Sheffield Resources Ltd and Another v Charles and Others on behalf of Mount Jowlaenga Polygon #2
[2017] NNTTA 34
•14 June 2017
NATIONAL NATIVE TITLE TRIBUNAL
Sheffield Resources Ltd and Another v Charles and Others on behalf of Mount Jowlaenga Polygon #2 [2017] NNTTA 34 (14 June 2017)
Application No: | WF2016/0014 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Rona Charles and Others on behalf of Mount Jowlaenga Polygon #2 (WC2014/005)
(native title party)
- and -
Sheffield Resources Ltd
(grantee party)
- and -
The State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 14 June 2017 |
Catchwords: | Native title – future act – proposed grant of mining lease – s 39 criteria considered – the act may be done |
Legislation: | Aboriginal Heritage Act 1972 (WA) Environmental Protection Act 1986 (WA) Mining Act 1978(WA) Mining Regulations 1981 (WA) Native Title Act 1993 (Cth) |
Cases: | Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland [2006] NNTTA 3 (‘Cameron v Hoolihan’) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources NL’) Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland [2012] NNTTA 31 (‘Drake Coal v Smallwood’) The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia [2006] NNTTA 19 (‘Griffin Coal v Nyungar People’) Sheffield Resources Ltd and Another v Charles and Others on behalf of Mount Jowlaenga Polygon #2 [2017] NNTTA 25 (‘Sheffield v Charles’) Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (Wa) Ltd [1996] NNTTA 30 (‘Western Australia v Thomas’) |
| Representative of the native title party: | Hayley Haas, Arma Legal |
| Representative of the grantee party: | Christine Lovitt, Hewett & Lovitt |
| Representatives of the Government party: | Dennis Jacobs, Department of Mines and Petroleum Emily O’Keeffe, State Solicitors Office |
REASONS FOR DETERMINATION
Background
This decision concerns an application made to the National Native Title Tribunal (‘Tribunal’) by Sheffield Resources Ltd (‘Sheffield’) under s 35 of the Native Title Act 1993 (Cth) (‘the Act’). All subsequent references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated. Sheffield seeks a determination that proposed mining lease M04/459 (‘the proposed mining lease’) may be granted. For the reasons outlined below, I determine that the act (the grant of the proposed mining lease) may be done.
The proposed mining lease is approximately 45.28 square kilometres and is located on the Dampier Peninsula between Broome and Derby. The proposed mining lease, together with a number of miscellaneous licences, forms the mine site for Sheffield’s Thunderbird Project. The Thunderbird Project aims to mine heavy mineral sands and anticipates a mine life of over 40 years.
The Mount Jowlaenga Polygon #2 claim is, as the name suggests, a polygon claim. This means the claim is lot-specific and follows the boundaries of the proposed mining lease. The Mount Jowlaenga Polygon #2 claimants (‘Mount Jowlaenga’) lodged their claim in response to the s 29 notice issued by the State for the proposed mining lease. The claim was registered by the Tribunal, and remains on the Register of Native Title Claims, thereby ensuring Mount Jowlaenga’s entitlement to certain procedural rights provided in the Act, including their status as a negotiating party in this matter (ss 30(1), 30A).
In March 2016, the State requested the Tribunal mediate between the parties (per s 31(1)). Member Shurven was appointed as mediator by President Raelene Webb QC and convened a number of mediation conferences. However, agreement of the kind specified in s 31(1)(b) was not reached and mediation was terminated following lodgement of this s 35 application.
A preliminary conference was held on 10 November 2016, at which Mount Jowlaenga alleged that Sheffield had failed to negotiate in good faith. Accordingly, I was required to consider this allegation prior to making a determination in relation to the application (see s 36(2)). I set directions requiring each of the parties to make submissions regarding the good faith allegation (the preliminary issue) and the s 39 criteria (the substantive issue). On 25 May 2017, I determined Sheffield had satisfied the good faith requirements described at s 31(1)(b) (see Sheffield v Charles), therefore, I have the power to proceed to make a determination in the substantive issue (per s 36(2)).
The inquiry
The inquiry directions required the parties to provide contentions and documentary evidence in relation to the s 39 criteria, and also set dates for the hearing of the matter, should it be required. On 31 January 2017, at a listing hearing for the preliminary issue, parties raised the timing of directions for the substantive issue. The Mount Jowlaenga representative requested that directions on the substantive issue be amended, in the interest of saving parties the burden of preparing for an inquiry that may become redundant (should it be found Sheffield did not negotiate in good faith). I also note that Mount Jowlaenga’s contentions in reply on the preliminary issue stated (at 6) that it ‘does not have the resources to deal with the good faith issue and the [s 35 application] at the same time.’ Accordingly, I amended directions for the substantive issue and advised parties I would use best endeavours to finalise my decision on the preliminary issue by mid-March 2017.
Both the State and Sheffield lodged submissions on the substantive issue on 3 March 2017. I was unable to finalise my decision on the preliminary issue by mid-March 2017. I elected to extend directions for the substantive issue on 9 March 2017 and again on 29 March 2017 in an attempt to avoid compliance being a potentially unnecessary burden on parties. Parties were advised on 29 March 2017 that, should a decision on the preliminary issue not be finalised by the next compliance date, no further extensions would be made and parties would need to comply with directions as set.
Directions issued on 29 March 2017 instructed Mount Jowlaenga to file submissions on the substantive issue by 11 April 2017. Correspondence from Mount Jowlaenga’s representative received on that date stated:
The Native Title Party, with respect:
1.Notes that today’s date is the deadline for it to file its contentions and evidence in the s 39 proceedings;
2.Confirms that its situation remains unchanged as that advised during the Listing Hearing of 31 January 2017;
3.Confirms that it does not have the resources to participate in the s39 proceedings within the time frames anticipated by the current directions;
4.Reiterates its submission that Sheffield has failed to meet its obligation to negotiate in good faith, and
5.Confirms that it remains ready and willing to negotiate with Sheffield to seek to achieve a suitable agreement in this matter.
In making this determination, I must have regard to the criteria outlined at s 39. The s 39 criteria largely relate to information which is exclusively within the knowledge of the native title party concerned. Therefore, the situation I am faced with is unsatisfactory although not entirely unique. As observed in Cameron v Hoolihan, the Tribunal has dealt with numerous cases where native title parties have not submitted any evidence for a s 35 application proceeding. This has been due to a range of factors, including lack of resources. While not ideal, the Tribunal’s statutory duty in such situations is clear. The Act states that, once a future act determination application has been made, the Tribunal ‘must’ hold an inquiry (s 139). It also states, in the absence of agreement being reached or Ministerial intervention, the Tribunal ‘must’ make one of the following determinations: that the act must not be done, that the act may be done, or that the act may be done subject to conditions (s 38). Finally, it stipulates that all reasonable steps must be taken to make this determination as soon as practicable (s 36(1)).
I have relied on the principles enunciated in Cameron v Hoolihan at [15]–[17] and Griffin Coal v Nyungar People at [7]–[10]. Both matters involved making a determination in the absence of evidence from the native title party. I am satisfied that the requirements of procedural fairness have been met and Mount Jowlaenga has been provided adequate opportunity to meaningfully participate in this process. Based on this, and past practice, I am satisfied that I can proceed to determine the matter.
Findings on the section 39 criteria
Will the grant of the proposed mining lease affect Mount Jowlaenga’s enjoyment of its registered native title rights and interests?
As already explained, the evidence before me in relation to this criterion is limited. There is nothing in the material that shows contemporary use of the area by Mount Jowlaenga. I believe access to the area has been, and continues to be, very limited due to the pastoral activities taking place there. I am also satisfied that Mount Jowlaenga will still have access to areas within the proposed mining lease, albeit somewhat reduced. As such, I find it unlikely Mount Jowlaenga’s enjoyment of registered rights and interests will be significantly affected by the grant of the proposed mining lease.
The State highlights that this criterion directs attention to the ‘physical enjoyment’ of rights and interests of the kind ‘that can be exercised on the land’, therefore, the rights and interests cannot be purely religious or spiritual in nature. It contends any potential interference with these rights and interests must be considered in light of interference already occurring as a result of other interests. Relevantly in this matter, the proposed mining lease sits wholly within the Mount Jowlaenga pastoral lease and is also entirely overlapped by an exploration licence (held by Sheffield) and a petroleum exploration permit. The State submits, in light of the proposed mining lease area being covered by a pastoral lease, exclusive native title has likely been extinguished.
Sheffield have provided a copy of a letter sent to the State (and copied to Sheffield) on 16 March 2015 by Mount Jowlaenga’s representative. The letter states the grant of the proposed mining lease would likely adversely affect and interfere with Mount Jowlaenga’s rights over the proposed mining lease, specifically rights to:
(a)Access and travel across the proposed mining lease;
(b)Carry out rites, ceremonies or other activities of cultural significance;
(c)Camp and erect shelters;
(d)Move about and hold meetings on the proposed mining lease;
(e)Hunt and fish;
(f)Gather natural products;
(g)Take flora and fauna and other natural products;
(h)Conduct ceremony and participate in cultural activities; and
(i)Conduct burials.
I note the Act directs me to consider only the ‘registered native title rights and interests’, being those rights and interests found on the Tribunal’s Register of Native Title Claims. Annexure A to this decision sets out the native title rights and interests found on the Register of Native Title Claims for the Mount Jowlaenga claim.
Section 39(2) also directs me to take into account any existing non-native title rights and use of the area. Sheffield contends that, due to the nature of the underlying tenure, access to the area of the proposed mining lease is very limited. Specifically, the proposed mining lease sits entirely within the Mount Jowlaenga pastoral lease, which is stocked with beef cattle and is wholly contained by a cattle fence with a locked gate. Sheffield’s contentions are supported by the affidavit of Mr Jamie Burton, Director of Yeeda Pastoral Company Pty Ltd (‘Yeeda’). Mr Burton deposes that Yeeda acquired the Mount Jowlaenga pastoral lease in 2002, but explains its use as a pastoral lease dates back to 1965. Mr Burton states he has never seen any Aboriginal people carrying out cultural activities anywhere on the pastoral lease. He also deposes to there being no permanent water sources suitable for fishing on the land. Sheffield have also provided the affidavit of Mr Peter Ingram, owner of Mount Jowlaenga pastoral lease from 1995 to 2002 (when it was sold to Yeeda). Mr Ingram deposes to living and working full time on the pastoral lease, running cattle, during this period of time. He states that during his tenure the few visitors he had were ‘friends from Bedunburru Community and Broome or Derby’ who were there for social visits. The evidence of Mr Ingram and Mr Burton is to the effect that many, if not all, of Mount Jowlaenga’s claimed rights are unable to have been enjoyed currently or in recent years.
Sheffield notes comments made by Mount Jowlaenga representatives to the effect that the Mount Jowlaenga polygon claim is likely to be replaced in the future by one or more larger claims, once further anthropological work is conducted.[1] This larger claim or claims would encompass the current Mount Jowlaenga claim as well as the unclaimed area surrounding the proposed mining lease and may comprise a different applicant. Sheffield also notes the size and proximity of the Bindunbur claim and the Nyikina Mangala determined area. Sheffield contends the area of the proposed mining lease is very small compared to the unclaimed area that surrounds it and the adjacent Bindunbur claim and the Nyikina Mangala determined area. It also contends ‘to the extent that the Mount Jowlaenga #2 People comprise Bindunbur People they are able to enjoy their native title rights on the Bindunbur Claim area, and to the extent that the Mount Jowlaenga #2 People comprise Nyikina Mangala People they are able to enjoy their native title rights on the Nyikina Mangala determined area’ (Sheffield contentions at 10). For that reason, Sheffield argues any impact on the native title rights and interests that have been enjoyed on the proposed mining lease area is not likely to be significant given the size of the adjacent areas over which they can continue to enjoy these rights and interests.
[1] Specifically, the affidavit of Rob Houston, affirmed 7 December 2016, submitted in Sheffield v Charles and the affidavit of Kevin John Murphy, affirmed 2 December 2016, filed in the Federal Court relating to Mount Jowlaenga’s native title claim application.
I have not afforded much weight to this contention. The suggestion that the Mount Jowlaenga claim, the Bindunbur claim and the Nyikina Mangala determination have people in common is unsubstantiated by Sheffield in its contentions. However, evidence provided by parties in Sheffield v Charles included statements made by Mr Wayne Bergmann, a representative of Mount Jowlaenga and also a Nyikina Mangala man, that members of Nyikina Mangala are also Mount Jowlaenga claimants. I accept that it is likely a larger claim, or claims, will be lodged encompassing the current Mount Jowlaenga claim and the unclaimed area that surrounds it. When this will occur is unknown. As it currently stands, the surrounding area remains unclaimed, therefore, the Act affords Mount Jowlaenga no procedural rights over this area and I do not consider it relevant to these considerations.
Lastly, Sheffield contends due to the method of mining used for mineral sands, only a small mine footprint will be operational at any one time, leaving the remaining area of the proposed mining lease accessible (subject to operational and safety requirements). Sheffield state the Thunderbird Project will be mined by a ‘moving hole’ and backfill technique, meaning once the initial pit is excavated it is then progressively backfilled, contoured and rehabilitated. Sheffield explain the ‘moving hole’ dimensions remain the same as the mine advances. This contention is supported by the affidavit of Mr David Netterfield, Project Manager at Sheffield. Annexed to Mr Netterfield’s affidavit is an extract from Sheffield’s pre-feasibility update, which also provides an outline of the proposed mining technique and a number of illustrations.
I am satisfied that, due to the mining technique proposed by Sheffield, the majority of the proposed mining lease area will be no less accessible than it currently is.
Will the grant of the proposed mining lease affect Mount Jowlaenga’s way of life, culture and traditions?
Again, due to the lack of evidence before me, I find it unlikely the grant of the mine will affect Mount Jowlaenga’s way of life, culture and traditions. In reaching this conclusion I have also given some weight to the contentions put forward by the State and Sheffield, as outlined below.
The State contends any effect on Mount Jowlaenga’s way of life, culture and traditions will be regulated and minimised by the State and Federal regulatory regime (outlined at 28–36 of its contentions).
On this criteria, Sheffield have made two contentions. Firstly, Sheffield contend no Aboriginal community will be directly affected or negatively impacted as there are no Aboriginal communities on or adjacent to the proposed mining lease (the closest being the Bidan Community located 30 kilometres south of the proposed mining lease).
Secondly, Sheffield contends that the Mount Jowlaenga people will be ‘more than adequately compensated for any impact’ the proposed mining lease operations may have on their way of life, culture and traditions due to a proposed Deed of Covenant (Sheffield contentions at 15). Sheffield explains its intention to executed in favour of the Mount Jowlaenga people a ‘legally binding Deed of Covenant’ upon grant of the proposed mining lease. Sheffield states this Deed of Covenant is ‘on essentially the same terms’ as the offer it put to Mount Jowlaenga in a letter dated 26 October 2016, except for the milestone payments and the shares. Sheffield states these will only be payable if Mount Jowlaenga sign an agreement indicating its support for the grant of the proposed mining lease and the development of the Thunderbird Project. Sheffield states, under the Deed of Covenant, it will undertake to provide Mount Jowlaenga with significant monetary and non-monetary benefits. It states these benefits will serve as compensation for any impact on Mount Jowlaenga’s way of life, culture and traditions. Under the terms of the Deed of Covenant, Sheffield will also consult with Mount Jowlaenga on environmental matters and abide by an Aboriginal heritage management framework which will work to protect cultural heritage. Sheffield has provided a copy of its proposed Deed of Covenant and heritage management framework.
The Deed of Covenant is at this stage only a proposal and there is nothing binding Sheffield to its commitment to execute it once the proposed mining lease is granted. The Tribunal has observed on numerous occasions that evidence of a grantee party’s intention may be relevant, particularly when considering ‘likelihood’. However, the weight afforded will depend largely on the particular circumstances of the matter. The Deed of Covenant is a reasonably scant document with just over five pages of operative clauses. As such it is unclear how a number of these clauses would operate on the ground. I also question how successfully a number of these clauses would operate if Mount Jowlaenga held a hostile attitude towards the project following grant of the proposed mining lease.
In light of the above considerations, I am of the view only limited weight can be afforded to Sheffield’s proposed Deed of Covenant. In considering its relevance to this specific criteria, I do not accept the argument that an offer of compensation is sufficient to render any impact on Mount Jowlaenga’s way of life, culture and tradition a nullity. However, there is no evidence before me detailing the interaction of the Mount Jowlaenga claimants with the proposed mining lease area, or of their culture and traditions. As such, I have reached the conclusion outlined at [19].
Will the grant of the proposed mining lease affect Mount Jowlaenga’s development of social, cultural and economic structures?
Based on the evidence before me in this matter, I am satisfied that the grant of the proposed mining lease is likely to have some positive impacts on Mount Jowlaenga’s development of social, cultural and economic structures.
Sheffield contends the operation of the Deed of Covenant will create significant employment and contracting opportunities that may otherwise not be available to Mount Jowlaenga. It states these opportunities will be intergenerational given the anticipated life of the mine is over 40 years. In support of this position, Sheffield cites Western Australia v Thomas, where the Tribunal held that mining proposals could have a positive effect on these structures and this may be taken into account.
For the reasons outlined at [23], I am not satisfied that employment and contracting to the extent outlined in the Deed of Covenant will necessarily occur. However, Sheffield have stated the Thunderbird Project will be operated on a drive-in/drive-out basis (as opposed to fly-in/fly-out), meaning employees will be sourced from local communities (both Indigenous and non-Indigenous). Based on this, and the anticipated mine life, I find it likely the grant of the proposed mining lease will provide some commercial and employment opportunities to Mount Jowlaenga. I accept that this is likely to have a positive effect on the development of Mount Jowlaenga’s social, cultural and economic structures.
Will the grant of the proposed mining lease affect Mount Jowlaenga’s freedom to access the land and carry on rites and ceremonies and other activities of cultural significance?
I again reiterate that I have been presented with no evidence from Mount Jowlaenga and, in particular, no evidence regarding how the proposed mining lease might impact Mt Jowlaenga’s access to the area or the carrying on of any rites, ceremonies or other culturally significant activities. I have considered Sheffield’s intentions, as outlined below, and the existing use of the area (as prescribed by s 39(2) and outlined at [14]) and find that there is unlikely to be any (or any significant) impact on Mount Jowlaenga in respect of this criterion.
Sheffield has stated in its contentions, the Deed of Covenant, and the affidavit of Mr Bruce McFadzean (Managing Director of Sheffield) that, subject to safety and operational requirements of the mining operation, Mount Jowlaenga’s access to the area for cultural purposes will not be prevented by Sheffield.
Will the grant of the proposed mining lease affect areas or sites of particular significance?
On the balance of the material before me, I am satisfied the proposed mining lease is not likely to affect areas or sites of particular significance. The evidence does not suggest the presence of any sites of particular significance and I am satisfied Sheffield will take appropriate steps to avoid any interference.
The State contends there are no registered sites or ‘other heritage places’, as defined under the Aboriginal Heritage Act 1972 (WA) (‘AHA’), on the proposed mining lease. It contends, should there be a prospect of interference with any sites of particular significance, the AHA regime will apply, regardless of whether sites are registered or not. The State also draws attention to Endorsement 1 of the State’s proposed endorsements which draws the lessee’s attention to the provisions of the AHA and ‘any Regulations thereunder’.
Of particular relevance to my considerations are the various heritage surveys conducted by Sheffield and Mount Jowlaenga over the area. Parties conducted several heritage surveys over the underlying exploration licence between 2012 and 2015, and in 2016 a heritage survey was conducted over the proposed mining lease area in relation to Sheffield’s proposed mining operations.
I note that in support of its contentions, Sheffield (and a number of individuals affirming affidavits in support of Sheffield’s position) has sought to rely on sections of the report produced following the 2016 survey. Through evidence submitted in Sheffield v Charles, I am aware this report was never authorised by the Mount Jowlaenga claim group and Sheffield’s use of the report prior to authorisation was a point of contention between parties. As such, its use and my reliance on it in this matter is questionable. On the other hand, this is another issue in which the bulk of relevant facts are peculiarly within the knowledge of Mount Jowlaenga, however Mount Jowlaenga have made no relevant submissions. Therefore, any reliable evidence available from other sources that can assist me determine whether or not sites of significance exist is beneficial. For this reason, I am prepared to give some weight to the report, in particular the proposed exclusions areas described within it.
In his affidavit, Mr Wayne Groeneveld, Sustainability Manager at Sheffield, states that the survey did not identify any culturally significant sites or objects within the proposed mine footprint. He also states a number of exclusion zones were agreed to in relation to areas outside the mine footprint. This does not entirely accord with other evidence before me. Annexed to the affidavit of Mr David Boyd, Sheffield’s exploration manager, is a map produced by Sheffield showing the areas Sheffield was asked to avoid as a result of the 2016 survey. In particular, Mr Boyd describes ‘the hills to the east of the Mining Lease area and a Claypan in the south of the Mining Lease area’ as being exclusion areas. The map shows the proposed claypan exclusion area sits over what is identified as the mineral deposit area, and within the area highlighted as a mining area. Therefore, contrary to Mr Groeneveld’s statement, it would appear the claypan exclusion zone falls within the ‘mine footprint’. I also note that the ‘hills to the east’ appear to fall outside the area proposed for active mining and infrastructure operations, but to a reasonable extent are still within the proposed mining lease area.
There is some indication in the material before me that Sheffield intend to amend the ‘mine footprint’ to avoid any interference with the claypan. In his affidavit, Mr Boyd states the overlap of the claypan exclusion zone and the mineral deposit:
is so small that the exclusion area does not have a material effect on the viability of the mine, and therefore Sheffield can continue to maintain the exclusion area without it representing a threat to the development of the mine.
Sheffield has therefore agreed to only conduct its mining operations in areas outside the exclusion zones.
Sheffield’s contentions state it has ‘agreed not to disturb the relevant areas, and these are shown as Exclusion Areas on the map annexed to [Mr Boyd’s affidavit]’. However, Sheffield have not explicitly referred to the claypan area and it is not clear to me whether it accepts its exclusion from the operations area. Sheffield’s contentions highlight the statement made by Mr Boyd in his affidavit that a 2014 survey report deemed the claypan ‘to not be of significance in the context of the project.’ In support of this statement, Mr Boyd has provided the cover page and a further page, titled ‘Heritage Sites Recorded’, from the 2014 survey report. I note the survey report relates to exploration licences only (nine in total, including the exploration licence underlying the proposed mining lease). I also note that, while the report refers to a ‘billabong’ visited, no map is provided and it is unclear to me if this billabong is the same area as the claypan identified in the 2016 survey report. Finally, it is relevant to note that the 2016 survey was conducted specifically in relation to the proposed mining operation activities, while the 2014 survey was in relation to exploration activities only. It is therefore conceivable that areas cleared for exploration (generally considered to be of low impact) may not be cleared for mining activities, which contemplate far greater impact on an area.
I am satisfied Mount Jowlaenga have identified a number of sites or areas of potential or real significance within the area of the proposed mining lease. However, there is insufficient evidence for me to find these to be sites or areas of ‘particular’ significance. Numerous Tribunal decisions have stated that a site of particular significance is one of more than ordinary significance. In order to satisfy this requirement, its significance must be adequately explained rather than just asserted. In this matter there are no statements from Mount Jowlaenga asserting or explaining the particular significance of the sites identified in the heritage survey.
Sheffield have provided an affidavit of Mr Aaron Rayner, Managing Partner at AHA Logic. In his affidavit, Mr Rayner states AHA Logic provides independent advice to government and the private sector in relation to Aboriginal heritage matters, and Aboriginal heritage management issues. He states AHA Logic was retained by Sheffield in 2016 to undertake an independent review of the Aboriginal heritage work conducted by Sheffield, including that over the area of the proposed mining lease. Mr Rayner states:
we formed the view that Sheffield had conducted extensive and robust Aboriginal heritage investigations with traditional owners which has enabled their exploration program to be carried out successfully over the past 5 years without any damage to, or disturbance of, any places or sites of cultural significance to Aboriginal people.
Annexed to Mr Rayners affidavit is a document prepared by AHA Logic and titled ‘Summary of Aboriginal Heritage Due Diligence Activities’. This report discloses an extensive history of heritage surveys and investigation in the area of the proposed Thunderbird Project over a period of approximately five years. In my view, this report suggests a quite reasonable and responsible approach to heritage issues by Sheffield to date.
Also annexed to the affidavit of Mr Rayner is a document titled ‘Aboriginal Heritage Management – Operations Framework’. The document states it:
provides further detail of the measures and controls that Sheffield will implement to ensure that Aboriginal cultural heritage is managed appropriately through the construction and operational phases of the Thunderbird Project.
Significantly, it also states:
Sheffield has agreed to employ Aboriginal Cultural Heritage Monitors for the duration of mining operations. The primary role of the Monitors is to assist Sheffield meet its cultural heritage compliance obligations, and to provide practical ‘hands-on’ advice if any new sites and or cultural material is discovered during the commissioning and operations phases of the project. Monitors will carry out inspections of culturally significant areas outside of the mining operations area to ensure that preservation objectives are being achieved.
The Operations Framework also describes: the way of operating in proximity to the buffer zone; protocols to operate upon the discovery of cultural material or ancestral remains; the management of ‘unintentional disturbance of a heritage site or cultural material’; and cultural awareness arrangements.
It is not clear how binding the Operations Framework is. However, coupled with Sheffield’s approach to date and with no evidence submitted by Mount Jowlaenga to the contrary, I am satisfied that Sheffield will comply with its obligations under the AHA, and will take any necessary steps to avoid interference with sites or areas of particular significance to Mount Jowlaenga.
What are the interest, proposals, opinions or wishes of Mount Jowlaenga in relation to the management, use or control of the area?
I have given appropriate weight to Mount Jowlaenga’s interests, proposals, opinions or wishes in relation to the management, use or control of the area, based on the limited information before me.
The State contends, in the absence of evidence to the contrary, I should conclude the grant of the proposed mining lease will have little or no adverse effect on the interest, proposals, opinions or wishes of Mount Jowlaenga in relation to the management, use or control of the area. It contends this is particularly the case given any exclusive native title rights are likely to have been extinguished.
In addressing this criterion, Sheffield referred to a documents provided by Mount Jowlaenga in the course of negotiations, which set out its ‘Key Principles’ and was used to inform the content of the draft Co-Existence agreement. Sheffield contends the Deed of Covenant includes provision for those key principles which relate to management and use of the land, specifically: cultural heritage management; cross cultural awareness; and environmental consultation. On this basis, Sheffield contends the Deed of Covenant will adequately address the interests, proposals, opinions and wishes of Mount Jowlaenga.
As outlined at [23]–[24], I am only prepared to put limited weight on the Deed of Covenant as a mitigating factor. However, Sheffield has provided evidence which demonstrates a responsible approach to environmental and cultural heritage concerns and I expect this approach to continue.
What is the economic or other significance of the proposed mining lease?
I find that if the proposed mining lease is granted and the mineral sand is produced in the manner outlined by Sheffield, there will be reasonable and ongoing economic and associated social benefits for the local economy. The proposed mining lease will also generate royalties for the State and export income for the nation.
In his affidavit, Mr McFadzean attests the anticipated value of royalties over the life of the mine would be approximately $680 million. Sheffield contends this is a significant economic benefit to the State. Mr McFadzean quotes a report from the Department of Mines and Petroleum (‘DMP’) which describes the Thunderbird Project as a ‘globally significant high grade mineral sands deposit’. Annexed to Mr McFadzean’s affidavit is a map produced by DMP and titled ‘Major Resource Projects March 2016’. The map identifies the Thunderbird Project as ‘a proposed or potential project with a capital expenditure greater than A$20 million’.
Sheffield contend the Thunderbird Project will be of significance to the region for a number of reasons. It states the mine will operate on a drive-in/drive-out basis, rather than fly-in/fly-out. This will mean Sheffield will engage with both Indigenous and non-Indigenous local communities in Broome, Derby and other nearby areas to provide services for the Thunderbird Project, thereby benefiting the local economy. In his affidavit, Mr McFadzean anticipates the project will create approximately 140 permanent local jobs, ‘as well as opportunities for partnerships with Indigenous businesses’. Finally, Sheffield contends the local economy will benefit from the project as it proposes to export its products from Broome and Derby ports, therefore increasing employment at the ports.
Is there any public interest in the grant of the proposed mining lease?
I find that the public interest will be served by the grant of the proposed mining lease.
Sheffield notes the following comments made by the Tribunal in Drake Coal v Smallwood (at [108]), in relation to this criterion:
Both the Federal Court and the Tribunal have found on numerous occasions that it is permissible under this paragraph to take into account the public interest in developing and maintaining a vibrant mining industry which generates much needed export income, and creates jobs and wealth for the Australian economy
Sheffield contends the grant of the proposed mining lease will serve the public interest by allowing the development of a significant resource in the West Kimberley, particularly at a time when other major projects in the region have failed to proceed.
Are there any other matters relevant to my considerations?
I have had regard to the potentially intrusive and environmentally damaging nature of mining. I am satisfied that the mining technique proposed by Sheffield will to some extent minimise the intrusive nature of the mine and assist in rehabilitation of the area following mining. This, coupled with the legislative and regulatory regime, will assist in minimising damage or impact to the environment.
Both the State and Sheffield focus on the natural environment as being a potentially relevant factor to my considerations. In addressing this consideration, Sheffield note it has been subject to a Public Environmental Review (‘PER’), being the ‘highest level of environmental assessment under the Environmental Protection Act 1986 (WA)’. Based on the responses received through the PER, Sheffield argues the project has a high level of support.
Sheffield rely on the affidavit of Mr David Netterfield, Sheffield’s Project Manager. Mr Netterfield describes the ‘strip mining and backfill method’ being employed by Sheffield (as described at [17]) as a ‘progressive mining and rehabilitation technique’. He explains this technique means the ‘mine footprint is significantly less than in normal open pit mining operations for other minerals, and, by the end of mining the void is completely filled, contoured and rehabilitated’.
The State contend any effect on the local environment due to the development of the project will be regulated and minimised by:
(a)The limitations on the rights conferred, as imposed under the Mining Act 1978 (WA) and the Mining Regulations 1981 (WA);
(b)The State’s draft conditions and endorsements to be imposed on the propose mining lease; and
(c)The State and Federal regulatory regime with respect to the protection of environment and Aboriginal heritage.
Conclusion
Having considered the limited evidence and information before me, including the existing non-native title rights and interests and use of the land, I conclude the future act may be done.
Determination
The determination of the Tribunal is that the act, namely the grant of mining lease M04/459 to Sheffield Resources Limited, may be done
Mr JR McNamara
Member
14 June 2017
ANNEXURE A
REGISTERED NATIVE TITLE RIGHTS AND INTERESTS
Native title where traditional rights are wholly recognisable
In every part of the claim area (if any) where there has been:
(a) no extinguishment to any extent of native title or where any extinguishment is required to be disregarded; and
(b) which is not subject to the public right to navigate or the public right to fish,
the right possessed under traditional law and customs is properly interpreted as, and the native title right recognised by the common law of Australia is, the right of possession, occupation, use and enjoyment of land and waters as against all others.
Native title where traditional rights are partially recognisable
In all other parts of the claim area, the right possessed under traditional law and customs is properly interpreted as the right of possession, occupation, use and enjoyment of land and waters as against all others, but the native title rights and interests recognised by the common law of Australia are the rights to do all such things as may be done under the right referred to above, save for controlling the access to or the use of land or waters by others; being the (non-exclusive) rights to:
(a) have access to, remain on and use the land and waters;
(b) access and take the resources of the land and waters; and
(c) protect places, areas and things of traditional significance on the land and waters.
Area covered by the native title and who holds the rights
Each of the native title rights referred to in paragraph 1 and 2 in this Schedule E exist in relation to the whole of each part of the claim area to which those paragraphs respectively apply and is held by the members of the native title claim group subject to and in accordance with their traditional laws and customs.
Activities currently carried on
Activities in exercise of the native title rights referred to in this Schedule E are all such activities as are contemplated by those rights and interests and include the activities identified in Schedule G.
Rights subject to laws of Australia
The members of the native title claim group acknowledge that their native title rights and interests are subject to and exercisable in accordance with valid and current laws of the Commonwealth and the State of Western Australia including the common law.
In this Schedule E, “resources” does not include such minerals, petroleum, geothermal energy or geothermal energy resources, if any, as are, under the laws of the Commonwealth and the State of Western Australia including the common law as at the date of this application, wholly owned by the Crown.
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