Ngadju Native Title Aboriginal Corporation v Norseman Resources Pty Ltd
[2020] NNTTA 47
•28 May 2020
NATIONAL NATIVE TITLE TRIBUNAL
Ngadju Native Title Aboriginal Corporation v Norseman Resources Pty Ltd and Another [2020] NNTTA 47 (28 May 2020)
Application No: | WF2019/0006 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Ngadju Native Title Aboriginal Corporation (WCD2014/004)
(native title party)
- and -
Norseman Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 28 May 2020 |
Catchwords: | Native title – future act – application for determination in relation to proposed grant of mining lease – s 39 criteria considered – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect of the act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – determination that the act may be done subject to conditions |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 35, 36, 38, 39 Mining Act 1978 (WA) ss 74, 78 |
Cases: | Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690 (Yindjibarndi v WA) Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193 Jango v Northern Territory of Australia [2006] FCA 318 Neowarra v State of Western Australia [2003] FCA 1402 Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 Shirley Purdie & Others on behalf of Yurriyangem Taam v Peter Romeo Gianni & Another [2020] NNTTA 43 State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47 (WA v Ngadju) Walalakoo Aboriginal Corporation RNTBC v Kallenia Mines Pty Ltd & Anor [2019] NNTTA 91 (Walalakoo v Kallenia) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Watson on behalf ofNyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (Nyikina Mangala v Backreef Oil) Weld Range Metals/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji [2011] NNTTA 172 (Weld Range Metals v Wajarri Yamatji) Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (Waljen) Western Desert Lands Aboriginal Corporation v Western Australia and Another [2009] NNTTA 49; (2009) 232 FLR 169 (Holocene) White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales [2011] NNTTA 110 (White Mining v Franks) Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (Waljen) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Graham Castledine and Christina Batson, Castledine Gregory |
| Representative of the grantee party: | Ken Green, Green Legal |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitors Office Faye Mitchell, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant mining lease M63/671 (the lease) to Galileo Mining Ltd – the lease has exploration licence E63/1041 underlying. Subsequent to the s 29 notice, Galileo Mining Ltd transferred E63/1041 and the lease application to Norseman Resources Pty Ltd, a wholly owned subsidiary of Galileo Mining Ltd. Norseman Resources Pty Ltd is the grantee party for the purposes of this inquiry.
The Ngadju Native Title Aboriginal Corporation RNTBC (Ngadju/NTP) are a native title party to this inquiry because they hold native title in trust for the Ngadju people over an area which includes the lease (see WA v Ngadju People). Ngadju, the State and Norseman Resources are required to negotiate in good faith with Ngadju with a view to seeking their agreement (s 31 of the Act). No agreement has been reached and so Norseman Resources exercised their right to apply to the National Native Title Tribunal (the Tribunal) for a determination that the act be done (that is, the grant be made, as per ss 35, 38(1)(b) of the Act).
I cannot make a determination if I conclude the State or Norseman Resources failed to negotiate in good faith (s 36(2)). Ngadju did not contest whether good faith negotiations had occurred, and I am satisfied that I can proceed to make a determination. However, Ngadju do argue I should determine that the act must not be done (s 38(1)(a)) or, in the alternative, done with conditions (s 38(1)(c)).
If conditions are to be imposed, then their subject matter is shaped by the requirements of s 39 (Evans v Western Australia). I have considered the extensive materials provided by parties addressing the s 39 criteria, including proposed draft conditions and parties’ comments on those conditions. I refer to those materials as relevant in this decision. Having weighed up the information, I have determined the act may be done, with conditions (see Attachment A).
The inquiry process
As outlined in Yindjibarndi v WA (which, at [20], approved Waljen (at 165-166)) a s 39 determination is of a discretionary nature which:
... involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us ... The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.
Norseman Resources provided contentions together with 15 annexed documents (GP1-GP15) and a reply to Ngadju’s materials.
The State provided contentions with seven annexed documents and a reply to Ngadju’s submissions. The State also provided their proposed draft endorsements and conditions (at their annexure GVP4) to be imposed on the lease (as outlined at Attachment B to this determination). A mining lease is liable to be forfeited if the holder breaches a condition.
Ngadju provided contentions requesting 25 conditions be applied, and reply materials. Ngadju also provided the affidavits of Mr John Graham and Mr Edward McKenzie, and video evidence from Ms Valma Schultz (all of whom I am satisfied can speak on behalf of Ngadju people for the country the subject of this inquiry). Also provided were two statements from Dr James Taylor (a consultant anthropologist who has worked with Ngadju people for the past seven years).
Norseman Resources (at 3.2-3.4, for example) are critical of Dr Taylor’s evidence, largely on the basis of comments he made in relation to heritage clearance/heritage surveys conducted over the underlying exploration licence. However, my conclusion on that aspect of the evidence provided by parties relies predominantly on the survey reports provided by Norseman Resources (for example, the Heritage Reports at GP2 and GP3), rather than on Dr Taylor’s comments. In addition, the Norseman Resources reply is critical of Dr Taylor’s comments regarding a ‘heritage clearance’ for the lease in this inquiry, saying it is not a term used in the AHA, and it is not clear what is meant by that term. I do not agree with that, for the reasons outlined further in this decision. In addition, I accept Dr Taylor’s comments to the extent they supplement the evidence provided by Mr Graham, Mr McKenzie and Ms Schultz (see Neowarra v State of Western Australia at [388]-[389]; Jango v Northern Territory of Australia at [291]-[292]).
The directions required parties to submit an agreed statement of issues and facts, to identify any material facts not agreed and to address whether the matter could be heard on the papers without a hearing. If no hearing was held, the directions allowed each party the opportunity to lodge any final submissions on any facts not agreed to. The parties did not lodge an agreed statement, and advised they were content to have the matter determined on the papers and would lodge final submissions by the due date in the directions. Ngadju lodged final submissions which addressed Norseman Resources’ reply.
Following my reading and consideration of the parties’ submissions, I provided the parties with proposed conditions and allowed them time to provide their view on those conditions. All parties provided comments on the proposed conditions, and Norseman Resources also provided a number of supplementary documents in support of their comments. I again considered the matter could be determined on the papers, and no party took issue with that approach.
Section 39(1)(a)(i) – the effect of the act on the enjoyment of Ngadju’s registered native title rights and interests
Ngadju contentions state they do not rely on s 39(1)(a)(i) (at 2.2), but argue that ‘non-reliance on this criterion should not be understood to mean that the NTP does not exercise its native title rights and interests on the Inquiry Tenement area’, rather it ‘is simply not practical to interview dozens of witnesses in remote locations to prepare for a section 38 inquiry’ (at 2.3). I appreciate the practicalities in preparing and obtaining evidence for such inquiries. Nevertheless, I must consider the information provided in relation to each of the s 39 criteria, and assess the effect of the relevant future act. Ngadju’s submissions do provide material relevant to s 39(1)(a)(i) in addressing other s 39 criteria, and I have taken that into my account in my deliberations.
The Tribunal is not bound by technicalities or the rules of evidence, and the parties do not have a burden of proof as such. I must take a common sense approach to all the factual material before me (Ward v Western Australia at [26]). The Act indicates I ‘must take into account’ each of the s 39 criteria and as such I must consider any factual material before me that goes to those criteria. There is no ‘specific methodology or formula’ about how I must go about this task (Nyikina Mangala v Backreef Oil at [30]).
The factual material before me regarding the future act is that Norseman Resources propose open cut mining on the lease. They provide proposed plans that appear to utilise the majority of the lease for mining and various supporting infrastructure, and outline that ‘all of the [654 hectare] area is required to support the proposed operation’ (as outlined in the supporting statement under s 74 of the Mining Act 1978 (WA) (the Mining Act), at GP5 of their submissions). The grant would allow for an initial 21 year lease, with an opportunity to apply for a further 21 years (s 78 of the Mining Act).
Other factual material before me includes information about native title rights and interests - Ngadju hold native title over the lease and over much of its surrounds. The eastern twenty five per cent of the lease is exclusive native title, with Ngadju having the right to possession, occupation, use and enjoyment to the exclusion of all others (subject to relevant laws). Non-exclusive native title rights and interests exist in the remaining seventy five per cent of the lease, which includes:
(a)The right to hunt, fish, gather and use the natural resources;
(b)The right to live, camp, erect shelters and other structures, travel over and visit;
(c)The right to engage in cultural activities, conduct rituals or ceremonies, hold meetings and teach the physical and spiritual attributes of places and areas of importance;
(d)The right to have access to, maintain and protect, places and areas of importance;
(e)The right to share or exchange subsistence and other traditional resources obtained.
Reserve 22465, which is approximately 2728 hectares, and also referred to as the Tjirntu Parapara Indigenous Reserve, runs adjacent to the eastern boundary of the lease. Ngadju hold exclusive native title in the area of the Reserve, which is made up of Lot 203 (which is adjacent to the eastern side of the lease), and Lot 208 which covers a smaller area about 3 kilometres from the lease. Lot 208 (comprising approximately 372 hectares) contains the old Norseman Aboriginal Mission (also known as Sunrise Mission).The Mission is a central feature of the evidence and materials in this inquiry, and is outlined in more detail below. The Mission area is also a focal part of the evidence in this matter - I refer to the ‘Mission area’ as that portion of the Reserve within Lot 208, between the Highway and the lease, and the ‘Mission’ as the area comprising the out-buildings within that area.
Ngadju argue:
1.2 The NTP’s key contention is that the Inquiry Tenement lies within an area of intense cultural and heritage importance to Ngadju People, due to the presence of (a) sites of particular significance, (b) Dreaming tracks linking those sites (and along which tracks other sites may be inferred to exist) and (c) the proximity of the Inquiry Tenement to the Norseman Aboriginal Mission [the Mission/Sunrise Mission] on Crown Reserve 22465.
1.3. Because of this confluence of important heritage values in and around the Inquiry Tenement, that tenement should not be granted. Alternatively, if granted, the Inquiry Tenement should be granted subject to detailed conditions to protect heritage and to ensure that the NTP’s opinions and interests are taken into account.
Ngadju assert that if Norseman Resources ‘want to do something in that area of the Norseman Tenement they need us to have a look and do a survey’ because previous surveys were for ‘exploration going on and drill holes, not mining’ (Mr Graham at 32, 34; Mr McKenzie at 31-32).
From the above material, I consider the enjoyment of Ngadju’s native title rights and interests in the area are where they hold:
·non-exclusive native title: the right to access, maintain and protect sites and areas of importance; and
·exclusive native title: the above non-exclusive right, as well as the exclusive right to make decisions and to be consulted about non-native title holders’ use of the area (subject to relevant laws).
I consider these rights as particularly relevant to my consideration of s 39(1)(a)(ii) (the effect of the act on Ngadju’s way of life, culture and traditions), s 39(1)(a)(v) (the effect of the act on sites and areas of particular significance to Ngadju) and s 39(1)(b) (Ngadju’s interests, proposals or wishes in relation to the management, use or control of the land). I consider the factual material about the enjoyment of these rights and interests in more detail under the relevant s 39 criteria below.
One of the key aspects of the evidence turns on the issue of access. Norseman Resources’ Mineralisation Report in support of the lease grant includes a sketch (GP6, figure 2 at page 6) which shows two ‘proposed access roads’ from the lease. One proposed access road heads east toward the Esperance-Coolgardie Highway (the Highway). Mapping provided with the s 35 application (Appendix 3) shows this connects with the Highway. The other proposed access road heads south-east (which is toward Lot 208 and the Mission area, approximately 3 kilometres south east of the lease). It is not clear, because of the scope of the sketch, whether the proposed access road heading south-east connects with the Highway through the Mission area/Lot 208. Mapping provided at Appendix 3 of the s 35 application also shows a road or track heading from the Mission area north-west toward the lease (and towards the south east ‘proposed access road’ in the Mineralisation Report), but the road or track stops near the edge of the larger Reserve border (Lot 203).
It is not unreasonable to conclude that the ‘proposed access road’ heading south east from the lease, is likely to join up with the apparently incomplete road or track heading north-west from the Mission area. Much of the Ngadju evidence refers to the importance of the Mission and the Mission area to Ngadju, and that it is a highly significant place for them (see [24] and [29] below). I consider this area in more detail below and in particular, outline my reasons for deciding to impose conditions relating to Norseman Resources’ access through the Mission and Mission area.
Section 39(1)(a)(ii) – the effect of the act on Ngadju’s way of life, culture and traditions
Ngadju cite White Mining v Franks (at [47]-[48]) as authority that this subsection of s 39 requires me to consider the tangible effect on ‘the contemporary way of life, culture and traditions’ of a native title party. The evidence centres on the importance of the Mission (located on Lot 208 of the Reserve). The larger portion of the Reserve (Lot 203) traverses both sides of the Highway and is adjacent to the lease (as outlined earlier). The Mission and Lot 208 is located on the western side of the Highway (between the Highway and the lease, and to the south east of the lease). The ‘Mission area’ is referred to as a highly significant place for Ngadju’s way of life, culture and traditions, a place for quiet reflection, survival, heritage, connection and caring for country (Mr Graham at 10, 18; Mr McKenzie at 22; Dr Taylor at 18).
I accept there are other sites and places of significance in and around that larger area (as outlined at [37] onwards below). However, apart from the Mission and Mission area, there is little information about how those other sites and places may be affected, in terms of Ngadju culture and traditions, by operations on the lease itself. The evidence about these other sites are outlined in more detail at my consideration of s 39(1)(a)(v) below.
Norseman Resources argue that mining activity will not offend this subsection (at 7.1-7.2). They argue in their reply that little information is given about the frequency and duration of contemporary visits to the Mission or the Mission area (at 5.7 and 5.16). They also acknowledge that while the lease lies adjacent to the Reserve (referring to Lot 203 of the Reserve), ‘at its closest point, the Inquiry Tenement lies at least 3.8 km from the Mission’ (at 5.11, emphasis in original).
The State’s reply (at 8) notes that the Mission is approximately 3 kilometres from the lease, and, in summary, that (at 9-15):
·there is limited evidence about the use of the Mission and/or the Reserve in contemporary times by native title holders or of damage to culture associated with the Ngadju way of life
·there is limited evidence responding to how and where Norseman Resources intend to conduct operations
·there is limited evidence of the effect, if any, of the location of the Highway on the Mission and Reserve
I have considered the evidence and information provided, including the rights Norseman Resources can exercise on grant according to the Mining Act and through the State’s regulatory regime. I have also considered the information provided by Ngadju and the importance of the Mission and the Mission area to the way of life, culture and traditions of Ngadju people.
While there is limited information about the use of the larger area of the Reserve generally (Lot 203), I regard the information provided about the Mission and the Mission area (within Lot 208 of the Reserve) as being sufficient to support a conclusion that visiting the Mission and the Mission area is integral to Ngadju life, culture and traditions. The town of Norseman is close by (approximately 15-20 kilometres away) and there is evidence the Mission area is an important link to the past, and to traditions of Ngadju, with the Mission having operated between approximately 1935 and 1985.
The Mission is described as a profoundly important area of remembrance and contemplation of the systematic removal of Ngadju children (‘[m]ost of us Ngadju people have been in that place, that mission’) and also of survival (‘[w]e remember how we made it out’). The concern is that ‘Ngadju don’t want mining too close don’t want it ruined’ (Mr McKenzie at 22).
As recently outlined in Shirley Purdie & Others on behalf of Yurriyangem Taam v Peter Romeo Gianni & Another [2020] NNTTA 43 (at [34]):
In Yindjibarndi v FMG at [17], the Tribunal observed:
(d) generally the relevant area or site will be located within the proposed licence, in order for it to be directly affected by grant. It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. Examples given in Silver v Northern Territory at [89] are ‘construction of roads, truck movements to and from the proposed licence etc’
By this reasoning, a native title party’s way of life, culture or traditions outside the area of the proposed future act could be affected in a similar way. Given the existence of a track or road on the Mission area which heads north west towards the lease, and that one of the two proposed access routes from the lease heads south east toward the Mission area (as outlined at [21] above), I accept that if these tracks joined up, the route could be used to facilitate mining operations in relation to the lease, as it would then be one of two routes which link the lease with the Highway. Both Mr Graham (at 19 and 31-32) and Mr McKenzie (at 22 and 31) express concern about mining operations impacting the Mission area. Dr Taylor’s first statement based on his interviews with Mr Graham, Mr McKenzie and other Ngadju informants, outlines that ‘at the very least, there should not be any haulage roads constructed connecting the PDA [proposed development area of the lease] to the highway through areas of concern such as the mission…’ (at 34).
I conclude if that occurred, it is likely there will be some effect (such as increased traffic and vehicle noise) disrupting the contemporary way of life, culture and traditions of Ngadju people on the Mission and Mission area. I consider such an impact can be mitigated by imposing access conditions on the grant of this lease.
Section 39(1)(a)(iii) – the effect of the act on the development of Ngadju’s social, cultural and economic structures
The evidence is that Ngadju people have a strong desire to preserve and repair the Mission and Mission area ‘to use that place, develop it if we can’ and ‘want to keep it, keep it better’ (Mr Graham at 19-20). Ngadju contentions refer to the Ngadju Native Title Aboriginal Corporation RNTBC rule book, which contains information on social and economic structures and obligations to consult with Ngadju people broadly, to manage native title rights and interests, to promote and protect heritage, the environment and their self-determination (at 4.1-4.4).
The State’s reply (at 16-18) outlines that if I accepted the Ngadju contentions regarding their rule book, that would give Ngadju a veto over such inquiry processes. The State argue there will be no negative impact over the structures outlined in s 39(1)(a)(iii) of the Act, and that the impact may in fact be positive. Norseman Resources also argues the effect is likely to be positive, from the ‘training, employment and business opportunities that will arise from the grant’ (at 8.2-8.3).
I do not consider that my taking into account the guidelines and information contained in the rule book would amount to a veto on Norseman Resources’ operations. I conclude the contents of the rule book supports Ngadju’s argument that the native title holders have obligations which are relevant to their way of life and to their management, use and control of the area according to members’ wishes and interests. I regard this as being more relevant to s 39(1)(a)(ii) and s 39(1)(b) than to
s 39(1)(a)(iii).
Section 39(1)(a)(iv) – the effect of the act on Ngadju’s freedom of access to the land and waters, and freedom to carry out rites, ceremonies or other activities of cultural significance
Ngadju state they do not rely on this section, nor does the affidavit material indicate that any of the above occurs on the lease area. Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the act will have an adverse effect contemplated by this subsection.
Section 39(1)(a)(v) – the effect of the act on any site or area of particular significance to Ngadju in accordance with their traditions on the land or waters concerned
Ngadju contentions (at 6.19-6.33) outline an argument under this subsection that previous ethnographic surveys over the exploration licence underlying the lease have been insufficient for the purposes of heritage issues related to the use of the lease for open cut mining. The previous surveys were conducted for the purposes of assessing an exploration program, and not open cut mining.
In the surveys, it is reported that the Ngadju participants did not wish to identify any cultural issues that might interfere with the exploration programme because Ngadju were content for exploration activities to proceed. Ngadju’s view was that another survey should be undertaken if mining was later proposed (see for example, GP2, 2009 report recommendations).
Norseman Resources strongly rebuts the requirement for further surveys, arguing that no sites of particular significance were found from previous surveying, nor have they been established by the material presented in this inquiry. However, my understanding of the views Ngadju expressed in the survey reports is that Ngadju do not consider that the sole purpose of surveys is restricted to site identification. They consider it a mechanism to discuss other cultural and heritage issues relating to the land. As such, their view about further surveys will be further considered at s 39(1)(b) below (Ngadju’s interests, proposals and wishes).
Findings as to sites and areas of significance
Ngadju imply that the Reserve and its surrounds is within an area of particular significance and that in a previous decision by the Tribunal, Weld Range Metals v Wajarri Yamatji, it was held the act could not be done even though most of the significant area was outside of the relevant tenements. Ngadju provide details of sites which they argue contribute to the overall significance and importance of the lease area and surrounds – for example, the Mission, the Mission area, Lake Cowan, Walgamiri (a small island within the Lake), Mt Thirsty, a rockhole, and the snake dreaming eggs. On the basis of the evidence provided, I conclude these are sites of particular significance in accordance with Ngadju traditions. However, none of these sites or areas are on the lease.
This subsection of s 39 focuses on ‘the land or waters concerned’ with the act, and Ngadju acknowledges that in their contentions (at 6.1). They make an argument as to how the sites and areas outside the lease may be linked to the lease in terms of interference. They argue it is possible that access routes to and from the lease will affect all the sites of particular significance. That is not a strong argument, apart from the issue of accessing the lease in relation to the Mission and the Mission area which I have referred to already at [29]-[32], and will deal with further below. Overall, I am not satisfied, based on the available material, that the grant of the lease and Norseman Resources’ mining activities are likely to affect those sites of particular significance, apart from the Mission and the Mission area.
Effect of the act on the Mission and Mission area (Lot 208 of the Reserve)
I have already canvassed the likelihood of an access route from the lease to the Mission area (as outlined at [31] above). This would suggest to me that it would be an option for Norseman Resources to travel through the Mission area to access the Highway from the lease area.
My role under s 39(1)(a)(v) is to assess whether there is likely to be an effect of the act on any site or area of particular significance to Ngadju in accordance with their traditions. I consider that given its position in relation to the lease and the Highway, the Mission and Mission area is likely to be affected should Norseman Resources choose to access the Highway via the route that runs south-east from the lease. I have dealt with this by imposing a condition to mitigate this likely effect.
Section 39(1)(b) – Ngadju’s interests, proposals or wishes in relation to the management, use or control of the land or waters where there are native title rights and interests that will be affected by the act
Ngadju argue they hold exclusive native title rights and interests over the Reserve (and some of the lease), which means their interests, proposals and wishes should be given greater weight. The Tribunal has concluded that more weight can be given to a native title party’s interest, proposals or wishes if the act affects an area where exclusive possession has been determined – although not to the extent that it would amount to a veto (Holocene at [163] and Walalakoo v Kallenia at [142]).
Ngadju’s interests, proposals and wishes include a desire to keep the Mission and Mission area as a place of quiet remembrance and preservation. ‘We remember how we made it out. That’s our monument up there that mission so everyone remembers us kids and our history. Ngadju don’t want mining too close don’t want it ruined. Most of us Ngadju people have been in that place, that mission’ (Mr McKenzie at 22). Ngadju outline they are concerned about ‘how they [Norseman Resources] are going to get in and out there’ and the effect this access may have on the Mission area (Mr McKenzie at 22; Mr Graham at 18-19, 31.
There is also evidence in ethnographic surveys undertaken on part of E63/1041 that Ngadju, in effect, reserved their rights to have further discussion and survey work done should the exploration activities progress to open cut mining. For example, the GP2, 2009 report recommendations included the following:
Ngadju representatives discussed the wider issue of cultural sensitivity of the country at a final meeting on site. All Ngadju members of the team are familiar with country because of its proximity to the Sunrise Mission community, which is often visited.
Mr John Graham…has an intimate knowledge of the lease and the wider area. His knowledge and opinions about the area were taken by the group to be authoritative. In his analysis, he recognised the detrimental effects mining would have on what is left of the original land system, but also recognised the considerable likely benefits of mining to the Ngadju people. He did not wish to raise any specific cultural issues that would impede the drilling program. It was firmly agreed by the Ngadju representatives that further discussion and survey would be required should [the relevant explorer at the time of the survey] plans to develop an open cut mine proceed (emphasis added)
As I understand it from the evidence, there is currently no mechanism in place by which Ngadju and Norseman Resources can have those further discussions, nor any agreement in place which allows for a further survey to be undertaken on the mining lease.
Similar recommendations were made in the survey report at GP3:
2. [The explorers who held E63/1041 at the time of the survey] should maintain discussions with the Ngadju Traditional Owners regarding any further matters that may arise in relation to these areas, including any further proposed work programs, variations to the current work program, or access to portions of the tenement(s) that have not yet been assessed for cultural association.
These ethnographic surveys which took place over part of E63/1041 found areas of importance to Ngadju, and some artefacts found were removed for the purpose of protecting them and preserving them. I find this integral to Ngadju’s wishes in relation to the management and use of the land over which Ngadju have been found, by the Federal Court, to hold native title rights and interests.
The State’s reply (at 27-28) argue that Ngadju have not made out how Norseman Resources will affect the Mission or Reserve, and the State’s regulatory regime will mean there is no interference in any event. Norseman Resources make a similar argument (at 11.1-11.2).
Ngadju argue that if Norseman Resources ‘want to do something in that area of the Norseman Tenement they need us to have a look and do a survey’ (Mr Graham at 32, 34; see also Mr McKenzie at 31-32).
I have already made some comment about Norseman Resources’ likely access to and from the lease, and the importance of the area around the lease to Ngadju people. I go into more detail for the purposes of this subsection of s 39. The Supporting Statement from Norseman Resources under s 74 of the Mining Act (at GP5) outlines (at page 1) that the ‘Mt Thirsty ore body outcrops in some areas and most of the cobalt-nickel mineralisation occurs between 20 and 50 metres below surface. Consequently, the mining method will be conventional open pit mining with a low strip ratio aimed at extracting the shallow, flat lying mineralisation. Facilities to support the open pit operation include;
·Waste Dump
·Stockpile/ROM pad
·Plant, offices, workshop’
This gives me an understanding of the scope of the project. The Statement goes on to note there will be a ‘concentrator and leach plant’, which will include ‘crushing and separation to produce a concentrate’ and ‘Other infrastructure to support the project will include:
·Access road
·Offices, workshops, warehouses, contractor’s facilities
·Transport hub and laydown area
·Gas and/or diesel fired power station
·Fuel storage
·Equipment washdown
·Tailings storage facility
·Accommodation village
·Communications facilities’
The Statement notes (at page 2) that ‘The Mining Lease Application is 654 hectares and all of the area is required to support the proposed operation…’ The attached mapping shows the location of the above infrastructure and mine and three access roads. I have already made comments regarding two of the proposed access roads, which are relevant to this inquiry.
Taking into account Ngadju’s interest, wishes and proposals, particularly in relation to the native title rights and interests, I am satisfied that conditions should be imposed to ensure these are not affected by the grant of the lease, or at the very least, that any such effects are minimised.
Section 39(1)(c) – The economic or other significance of the act to Australia, the State, the area and Aboriginal peoples who live in the area
Ngadju contentions say (at 8.1-8.4) that Norseman Resources and the State’s ‘speculative assertions, not supported by evidence, are inadequate’. They also note there is no agreement with Ngadju so there is little significance for them in terms of economic benefits or otherwise.
The State’s reply argues (at 30-32) that my decision should be the act can be done without conditions, partly because the project will be of economic benefit to the State and is likely to use local workers as well as fly in/fly out staff. Norseman Resources make a similar argument (at 12.1), and outline some specific benefits such as engaging local communities to provide services, payment of rates, improved management of the area/land, payment of royalties and earning foreign capital from the sale of the minerals. This argument is supported by annexures to the grantee contentions, such as the Mineralisation Report (GP6).
I accept the Quarterly activities reports and financial reports provided by Norseman Resources indicate the project on the lease is likely to be of some economic benefit to the State. It is not clear the extent to which it would be likely to be of benefit to the local economy or to Aboriginal people who live in the area.
Section 39(1)(e) – Any public interest in the doing of the act
Ngadju repeat their contentions that such ‘touted economic benefits … are merely speculative’ (at 9.1-9.6). The State’s reply (at 34-35) and Norseman Resources’ contentions (at 13.1) argue that I should take into account potential economic benefit to the public. I accept there is public interest in the doing of the grant of the lease in terms of economic benefits.
Section 39(1)(f) – Any other matter the Tribunal considers relevant
Norseman Resources’ contentions (at 14.1-14.2) argues that denial of this lease may impact on other nearby resource prospects which have been identified. I accept there are a network of resource projects near the lease, and have balanced the grant of the lease with conditions to apply to that grant.
Conditions
Scope and purpose for conditions
As the Court has noted, ‘there is nothing in s 38(1)(c) which expressly limits the nature of conditions other than s 38(2)’ except that the ‘subject matter of the conditions appears to be shaped by … the requirements of s 39 that in making its determination the arbitral body must take into account the criteria there listed’ (Evans v Western Australia at 213). Therefore, in imposing conditions, there should be material which supports that course of action. For example, in deciding the act can be done, then conditions can be imposed to minimise any adverse effect on the native title holders’ rights and interests if the material before me justifies it (see, for example, Re Koara People at 93).
In Nyikina Mangala v Backreef Oil, an appeal against a decision where I had determined an act may be done with conditions, Siopis J outlined (at [59]) that:
Section 39(1) of the NTA expressly requires the Tribunal to have regard to “the effect of the [future] act” on the matters referred to in s 39(1). Accordingly, in order to carry out that mandate, it will be necessary for the Tribunal to form a view as to the activities which will be undertaken by a grantee party pursuant to the grant of the proposed permit and the impact of those activities on the matters referred to in s 39(1).
The Federal Court upheld my approach and I have proceeded in a similar manner in this present inquiry. I have detailed information about Norseman Resources’ proposed mining activities, and information from Ngadju addressing the s 39 criteria. I have then weighed up that evidence, including the State’s regulatory regime, and considered whether, unless certain conditions are imposed, there will be an adverse effect on the relevant criteria in s 39(1) – in particular s 39(1)(a)(ii) (the effect on Ngadju’s way of life, culture and traditions); s 39(1)(a)(v) (the effect on any area or site of particular significance) and s 39(1)(b) (Ngadju’s interests, proposals and wishes).
As part of their initial submissions, Ngadju requested that, if I determined the act be done, then I impose a number of proposed conditions. I considered Ngadju’s proposed conditions, Norseman Resources and the State’s replies to those proposed conditions, and the native title party’s response to that material.
In making conditions, I note the jurisprudence from the Court (Evans v Western Australia at 213-214):
the evident purpose of s38 … is to have the arbitral body finally determine the issues where negotiations between the parties have failed to do so... I regard it as inherent in s38 the arbitral body not leave the outstanding issues between the parties unresolved.
I conclude conditions needed to be imposed because the following issues are unresolved between the parties and evidence supports their imposition: surveys prior to mining and ongoing consultation (Ngadju’s interests, proposals and wishes); and the issue of the access route from the lease which might impact the Mission and the Mission area as a place of significance for Ngadju and part of their way of life, culture and traditions.
I proposed draft conditions and circulated these to parties for comment. I asked parties to suggest amendments to any of the proposed conditions should they wish to do so, and, if they took issue with any condition, to direct me to material they believed supported their argument. All parties provided suggested amendments and comments, which I carefully considered. Many of those provided by Norseman Resources were incorporated into the conditions, in addition to the amendment suggested by Ngadju, and some of those suggested by the State.
The basis for the conditions I have imposed is provided at [23] to [32] and [45] to [56] above. In addition, I provide some supplementary comments below to address the State’s and Norseman Resources’ concerns about the condition requiring a survey to be conducted prior to mining (condition 3) and the condition restricting heavy vehicle access to the lease through Lot 203 of the Reserve, being the Mission and the Mission area (condition 24).
Survey – condition 3
The purpose of the survey condition takes into account Ngadju’s wishes and proposals about their cultural heritage, and to ensure that their relevant native title rights and interests are not affected by the grant of the lease, or at the very least, that any such effects are minimised.
Norseman Resources rejected the need for such a condition, predominantly on the basis that no sites had been identified during surveying conducted some years ago on the underlying exploration tenement. Norseman Resources argued there was no basis in fact for me to impose a survey condition. I find as a matter of fact that Ngadju and the grantee who held the underlying exploration licence contemplated further survey work if the exploration moved on to productive mining. That is very clear in the previous survey reports. The purpose of the survey as proposed by this condition goes beyond the physical identification of sites - the purpose is to identify Ngadju cultural heritage in relation to a lease area which will be subject not just to exploration activities across parts of the land, but which will be subject to open cut and associated mining activities across the whole of the lease area for up to 42 years, including access to and from the lease area.
Access – condition 24
My original proposed condition was intended to prohibit Norseman Resources from operating heavy vehicles to and from the lease within a two kilometre radius of the Mission excluding the Highway. Norseman Resources strongly opposed the condition being imposed at all, or in the format proposed, and provided careful submissions which I have taken into account. I have modified the condition accordingly.
Norseman Resources argued that ‘to be valid, the Conditions must be directed to some other effect arising from the grant of M63/671. That effect has not been identified.’ I am satisfied it has been. On the evidence, the likely effect arising from the grant of a lease where full scale mining operations are planned and where heavy vehicles may be driven through the Mission area and past the Mission will affect the quiet enjoyment of that area according to Ngadju’s traditions. Ngadju were deeply concerned about this effect, and there is no evidence before me that any other third parties currently have this effect on the Mission or the Mission area. Norseman Resources provided some information about heavy vehicle traffic on the Highway itself, however, the location that traffic was recorded was some distance from the Mission, and was not related to vehicle traffic running off the Highway.
After considering the issues Norseman Resources raised, which included that other leases exist with the two kilometre radius initially proposed, and that Norseman Resources may be precluded from participating in construction or remedial activities on or near to the Reserve, I modified condition 24 to prohibit Norseman Resources from operating heavy vehicles only within Lot 208 of the Reserve, for the purpose of activities related to the lease. Lot 208 includes the Mission and the Mission area.
I have weighed up the potential impact of the proposed condition on Norseman Resources and concluded it will not be onerous. The Mission is not the only access route to the Highway, nor is it the most direct.
I impose the conditions outlined at Attachment A to the grant of M63/671, which are in addition to the conditions and endorsements the State intends to impose on the grant.
Determination
I determine the grant of mining lease M63/671 to Norseman Resources Pty Ltd may be done subject to the conditions set out in Attachment A.
Helen Shurven
Member
28 May 2020
ATTACHMENT A: CONDITIONS TO BE IMPOSED ON GRANT OF M63/671
Notice of proposed works
When, prior to commencing any exploration or productive mining or construction activity on mining lease M63/671 (the lease), Norseman Resources Pty Ltd (the grantee party) submits a plan of proposed operations and measures to safeguard the environment or any addendums thereafter to the State of Western Australia (the State) for assessment and written approval, the grantee party must at the same time give to the Ngadju Native Title Aboriginal Corporation RNTBC (the native title party) a copy of the proposal or addendums, excluding sensitive commercial information, and a plan showing the location of the proposed operations and related infrastructure, including proposed access routes.
Aboriginal cultural heritage
The grantee party must comply with the Aboriginal Heritage Act 1972 (WA) (AH Act) and any regulations thereunder.
The grantee party must not conduct productive mining operations over part or whole of the lease unless it has first caused a survey to be conducted over that area. Mining operations is defined as per s 8 of the Mining Act 1978 (WA).
The survey must be conducted by a) a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional, agreed between the native title party and the grantee party, engaged and paid for by the grantee party, and b) up to three Ngadju common law holders (as defined on the National Native Title Register and in State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47) nominated by the native title party (nominated persons). Nomination by the native title party must be in writing and include full contact particulars of the nominated persons.
The grantee party must pay the reasonable costs of the nominated persons’ attendance and participation in the survey. This is not intended to include the professional costs of legal or other representation or advice, nor the cost of inter-State travel. Other Ngadju common law holders may attend as observers to the survey.
The grantee party must give written notice to the native title party of its intention to conduct the survey and when giving notice must include a suitable topographical map showing the areas proposed to be surveyed, and the location of the lease. If, within 30 days of receipt of the notice, the native title party fails to nominate any persons for the survey, then the grantee party need not conduct such survey.
Subject to any law, the survey required under condition 3 must be completed within 60 days of the native title party’s nomination with the parties cooperating in good faith on the conduct of the survey. If the survey is not carried out in this time due to the failure of the native title party to cooperate in good faith with the grantee party, then the grantee party need not conduct such survey.
The grantee party must not disclose to any person any confidential information given to it by the native title party or the Ngadju common law holders regarding Aboriginal heritage or cultural information, during or as a result of the survey, except (and only then on a confidential basis):
(a)with the written consent of the native title party; or
(b)to a bona fide prospective assignee of the lease; or
(c)to an actual assignee of the lease; or
(d)to its employees, agents, contractors and consultants for the sole purpose of ensuring that no Aboriginal sites or cultural heritage are interfered with and as far as the information relates only to the location of those areas; or
(e)as required by law; or
(f)for a purpose under the AH Act.
If the grantee party gives notice to the Aboriginal Cultural Material Committee (ACMC) under s 18 of the AH Act (a s 18 notice) over any part of the lease it must, at the same time, serve a copy of that notice on the native title party.
Within 30 days of receipt of a copy of a s 18 notice given under condition 9, the native title party must inform the grantee party in writing if the native title party wishes to be consulted concerning the proposed use of the land in that notice. If so informed, the grantee party must make itself available to meet with the native title party to describe that proposed use within 30 days of the native title party giving it notice. The native title party will organise for interested Ngadju common law holders to attend the meeting.
Upon receipt of a recommendation from the ACMC in respect of a s 18 notice, the State must without delay give a copy of the recommendation and any related report to the native title party and the grantee party (excluding any confidential information provided to the ACMC by persons other than the native title party).
Where the Minister under the AH Act gives or declines to give consent to the proposed use of the land the subject of a s 18 notice and recommendation from the ACMC, the State must without delay inform the native title party and the grantee party of the decision.
Cultural awareness program
Following the commencement of productive mining operations on the lease, the grantee party must ensure that all persons whom the grantee party reasonably believes are not Ngadju common law holders and who are engaged directly or indirectly by or on behalf of the grantee party and who may enter the lease area in relation to the exploration or productive mining operations thereon are provided with appropriate information for the following purposes:
(a)to familiarise such persons with the traditions and culture of the Ngadju common law holders;
(b)to promote a knowledge and understanding of and respect for the traditions and culture of the Ngadju common law holders; and
(c)to foster good relationships between the native title party, the Ngadju common law holders and others.
The native title party or their nominee and the grantee party must consult with each other in formulating and directing the communication of the information.
Liaison committee
Subject to conditions 16 and 19, and prior to the commencement of productive mining operations on the lease, the grantee party must establish and continue a liaison committee (committee) with members comprising:
(a) up to two persons nominated by the grantee party; and
(b) up to two Ngadju common law holders nominated by the native title party.
The grantee party must give written notice to the native title party of its intention to form the committee and invite written nominations from the native title party in respect of its members on the committee. If, within 30 days of the receipt of the notice, the native title party fails to nominate in writing any such persons to the grantee party, or if at any time the native title party notifies the grantee party in writing that they do not wish the committee to be formed or to continue, the grantee party is not obliged to form or continue the committee as the case requires.
Each party may replace members on the committee by giving at least 24 hours prior written notice to the other party. Where a member on the committee is temporarily not available to attend meetings of the committee, the member may, by giving at least 24 hours prior written notice, substitute another person to represent their interests during the period when the member is unavailable.
The functions of the committee will be to provide a forum for the exchange of information between the parties concerning:
(i) the exploration or mining operations on the lease, related infrastructure including access routes, and proposed changes to those operations; and
(ii) matters of importance to either the native title party or the grantee party as they relate to those operations.
The committee must meet at least every six months. If none of the committee members nominated by the native title party or their substitutes attend three committee meetings in a row, without giving at least three days prior written notice to the grantee party, the grantee party is not required to continue the committee. Subject to any law, the committee meetings must be open to the following who may attend as observers if they wish to do so:
(a) a total of up to five other grantee party representatives, and
(b) a total of up to five other representatives of the native title party and/or Ngadju common law holders.
The location of the committee meetings will be on the lease unless agreed otherwise by the committee members.
The reasonable costs incurred by committee members in attending up to two committee meetings per year must be paid by the grantee party. This is not intended to include the professional costs of legal or other representation or advice, nor inter-state travel, and each party will bear their own such costs.
Access
Subject to any law, any right of the native title party and the Ngadju common law holders to access or use the land the subject of the lease is not to be restricted except in relation to those parts of the land which are used for construction activity or productive mining operations or for safety or security reasons related to those operations.
For the purpose of condition 22, safety or security reasons means any belief held on reasonable grounds that there is a hazard to the health or safety of any person, or a reasonable risk of destruction to property or damage to property or unauthorised use of facilities or equipment on the lease.
The grantee party must not operate or drive heavy vehicles on Lot 208 of Crown Reserve 22465 for the purpose of construction activity or productive mining operations on the lease.
For the purpose of condition 24, heavy vehicle means a vehicle that has a gross vehicle mass (GVM) or aggregate trailer mass (ATM) of more than 4.5 tonnes. The GVM or ATM of a vehicle is the maximum it can weigh when fully loaded, as specified by the manufacturer.
General
The grantee party must take all reasonable action to ensure compliance with these conditions by its employees, agents and contractors.
Upon assignment of the lease, the grantee party must ensure the assignee is bound by these conditions as if it were the grantee party.
For the purpose of condition 27, grantee party includes any assignee and assignment includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession.
ATTACHMENT B: DRAFT ENDORSEMENTS AND CONDITIONS PROPOSED FOR THE GRANT OF M63/671 BY THE STATE
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