Kevin Cosmos on behalf of Yaburara & Mardudhunera/Western Australia/FMG Pilbara Pty Ltd

[2013] NNTTA 114

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Cosmos on behalf of Yaburara & Mardudhunera/Western Australia/FMG Pilbara Pty Ltd, [2013] NNTTA 114 (14 August 2013)

Application No:               WO2012/0530

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

Kevin Cosmos on behalf of Yaburara & Mardudhunera (WC1996/089) (native title party)

- and -

The State of Western Australia (Government party)

- and -

FMG Pilbara Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member

Place:  Perth
Date:  14 August 2013

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 of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted

Legislation:  Native Title Act 1993 (Cth), ss 29, 31, 146, 151, 237

Mining Act 1978 (WA), s 66

Aboriginal Heritage Act 1972 (WA)

Rights in Water and Irrigation Act 1914 (WA)

Cases:  Butcher Cherel and Others/Western Australia/Faustus Nominees          Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)

Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99, (‘Cheinmora’)

Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Fraserx Pty Ltd [2003] NNTTA 126, ('Fraserx')

Kevin Walley on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Brosnan [2001] NNTTA 78, ('Brosnan')

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)

Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)

Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)

Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Iron Duyfken’)

Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas’)

Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)

Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith’)

Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)

Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)

Wilfred Goonack and Others /Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72, (‘Geotech’)

Representatives of the     Ms Aimee Hackett, Corser & Corser

native title party:             Ms Shirley Feng, Corser & Corser

Representatives of the     Mr Clyde Lannan, Department of Mines and Petroleum
Government party:         Ms Bethany Conway, Department of Mines and Petroleum
  Mr Domhnall McCloskey, State Solicitor’s Office

Representatives of the     Ms Gemma Phillips, Fortescue Metals Group Ltd
grantee party:                 Ms Nerolie Nikolic, Fortescue Metals Group Ltd

REASONS FOR DETERMINATION

1. On 25 January 2012, the Government party, through the Department of Mines and Petroleum ('DMP'), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2584 (‘the proposed licence’) to FMG Pilbara Pty Ltd (‘the grantee party’). The notice specified 8 February 2012 as the notification date. The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. According to the notice:

   ·the proposed licence is approximately 58.8 square kilometres in size;

   ·the proposed licence is located 52 kilometres south of Karratha, in the Shires of Ashburton and Roebourne; and

   ·the native title party had until four months after the notification date, that is, until 8 June 2012, to lodge an objection application against the expedited procedure statement.

3. On 6 June 2012, an expedited procedure objection application was lodged with the Tribunal by Kevin Cosmos on behalf of the Yaburara and Mardudhunera native title claim group (‘the native title party’) in relation to E47/2584.  The native title claim of the Yaburara and Mardudhunera People (WC1996/089 - registered from 1 August 1996) overlaps the proposed licence by 46.08 per cent. 

1. The proposed licence also partly overlaps the native title determination of the Ngarluma/Yindjibarndi People (WCD2005/001 – determined on 2 May 2005).  This overlap is 53.92 per cent and no objection was lodged in relation to this claim.

2. In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

3. On 19 December 2012, I was appointed by then President Graeme Neate as the Member for the purpose of conducting the inquiry.

4. Parties attempted to negotiate an agreement and directions were amended on a number of occasions to facilitate the agreement making process. Ultimately, parties were unable to reach agreement.

5. Directions were issued by the Tribunal and in compliance with those:

   ·DMP provided documents to the Tribunal and other parties on behalf of the Government party on 11 June 2013;

   ·the native title party provided a statement of contentions on 18 June 2013;

   ·the grantee party provided a statement of contentions and the sworn affidavit of Mr Thomas Weaver on 25 June 2013 (at Annexure A of this decision); and

   ·the State Solicitor’s Office provided the Government party’s statement of contentions in response to the native title party contentions on 28 June 2013.

6. The Tribunal provided parties with a map of the proposed licence on 1 August 2013 to be used for the purposes of this inquiry, and no objections were received in response.

7. No party suggested the matter should be determined in any way other than ‘on the papers’. I did not see any reason why I should not proceed to determine the matter on the papers and as such, determined the matter so, as per s 151 of the Act.

Legal principles

1. Section 237 of the Act provides:

   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.

2. In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act).

3. In relation to the nature of an exploration licence including conditions to be imposed, I adopt the principles outlined in Tarlpa at [10]-[16].

4. In relation to determining s 237(a), I adopt the following principles from Tarlpa:

   ·History and interpretation of s 237(a) as amended (at [57]-[64]).

   ·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.

   ·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).

   ·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).

5. With respect to issues arising under s 237(b), I adopt the principles outlined in Maitland Parker at [31]–[38], [40]-[41].

6. The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Smith at [23]). This involves an evaluative judgment on whether major disturbance to land and waters concerned is likely to occur, from the point of view of the Australian community, inclusive of the Aboriginal community, as well as considering the concerns of the native title party (Little at [41]-[57]).

Evidence in relation to the proposed act

1. The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs ((‘DIA’), now the Department of Aboriginal Affairs); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and a tengraph quick appraisal.

2. Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:

   ·Vacant Crown Land at 46.1 per cent; and

   ·Indigenous-held Pastoral Lease (Mt Welcome) at 53.9 per cent.

3. I note that Tribunal mapping indicates the pastoral lease is not within the proposed licence/native title party claim overlap, while the vacant crown land is part of that overlap.

4. Government party documentation indicates that the area is designated as a Surface Water Area and a Groundwater Area proclaimed under the Rights in Water and Irrigation Act 1914 (WA) and managed by the Department of Water. It also indicates the presence of a protected area that has been declared under s 19 of the Aboriginal Heritage Act 1972 (WA) and which constitutes 2.2 per cent of the proposed licence area.

5. Government party documentation establishes previously granted licences as: five exploration licences overlapping the claim area variously between 1.1 per cent and 97 per cent between 1984 and 2009; 69 mineral claims overlapping variously between less than 1 per cent and 12.7 per cent between 1970 and 1989 (with the bulk having being granted and died between 1970 and 1973); and three temporary reserves overlapping 100 per cent each, between 1960 and 1970. All previously granted licences are now surrendered, expired or cancelled.

6. There are currently four live mining tenements overlapping the proposed area, all under 3 percent and all granted in 1987.

7. The quick appraisal document shows that services affected are: feature identification (Zebra Hill); ten non-perennial minor water courses; and Jamison FB124.

8. The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are seven DIA recorded sites within the proposed licence as follows:

   ·Site ID 6352, Fish Thalu (ceremonial, artefacts/ scatter)

   ·Site ID 6982, Zebra Hill (mythological)

   ·Site ID 6930, Munni Munni Creek Tributary (engraving)

   ·Site ID 6933, Munni Munni Creek (engraving)

   ·Site ID 6934, Munni Munni Creek (engraving)

   ·Site ID 7016, Munni Munni 10 (artefacts scatter/camp)

   ·Site ID 7017, Munni Munni 11 (artefacts/ scatter)

9. Tribunal mapping shows that only one of these sites (Munni Munni Creek Tributary) is within the proposed licence/native title party claim overlap.  Tribunal mapping also indicates that there are no Aboriginal communities located upon or near the area of the proposed licence.

10. The draft tenement Endorsement and Conditions Extract for the proposed licence provided by DMP indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]), in addition to the following conditions:

    5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, drilling rigs, water carting equipment or other mechanised equipment.

    6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

    ·the grant of the Licence; or

    ·registration of a transfer introducing a new Licensee;

    advise, by registered post, the holder of any underlying pastoral or grazing details of the grant or transfer.

11. The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:

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

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

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

Evidence provided by the grantee party

1. The sworn affidavit of Mr Weaver states that he is the Native Title Manager of the grantee party. He also outlines:

   ·That FMG is aware of its obligations under the Aboriginal Heritage Act (‘AHA’) (at 7);

   ·That the Aboriginal Heritage Department of the grantee party has various responsibilities in relation to Aboriginal Heritage (at 8);

   ·That the grantee party has adopted a Ground Disturbance Procedure which he has annexed to his affidavit, and notes that this procedure prohibits grantee party personnel and contractors from disturbing any area unless a Ground Disturbance Permit has been issued for the area by the grantee party. Mr Weaver states that a number of matters must be satisfied before a permit is issued, and he outlines those matters in his affidavit by reference to that attached procedure (at 9);

   ·That the grantee party has adopted a Guideline for the Management of Aboriginal Cultural Heritage which all grantee party personnel and contractors are required to comply with (at 10), and these heritage guidelines are attached to the affidavit.

   ·Various statistics regarding surveys commissioned by the grantee party and sites held on its database, though it is not clear how that information specifically relates to the proposed licence in this matter;

   ·That the grantee party ‘would welcome the opportunity to enter into the Regional Standard Heritage Agreement with the Native Title Party’ (at 15);

   ·That the grantee party endorses the Guidelines for Consultation with Indigenous Peoples by Mineral Explorers (a DMP publication) (at 16); and

   ·That the grantee party has a policy not to undertake ground disturbing activities without first undertaking a heritage survey.

2. Mr Weaver has also attached to his affidavit the proposed programme of works, which indicates that the grantee party intends to perform:

   ·Literature research and analysis;

   ·Aerial photography;

   ·Geological mapping and rock chip sampling;

   ·Interpretation of historical, geophysical and geochemical data sets and target selection; and

   ·Gridding, access and Aboriginal heritage clearance.

3. All of these activities will occur in the first year to identify and locate targets ready for further testing by drilling. The second year of works may include:

   ·Reverse circulation and diamond drilling;

   ·Interpretation, resource estimation and technical reporting; and

   ·Metallurgical testing.

4. The grantee party statement of contentions relating to the proposed licence, among other things, states that the native title party have not provided any evidence which suggests the grant of the proposed licence does not attract the expedited procedure. They quote (at 2.4) Member O’Dea in Fraserx in support that a native title party, if they do not present cogent evidence of the matters referred to in s 237, cannot succeed in the objection.

Evidence provided by the native title party

1. The native title party provided contentions in this matter, but have not provided any affidavit or other forms of evidence. Just under half of the proposed licence falls within the boundaries of the native title party claim.

2. Native title party contentions address only very briefly interference with community and social activities under s 237(a) of the Act, and state that the claim group ‘engage in traditional activities such as camping, hunting and fishing’ (at 6). They state that vehicles and machinery of the grantee party may scare off kangaroo, goanna and wild turkey from the area affecting the native title party’s ability to hunt in the proposed licence area (at 7).

3. In relation to s 237(b) of the Act, the native title party state there are seven registered Aboriginal sites in the proposed licence area. However, as I noted above, only one of those sites are within the proposed licence/claim overlap area. The native title party state there is likely to be other significant sites in the area, including scatterings of artefacts ‘as a result of the historical occupation by Yaburara and Mardudhunera people’s ancestors, and their observance of traditional ceremonies within the tenement area’ (at 9). However, the native title party do not provide any further detail in relation to those sites of significance. They merely state the regulatory regime will fail to protect these sites without liaison between the native title party and the grantee party.

4. The native title party provide more information in relation to their objection under s 237(c) of the Act. They state, among other things, that ‘without the land and waters being surveyed and monitors being present when the region is being disturbed, then there is a risk of damage to the land and items left behind by the Native Title Party’s ancestors’ (at 11). They also refer to possible damage to areas which could disturb ancestor’s spirits and the native title party’s belief system.

5. These contentions were provided before the grantee party’s contentions and affidavit material were provided, and so the native title party did not have the benefit of the grantee party Exploration of Works programme. Nor did they seek to make a reply to the grantee party or State’s contentions or evidence. The native title party did, in a directions hearing, seek leave to respond to any evidence or contentions filed by the grantee or Government party. However, I note at the listing hearing on 18 July 2013, the outcome of which was for the matter to be referred to a Member, all party representatives indicated they had made all submissions and were happy to proceed on the papers. As such, the native title party contentions in relation to s 237(c) presuppose that the grantee party’s activities will be broader than the grantee party has indicated in its affidavit material (at 12-14).

1. The native title party submits that the expedited procedure does not apply to the proposed licence ‘however, if the National Native Title Tribunal finds that it does, the Native Title Party submits that the tenement should only be granted on the condition that surveys are conducted by the Native Title Party before any exploration activity commences' (at 17). There is nothing in the Act which empowers the Tribunal to impose such conditions on the determination of an expedited procedure matter.

Evidence provided by the Government party

1. The Government party notes that there are no Aboriginal communities on the proposed licence, that there previously has been exploration and mining licences over the proposed licence area, and three temporary reserves. They also note the DIA registered sites as already outlined in this decision.

2. The Government party notes the grantee party contentions including that:

   ·The grantee party is aware of its obligations under the AHA;

   ·It has an Aboriginal Heritage Department which has various roles in meeting obligations under the AHA and under agreements, and ‘in respect of other areas which the grantee party accepts are of particular importance to the Aboriginal people’ (at 18(b)(iii));

   ·It has adopted processes and procedures to avoid interference with sites and adheres to a policy that ‘it is not to undertake ground disturbing activities without a heritage survey having first been undertaken’ (at 18(e)).

3. The Government party states there is no evidence the grantee party will not act in accordance with its stated intentions or outside of the regulatory regime and that endorsements and conditions will be imposed on the proposed licence.

4. The Government party notes the grantee party has indicated its willingness to enter into an RSHA in relation to proposed licence E47/2584. The Government party also notes that the grantee party has signed a copy of the RSHA and sent it to YMAC on 24 November 2011, which is supported by a statutory declaration made by the agent for the grantee party, a copy of which is annexed to the Government party contentions.

5. The Government party notes the native title party has not provided any affidavit evidence in this matter and the contentions which have been provided are broad and do not provide support to the native title party’s argument that the expedited procedure should not apply. I accept the Government party’s argument that failure to lead evidence will not necessarily result in a party failing on an issue, but where facts are peculiarly within the knowledge of a party, the failure of that party to produce evidence as to those facts may lead to an unfavourable inference being drawn (see for example Brosnan at [63] and Silver at [23]).

6. The Government party has addressed each subsection of s 237 in its contentions.

7. In summary, for s 237(a) it states that there is no evidence that the native title party engage in traditional activities such as camping, hunting and fishing within the area of the proposed licence. They state that if the Tribunal considers members of the native title party do carry out community or social activities in the area, then there is not likely to be direct interference because:

   ·The grantee party has indicated ground disturbing activities will be conducted in a way which will not adversely impact on heritage sites and will respect local Aboriginal cultural concerns;

   ·The grantee party has indicated its willingness to enter into an RSHA type agreement with the native title party;

   ·The proposed licence has been subject to prior mineral exploration and possible mining activity, a pastoral lease covers over 50 per cent of the area, and it is likely that these activities have affected and continue to affect the extent to which community and social activities can be carried out in the relevant area;

   ·There are no Aboriginal communities within the area of the proposed tenements; and

   ·The activities of the grantee party and native title party can coexist.

In relation to the pastoral lease, as noted earlier in this decision, that lease covers an area which does not fall within the proposed licence/claim area overlap.

1. In relation to s 237(b), the Government party notes there are seven registered DIA sites within the proposed licence and states there is not sufficient evidence to indicate these are sites of particular significance for the purpose of s 237(b). While only one of these sites falls within the proposed licence/claim area overlap, I agree with the contention that there is insufficient evidence for me to conclude that the DIA site is an area of particular significance.

2. The Government party also does not accept the native title party’s contention that there is likely to be sites of 'particular significance' in the area, and submits that interference with any sites, should the Tribunal hold that there are such, is not likely because:

   ·Ground disturbing activities will be conducted in such a way as to not adversely impact on sites and which will respect local Aboriginal cultural concerns;

   ·The area has been subject to prior exploration and possible mining activity and a pastoral lease covers over 50 per cent of the area; and

   ·The Government’s regulatory regime is likely to prevent interference with any area or site of particular significance.

3. In relation to s 237(c), the Government party states the native title party has provided no evidence that the grant of the proposed licence will cause or constitute major disturbance to land or waters as envisioned by s 237(c) of the Act. The Government party states the grant of the proposed licence is not likely to involve major disturbance to land or waters because:

   ·Ground disturbing activities will be conducted in such a way as to not adversely impact on sites and which will respect local Aboriginal cultural concerns;

   ·The Government party’s regulatory regime will avoid major disturbance to land and waters;

   ·Proposed endorsements and conditions require rehabilitation of the land following exploration;

   ·The proposed licence has been subject to prior exploration, mining and pastoral activity and the activities contemplated by the grantee party would be the same as or no more significant than the previous and continuing use of the area; and

   ·There is no evidence that the area has any particular characteristics that would be likely to result in major disturbance to land and waters.

Considering the evidence

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).

2. The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose findings I adopt) outlined that:

   The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.

3. There is no evidence that the grantee party will act contrary to the regulatory regime of the Government party and the grantee party has indicated its willingness to enter into an RSHA.

4. In relation to the activities the native title party contend occur on the proposed licence, they provide no detail as to how often, when and where these activities occur, what is involved, nor the number and relationships of the participants to the native title party. As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investment Corporation, at [14])). I also note that no affidavit evidence has been produced by the native title party in support of their contentions.

5. To the extent that members of the native title party do carry out those community and social activities, I accept the evidence of the grantee party at [28]-[30] and the Government party at [38]-[41] and [44] above and have reached the conclusion that there is not likely to be direct interference.

6. I also accept that past and present exploration and mining activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party.  While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that these previous activities will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]).

7. The total area of the Yaburara and Marthudunera People claim is approximately 9554 square kilometres and the proposed licence is approximately 58.8 square kilometres.  The size of the area of the proposed licence in the context of the much larger native title claim makes it less likely that exploration activity will interfere with the community or social activities described by the native title party.

8. In the circumstances, taking into account the evidence available, I conclude that there is unlikely to be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation and Tribunal mapping that there are seven registered sites within the proposed licence area, though there is only one registered site within the proposed licence/claim area overlap. However, this does not mean there may not be other sites or areas of particular significance to the native title party in the area. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.

2. The native title party contentions provide no content as to the nature of any ‘particular significance’ of the registered sites, or of any other sites. The native title party refers to the likelihood that other significant sites exist in the area. However, there is no evidence of these sites. Even if I were to accept that there are other sites in the area which have not been identified, the native title party contentions themselves speak only about the sites being ‘significant’, and there is no information as to how or why the sites may be of ‘particular significance’ to the native title party. In this regard, I accept the Government party’s contention outlined above at [46]. In addition to that, I would add that Mr Weaver’s evidence suggests that the grantee party is likely to go about its exploration activities in a way that will respect heritage sites and the native title party’s cultural concerns.

3. I accept the Government party contentions at [38]-[41] and [45]-[46] and the grantee party evidence at [28]-[30] above that, in the event of there being any areas or sites of particular significance within the proposed licence, interference with those areas is not likely.

4. The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]). In the present matter, the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of any sites, or that they are likely to be interfered with.

5. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example, Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance. I am satisfied, based on the available evidence, that the AHA and its associated processes, together with the endorsements and conditions to be placed on the proposed licence, are likely to prevent interference with any area or site of ‘particular significance’ in the context of exploration activities.

6. Taking all of these factors into account, I find there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence, as envisioned by s 237(b) of the Act.

Major disturbance to land and waters (s 237(c))

1. The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party and what is likely to be done by the grantee party (see Little at [41]-[57]).

2. It is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas at [84]). In this matter, the native title party have not offered any evidence that relates to significant, direct physical disturbance of land or waters. Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance (see Geotech at [44]).

3. The native title party’s contentions presuppose that the grantee party will fully exercise the rights conferred by the proposed licence under s 66 of the Mining Act 1978 (WA). These rights are said to authorise activities including, among other things, digging pits, trenches and holes in the land, sinking bores and tunnels, excavating and removing land, earth, soil, rock and stone from the land, and taking water from the land. The native party contends that these activities are likely to result in the removal of and disturbance to traditional bush tucker, bush medicine and traditional items. However, the grantee party has indicated that it does not intend to exercise the rights conferred under the proposed licence to their full extent. I am satisfied that the grant of the proposed licence is not likely to result in the kinds of disturbance contemplated by the native title party.

4. The native title party also contends that, if the disturbance will have a significant impact on members of the native title party who live in and use the affected area, it might be sufficient to warrant a finding that it will constitute a major disturbance even if it would be unimportant to non-Aboriginals. In the present matter, there is no evidence that members of the native title party live in or use the proposed licence area, or any material that would support a finding that those people would be significantly affected by the grant of the proposed licence.

5. In this matter the native title party have provided no evidence of any sensitive topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to land or waters, and there is no evidence that the grantee party is likely to fail to comply with the regulatory regime.

6. On that basis, I do not find it likely that major disturbance to land and waters is likely to occur in this matter, as envisioned by s 237(c) of the Act.

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E47/2584 to FMG Pilbara Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
14 August 2013

ANEXURE A
Affidavit of Thomas James Weaver

I, Thomas James Weaver, care of Level 2, 87 Adelaide Terrace, East Perth, Western Australia, Native Title Manager, affirm:

1. I am employed by Fortescue Metals Group Ltd (ACN 002 594 872) (“Fortescue”) as its Native Title Manager. My duties include the management of matters arising under the Native Title Act 1993 (Cth) (“NTA”) which concern Fortescue and its wholly owned subsidiaries (collectively “FMG”).

2. I am authorised by FMG Pilbara Pty Ltd (ACN 106 943 838) to provide this affidavit, and do so, in support of its application for the grant of E47/2336 and E47/2584 (“Inquiry Tenements”).

3. The facts contained in this affidavit are, unless stated to the contrary, within my own personal knowledge and belief and are both true and correct. In the case of facts obtained from other sources, I believe those facts to be true to the best of my knowledge, information and belief.

Background

1. Fortescue is a public company listed on the Australian Stock Exchange.

2. FMG is Australia’s third largest iron ore producer.

3. FMG’s current mining operations and expansions are described in its 2012 Annual Financial Report (“Annual Report”). A copy of the Annual Report can be downloaded from Fortescue’s web site at Heritage Act 1972 (WA)

   1. FMG is aware of its obligations under the Aboriginal Heritage Act 1972 (WA) (“AHA”)

   2. FMG has an Aboriginal Heritage Department. That Department is responsible of ensuring that FMG meets its obligation:

      (1)Under the AHA, including in respect of Aboriginal sites, as that term is defined in s5 of the AHA;

      (2)Under agreement between FMG and third parties, to the extent those obligations relate to Aboriginal heritage; and

      (3)In respect of other areas which FMG accepts are of particular importance to Aboriginal people. Those areas are designated by FMG as “heritage exclusion zones” or “heritage restricted zones” (“Heritage Zones”).

      (together, “Heritage Obligations”).

   3. FMG has adopted a Ground Disturbance Permit Procedure (“GDP Procedure”). A true copy of the GDP Procedure is annexed and marked TJW1. Under the GDP Procedure, FMG personnel and contractors must not disturb any area unless a Ground Disturbance Permit (“GDP”) has been issued for that area. The issue of a GDP is dependent on a range of matter being satisfied. One of those matters concerns Aboriginal heritage. The following extract from page 7 of the GDP Procedure describes those matters concerning Aboriginal heritage which must be satisfied before a GDP may issue:

      The purpose of the Heritage review is to assess the GDP in relation to the following:

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

      ·Ensure the GDP application is wholly within areas that have been heritage surveyed for the specific purpose;

      ·Identify whether a heritage survey is required;

      ·Ensure that access to the GDP area is defined;

      ·Evaluate the proximity and scope of works and assess the potential direct or indirect impact on in situ Heritage sites of the exclusion zones;

      ·Check that approvals (e.g. s18 under the Aboriginal Heritage Act) are in place;

      ·Any other applicable items.

10.FMG has adopted a Guideline for the Management of Aboriginal Cultural Heritage for its project areas (“Heritage Guideline”). A true copy of the Heritage Guidelines is annexed and marked TJW2. All FMG personnel and contractors are required to comply with the Heritage Guidelines.

11.The following extract from page 3 of the Heritage Guideline describes the purpose of the Heritage Guidelines:

The Guideline provides all Fortescue and contractor personnel, and visitors, on Fortescue Project Areas with a set of guidelines and procedures to:

·Assist with the day to day management and protection of Sites on Fortescue project areas;

·Ensure we meet out 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 Fortescue operations, projects and tenements.

The Guideline applies to all stages of development of Fortescue’s project areas, including exploration, construction, mine planning operations.

12.I am informed Roberta Molson, FMG’s Heritage Approvals Superintendent that:

(1)Within Western Australia and during the period from 2005 to the present time:

a)Over 585,000 hectares have been the subject of ethnographic Aboriginal heritage surveys commissioned by FMG; and

b)             Over 122,000 hectares have been the subject of archaeological Aboriginal heritage surveys commissioned by FMG;

(2)Over 3,500 Aboriginal sites are currently recorded in  FMG’s geographic information system as being located on mining tenements held by FMG; and

(3)In respect of areas the subject of mining leases, FMG has been granted in excess of 60 consents by the Minister pursuant of s18 of the AHA.

Aboriginal Site Register

13.FMG is aware that a Register of Aboriginal Sites (“Register”) is maintained by the Registrar of Aboriginal Sites in accordance with the AHA.

14.FMG maintains a comprehensive geographic information system (“GIS”). The GIS is the primary tool used by the Heritage Department to ensure that FMG’s Heritage Obligations are satisfied. Among other things, the GIS records Aboriginal sites contained on the Register, Aboriginal sites identified by FMG which have yet to be entered on the Register and Heritage Zones relevant to FMG’s activities. I am informed by Jenny Thompson, FMG’s Manager of GIS, that the Register is uploaded into the GID on a monthly basis.

State Regional Standard Heritage Agreement (RSHA)

15.FMG would welcome the opportunity to enter into the Regional Standard Heritage Agreement with the Native Title Party.

Guidelines for Consultation with Indigenous People by Mineral Explorers

16.FMG endorses the principles set out in the Guidelines for Consultation with Indigenous people by Mineral Explorers, published by the Department of Mines and Petroleum, Tenure and Native Title Branch, July 2004 (as updated).

Heritage Surveys

17.It is the policy of FMG not to undertake ground disturbing activities without a heritage survey having first been undertaken. The policy is inherent in:

(1)The following extract from page 3 of the GDP Procedure:

A GDP must be applied for in the following circumstances:

·If ground disturbance or vegetation clearing is proposed;

·If the activity on or purpose of the parcel of land in question is being altered e.g. from a lay down area to workshop.

(2)The following extract from paragraph 4.1 of the Heritage Guidelines:

Heritage surveys are triggered by:

·Project operations, expansion and development requirements; or

·Application for a Ground Disturbance Permit (see Part 5.5 of this document)

Proposed Programme of Works

18.Annexed and marked TJW3 is a true copy of the Statement by FMG Pilbara Pty Ltd pursuant to s58(1)(b) of the Mining Act 1978 (WA) which accompanied FMG Pilbara Pty Ltd’s application for the Inquiry Tenements (“S58 Statements”).

19.I am informed by Scott Ferguson, who is employed by FMG as a Senior Geologist, that the S58 Statements remain current.