31 and 32 of the Native Title Act establish a system for negotiation in good faith in connection with the proposed grant of a mining interest such as the proposed tenement. If a notice pursuant to s 29 contains an expedited procedure statement then, subject to s 32, the State may make the proposed grant without the parties engaging in such negotiation. However if, pursuant to s 32(3), the Native Title Party lodges an objection to the expedited procedure statement, then the parties identified in s 30A must negotiate, unless this Tribunal (the “Tribunal”) determines that the proposed grant is an act attracting the expedited procedure. See s 32(5). The term, “act attracting the expedited procedure”, is defined in s 237 of the Native Title Act as follows:

   A future act is an act attracting the expedited procedure if:

   (a)      the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b)      the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

THE PROPOSED TENEMENT

1. The proposed tenement lies in the undetermined area, about 15 km south of its northern boundary.  It comprises about 12.741 km².  Within the proposed tenement, there is no Registered Aboriginal Site (“RAS”) or Other Heritage Place (“OHP”) registered under the Aboriginal Heritage Act 1972 (WA) (the “AH Act”). 

2. Sections 63 and 63AA of the Mining Act impose the following conditions on the grant:

   63  Condition attached to exploration licence

   Every exploration licence shall be deemed to be granted subject to the condition that the holder thereof will explore for minerals and —

   (a)      will promptly report in writing to the Minister all minerals of economic interest discovered in, on or under the land the subject of the exploration licence; and

   (aa)     will not use ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless —

   (i)the holder has lodged in the prescribed manner a programme of work in respect of that use; and

   (iia)the holder has paid the prescribed assessment fee in respect of the programme of work; and

   (ii)the programme of work has been approved in writing by the Minister or a prescribed official;

   and

   (b)      will fill in or otherwise make safe to the satisfaction of a prescribed official all holes, pits, trenches and other disturbances to the surface of the land the subject of the exploration licence which are —

   (i)made while exploring for minerals; and

   (ii)in the opinion of the prescribed official, likely to endanger the safety of any person or animal;

   and

   (c)      will take all necessary steps to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise.

   63AA Conditions for prevention or reduction of injury to land

   (1)      On the granting of an exploration licence, or at any subsequent time, the Minister may impose on the holder of the licence reasonable conditions for the purpose of preventing or reducing, or making good, injury to the land in respect of which the licence is sought or was granted, or injury to anything on or below the natural surface of that land or consequential damage to any other land.

   (2)      A condition imposed under this section may be cancelled or varied by the Minister at any time.

   (3)      A condition imposed in relation to a licence under this section —

   (a)may, either in full or with sufficient particularity as to identify the recommendation or other source from which it derives, be endorsed on the licence, for which purpose the holder of the licence shall produce the licence on demand; and

   (b)whether or not so endorsed, on notice of the imposition of the condition being given in writing to the holder of the licence shall for all purposes have effect as a condition to which the licence is subject.

3. The rights conferred by an exploration licence are prescribed by s 66 of the Mining Act as follows:

   An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, in accordance with any conditions to which the licence may be subject –

   (a)      to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, or under the land;

   (b)      to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;

   (c)      to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;

   (d)     to take and divert, subject to the [Rights in Water and Irrigation Act 1914 (WA)], 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 exploring for minerals on the land.

4. The proposed grant will be subject to the following conditions, amongst others:

   1     All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines, Industry Regulation and Safety. Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, Department of Mines, Industry Regulation and Safety.

   2     All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.

   3     Unless the written approval of the Environmental Officer, Department of Mines, Industry Regulation and Safety is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.

CLAIMED NATIVE TITLE RIGHTS AND INTERESTS

1. The rights and interests claimed by the Native Title Party are set out in the Register of Native Title Claims as follows:

   The applicants claim native title to the area covered by the application. The native title rights and interests claimed which are derived from that native title include, but are not limited to, the following rights and interests:

   (1)Over areas where a claim to exclusive possession can be recognised, the applicants claims (sic):

   (a)     except as stated in Schedule P, the right to possess the land and waters claimed;

   (b)    the right to be asked, and the enforceable right to say no, with respect to any proposed activity by any person not part of the native title claim group within or affecting the determination area;

   (c)     except as stated in schedule P, the right to occupy the land and waters claimed;

   (d)    except as stated in schedule P, the right to use and enjoy the land and waters claimed;

   (e)     except as stated in schedule P, the right to make decisions about the use and enjoyment of the land and waters claimed;

   (f)   except as stated in schedule P, the right to control the access of others to the land and waters claimed;

   (g)    except as stated in Schedule Q, the right to control the use and enjoyment of others of the resources of the land and waters claimed;

   (h)    except as stated in Schedule Q, the right to receive a portion of any resources taken by others from the land or waters claimed;

   (i)   the rights and interests listed in 2 below.

   (2)Over areas where a claim to exclusive possession cannot be recognised, the applicant claims:

   (j)   the right to maintain and protect places of importance on the land and in the waters claimed;

   (k)    except as stated in Schedule P, the right of free access to the land and waters claimed;

   (l)   except as stated in Schedule Q, the right to use and enjoy the resources of the land and waters claimed;

   (m)   except as stated in Schedule Q, the right to trade in the resources of the land and waters claimed;

   (n)    the right to carry out the activities set out in Schedule G(a)-(d)

   Schedule G states

   Members of the native title claim group have continuously carried out activities on the land and waters within the claim area. These activities are:

   (a)     residing on and travelling over the area;

   (b)    making use of the resources of the area through activities including, but not limited to, hunting, fishing, gathering bush tucker and bush medicine, camping, extracting ochre and other materials, building dwellings and making ceremonial artefacts and implements;

   (c)     exercising the responsibility for looking after the area in accordance with their traditional laws and customs, including exercising native title rights;

   (d)    passing on knowledge of the area;

   in accordance with custom and tradition.

   Schedule P states:

   To the extent that the native title rights and interests claimed may relate to waters in an offshore place, those rights and interests are not to the exclusion of other rights and interests validly created by a law of the Commonwealth or the State of Western Australia or accorded under International Law in relation to the whole or any part of the offshore place.

   Schedule Q states:

   To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in rights of the Commonwealth or the State of Western Australia, they are not claimed by the applicants.

THE OBJECTION

1. The grounds of the Native Title Party’s objection appear in para 7 as follows: 

   The [Native Title Party has] connections to all the country which includes [the proposed tenement]. These connections include those maintained through hunting game, collecting food and natural resources and medicines, as well as visiting and looking after sites of significance. Going on country to educate the younger generations in relation to native title rights and interests.

   Exploration activity will directly impact flora and fauna and may have ongoing indirect impacts by having altered the environment and habitat for native species that the native title holders continue to hunt and use. Drilling activity and costeaning will also destroy plants and habitats the [Native Title Party uses] for food and medicines and may also destroy or impact on sites. Europeans tend to view sites as specific limited areas; however, the native title holders view many sites more as landscapes that will be impacted upon if the landscape is altered or partly destroyed or modified by machinery and equipment.

   The Exploration activities will have significant impacts on the water and waterways in and around the exploration area. This could have impacts on the wildlife and flora in the area which may have an adverse effect on the native title holder’s (sic) ability to exercise their native title rights and interests in the future, (sic)

   The grant of [the proposed tenement] will significantly impact on the [Native Title Party’s] conduct and enjoyment of these activities and the [Native Title Party’s] spiritual connection with the land.

   We consider there are highly likely to be: artefact scatters, scarred trees, if there are escarpments on the area there are likely to be rock shelters in the area of [the proposed tenement] left by … ancestors. These artefacts are not recorded sites and can only be found by close examination of the area in question. These sites are particularly significant because they record the activities and movements of … ancestors. The sites are not easily identifiable and require specialist expertise to identify them. The action of driving across country to get to an area of proposed exploration activity as well as the proposed exploration activity itself is likely to destroy these artefact scatters and other sites unless they are properly identified, recorded and protected. There are no recorded sites in the area of this exploration permit, this should not be considered as meaning there are not significant sites on the exploration area and the presence of a recorded site nearby is indicative of the high use of this area by Nyamal people.

   The objector believes the grant of [the proposed tenement] over the area of ground applied for will create rights, the exercise of which will involve major disturbance to the land. Specifically, the land in question is as delineated in the map provided from the State in its original notice.

EVIDENCE

1. The Native Title Party has not submitted any evidence in this matter, although it makes assertions of fact in its contentions.  This has been done without objection.  I must give such “evidence” the weight which I consider to be appropriate.  The Proposed Grantee has provided an affidavit sworn by Nerolie Nikolic, an employee of the Proposed Grantee. 

2. Ms Nikolic says that the Proposed Grantee is the third largest Australian iron ore producer. She attaches its current annual report in which its mining operations are described. In its application, the Proposed Grantee submitted a statement pursuant to s 58(1)(b) of the Mining Act. It is attached as Schedule 1 to these reasons. The term of the proposed tenement is not disclosed in the material. Section 61 of the Mining Act suggests that it will be for a period of up to five years with the possibility of extensions.  Schedule 1 demonstrates only the activity to be undertaken in the first two years.

3. Ms Nikolic says that the Proposed Grantee is aware of its obligations under the AH Act.  The Proposed Grantee has an “Aboriginal Heritage Department”, which department is responsible for ensuring that the Proposed Grantee meets its obligations under:

   ·the AH Act, including those relating to Aboriginal sites as that term is defined therein;

   ·under agreements between the Proposed Grantee and third parties, to the extent that such obligations relate to Aboriginal heritage; and

   ·in respect of other areas which, the Proposed Grantee accepts, as being of particular importance to Aboriginal people, such areas being designated by the Proposed Grantee as “heritage exclusion zones” or “heritage restricted zones”.

4. The Proposed Grantee has adopted a “Land Use Certificate Procedure”.  Such certificate was formerly known as a “Ground Disturbance Permit”.  The procedure prohibits the Proposed Grantee’s personnel and contractors from disturbing identified areas, unless a relevant land use certificate has been issued, presumably by an officer of the Proposed Grantee.  The issue of such a certificate is dependent on satisfaction of a range of requirements, including:

   ·        that all heritage approvals and compliance conditions under relevant legislation, heritage agreements and land access agreements are in place;

   ·        that the Land Use Certificate as sought relates to areas that have been heritage-surveyed for the specific purpose;

   ·        whether a heritage survey is required;

   ·        that access to the Land Use Certificate area is defined;

   ·        evaluation of the proximity and scope of works to, and assessment of the potential direct or indirect impact on in situ heritage sites or exclusion zones; and

   · that all approvals (eg, s 18 under the AH Act) are in place.

   The first and last requirements seem to overlap.

1. Ms Nikolic also exhibits a copy of the Proposed Grantee’s Guideline for the Management of Aboriginal Cultural Heritage. The purpose of the guidelines is said to be to provide:

   … all [Proposed Grantee] and contractor personnel, and visitors, on [Proposed Grantee] Project Areas with a set of guidelines and procedures to:

   ·assist with day to day management and protection of Sites on [Proposed Grantee] project areas;

   ·ensure we meet our internal, statutory and community obligations with respect to the consultation, identification, assessment, protection and management of Aboriginal cultural heritage; and

   ·enable access to land for development activities for [Proposed Grantee] operations, projects and tenements.

   The Guideline applies to all stages of development … including exploration, construction, and mine planning operations.

2. Ms Nikolic says that within Western Australia, the Proposed Grantee has commissioned ethnographic Aboriginal heritage surveys over more than 2,600,000 hectares of land. Over 236,000 hectares of land have been the subject of archaeological heritage surveys commissioned by the Proposed Grantee. The Proposed Grantee’s geographical information system shows that more than 5,900 Aboriginal “places” are located on mining tenements held by it. The relevant Minister has granted to the Proposed Grantee, in excess of 100 consents pursuant to s 18 of the AH Act.  The Proposed Grantee maintains a comprehensive geographical information system.  It is used to ensure that heritage obligations are discharged.

3. The Proposed Grantee routinely forwards signed Regional Standard Heritage Agreements (“RSHAs”) to native title parties in relation to new exploration and prospecting licence applications.  It does so in order to comply with State policy.  Such an agreement was signed by the Proposed Grantee and forwarded to the Native Title Party on 25 March 2020.  The Proposed Grantee endorses the principles set out in the, “Guidelines for Consultation with Indigenous People by Mineral Explorers”, published by the State.  The Proposed Grantee’s policy is not to undertake ground-disturbing activities unless a heritage survey has been undertaken. 

4. The State has provided a substantial amount of information.  I need not summarize that information, save to the extent that it is referred to by the parties in their contentions, or is otherwise of particular importance.

NATIVE TITLE PARTY’S CONTENTIONS

1. The Native Title Party contends that the proposed grant is not an act attracting the expedited procedure, having regard to the criteria outlined in s 237 of the Native Title Act.  It contends that for present purposes, it should be treated as having the rights and interests which are claimed in the Federal Court application, as they relate to the proposed tenement, including surrounding areas which, “might be used for access to the proposed tenement”.  With regard to this proposition, the Native Title Party relies upon the decision of Member Sumner in Seven Star Investments Group Pty Ltd v Western Australia (2011) 257 FLR 175 at [38]. Member Sumner said that:

   For the purposes of the right to negotiate provisions of the Act, determined and registered claimed native title rights and interests are treated as being on the same footing. Registered claimed native title rights are assumed to exist as if they had been determined. However, there is still a need under s 39(1)(a)(i) of the Act for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a) … . In other words, a determination is not based on a worst case scenario where all the registered native title rights and interests are assumed to exist and be exercised or enjoyed equally over the whole claim area just by virtue of their registration.

2. Although that decision relates to proceedings pursuant to s 39, the propositions are equally applicable to the operation of s 237 in the context of ss 29-32. The above extract supports the Native Title Party’s submission that for present purposes, its claimed native title rights and interests, as they apply to the proposed tenement, should be accepted at face value. The above extract also demonstrates that, for present purposes, the Native Title Party must provide information concerning the practical exercise of those rights and interests as concerns the relevant land and waters.

3. In connection with ss 237(a) and 237(b), the Native Title Party purports to rely upon the reasons of Reeves J in Allen, particularly at “[54], [58] and [59]”. These paragraphs are, in fact, part of a longer extract from the joint submissions made by the parties to Reeves J and included by his Honour in his reasons at [35]. Those paragraphs of the joint submission assert as follows:

   [54]     The Nyamal People have maintained their connection [to] the Nyamal Determination Area since the assertion of sovereignty. It is evident from the archaeological and historical record that Aboriginal people have occupied and used the resources of the land in the Nyamal Determination Area since well before first contact.

   …

   [58]     Today, whilst some Nyamal People still live permanently in the Nyamal Determination Area at Marble Bar, a majority of Nyamal People now reside in Port Hedland whilst some remain at Yandeyarra. However, those Nyamal People who reside outside the Nyamal Determination Area continue to camp, fish, hunt and gather on their country on weekends and during holidays. 

   [59]     Accordingly, the Nyamal People continue to have a rich knowledge of the natural environment and particular sites in the Nyamal Determination Area (including mythological sites, dangerous, restricted, ceremonial, totemic and historical sites). Native game and plant foods continue to be important to Nyamal People and Nyamal People actively engage in hunting and gathering techniques and use traditional natural resources in accordance with a system of traditional laws and customs. The Nyamal People are also mindful of their responsibility to ensure that such knowledge is passed down to younger generations.

4. Reeves J accepted that the submissions summarized Nyamal traditional laws and customs and their connection to the determination area.  His Honour also observed that the entire extract goes, “some way to explaining why the parties came to the agreement that this determination … should be made”.  Whilst his Honour was willing to act upon the joint submissions of the parties in the case before him, it does not follow that the Native Title Party can simply assert that the agreed submissions have some wider operation, extending to the undetermined area, particularly the proposed tenement.

5. Even accepting paragraphs 54, 58 and 59 of the joint submissions at face value, they relate only to the connection between the Native Title Party and the determination area.  It does not follow that the same relationship exists between the Native Title Party and the undetermined area or the proposed tenement.  In para 8 of the Native Title Party’s submissions in the current proceedings, it incorrectly asserts that the determination area is overlapped by the proposed tenement.  The proposed tenement lies outside of the boundaries of the determination area. 

6. Concerning s 237(a), at para 9 of the Native Title Party’s submissions it asserts that common law native title holders conduct community and social activities (within the meaning of s 237(a)) in “the area” and that the proposed grant would interfere directly with the conduct of such activities. Neither the “area” nor the relevant community and social activities is/are identified. The Native Title Party asserts that the Nyamal native title holders, “carry out”, “their determined native title rights”, in the proposed tenement, apparently referring to para 59 of the joint submissions. However these assertions are unaccompanied by any particulars of the activities in question. Nor are there particulars as to when, where, how or by whom such activities are conducted. At para 10 the Native Title Party asserts that, after “significant rain” earlier this year, social and community activities have occurred more frequently. Again, the assertion is unparticularized.

7. These submissions seem to depend upon the unjustified assumption that his Honour’s apparent acceptance of a relationship between community and social activities and the determination area, of itself, justifies an inference that such activities are conducted on the undetermined areas, particularly on the proposed tenement.

8. As to s 237(b), at para 12 of its contentions, the Native Title Party identifies the requirements of s 237(b) as set out in Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara and Another [2014] NNTTA 8 as follows:

   (i)      [t]he area or site must be of special or more than ordinary significance to the native title holders, in accordance with their traditions;

   (ii)      [a]n area or site must be well known and able to be located, and the nature of its significance explained;

   (iii) [e]ven slight interference may be unacceptable in the context of s 237(b), but the interference must involve actual physical intervention;

   (iv)     [g]enerally, the area or site must be located within the proposed licence. An area or site outside the licence area may be taken into account, where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the site and that activities off-site are in fact an integral part of activities on site (examples include the construction of roads, or truck movements, to and from the proposed licence area); and

   (v)      [t]here must be a real chance or risk of interference with the area or site.

9. At para 13 of its contentions, the Native Title Party again refers to paragraph 59 of the joint submissions, apparently relying upon the submission that the Native Title Party had knowledge of sites in the determination area, and engaged in hunting and gathering, without reference to any particular area or site, and that it is mindful of the need to pass on knowledge to younger generations.  None of this says anything about areas and sites in the undetermined area, particularly the proposed tenement.  At para 14, the Native Title Party refers to access routes to the proposed tenement.  It is difficult to understand how the matters set out in paragraph 59 of the joint submissions (concerning the determination area) can in any way relate to problems of access to the relatively remote proposed tenement in the undetermined area.  The Native Title Party makes no attempt to identify any particular difficulties in connection with access to the proposed tenement. 

10. As to s 237(c), the Native Title Party contends that, “disturbance to land and waters is too much disturbance which will need to be negotiated with the [Native Title Party] to avoid such disturbance”. The Native Title Party does not identify any land or waters which may be within the proposed tenement, or adjacent thereto, concerning which there may be any fear of major disturbance.

11. In effect, the Native Title Party has made little, if any, attempt to relate the considerations identified in s 237 to the particular circumstances of this case or, in particular, to demonstrate how they relate to the proposed grant and the proposed tenement .

PROPOSED GRANTEE’S CONTENTIONS

1. The Proposed Grantee submits that the focus of s 237(a) is on, “community and social activities which are essentially physical activities, even if they are carried out because of the spiritual relationship that a native title party has to the land”. Such activities are, “not necessarily those of a particular localized community”. Evidence may establish that individual persons, as a community, practise particular community or social activities. It further submits that for the purposes of s 237(a), the level of interference must be substantial.

2. As to s 237(b), the Proposed Grantee submits that the relevant area or site must be of special, or more than ordinary, significance to the native title holders. If the area or site is of particular significance, it must be known as such, capable of being located and the nature of its significance must be explained. Even slight interference may be unacceptable in the context of s 237(b), but the interference must involve actual physical intervention. It is said that generally, the relevant area or site will be located within the proposed tenement area, although it is possible that an area or site outside of the proposed tenement, may be of particular significance. There must be evidence demonstrating how relevant activities, under the proposed grant, would directly and physically affect the relevant site. Off-site activities may be an integral part of activities on-site. Finally, there must be a real chance or risk of interference.

3. Submissions of the kind outlined above can be useful, but they can also be misleading.  They effectively describe the relevant legislative provisions, using the language of earlier decisions.  The usefulness of such an approach is that it reflects the wisdom and insights of earlier decisions.  The danger lies in paraphrasing the legislative provisions, and the substitution of such paraphrasing for the actual wording of the statute.  This process may result in a failure to give effect to the statutory language. 

4. Concerning s 237(a), the Proposed Grantee points out that the Native Title Party has provided no evidence of activities conducted on the proposed tenement, or anywhere nearby. Nor is there any evidence of how the proposed grant might substantially interfere with such activities. The Proposed Grantee also points out that the proposed tenement has been affected by prior mining activities, which activities may have already had an impact on community and social activities. Alternatively, absence of any adverse effect may demonstrate that community and social activities have co-existed with exploration and/or mining activities. Hence it is said that there is no evidence that there would be interference with community and social activities, or that any such interference would be substantial rather than trivial.

5. As to s 237(b), the Proposed Grantee seems to understand that the Native Title Party’s position focusses primarily on travel routes to the proposed tenement. It points out that there are no registered Aboriginal sites or other heritage places within the proposed tenement, and that there is no evidence identifying any unregistered sites. There is no evidence suggesting that any area on, or around the proposed tenement is of particular, or more than ordinary significance to the Native Title Party in accordance with its traditions. There is no evidence to support the general assertion that substantial interference is likely to occur if the Proposed Grantee’s travel routes to the proposed tenement are not discussed. The Proposed Grantee again points out that there has been prior exploration on the proposed tenement, suggesting that there has already been impact upon the subject area. Of course that does not exclude the possibility of further impact.

6. The Proposed Grantee also points out that it is aware of the AH Act and associated regulations, and complies with obligations imposed by it.  In particular, it refers to Ms Nikolic’s affidavit, submitting that there is no real chance or risk of interference to any area or site of particular significance to the Native Title Party.

7. As to s 237(c), the Proposed Grantee submits that the Native Title Party has not identified the nature of any feared or likely disturbance to land or waters, nor as to how any such disturbance may be caused. It points out that its own plans, at least for the initial exploration period, would involve low-impact, non-ground-disturbing activity. Ground-disturbing activities outlined for the second year will only be conducted in the event that non-ground-disturbing activities in the first year identify significant targets, warranting further investigation.

8. Such evidence, by itself, would not generally exclude the likelihood of the adverse consequences identified in s 237(c). However the absence of any suggestion as to how such disturbance may occur makes it unnecessary further to consider that matter.

STATE’S CONTENTIONS

1. The State attaches to its contentions a number of annexures, including Annexure 4 which sets out the endorsements and conditions to be included in the proposed grant.  They include standard conditions concerning environmental rehabilitation, and as to the requirement for environmental approval before any ground-disturbing activities are undertaken.  The State points out that breach of a statutory condition, or condition imposed by the Minister on an exploration licence, would leave the licence liable to forfeiture.   The State also refers to Ms Nikolic’s affidavit and the Proposed Grantee’s policy of not undertaking ground-disturbing activity without first completing a heritage survey. 

2. The State submits that the Tribunal is obliged to carry out a predictive assessment of the likelihood or otherwise of the possible occurrence of the consequences identified in s 237 as a result of the proposed grant. Such an assessment is not confined to a consideration of the legal rights conferred by the proposed grant. It may also require consideration of the Proposed Grantee’s intentions, and the existence and nature of any regulatory regimes. Further, the assessment required by s 237 does not involve the proof of such likelihood or otherwise, on the balance of probabilities. Rather the question is whether there is a real, or not remote chance or possibility of such consequences. Concerning s 237(a) the State submits that the question is whether there is a real chance or risk that the proposed grant will interfere directly with the conduct of the community or social activities of the native title holders. Trivial impacts are not within scope of the provision. Again, I observe that it is potentially dangerous to seek to paraphrase the words of the section.

3. The State submits that it is insufficient for the Native Title Party simply to provide evidence of a general nature, or to assert that certain activities take place.  There should be specific evidence concerning the location, intensity and frequency of the activity, and how the proposed grant would interfere with that activity.  The State submits that there is insufficient evidence concerning community or social activities conducted within the proposed tenement.  It then observes that, as appears from the agreed submissions before Reeves J, the fact that the Native Title Party has carried out activities on the determination area does not lead to the conclusion that similar activities have been, or are being undertaken within the area of the proposed tenement. 

4. Further, the State submits that there is little or no evidence of the activities in question.  Further, there is no explanation as to how the Native Title Party contends that interference with community or social activity could occur.  The State asserts that the Native Title Party’s submissions are too general to enable the Tribunal to draw a conclusion that interference is not unlikely. 

5. As to s 237(b), the State sets out the general propositions concerning that provision. I have set out those propositions at [25] above. The State submits that evidence of such matters is generally within the knowledge of the Native Title Party, so that evidence concerning the existence of such areas or sites and associated matters will generally come from that source. The State submits that the joint submissions made to Reeves J, concerning the links between the Native Title Party’s knowledge and the determination area do not deal with the present question, namely the relationship of the Native Title Party to the area of the proposed tenement. There is also no explanation of the “sacredness” of any site from any person having authority to speak in relation to such matters. Section 237(c) does not speak expressly of “sacredness”. However “sacredness” may well be the source of particular significance for the purposes of s 237(b).

1. Concerning s 237(c), the State notes the assertion that any disturbance to land or waters is too much disturbance, requiring negotiation. It points out that the Native Title Party does not elaborate any further on that assertion. The expression “major disturbance” is an ordinary English term, which term should be given its ordinary meaning, as understood by the Australian community generally including, but not limited to, Aboriginal People. The notion “major disturbance” is not an entirely subjective notion, to be determined by reference to the opinions of the Native Title Party. Again, the State submits that the evidence concerning this matter is inadequate, a submission with which it is difficult to disagree.

2. The State therefore submits that the proposed grant is not likely to interfere directly with the carrying on of the community or social activities of the Native Title Party in relation to the land, is not likely to interfere with areas or sites of particular significance in accordance with the traditions of the Native Title Party in relation to the land, and is not likely to involve major disturbance to the land or waters, or to create rights, the exercise of which would involve major disturbance to land or waters.

CONCLUSIONS

1. Clearly, the Native Title Party has failed to present any significant evidence relevant to s 237, the proposed grant and the proposed tenement. It attempts to apply the submissions made to Reeves J, concerning the determination area, to the relationship between the Native Title Party and the proposed tenement. Such attempt demonstrates the weakness of the Native Title Party’s case.

2. It is simply not possible to extrapolate from a joint submission made concerning an area over which native title has been found to exist, with another area over which no such determination has been made, and about which there has been no express evidence.  There is no basis upon which I could properly infer that the Native Title Party’s relationship with the undetermined area, including the proposed tenement, reflects the demonstrated relationship between the Native Title Party and the determination area.  Further, the proposed tenement comprises only a very small area within the undetermined area.  No real attempt has been made to demonstrate association with that area. 

3. In the circumstances I accept the submissions made by the State and by the Proposed Grantee.  I conclude that the proposed grant is an act to which the expedited procedure applies.  

The Hon John Dowsett AM, QC

President

23 December 2020

SCHEDULE 1

1) Proposed Method of Exploration and Exploration Program

The exploration program proposed for this tenement is designed to target, locate and assess in-situ, bedded iron deposits (BIDs), channel iron deposits (CIDs), detrital iron deposits (DIDs) and/or base and precious metals mineralisation. This tenement application is situated in Mineral District 45 and is located on the 1:250,000 and 1:100,000 map sheets SF 51-5:NULLAGINE and 2954:NULLAGINE respectively. The area of the tenement application is considered by Fortescue to be prospective for iron ore, precious metals or base metals mineralisation.

In general, the initial processes used to locate and assess all styles of mineralisation within the area will include, but not be limited to, aerial photography, analysis of aeromagnetic and landsat data, analysis of public domain historical exploration data, geological mapping and rock chip sampling.

The initial phase of exploration work plus an estimate of the cost is presented in the following table:

Activity	Phase of work	Estimated Cost
Literature search and analysis of publicly available historical data.	Year 1	$1,000
Direct, or public domain acquisition of aerial photography, satellite imagery, aeromagnetic or other geophysical data sets to be orthorectified and imported into data management system.	Year 1	$5,000
Geological mapping and rock chip sampling.	Year 1	$4,000
Interpretation of historical, geophysical and geochemical data sets and target selection	Year 1	$1,000
Administration, management and supervision.	Year 1	$2,000
Gridding, access and aboriginal heritage clearance.	Year 1	$4,000
Total	$17,000

The first phase of work is designed to identify and have targets defined ready for further testing by drilling. Succeeding phases, which may include the activities tabled below, will depend on results obtained.

Activity	Phase of work
Reverse circulation and/or diamond drilling	Year 2
Interpretation, resource estimation and technical reporting	Year 2
Metallurgical testing	Year 2

2) Proposed Expenditure

Proposed expenditure for the first year of the licence will exceed the minimum statutory expenditure commitment of $15,000.