Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation)/Western Australia/FMG Resources Pty Ltd
[2013] NNTTA 10
•1 February 2013
NATIONAL NATIVE TITLE TRIBUNAL
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation)/Western Australia/FMG Resources Pty Ltd, [2013] NNTTA 10 (1 February 2013)
Application No: WO2011/0995
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) (native title party)
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The State of Western Australia (Government party)
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FMG Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 1 February 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 – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 109(2), 151(2), 155, 162(2) 237
Mining Act 1978 (WA), s 63AA
Aboriginal Heritage Act 1972 (WA)
Environmental Protection Act 1986 (WA)
Environment Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48
Cheinmora v Heron Resources Ltd (2005) 196 FLR 250
Crowe v Western Australia (2008) 218 FLR 429
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd [2005] NNTTA 35
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation)/Western Australia/Zenith Minerals Ltd [2012] NNTTA 77
Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia (2008) 167 FCR 340
Silver v Northern Territory (2002) 169 FLR 1
Walley v Western Australia (2002) 169 FLR 437
Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133
WF (deceased)/Western Australia/Stephen Grant Povey [2001] NNTTA 162
WF (deceased) on behalf of the Wiluna Group/Western Australia/Giralia Resources NL [2002] NNTTA 29
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17
WF (deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd [2003] NNTTA 120
WF (deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd Pty Ltd [2004] NNTTA 30
Yallourn Energy Pty Ltd/Wallace Murray Bull and Others on behalf of the Gunai/Kurnai People/Victoria [1999] NNTTA 237
Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland [2012] NNTTA 101
Representatives of the Mr Mike Allbrook, Central Desert Native Title Services
native title party: Ms Irene Assumpter Akumu, Central Desert Native Title Services
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the Mr Ken Green, Green Legal Pty Ltd
grantee party: Ms Gemma Phillips, Fortescue Metals Group Ltd
REASONS FOR DETERMINATION
On 28 April 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E69/2519 (‘the proposed licence’) to FMG Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracts the expedited procedure (that is, an act which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 624.98 square kilometres, 276 kilometres south of Telfer in the Shire of Wiluna. The proposed licence is wholly within the determined area of the Birriliburu native title claim (WC1998/068 – registered from 29 September 1998, part determined on 20 June 2008).
On 26 August 2011, Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) (‘the native title party’) lodged an expedited procedure objection application in relation to the proposed licence (designated by the Tribunal as WO2011/0995). The native title party is the registered native title body corporate that holds native title on trust for the Birriliburu native title holders in respect of the determination area, and makes the application on their behalf.
On 14 September 2011, Deputy President Sumner was appointed Member for the purposes of conducting an inquiry to determine whether or not the expedited procedure is attracted. In accordance with what was then standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and evidence for the inquiry. These directions allowed a four month period, after the s 29 closing date for the lodgement of the objection, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At a preliminary conference on 11 October July 2011, the native title and grantee parties indicated that they were seeking to negotiate a heritage protection agreement in respect of the proposed licence. Between 23 November 2011 and 19 September 2012, the Tribunal convened a number of status conferences to monitor the parties’ progress towards a negotiated outcome. At each of these conferences, parties advised the Tribunal that they needed further time to review various proposals and, then, to organise a meeting to discuss them, and in each case directions were varied to allow further time for the parties to conclude the negotiations. By 24 September 2012, it had become apparent to the Tribunal that parties were making insufficient progress towards the disposal of the objection, and an application made by the native title party to vary directions was refused by President Graeme Neate, who assumed conduct of the matter on 2 July 2012. On 27 September 2012, the native title party acknowledged to the Tribunal that there were considerable differences between the parties about the proposed agreement, but requested further time in which to provide contentions and evidence for the inquiry. President Neate approved the request on 8 October 2012 and the matter was adjourned to a listing hearing on 6 December 2012.
The Government party provided documents relating to the proposed licence on 23 February 2012, followed by a statement of contentions on 9 March 2012. The native title party provided a statement of contentions, together with the affidavit of Mr Timmy Patterson, on 5 November 2012 and, on 12 November, the grantee party provided a statement of contentions and the affidavit of Mr Thomas James Weaver. On 13 November, the Government party requested the opportunity to respond to the native title party’s statement of contentions and, following President Neate’s approval of the request, the response was received by the Tribunal on 27 November 2012.
At the listing hearing on 6 December 2012, parties indicated that they were content for the matter to be determined ‘on the papers’ as per s 151(2) of the Act (that is, without a formal hearing). However, the native title party sought leave to provide further submissions, including a map referred in Mr Patterson’s evidence and a supporting affidavit, and it was determined that a decision about their acceptance should be deferred until a Member had been appointed to constitute the Tribunal for the purpose of determining the objection. The additional submissions were received on 14 December, and I was appointed Member in relation to the objection on 19 December. As the submissions do not raise any new issues, I am prepared to accept them and, having considered them along with other material provided in the course of the inquiry, I am satisfied that it is appropriate to proceed to determine the matter on the papers.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
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.
In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been strengthened.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38] and [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia (2008) 167 FCR 340). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory (2002) 169 FLR 1.
Evidence in Relation to the Proposed Act
Tengraph ‘Quick Appraisal’ documentation establishes that the proposed licence is situated on vacant Crown land. The Quick Appraisal also establishes that three temporary reserves were granted over the proposed licence area between 1959 and 1981, each of which was cancelled within five years of grant. Tengraph documentation also indicates that there are no Aboriginal communities within the proposed licence area.
An extract from the Aboriginal Sites Database maintained by the Department of Indigenous Affairs (‘DIA’) under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no sites recorded on the Register of Aboriginal Sites or ‘other heritage places’ within the proposed licence, though I note the existence of a registered site approximately five kilometres north-west of the proposed licence (Site ID 10716; Calvert Range (Kaalpi); closed access; no restriction; ceremonial, mythological, man-mad structure, painting, engraving, quarry, artefacts/scatter, historical, grinding patches/grooves) and another approximately 17 kilometres to the east (Site ID 2666; Constance Headland; open access; no restriction; painting, artefacts/scatter; camp).
A draft Tenement Endorsement and Conditions Extract indicates that the grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21], Conditions 1-4). Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Industry and Resources (now Department of Mines and Petroleum, ‘DMP’). Standard Condition 4 is also to be read with s 63AA of the Mining Act which requires approval by the DMP Environmental Officer of a program of work lodged by the grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires the grantee party to provide information from the Register of Aboriginal Sites; advise whether the proposal intersects the boundary of any registered sites; and consult with and obtain advice from DIA that the proposed activities are acceptable.
The following endorsements (which differ from conditions in that the licensee is not liable for forfeiture if breached) will be imposed on the proposed licences:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any 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.
The Government party’s contentions (‘GVP Contentions’) indicate that a further condition will be placed on the grant of the proposed licence requiring the grantee party, at the request of the native title party, to execute the Regional Standard Heritage Agreement (‘RSHA’) in its favour. The condition is expressed as follows:
In respect of the area covered by the licence the Licensee, if so requested in writing by Mungarlu Ngurrarankatja Rirraunkaja (WC98/68) (Aboriginal Corporation), the native title prescribed body corporate holding the determined native title recognised in Federal Court Application no. WAD6284 of 1998 (WC98/68), such request being sent by pre-paid post to reach the Licensee’s address, c/- Fortescue Metals Group Ltd, Level 2, 326 Hay Street, East Perth WA 6004 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation), the Central Desert Regional Standard Heritage Agreement (‘RSHA’).
Contentions and Evidence provided by the native title party
In its contentions, the native title party states (at paragraphs 1.3 and 1.4) that the basis of its objection is that the proposed licence, and the exercise by the grantee party of the rights authorised by the proposed licence, are contrary to s 237(b) of the Act and it does not seek to pursue its objection insofar as it relates to ss 237(a) or 237(c).
In relation to the proposed licence, the native title party makes the following submissions:
·the proposed licence contains sites and areas of particular significance to the native title holders in accordance with their traditions (at paragraph 3.24);
·the proposed licence is located in an area which is site rich and contains a site of particular significance to the native title party that is associated with a men’s restricted jukurrpa located within the proposed licence (at paragraph 3.25);
·the nature of the country on, and surrounding, the proposed licence is such that any entry onto parts of the proposed licence or the surrounding country which has not been agreed with the native title party, would be likely to result in interference within the meaning of s 237(b) (at paragraph 3.26);
·the nature and number of sites and areas of particular significance within and around the proposed licence reduces the utility of an endorsement on the grant of the proposed licence that draws the grantee party’s attention to the AHA and, consequently, it is incorrect to assume that interference is unlikely (at paragraph 3.27);
·the proposed condition requiring the grantee party to offer the RSHA does not mean that it is unlikely that the proposed licence will interfere with sites or areas of particular significance (at paragraph 3.27); and
·meaningful consultation and negotiation between the native title party and the grantee party are necessary to ensure that sites or areas of particular significance are not likely to be interfered with (at paragraph 3.28).
In support of its contentions, the native title party relies on the affidavit of Mr Timmy Patterson, sworn 24 October 2012. Mr Patterson states that he is a traditional owner for the area within the proposed licence and is a senior initiated man. Mr Patterson also states that he gave the evidence in his evidence in the company of other initiated men, with whom he had discussed the area and its significance to Martu people. Accordingly, I accept that Mr Patterson has authority to speak on behalf of the native title party for the land and waters concerned.
In the course of the inquiry, the native title party sought directions pursuant to s 155 of the Act restricting disclosure of Mr Patterson’s affidavit on the basis that it is matter of cultural importance to the native title holders that the information disclosed by Mr Patterson is not widely distributed and, in particular, that its contents are not viewed by women. Section 109(2) of the Act provides that the Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved. There was no suggestion in the present matter that any party would be unduly prejudiced by the proposed directions. However, the mere assertion that a document raises cultural or customary concerns is not sufficient, and the party seeking the direction must satisfy the Tribunal that the contents of the document in fact raise such concerns: Crowe v Western Australia (2008) 218 FLR 429 at [23]. In the present matter, there is nothing in Mr Patterson’s affidavit to suggest that traditional laws or customs dictate that the information contained in the affidavit may not be disclosed, nor is there any other evidence of the cultural or customary concerns that are said to attach to the information given by Mr Patterson.
The Tribunal is entitled to take a commonsense approach to issues of confidentiality and may rely on its own knowledge of Indigenous law and custom to determine whether directions are appropriate: Yallourn Energy Pty Ltd/Wallace Murray Bull and Others on behalf of the Gunai/Kurnai People/Victoria [1999] NNTTA 237. The Tribunal may also have regard to past practice and its experience of the circumstances in which confidentiality orders have been sought and granted: Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd [2005] NNTTA 35 at [30]. In the present case, Mr Patterson’s concerns the path taken by the Wati Kutjara dreaming (or jukurrpa) from the Calvert Range north-east of the proposed licence to a site in the east. In this regard, the grantee party submits that previous decisions of the Tribunal and the Federal Court have already disclosed the subject matter of Mr Patterson’s affidavit, including several Tribunal decisions that quote affidavit evidence given by anthropologists and traditional owners referring to the existence of the Wati Kutjara and its relationship to other dreaming stories: see for example WF(deceased)/Western Australia/Stephen Grant Povey [2001] NNTTA 162 (at [25], [27], [28]); WF (deceased) on behalf of the Wiluna Group/Western Australia/Giralia Resources NL [2002] NNTTA 29 (at [8]); WF (deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd [2003] NNTTA 120 (at [11]); WF (deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (at [7] and [16]). Mr Patterson does not discuss the Wati Kutjarra in any greater detail, and there is nothing in his affidavit to distinguish it from those other matters. Therefore, I am not satisfied that the directions sought are appropriate. That said, I acknowledge the native title party’s desire to limit the publication of traditional laws and customs and am prepared to depart from the Tribunal’s usual practice of reproducing affidavit evidence in full. Furthermore, though I am required by s 162(2) of the Act to set out any findings of fact on which this determination is based, I discuss the contents of the affidavit only to the extent necessary to explain the decision.
The grantee party was critical of the fact that Mr Patterson’s affidavit refers to, but does not annex, a map of the proposed licence. Specifically, the grantee party contended that, as it was not annexed to the affidavit, there is no basis to assume that the map correctly shows the location of E69/2519 or any other feature which might be on the map, and there is little basis to conclude that Mr Patterson knows the location of the proposed licence. Furthermore, the grantee party argued that the failure to annex the map is compounded by the fact that a place mentioned in Mr Patterson’s affidavit, Mungarlu Hills, cannot be located on the map provided by the Government party and is not referred to in any other Tribunal determination. Although the Government party’s map shows a location named ‘Mungkulu Hills’, the grantee party submits that there is no reason to assume the two places are the same. These criticisms were adopted by the Government party. Both parties also sought to rely on my comments in WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘Emergent’), where I said that the failure to provide such a map limits the Tribunal’s ability to assess the evidence contained in the relevant affidavits.
The native title party subsequently provided an affidavit affirmed on 14 December 2012 by Michael David Frith Allbrook, a solicitor employed by Central Desert Native Title Services, which annexes an A1-sized map showing the location of the proposed licence. Mr Allbrook states that the map is a copy of the one shown to Mr Patterson and other initiated law men (or wati) at a body corporate meeting on 24 October 2012. Mr Allbrook also deposes that, during the meeting, Mr Patterson identified the name of a place in the east of the proposed licence and told him that the name is spelt ‘Mungarlu’, though when Mr Patterson indicated the place on the map, he pointed to a location about 10 kilometres west of the proposed licence that is spelt ‘Mungkulu Hill.’ In light of Mr Allbrook’s evidence, I am satisfied that Mr Patterson is aware of the location of the proposed licence and accept that any reference in his affidavit to ‘Mungarlu’ or ‘Mungarlu Hills’ may be read as a reference to Mungkulu Hills.
Contentions and Evidence provided by the Grantee Party
The grantee party contends that the regulatory regime established under the AHA will be sufficient to prevent interference with any sites in the proposed licence area and relies on the affidavit of Mr Thomas James Weaver, affirmed on 12 November 2012.
Mr Weaver’s affidavit is made in the following terms:
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 Resources Pty Ltd (ACN 095 546 428) to provide this affidavit, and do so, in support of its application for the grant of E69/2519 (“Inquiry Tenement”).
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
4. Fortescue is a public company listed on the Australian Stock Exchange.
5. FMG is Australia’s third largest iron ore producer.
6. 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)
7. FMG is aware of its obligations under the Aboriginal Heritage Act 1972 (WA) (“AHA”)
8. FMG has an Aboriginal Heritage Department. That Department is responsible for ensuring that FMG meets its obligations:
(1)under the AHA, including in respect of Aboriginal sites, as that term is defined in s 5 of the AHA;
(2)under agreements between FMG and third parties, to the extent those obligations relate to Aboriginal heritage;
(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”).
9. 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 has been issued for that area. The issue of Ground Disturbance Permit is dependent on a range of matters 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 Ground Disturbance Permit 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 or the exclusion zones;
·Check that approvals (e.g. s 18 under Aboriginal Heritage Act) are in place;
·Any other applicable items.
10. FMG has adopted Guidelines for the Management of Aboriginal Cultural Heritage for its project areas (“Heritage Guidelines”). 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 Guidelines 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 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 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 by 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;
(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 to s 18 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. Attached and marked TJW3 is an extract from that Register which I have downloaded in respect of the area of the Inquiry Tenement using the online access to the Register.
15. The extract shows there are no “Aboriginal Sites” and no “Other Heritage Places” recorded on the Register in respect of the area of the Inquiry Tenement.
16. FMG maintains a comprehensive geographic information system (“GIS”). The GIS is the primary tool use 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 has 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 GIS on a monthly basis.
State Regional Standard Heritage Agreement (RSHA)
17. FMG would welcome the opportunity to enter into the Central Desert Regional Standard Heritage Agreement with the Native Title Party.
Guidelines for Consultation with Indigenous People by Mineral Explorers
18. 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
19. 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. for 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
·applications for a Ground Disturbance Permit (see Part 5.5 of this document)
Proposed Programme of Works
20. Annexed and marked TJW4 is a true copy of the Statement by FMG Resources Pty Ltd pursuant to s58(1)(b) of the Mining Act 1978 (WA) which accompanied FMG Resources Pty Ltd’s application for the Inquiry Tenement (“S58 Statement”).
21. I am informed by Scott Ferguson, who is employed by FMG as a Senior Geologist – Non-Ferrous Exploration, that the S58 Statement remains current.
The s 58(1)(b) Statement annexed to Mr Weaver’s affidavit states that the proposed exploration program is ‘designed to target, locate and assess manganese and base metal mineralisation.’ The s 58(1)(b) Statement notes that initial exploration will include a review of historical exploration results, the interpretation of aerial photography and analysis of public domain gravity, aeromagnetic and landsat data, followed by geological mapping and geochemical sampling supported by helicopter, a regional airborne electromagnetic survey and follow-up ground electromagnetic surveying. The first phase of the exploration program is aimed at identifying targets for further testing by drilling which, depending on results, will involve reserve circulation and diamond drilling.
Sites of Particular Significance (s 237(b))
In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or 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 stated above at [12], the Aboriginal Heritage Database shows that there are no sites registered under the AHA or ‘other heritage places’ within the proposed licence; however, this does not mean there are no sites or areas of particular significance to the native title party with the proposed licence area or in the vicinity. The Register of Aboriginal Sites 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. The AHA protects all Aboriginal sites, whether on the Register or not.
The evidence of Mr Patterson establishes that:
·the Wati Kutjara (two goanna men) jukurrpa or dreaming travels through the proposed licence from Sunday Well in the Calvert Range to the north-west of the proposed licence to Mungarlu or Mungkulu Hills in the east;
·there are places within the proposed licence where the Wati Kutjara ‘sat down’ and ‘rested’ and which are very important to the native title holders;
·the places where the Wati Kutjara ‘sat down’ are connected to one another, and if one ‘part’ is hurt, the other parts may be hurt as well;
·the native title holders do not want mining companies ‘going out there and chipping rocks, taking soil samples or walking around in the wrong places’ without talking to them, as such activities ‘might hurt the jukurrpa there and that would hurt the jukurrpa up at the Calvert Range and down near Mungarlu’;
·The Calvert Range and the Mungarlu Hills, as well as the jukurrpa between them, are very important to the native title holders; and
·the proposed licence is located in an important area.
Tribunal mapping indicates that Sunday Well is approximately 25 kilometres north-west of the proposed licence, though it also indicates that the Calvert Range is only between five to ten kilometres from the northern boundary of the proposed licence. The map includes reference to two places described as ‘Mungkulu Hills’ and ‘Moongooloo Hills’ that are between 14 and 16 kilometres east of the proposed licence, though it appears from the underlying topography that they refer to the same feature.
The grantee party contends that Mr Patterson’s affidavit does not mention any area located within the proposed licence and that references to the Calvert Range and Mungarlu are in the context of those places being outside the proposed licence area. The grantee party also contends that no evidence has been provided in relation to the location or significance of sites or areas of particular significance that are said to exist within the proposed licence and nothing has been provided by way of any story associated with the jukurrpa or particulars of the path it may have taken. Furthermore, the grantee party contends that it does not follow from Mr Patterson’s evidence that the activities to which he refers will necessarily cause interference with any sites or areas of particular significance that may exist in the proposed licence area. In this respect, the Government party adopts the grantee party’s contentions.
It is well established that, in inquiries into objections to the application of expedited procedure, the native title party must provide evidence with sufficient detail and specificity to enable the Tribunal to carry out the predictive assessment required by s 237(b), including as to the location and significance of relevant sites or areas: see for example Cheinmora v Heron Resources Ltd (2005) 196 FLR 250 at [43]; Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 at [39]; Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133 at [42]-[43]. As I observed in Emergent at [46]:
[m]ere reference to the existence of a jukurrpa or ngulu place without identifying the nature of its significance or its location does not provide an adequate basis for the Tribunal to make a finding about the existence of sites or areas of particular significance on the proposed licence, let alone a finding that the area in which the tenement is located is site rich or imbued with a pervasive spirituality such that any unauthorised entry on the tenement area would constitute relevant interference.
In the present matter, Mr Patterson refers to the existence of a jukurrpa that travels through the proposed licence, as well as places within the proposed licence where the jukurrpa ‘sat down.’ Mr Patterson does not indicate the path taken by the jukurrpa or the location of places where it is said to have sat down and rested and, apart from general references to the relationship between the Wati Kutjara and the Seven Sisters dreaming, he does not provide any detail as to why those places, and the area in general, are considered to be of particular significance to the native title holders. Mr Allbrook deposes that Mr Patterson and the other wati he met with on 24 October 2012 told him that there are places in the proposed licence which are restricted to men; however, this issue is not addressed in Mr Patterson’s affidavit and I am not prepared to infer from Mr Allbrook’s evidence that the places referred to by Mr Patterson are of a gender-restricted nature: see Emergent at [44]; Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (‘Murchison Metals’) at [26]-[31].
Nor is it clear how the proximity of the proposed licence to the Calvert Range and the Mungkulu Hills has any bearing on the question of whether the grant is likely to interfere with sites or areas of particular significance. Though I accept the notion that activities carried out in a particular area may in certain circumstances result in interference with sites elsewhere (see for example Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland [2012] NNTTA 101 at [103]), there is insufficient evidence to conclude that either the Calvert Range or the Mungkulu Hills are sites of particular significance. The mere fact that the Calvert Range is registered site under the AHA is by no means conclusive of the question. In any event, if the evidence established that the Calvert Range and the Mungkulu Hills were sites of particular significance, there is little to suggest that the grantee party’s activities would be likely to interfere with those places. In this respect, I accept the grantee party’s contention that Mr Patterson’s evidence regarding the effect of certain activities on the jukurrpa and associated sites is to a certain degree speculative.
Though I accept that there may be sites or areas of significance to the native title holders within the proposed licence and the surrounding areas, having considered the evidence before me, I do not consider that it provides an adequate basis on which to conclude that they are sites of particular significance. Nor do I accept the native title party’s contention that the proposed licence is situated in a site rich area. It is not sufficient for the native title party to simply assert that an area is ‘site rich’ (see Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 at [18]). The Tribunal’s use of the term is merely the statement of an evidentiary conclusion about the existence of sites or areas of particular significance and the likelihood of interference: Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 at [43] (‘Geotech International’); Murchison Metals at [55]. The evidence does not establish that there are any sites or areas of particular significance within or in the vicinity of the proposed licence, let alone any special characteristic that would require the grantee party to consult with the native title party to avoid interference with any sites or areas of that kind. Nor does the evidence establish that the nature of the country on which the proposed licence will be situated is such that entry onto parts of the land or waters concerned without the consent of the native title holders would result in interference within the meaning of s 237(b).
Given my findings above, it is unnecessary to deal with the native title party’s contentions regarding the alleged inadequacy of the State’s regulatory regime. Nevertheless, it will suffice to note that, though the Tribunal has acknowledged the issues raised in the auditor’s report about the enforcement of the regulatory regime, it has also concluded that appropriate weight must be given to evidence of the proposed activities of the grantee party (see Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources [2012] NNTTA 18 at [50]; Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation)/Western Australia/Zenith Minerals Ltd [2012] NNTTA 77 at [44]). In the present matter, having considered the evidence of Mr Weaver, I am satisfied that the grantee party is aware of its obligations under the AHA and that it has developed processes and procedures to avoid interference with any sites or areas of particular significance that may exist in the land or waters concerned. In the absence of evidence to the contrary, I must assume that the grantee party will comply with its obligations under the AHA and the conditions imposed on the proposed licence: see Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91 at [58]. Taking these factors into account, I find that the proposed licence poses no real risk of interference to sites or areas of particular significance to the native title party.
Sections 237(a) and 237(c)
The native title party has not adduced any evidence or made any contention in relation to ss 237(a) or 237(c) and has indicated that it does not seek to pursue its objection in relation to those criteria. The only material before me in relation to these matters is the Government party’s contentions and the evidence submitted in support of those contentions. On that basis, I am satisfied that the grant of the proposed licence is unlikely to result in interference or disturbance of the kind contemplated by ss 237(a) and 237(c).
Determination
The determination of the Tribunal is that the grant of exploration licence E69/2519 to FMG Resources Pty Ltd is an act attracting the expedited procedure.
Daniel O’Dea
Member
1 February 2013
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