St Ives Gold Mining Company Pty Ltd v John Walter Graham & Ors on behalf of the Ngadju People and Another - [2017] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

St Ives Gold Mining Company Pty Ltd v John Walter Graham & Ors on behalf of the Ngadju People and Another [2017] NNTTA 35 (19 June 2017)

Application No: WF2016/0012

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

St Ives Gold Mining Company Pty Ltd (grantee party)

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John Walter Graham & Ors on behalf of the Ngadju People (WC1999/002)
(native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS

Tribunal: Mr JR McNamara, Member

Place: Brisbane

Date: 19 June 2017
Hearing date: On the papers

Catchwords:

Native title – future act – no agreement with native title party – application for determination for the 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 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 – proposed conditions – determination that the act may be done subject to conditions

Legislation:Native Title Act 1993 (Cth), ss 38, 39, 41, 47B
Mining Act 1978 (WA), ss 49, 82, 85
Mining Regulations 1981 (WA), reg 32A
Aboriginal Heritage Act 1972 (WA), ss 18, 62

Cases:Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People [2009] NNTTA 38 (‘Australian Manganese v Stock’)
Cheedy v Western Australia (2011) 194 FCR 562; [2011] FCAFC 100 (‘Cheedy v Western Australia’)
Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker Resources’)
Drake Coal Pty Ltd v Smallwood (2012) 257 FLR 276; [2012] NNTTA 31 (‘Drake Coal v Smallwood’)
FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yinjdibarndi People/Western Australia [2009] NNTTA 91 (‘FMG Pilbara v Cheedy’)
FMG Pilbara Pty Ltd and Another v Yindjibarndi Aboriginal Corporation RNTBC [2014] NNTTA 82 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 (‘Hogan v Hinch’)
Jack Dann & Ors on behalf of the Unggumi Ngarinyin People/Western Australia/GPA Distributors Pty Ltd [1995] NNTTA 43 (‘Dann v GPA Distributors’)
Minister for Mines (WA) v Evans (1998) 163 FLR 274; [1998] NNTTA 5 (‘Koara 2’)
Minister of State for Immigration & Ethnic Affairs v Ah Vin Teoh [1995] HCA 20 (‘Minister of State for Immigration & Ethnic Affairs v Teoh’)
North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595; [1996] HCA 2 (‘North Ganalanja v Queensland’)
Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37 (‘Osland v Secretary, Department of Justice’)
Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (‘Re Koara People’)
Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’)
Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (‘Watson v Backreef’)
Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47 (‘Western Australia v Graham’)
Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)
Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169; [2009] NNTTA 49 (‘Western Desert Lands v Western Australia’)
WMC Resources Ltd v Evans (1999) 163 FLR 333; [1999] NNTTA 522 (‘WMC Resources v Evans’)

Representative of the

grantee party Mr Graham Castledine, Castledine Gregory

Representative of the Ms Shzan Plandowski, Goldfields Land and Sea Council

native title party Mr Andrew Burke, Goldfields Land and Sea Council

Representatives of the Ms Jessica Berry, State Solicitor’s Office

Government party Mr Jason Diss, Department of Mines and Petroleum

REASONS FOR DETERMINATION

Background

This decision concerns an application made to the National Native Title Tribunal by St Ives Gold Mining Company Pty Ltd (‘SIGM’) seeking a determination under s 38 of the Native Title Act 1993 (Cth) that mining lease M15/1802 (‘the proposed lease’) may be granted by the State of Western Australia.
The mining lease comprises 2.24 square kilometres located within the Coolgardie Shire, 20 kilometres north east of Widgiemooltha in the State of Western Australia. The proposed lease arises from two existing prospecting licences currently held by SIGM, which were granted in 2005. The area affected by the proposed lease is subject to a registered native title claim made on behalf of the Ngadju people. Because of this, the registered native title claimant for the Ngadju claim have certain procedural rights in relation to the proposed lease, including the right to negotiate.
Where parties are not able to reach agreement about an act which attracts the right to negotiate, and at least six months have passed since the act was notified, any party may apply for the Tribunal to make a determination. The Tribunal has the power to determine whether or not the grant can be made, and if so, whether the grant can only be made subject to conditions to be complied with by one or more of the parties. The Tribunal cannot make a determination if one of the parties satisfies the Tribunal that the grantee or the Government party have not negotiated in good faith.
I was appointed by President Raelene Webb QC to constitute the Tribunal for the purposes of conducting an inquiry into the application. No party has alleged that the negotiations were not conducted in good faith. As such, this determination is made having regard to the matters set out in s 39 of the Native Title Act. In making my determination, I must have regard to and weigh a range of criteria, including the effect of the proposed lease on the rights and interests of native title holders, its economic or other significance, and the public interest in the grant of the proposed lease.
SIGM states that the primary purpose of the project is to convert prospecting licences P15/4753 and P15/4754 to mining tenure to continue conducting exploration activities and secure existing mining infrastructure. It contends that access to the area has already been affected by current non-native title interests and that most of the land overlapping the proposed lease is within Lake Lefroy, where there is no evidence of any prior human occupation.
Ngadju contend that the area covered by the proposed lease is of high importance to them, and that each new mining lease places additional burdens on the enjoyment and maintenance of their cultural practices and traditions. They assert that the current proposal put forward by SIGM is predicted on the minimal disturbance caused by exploration, and does not account for what may occur if mining becomes economically viable. The State contends there are no registered sites on the area of the proposed lease, and that any effect on the area will be regulated and minimised by the State and Federal regulatory regimes, endorsements and conditions.
For the reasons below, I have decided the grant of the proposed lease may be done subject to the conditions set out in Annexure A.

The proposed lease

SIGM is a related body corporate within the Gold Fields group of companies and has operated the St Ives Gold Mining project south-southwest of Kambalda since 2001. Kelly Carter, who is Gold Fields’ Vice President (Legal and Compliance), states in her affidavit of 31 October 2016 that SIGM controls exploration and mineral rights over a total area of 119,784 hectares within the Norseman-Wiluna Greenstone Belt.
The proposed lease is the conversion of two prospecting licences currently held by SIGM, being P15/4753 and P15/4754. The grant of the proposed lease would confer on SIGM the rights set out in s 85 of the Mining Act 1978 (WA).
Section 85(1) provides that, subject to the Mining Act and any conditions to which the mining lease is subject, a mining lease authorises the lessee and his agents and employees to:
(a)     work and mine the land any minerals;
(b)     take and remove from the land any minerals and dispose of them;
(c)     take and divert water from various sources and to sink a well or bore and use the water taken for domestic purposes and any purpose in connection with mining, subject to the Rights in Water and Irrigation Act 1914 (WA); and
(d)     do all acts and things that are necessary to carry out mining operations in, on or under the land.
Section 85(2) provides that, subject to the Mining Act and any conditions to which the mining lease is subject, the lessee is entitled to use, occupy and enjoy the land for mining purposes and owns all minerals lawfully mined from the land under the mining lease. Section 85(3) provides that the rights set out in the section are exclusive rights for mining purposes.
The State notes that the proposed lease will be subject to the deemed conditions in s 82 of the Mining Act. These statutory conditions include the requirement not to use ground disturbing equipment when mining of the land unless it is done in accordance with an approved programme of works. The proposed lease will also be subject to various conditions and endorsements which the State intends to impose on the grant of the lease. These conditions and endorsements are set out in Annexure B and Annexure C.
SIGM’s interest in securing the proposed lease appears to be threefold:
(a)rounding out its existing tenement portfolio: the proposed lease would ‘fill a gap’ in SIGM’s current tenement suite, being entirely surrounded by other mining leases held by the company.
(b)continued exploration: SIGM is undertaking a review of the opportunities to mine the Argo Area paleochannels which partly intrude into the boundaries of the proposed lease. Any future exploitation of the palaeochannels would require use of the land within the proposed lease. While there is no currently identified gold resource within the proposed lease area, SIGM intends to continue exploration a view to ‘future productive mining’; and
(c)securing infrastructure: there is dewatering infrastructure on the proposed lease area associated with mining operations previously conducted at the nearby Argo mine. These comprise a buried dewatering pipeline, a surface hydro slide and two sediment ponds. While this infrastructure is not currently operational, it will likely be used as part of any paleochannel mining project.

Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)

Section 39(1)(a)(i) directs me to consider the effect of the act on Ngadju’s enjoyment of their registered native title rights and interests. This requires an evaluation of whether the grant of the proposed lease will constrain or otherwise affect the exercise of Ngadju’s registered rights and interests. This is a matter of fact to be determined on the evidence in each case (Western Australia v Thomas at 167).
Ngadju contend the area that is the subject of the proposed lease has a history of use and visitation by Ngadju people and the grant will have significant negative effects on the enjoyment of their native title rights and interests in the area. SIGM contends that the evidence relied on by Ngadju does not establish that any native title rights and interests are currently exercised in the area and the proposed lease will have no practical effect on their enjoyment because of current restrictions on access. The State submits that the evidence on which Ngadju relies demonstrates that the existence of a mining lease has not affected the ability of Ngadju people to enjoy and exercise their native title rights and interests other than where required for reasons of safety.
If the proposed lease is granted, any exclusive rights and interests over that part of Lake Lefroy will be suspended during the life of the lease. I also consider the grant of the proposed lease, in the absence of an identified resource, will have an adverse effect on Ngadju’s rights to make decisions about the use and enjoyment of the land and to maintain and protect places of importance under traditional laws, customs and practices.
If the project does not result in productive mining, then any other effect on Ngadju’s rights and interests is likely to be minor given the temporary and limited nature of exploration activity and the existing restrictions on access. However, if productive mining does proceed on the proposed lease, there is a real risk it will impair the Ngadju’s people right to use and enjoy the resources of the area by limiting opportunities for hunting.

What are Ngadju’s registered rights and interests?

The following rights and interests are recorded on the Register of Native Title Claims for the Ngadju native title claim:
(a)      the rights and interests to possess, occupy, use and enjoy the area;
(b)     the right to make decisions about the use and enjoyment of the area;
(c)      the right of access to the area;
(d)     the right to use and enjoy the resources of the area; and
(e)      the right to maintain and protect places of importance under traditional laws, customs and practices in the area.
These rights and interests are claimed exclusively with three exceptions. First, Ngadju do not claim the rights and interests to the exclusion of all others insofar as they relate to offshore waters. Second, they do not claim rights of exclusive possession over ‘previous non-exclusive possession acts,’ unless the Native Title Act requires the extinguishment of those rights to be disregarded. Third, the native title rights and interests are not claimed to the exclusion of other rights and interests validly created by or pursuant to the common law or Commonwealth or State law.
The State contends that I should evaluate the effect of the proposed lease in light of current and historic tenure in the area, which would have extinguished any exclusive native title rights and interests. Ngadju maintain that, because the matter is still in issue before the Federal Court, I should proceed on the basis that they enjoy rights of exclusive possession over Lake Lefroy, subject to the application of s 47B of the Native Title Act. SIGM submits that, to the extent exclusive possession is relevant, it does not apply to the area covered by the Mt Monger pastoral lease.
It is not the Tribunal’s role to determine whether native title has been extinguished (see North Ganalanja v Queensland at [43]). In evaluating the effect of the proposed lease on the registered rights and interests, the Tribunal must assume those rights and interests exist as if determined by the Federal Court (Drake Coal v Smallwood at [68]). I am also required, under s 39(2) of the Native Title Act, to take into account the nature and extent of any existing non-native title rights and interests in the area of the proposed lease.
Given that Lake Lefroy is not presently subject to any form of tenure other than the existing prospecting licences (and was not at the time the Ngadju claim was made), I proceed on the footing that the registered rights and interests are held in that area to the exclusion of all others. However, in the case of the area covered by the Mt Monger pastoral lease, I have approached the issue on the basis that the registered rights and interests must coexist with and are subject to the exercise of the pastoralist’s rights under the pastoral lease.

How are the registered rights and interests currently enjoyed in the area?

Section 39(1)(a)(i) is concerned with the effect of the act on the enjoyment of the registered rights and interests. The use of the word ‘enjoyment’ in this context implies that the Tribunal must assess the act’s likely effect on the present usage and future amenity of the area. Because of this, it is necessary to look at how the rights and interests are exercised and enjoyed (see WMC Resources v Evans at 339-341).
Ngadju say the focus of the inquiry should not be the current manner in which the registered rights and interests are exercised but on whether the proposed lease is likely to prevent the enjoyment of some or all of those rights and interests or merely impose constraints on the enjoyment of some them while leaving others unaffected. To answer that question, it is important to understand how the rights and interests are currently enjoyed as a means of determining the likely effect of the proposed grant, both as a matter of fact and degree.
Ngadju contend that the area is of high importance to Ngadju people and has long been subject to frequent use and visitation. In support of that contention, they have produced witness statements filed in the Federal Court to establish occupation of the Lake Lefroy area for the purposes of satisfying s 47B of the Native Title Act. Due to the nature of the inquiry under s 47B, the evidence primarily concerns the occupation of the area by members of the native title claim group at the time the application was made in June 1995. Nevertheless, the witness statements suggest continued use of areas on and around Lake Lefroy.
A number of Ngadju witnesses describe hunting routes in and around Lake Lefroy and what is referred to as the ‘St Ives’ area, which is broadly described as the area around the southeastern shore of the lake. Adrian Schultz, for example, states that he and other members of the claim group have ‘always gone out on hunting trips around Lake Lefroy.’ Mr Schultz says they always take different routes on these trips but ‘one way we often go’ takes them around the northeastern part of the lake and southwest to St Ives. They would then head southeast towards Binneringie or west towards Widgimooltha, which is located on the southwest corner of the lake, or ‘cut up through Lefroy Salt and over the railway service road.’ James Schultz describes a similar route in his own witness statement.
Trevor Donaldson Jr states that he and his family have ‘been going out hunting every month’ since he moved to Kalgoorlie in 1989. Mr Donaldson says that, although they go to different places and on different routes, one way they have always gone takes them ‘east on the Coonana Road, then south towards Lake Lefroy, then round to St Ives.’ The route, as illustrated on the map annexed to Mr Donaldson’s witness statement, apparently continues west along a causeway around ten kilometres north of the proposed lease area (in his witness statement, Mr Donaldson says the causeway was closed in the mid- to late-1990s, though he says that some people still use it).
The other route Mr Donaldson describes takes them ‘from Kalgoorlie or Coolgardie to Widgiemooltha or Lefroy Salt, then down to Binneringie Road, up to St Ives and home again, either across the causeway or else around the northeast edge of the Lake.’ According to Mr Donaldson, there are ‘lots of nice tracks in that area north of the Binneringie Road, up towards St Ives.’ In his witness statement of 18 November 2016, Michael Smith describes the edge of the lake is an important place for hunting because there are plants there which animals like to eat and the soft ground makes it easier to track them. Mr Smith says they use the lake for tracking kulpirt (kangaroo) and tjula (emus).
The witness statements also show that Ngadju people have accessed and used the resources of the area in and around Lake Lefroy for purposes other than hunting. Adrian Schultz says he and his family stop in various places along the road between Norseman and Kambalda to gather quandongs, karlkula (silky pear) and bardi grubs. Jeffrey Reid says the St Ives area is also a good place for quandongs and bardis. Many of the witness statements also refer to bathing in or collecting salt from the surface of the lake. None of these activities appear to be carried on exclusively within the St Ives area.
A number of the witness statements also refer to taking water from and camping at rockholes along traditional tracks or ‘highways.’ According to the map attached to several of the witness statements, one of these tracks or ‘Marlpa trails’ crosses the lake south of Kambalda and continues on through the St Ives area around seven kilometres north of the proposed lease. There is no evidence of any rockholes in the proposed lease area. James Schultz recalls that he and his father would make hunting sticks from ti trees and jam trees around the lake, however there is no evidence that Ngadju people currently engage in this activity.

SIGM contends that the evidence only relates in a very general sense to Ngadju’s enjoyment of their registered rights and interests in the vicinity of Lake Lefroy and does not address how those rights and interests are currently enjoyed in the proposed lease area. In my view, the evidence does suggest the St Ives area is still used by Ngadju people for hunting and other purposes, but it is not clear to what extent. Although Ngadju have sought to emphasise the significance of the St Ives area, the evidence does not suggest it is utilised to any greater extent than other places on and in the vicinity of Lake Lefroy.
Ngadju argue that, to the extent the evidence suggests the frequency and intensity of the Ngadju people’s use of the St Ives area has diminished, that decline in use is directly attributable to the activities of SIGM. They contend that, by locking gates and directing Ngadju people to leave the area, SIGM has already impaired the enjoyment of Ngadju’s rights and interests in the St Ives area. Many of the witness statements say ‘the mining company’ started erecting signs and gates in the 1990s and began to ‘warn off’ Ngadju people who were present in the area. Several of the witness statements also note the causeway between Kambalda and St Ives was blocked off in the mid- to late-1990s or early-2000s. Mr Donaldson says it has happened ‘quite a few times’ to him that ‘someone from the mining company like a geologist or a security guard’ has approached him while he has been in the St Ives area and told him to ‘get going’ and that they were ‘meant to sign in at the main security gate.’ Mr Donaldson states that, although he has been told these measures are for safety purposes, ‘I always feel it’s really unwelcoming.’
Ms Carter states that SIGM is obliged, as a matter of law, to restrict access to areas where mining operations are active to ensure the health and safety of workers and visitors. She says the warning signs referred to in some of the witness statements have been installed to fulfil the company’s statutory obligations. This is consistent with the experience of some of the Ngadju witnesses. Mr Reid, for example, states that he has ‘got on OK’ with people from the company and says ‘they just tell me to keep away from the big machinery and otherwise generally leave me alone.’ The witness statements also suggest that Ngadju people have continued to access the St Ives area despite these measures. Mr Reid says he knows ‘plenty of people who continued to go out anyway.’ Leslie Schultz states that, although the installation of a gate at the entrance of the causeway angered him and his family, ‘it certainty didn’t stop us going out to all our places on the edge of the Lake, from Widgimooltha or Binneringie up to St Ives, or up the western side of the Lake on the tracks through there.’ Mr Donaldson also suggests that some people still use the causeway despite its closure.
It is clear that mining operations in the St Ives area have had some effect on access. Ms Carter, for instance, notes there is no public vehicle access to the proposed lease area due to the surrounding mining operations, though the area can still be accessed on foot. There is nothing to suggest the restrictions are, at least in principle, any greater than what is required to maintain safety standards and perhaps protect SIGM’s interests in the area. Legitimate questions may be asked as to how these policies are implemented or enforced and whether this is done in a way that is proportionate to the needs of health and safety. In any event, it is fair to say these restrictions have to some degree constrained the manner in which Ngadju’s registered rights and interests are exercised in St Ives area and may have deterred some Ngadju people from entering the area in the first place. The current enjoyment of Ngadju’s registered rights and interests in the St Ives area should be understood in this context.

What is the likely effect of the grant on Ngadju’s enjoyment of their rights and interests?

SIGM contend that the effect of the proposed lease on Ngadju’s enjoyment of their rights and interests in the area will be minimal because, among other things, its primary purpose is to continue exploration and secure existing mining infrastructure. SIGM argue that any physical impact on the land, and by extension Ngadju’s enjoyment of its rights and interests in the land, will therefore be negligible.
Ngadju contend that the focus of the inquiry should be on the rights granted rather than SIGM’s stated intentions. They say the Tribunal must account for the possibility that SIGM will make full use of its statutory rights. Although the mining proposal is predicted on minimal disturbance, Ngadju argue that SIGM’s clear and stated intention is to explore for minerals and, if commercial mining operations are feasible, to use the land for mining. In Ngadju’s submission, these operations are likely to include open pit gold mining and the Tribunal should proceed on the basis that the entirety or majority of the area could be subject to significant disturbance.
To assess the ‘effect of the act’ under s 39(1)(a), I must form a view as to the activities that will be undertaken on the proposed lease and their impact on the matters listed (see Watson v Backreef at [59]). What SIGM intend to do with the proposed lease is relevant to that view, though I have also had regard to other factors such as the geographical and geological features of the area. I accept that SIGM’s immediate interests in the proposed lease are to continue exploration and secure existing infrastructure. As both of these interests are predicated on the expectation or hope of identifying a mineable resource, I cannot discount the possibility that productive mining will occur in the future. I accept that any future mining is likely to focus on the paleochannels on the eastern boundary of the proposed lease. However, to a great extent the scale of any future operations is unable to be defined and likely cannot be defined until a resource has been identified.

SIGM and the State argue that any assessment of the effects of the proposed lease must also take into account its size relative to the claim area. SIGM says that, because the proposed lease represents less than 0.06 per cent of the claim area, the effect on Ngadju’s enjoyment of its rights and interests will be minimal. Ngadju say the comparison is not a relevant consideration, because what the Tribunal is required to consider is the effect of the act on the enjoyment of the registered rights and interests in the affected area. Ngadju say the fact they hold rights and interests in other areas is immaterial.
The State says there is no authority for the proposition that s 39(1)(a)(i) should be limited in the way suggested by Ngadju and there is nothing in the section’s wording that might require such an interpretation. I agree. Unlike paragraphs (iv) and (v) of s 39(1)(a), paragraph (i) is not confined to the ‘land and waters concerned.’ As the State rightly notes, Ngadju’s preferred construction is inconsistent with its broader contention that the area of the proposed lease is the last or one of the last places in St Ives that is not already subject to an existing mining lease.
That is not to say the size of the proposed lease relative to the overall claim area is necessarily a meaningful comparison. The witness statements indicate that Ngadju people have carried on a range of activities in and around Lake Lefroy, including the St Ives area. Although the area covered by the claim is significantly larger than the lake, there is little evidence as to how the rights and interests are enjoyed in other areas of the claim or to what extent the exercise of those rights and interests might be constrained by other interests. Jeffrey Reid, for example, says he used to do a lot of hunting around Woolibar station, but after 2006 he found the new owners were less ‘easy going’ and ‘tend[s] to go to other places now.’ Nevertheless, the witness statements do not suggest that Ngadju’s enjoyment of the rights and interests in and around Lake Lefroy is exclusive to or necessarily even focused on the St Ives area.
SIGM argues that, due to the current limited access to the proposed lease area, the grant will have no practical effect on Ngadju’s enjoyment of its registered rights and interests. In this regard, Ms Carter notes there is no public right of access allowing vehicle entry to the proposed lease area, though it is still accessible on foot along a track that follows the shoreline and connects to an existing public road. In this context, exploration activity is unlikely to limit access to the area unless it is carried out on or in the vicinity of the track. If this were to occur, any safety restrictions would likely be temporary and the conditions of grant would require any ground-disturbance to be rehabilitated.
Ngadju argue that, in evaluating the likely effect of the propose lease on its registered rights and interests, I must consider ways in which the proposed lease will compound other existing impacts. Specifically, they say the existence of the Mt Monger pastoral lease creates conditions under which further restrictions on access may amplify the existing interference. Given the current limitations on access and the lack of information about the manner in which the pastoral rights are currently exercised, I am not satisfied the effect of the proposed lease will be any greater due to the existence of the pastoral lease.
It is conceivable that mining operations will place substantial restrictions on the use of the track. In this regard, I note Ms Carter’s statement that restrictions on access would need to be put in place in the event that active mining operations were commenced in the future on any part of the proposed lease. The scale of those restrictions may depend on the scale of the operations and where they are situated. Because future mining operations are likely to be limited to areas in and around the paleochannels, it is possible the restrictions will not be substantial. However, I am conscious that any restrictions will need to be proportionate to the requirements of health and safety.
The more significant risk that might arise from any future mining operations is the effect on noise levels and air quality and the impact this may have on Ngadju’s ability to use the area for hunting. Ngadju say that, even in the case of smaller operations, the noise, dust, movement, odours and vibrations created by those operations would drive away game. Leslie Schultz says that, on hunting trips, he and his family try to keep away from mining operations because ‘they’re too noisy for the roos.’ Given the proximity of the paleochannels to the shoreline, which is the main area for kangaroos and other animals, it is possible that future mining operations may deter animals from the area and therefore limit the capacity for hunting.
SIGM has previously committed to minimising noise and vibration arising from its Lake Lefroy operations. It has also committed to ensuring emissions and dust do not adversely affect environmental values or the health, welfare and amenity of the general public and other land users. These impacts will also be regulated under State and Federal environmental legislation.
Ngadju says I should give no weight to these regulatory frameworks except insofar as they indicate the ‘absolute extent of any probable impact on the area.’ Given the contextual nature of any environmental assessment process, it is difficult to determine the absolute extent of any probable impacts arising from future mining operations, particularly when the nature of those operations has yet to be defined. I accept that the regulatory framework may address some of these issues and could lead to conditions being imposed that will mitigate the environmental effects of any future mining operations. However, in the absence of information about the likely nature or scale of any future mining operations, I am unable to conclude that the risk to hunting activities can be eliminated entirely.
I have also had regard to the fact that the uncertainty as to future use and the likely scale of any future mining operations will have an adverse effect on Ngadju’s rights to make decisions about the use and enjoyment of the area and to maintain and protect places of importance under traditional laws, customs and practices in the area. As the Tribunal observed in Re Koara People and reaffirmed in Koara 2, native title holders have a right to be asked about actions affecting their land, though not a veto. In the present circumstances, the proposed lease would confer on SIGM the right to do all things necessary to carry out mining operations in, on or under the land without an identified resource or a specific mining proposal.
Ngadju’s rights to make decisions about the use and enjoyment of the area and to maintain and protect places of importance in the area are already constrained to certain extent by the Mt Monger pastoral lease. While it can be inferred that Ngadju enjoy these rights over Lake Lefroy, they are also subject to the existing prospecting licences. I have also had regard to the likelihood that any future mining activity will focus on the paleochannels rather than the surface or shoreline of the lake. To the extent there is likely to be adverse effects on these rights, those effects can be mitigated to some degree by imposing conditions requiring further notice of and consultation about proposed works, though I am mindful that the grant of the proposed lease on its current terms would deprive Ngadju of a statutory right, as opposed to a contractual right, to be consulted about the effect of the proposed lease on its rights and interests.

Effect on way of life, culture and traditions - s 39(1)(a)(ii)

Section 39(1)(a)(ii) requires me to have regard to whether the proposed lease will have a tangible effect on Ngadju’s contemporary way of life, culture and traditions (see FMG Pilbara v Cheedy at [62]).
Ngadju contend that the grant of the proposed lease will have a significant effect on their way of life, culture and traditions, having regard to the cumulative effect of successive grants of mining interests in the St Ives area. SIGM argues that the impact of other grants outside the land and waters concerned is irrelevant and the evidence suggests the effect on Ngadju’s way of life, culture and traditions will be negligible. The State submits that any effects will be mitigated by the relevant regulatory regimes.
Although the grant of the proposed lease may have an effect on the Ngadju People’s view of the potency and strength of their culture and traditions, I do not find that this constitutes a tangible effect on their way of life, culture and traditions. However, there is a real risk that, if there is active mining in the future, any limits on the uninterrupted enjoyment of the area may impair the ability of Ngadju people to preserve and teach the cultural attributes of the area.

What is the likely effect of the proposed lease on Ngadju’s way of life, culture and traditions?

Ngadju contend that their way of life, culture and traditions are ‘intimately connected with their practices of hunting, gathering, camping, [and] travelling through country.’ They say the evidence ‘also demonstrates the crucial importance of teaching and learning about the significant parts of the country and the Ngadju people who were there in previous generations, and how this teaching and learning is essential for the maintenance of Ngadju cultural identity and tradition.’
The witness statements give vivid demonstration of this intimate connection between country, cultural practice and Ngadju cultural identity. Trevor Donaldson Jr, referring to trips he has taken to Lake Lefroy on his own or with his partner and children, says it ‘really lifts me spiritually to walk around the places the old people went to. If you find an artefact or something that shows they were there or what they were doing, it’s a really moving experience.’ Leslie Schultz describes the experience of stopping alongside the causeway on a trip to Lake Lefroy and taking in the landscape: ‘It’s quite an experience to soak in, knowing that’s your country, your old people’s place.’
The evidence also suggests that hunting is particularly crucial for Ngadju people to maintain a sense of connection to country. James Schultz states that, when he and his family are in Kalgoorlie, they visit Lake Lefroy ‘because it is our country and we will get food from there because we know there will be kangaroo for us because the spirits will look after us.’ Jeffrey Reid says that hunting ‘connects us with our ancestors.’ Leslie Schultz says that trips taken to Lake Lefroy as a child were ‘part of the teaching from our old people, a way of showing us the country.’
This also underlines the intergenerational aspect of these cultural practices and the importance of teaching and learning on country for maintaining the Ngadju People’s way of life, culture and traditions. In the words of Mr Schultz, ‘[t]hat’s how our culture gets passed on, our old people take us to these places, travelling through the land, and then we do the same with our kids.’ Michael Smith, in his witness statement of 18 November 2016, expresses concern that ‘when the time comes for me to teach my children or other young Ngadju people the cultural and spiritual knowledge about the lake and the surrounding country, I won’t be able to show them what it should look like, the way the old people created it, because of the big mining pits.’
SIGM contends that the extent of any tangible effect to the way of life, culture and traditions of the Ngadju People will depend on the extent of visitation and exercise of native title rights and interests over the proposed lease area. SIGM says that, in most instances, the evidence relied upon by Ngadju is general, unspecific and not clearly related to the proposed lease area. In SIGM’s submission, the evidence lacks the necessary particularity, currency and relevance to the proposed lease to demonstrate that its grant would have any relevant or significant effect of the Ngadju People’s way of life, culture and traditions and should be given little weight.
Ngadju contend that, in assessing the effect of the proposed lease, I should have regard to the cumulative effect of successive grants of mining tenure. Specifically, they note that, as of November 2016:
(a)     some 19 percent of the area currently under claim by Ngadju is covered by mining leases, approximately 46 percent of which is held by SIGM;
(b)     live and pending mining tenements (including mining leases, exploration licences, prospecting licences, miscellaneous licences and general purposes leases) account for approximately 48.5 percent of the area currently under claim by Ngadju, approximately 34 percent is held by SIGM; and
(c)     approximately 22 percent of the total area over which native title is claimed or held by or on behalf of the Ngadju People is covered by live mining tenements and approximately 35 percent of that area is covered by live and pending tenements.
Ngadju also rely on a map which shows that, except for the proposed lease area, the entire southeastern shore of Lake Lefroy is subject to mining leases held by SIGM. They note that many of those mining leases were granted at a time when they were not afforded any opportunity to negotiate about their impact and, following the decision of the Full Federal Court in Western Australia v Graham, can be renewed indefinitely without reference to the native title party.
SIGM says I am not required to have regard to the impact of other grants of tenure outside the land and waters concerned and that any evidence of the effect caused by tenure granted over other areas has limited if any relevance to the inquiry. Ms Carter, in her affidavit of 9 December 2016, states that it is not the case that the majority of the land within SIGM’s other mining leases has been disturbed by mining operations and estimates that, of the total area covered by mining leases held by SIGM, only 2.5 percent of the lake’s surface has been disturbed.

Ngadju contend that each mining lease that is granted will result in a further attenuation of their rights and make it more difficult to maintain their cultural identity and practices. They argue that, as each place within Ngadju country is unique and has its own history of associations, ‘it is not sufficient simply to say they can hunt elsewhere, or take their children to a different lake for medicinal salt bathing, or to remember their ancestors in a different place.’
As I have already discussed, SIGM’s existing operations in and around Lake Lefroy and the St Ives area have already constrained the exercise and enjoyment of Ngadju’s registered native title rights and interests. It follows that the Ngadju People’s cultural practices, which emanate from their rights and interests and sustain their way of life, culture and traditions, have been similarly constrained. But the evidence also demonstrates that Ngadju people have, to some degree, continued to participate in these activities in the St Ives area and the evidence does not suggest these practices are limited to the area of the proposed lease.
Nevertheless, I accept the presence of active mining operations on the proposed lease area may affect the Ngadju People’s way of life, culture and traditions in two ways.
First, the grant of the proposed lease may have an effect on the Ngadju People’s view of the potency and strength of their culture and traditions. In his witness statement of 18 November, Mr Smith states that ‘[w]hen the mining happens in our country, when we can’t stop it, we feel like we have failed in our job to protect it.’ According to Mr Smith, the disturbance that has already occurred on the lake makes him feel like he has ‘no ownership’ and ‘no authority for my own country.’ He also says that being asked to leave the area by security staff ‘makes it hard to teach my children what it means to be a traditional owner of the land.’ Although these experiences do not necessarily amount to a tangible effect on the Ngadju people’s way of life, culture and traditions, I accept they are nevertheless profound from the perspective of Ngadju people.
Second, as I have already discussed, there is a real risk that any future mining activity will limit opportunities for hunting on the southeastern shore of Lake Lefroy. In her affidavit of 9 December 2016, Ms Carter states that SIGM would need to put restrictions in place in the event they commenced active mining operations on any part of the proposed lease. Mr Smith says the risk that Ngadju people could be stopped or questioned by security staff means ‘they might go on the western side of the lake, even though we would prefer heading out to St Ives.’ Given the extent to which the shoreline is already subject to mining operations, any future mining activity on the proposed lease may place further limits on the uninterrupted enjoyment of hunting in the St Ives area. Because of this and the relationship between cultural practice and the maintenance of Ngadju cultural traditions, any future mining operations may also impair the ability of Ngadju people to preserve and teach the cultural attributes of the area to subsequent generations.
The State contends that any effects on the way of life, culture and traditions of the Ngadju people will be regulated and minimised by State and Federal environmental and cultural heritage legislation. It is not apparent how these regimes will regulate, minimise or mitigate the effects I have outlined above. Accordingly, I have given little weight to them in evaluating the effect of the proposed lease on the Ngadju People’s way of life, culture and traditions.

Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)

Section 39(1)(a)(iii) requires me to consider the effect of the proposed lease on the development of Ngadju’s social, cultural and economic structures. The effects may be positive or negative, having regard to adverse effects as well as effects that are likely to promote the development of those structures (see Western Australia v Thomas at 170).
On balance, I consider that any positive or negative effects on the development of the Ngadju People’s social, cultural and economic structures are likely to be marginal.

Is the grant of the proposed lease likely to have any negative effect on these structures?

Although Ngadju refer to the effect of the proposed lease on the enjoyment of their registered native title rights and interests and their way of life, culture and traditions, they make no specific reference to effect of the grant on its social, cultural and economic structures.
There is some evidence that hunting is important economically; however, the proposed lease area does not appear to be particularly important for Ngadju people’s economic subsistence and any adverse effect is likely to be marginal.
Although I accept the grant of the proposed lease may have some effect on the way of life, culture and traditions of the Ngadju People, the evidence does not suggest it will have a significantly adverse effect on the cultural structures of the native title party.

Is the grant of the proposed lease likely to have any positive effect on these structures?

SIGM contends that the proposed lease would potentially have substantial positive effects on Ngadju’s social, cultural and economic structures of the Ngadju people in the form of employment opportunities.
SIGM submits that the ongoing mining operations facilitated by the grant of the proposed lease will potentially provide ongoing employment opportunities for Ngadju people, including those it currently employs (Ms Carter states that two percent of SIGM’s current workforce identify as Indigenous). It is not clear whether any of SIGM’s employees are Ngadju people.
SIGM also states that it supports local businesses and local community groups, including schools, sporting organisations and community support groups in communities in which local Indigenous people reside. This includes $100,000 spent by Gold Fields in 2016 on community based activities based activities around St Ives including in relation to education and training, arts and culture, and sport.
I accept that any future mining that occurs on the proposed lease is likely to contribute to the longevity of SIGM’s gold mining operations in the St Ives area. It is possible that it will also lead to a general increase in employment opportunities associated those operations. I also accept that SIGM and its parent company have invested in the local community, though whether the grant of the proposed lease will lead to an increase in that investment is not certain. Much depends on whether SIGM are able to identify a resource which could support an active mining operation. In any event, I do not consider these factors will contribute significantly to the development of the social, cultural and economic structures of the Ngadju people.

Effect on freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance: s 39(1)(a)(iv)

There are two matters which must be considered in the context of s 39(1)(a)(iv). First, I must consider the effect of the proposed lease on Ngadju’s access to the area affected. Second, I must have regard to its effect on Ngadju’s freedom to carry on rites, ceremonies and other activities of cultural significance.
With regard to freedom of access, I consider that any restrictions associated with the proposed exploration activity are likely to be temporary. However, if the area is used for productive mining, then restrictions on Ngadju’s freedom of access are likely to be substantial.
With regard to the effect of the proposed lease on Ngadju’s freedom to carry on rites, ceremonies and other activities of cultural significance, I find there will not be any relevant effect based on the evidence before me, subject to the findings I have already made in relation to the effect of the proposed lease on Ngadju’s way of life, cultural and traditions and their freedom of access to the land.

What is the effect of the proposed lease on Ngadju’s freedom to access to land?

Ngadju contend that their previous and contemporary experience of mining operations in the St Ives area suggests their access to the proposed lease will be restricted in two ways. First, SIGM is likely to prevent Ngadju people from entering the area (either directly or through its employees, agents or contractors) by locking gates and directing Ngadju people to leave the area. Second, these measures are likely to have an adverse effect on Ngadju people’s freedom of access to the area by making them feel that their access to the area is hindered, discouraged or unwelcome.
SIGM contends that the evidence on which Ngadju relies lacks the necessary particularity, currency and relevance to the proposed lease to demonstrate that it will have any relevant effect on their freedom of access. In any event, SIGM submits that the proposed lease will have no practical effect on Ngadju’s access to the area because it would already be affected by non-native title interests and uses of the land.
As discussed above, there is currently no public vehicle access to the proposed lease, although the area can still be accessed on foot using a track that leads from a public road. I am satisfied that any restrictions on the use of the track and access to the area generally are likely to be temporary in the case of any exploration activity. If the area is eventually used for active mining operations, any restrictions on access are likely to become more significant, both from the point of view of what is required to ensure the safety of employees and visitors and the practical implications of a potential mine and its footprint on the land.
SIGM says it is willing to consult with Ngadju in relation to access, subject to health and safety requirements. Ngadju argue the proposal of an access agreement suggests a ‘confusion about the respective legal positions of the Grantee Party and the Ngadju People.’ I note the rights to be conferred under the proposed licence are exclusive rights for mining purposes and that SIGM would be required as a matter of law to restrict access for the purposes of health and safety. Irrespective of this, any restrictions put in place to meet safety requirements need to be proportionate to those requirements.

What is the effect on Ngadju’s freedom to carry on rites, ceremonies and other activities?

Ngadju have not made any specific reference to the effect of the proposed lease on its freedom to carry on rites, ceremonies or other activities of cultural significance. SIGM contends that the evidence lacks the necessary particularity, currency and relevance to the proposed lease to demonstrate that it will have such an effect.
In light of the evidence before me, I do not find that the proposed lease will have any relevant effect on the Ngadju’s freedom to carry on rites, ceremonies and other activities of cultural significance, subject to the findings I have already made in relation to the effect of the proposed lease on their way of life, culture and traditions and their freedom of access to the land.

Effect on areas or sites of particular significance: s 39(1)(a)(v)

Section 39(1)(a)(v) requires me to have regard to the likely effect of the proposed lease on any areas or sites on the land and waters concerned that are of particular significance to Ngadju people in accordance with their traditions. An area or site is ‘of particular significance’ if it is of special or more than ordinary significance to the native title party in accordance with their traditions (Cheinmora v Striker Resources at 34-35).
Ngadju contend that Lake Lefroy is a place of particular significance to Ngadju people. SIGM say that previous surveys have not identified any concerns about Lake Lefroy or the cultural heritage of the proposed lease area and there is no evidence of any area or site of particular significance. The State submits that, to the extent there are any areas or sites of particular significance in the area, the Tribunal should have regard to the protective effects of the Aboriginal Heritage Act 1972 (WA).
The evidence does not establish the existence of any specific areas or sites of particular significance in accordance with the traditions of the Ngadju people, although it is possible that areas or sites of this nature may exist within the proposed licence area. Although the proposed exploration is unlikely to interfere with any areas or sites that may exist in the area, there is a risk that any future mining activity may do so.

Is Lake Lefroy an area or site of particular significance?

Ngadju contend that Lake Lefroy is the subject of multiple layers of mythology describing its creation, position within Ngadju cosmology and links to other important places within and beyond Ngadju country. They say that, in the context of the rich mythological traditions relating to Lake Lefroy and its immediate hinterland, Ngadju people treat the lake as ‘an essential spiritual place.’
Ngadju refer to three specific mythological traditions associated with Lake Lefroy:
(a)the Tjilkamarta or Porcupine Man Dreaming;
(b)the Eagle and Crow Dreaming; and
(c)another Dreaming which I have been asked not to name or describe in detail.
The broad outlines of the Tjilkamarta Dreaming are described in the witness statement of James Schultz. Mr Schultz situates the story ‘right on the eastern side of Lake Lefroy and also in the middle of the Lake’ and says that it also ‘links up with’ another place near Norseman. Adrian Schultz also refers to the Tjilkamarta story as being associated with Lake Lefroy and its southeastern shore, though he names another individual as being the right person to talk about the story. The Tjilkamarta Dreaming is also mentioned in the witness statement of Michael Smith from 18 March 2016, in which he says the story ‘goes through Lake Lefroy, from near Norseman up to the eastern side’ of the lake. Ngadju say the story explains the preponderance of porcupines (or echidnas) in the St Ives area, something that is noted in the witness statement of Mr Donaldson.
In his 18 March witness statement, Michael Smith describes the eagle and crow as ‘a dreaming story for Widgimooltha.’ According to the witness statement of Leslie Schultz, the story describes the creation of the lake or part of the lake. It is clear from evidence of Mr Schultz and the other Ngadju witnesses that the main features of the story are associated with Widgimooltha, although there is evidence the story also connects with a dreaming track that travels up to Red Hill in Kambalda. Sonny Graham also refers to the eagle and crow in the context of the pigeon women story.
The third Dreaming story is, according to Ngadju, regarded as the most sacred and significant mythology for Lake Lefroy. Broadly, the Dreaming is said to relate to the creation of a string of lakes and other sites in Ngadju country and ‘establishes vital links between places within Ngadju country and places outside of it, through to Central Australia and beyond.’ Ngadju note that the Dreaming is mentioned several times in a gender-restricted anthropological report filed in the claim proceeding but has declined to provide the report to the Tribunal.
Ngadju’s contentions regarding the significance of the Dreaming story as it relates to Lake Lefroy rely principally on the evidence of Michael Smith in his witness statement of 18 November 2016. Mr Smith states that there is ‘an extremely serious and important Dreaming story for Lake Lefroy – including the part of the lake covered by the proposed mining lease.’ Mr Smith states that the Dreaming story describes the creation of specific places in Ngadju country, including Lake Lefroy, but says he could not discuss the details of the story in his witness statement. He says the story ‘goes to the heart of everything’ and is ‘one of the most important Dreamings’ and it is ‘not just a story about what happened in the past’ but also ‘a powerful, serious part of what is going on right now.’ According to Mr Smith, it is ‘important for the spiritual health of the land and the people for the Dreaming to be protected’ and this means ‘protecting the knowledge as well as protecting the places.’
SIGM says its previous dealings with Ngadju over Lake Lefroy cast doubt on the credibility of Mr Smith’s statement. These dealings include heritage surveys conducted with the participation of Ngadju people over the various parts of the lake, including the area of the proposed lease. Ms Carter states that, at no stage during any of these heritage surveys did any representative of the Ngadju people suggest that the relevant parts of Lake Lefroy have any particular heritage significance to them. Rather, Ms Carter says the surveys consistently report that the lake has no particular cultural significance. She also notes that, during the four-year period of negotiations with the Ngadju people over the proposed lease, no member of the Ngadju negotiation team ever expressed any particular heritage concerns over the proposed lease area.
An ethnographic survey of the proposed lease area and another area known as ‘Pistol Club’ was conducted over two days on 15-16 September 2015 (Pistol Club is situated near the northeastern shore of Lake Lefroy, 1.7 km south of Kambalda East). The survey was conducted using a work area clearance and site identification methodology with the participation of six nominated Ngadju Aboriginal Consultants, including Mr Smith. The outcomes of the survey are detailed in a report prepared by Dr James Taylor. The survey was undertaken simultaneously with an archaeological survey, the outcomes of which are detailed in a separate report prepared by Dr Joe Dortch. The Taylor report notes that ‘in regard to the ethnographic survey, there were no sites or places of cultural importance identified by the traditional owners and the Aboriginal Consultation had no objection to the proposed exploration activities.’
Mr Smith accepts that no significant cultural heritage values were discussed during the survey but says there are a number of reasons why he did not talk about the Dreaming story during the survey:
(a)he did not want to talk about the Dreaming story ‘because it is a very secret, sacred thing.’ Mr Smith says there are Ngadju cultural laws about the information and feared initiated men from other areas would ‘get me in trouble if I told the wrong person’ or that ‘something bad’ would happen to him if he did not keep it secret;
(b)he was worried the other participants might use the information to lodge competing claims. Mr Smith says he has ‘heard stories about native title claimants using information they have learned on heritage surveys to lodge their own claims.’ He also states that, on the first day of the survey, he was directed by an elder not to ‘say too much because there’s people on this survey coming along who shouldn’t hear some things’;
(c)he did not feel like he could trust Dr Taylor because, at the end of the first day, he had a disagreement with another Ngadju person and Dr Taylor ‘took the other person’s side in the disagreement.’ Mr Smith says a person representing SIGM had been ‘expressing views on how we should be doing the survey’ and it ‘made me wonder who I could trust’;
(d)he did not say anything because he felt, from previous experience, the survey would not accomplish anything and the project would go ahead regardless: ‘it feels like we give all this knowledge up and but it doesn’t make any difference. When that keeps happening, people sort of give up. It doesn’t seem worth it, especially when you hear of survey reports being shown to the wrong person.’
Two observations can be made about the reasons Mr Smith has given for why he did not disclose the Dreaming story or the significance of Lake Lefroy during the survey. First, the Taylor report states that the Aboriginal Consultants were selected based on, among other things, their membership of the Ngadju native title claim. It also notes the consultants were ‘considered to possess the required cultural knowledge and necessary authority to speak for the country (and specifically in the proposed development area)’ and that ‘[a]ll Aboriginal consultants are related families in the Ngadju Native Title Claim.’ Second, Mr Smith did provide some information to Dr Taylor about another site, but was unable or unwilling to provide further details or information about the site because they were only known to another person who was not present at the survey. Neither Mr Smith nor Ngadju dispute the report, its contents or the methodology employed during the survey.

On the other hand, the evidence of other Ngadju people supports Mr Smith’s statements about the secret and sacred nature of the Dreaming story and the cultural laws which apply to it. A transcript of preservation evidence from the claim proceedings suggests there is an ‘inside version’ of the story which is only known to initiated men as well as an ‘outside version’ that other people can know and it is a serious breach to disclose the story to someone who is not a lawman. In his witness statement, Adrian Schultz also refers to ‘a very important dreaming story that stretches right across Australia’ which ‘relates to the Lake Lefroy area’ but states that ‘[f]or cultural reasons I cannot disclose the details of what I know about the story.’
In this context, it is understandable if Mr Smith may have been reluctant to disclose details about the Dreaming story to Dr Taylor or in the presence of the other Aboriginal Consultants, particularly those who were women. However, I note that survey consultation process, as outlined in the Taylor report, specifies that ‘[i]n surveys where women participate, then both women and men are consulted separately.’ The report also notes that ‘in some circumstances Aboriginal people are not required to divulge what they see as sensitive information (as in the case of gender-specific sacred mythological or ritual knowledge about a site).’ As I have already noted, neither Mr Smith nor Ngadju have sought to identify any flaws in the report or the survey methodology.
This is not to suggest the Dreaming story has no relationship to Lake Lefroy. The evidence of Mr Smith and other Ngadju witnesses support the existence of a connection between Lake Lefroy and the Dreaming story and I accept the lake is part of the Dreaming story. In my view, the better interpretation of Mr Smith’s evidence is that, weighing his cultural obligation to protect sites of significance and his cultural obligation to safeguard knowledge about those sites, he chose not to disclose any details of the Dreaming story because it was unnecessary to him to do so in light of the survey’s purpose and what was being proposed.
The other survey reports lend weight to this interpretation. The report for the Deep Woods survey undertaken in November 2009 over various proposed development areas throughout St Ives and on or around Lake Lefroy, which was carried out on behalf of Ngadju Aboriginal Corporation and with the participation of Ngadju people, concluded that ‘Lake Lefroy is not registered as either an archaeological or ethnographic site with [the Department of Indigenous Affairs] and in itself is of no cultural significance.’
Similarly, a report prepared by Dr Taylor following a subsequent survey undertaken on 26-27 July 2016 over other areas of Lake Lefroy, including the eastern shoreline, notes that ‘the lake itself is part of an extensive Dreaming track connected to a string of playa lakes across the region.’ However, the report finds that, after surveying these areas, the Ngadju consultants ‘found no evidence of cultural or material heritage values.’ Although the Ngadju consultants did express concern about the amount of uncleared rubbish from previous exploration activities on part of the lake’s surface and the surrounding shoreline, they had no objection to the proposed activities.
In light of these reasons, I do not find that Lake Lefroy is, in and of itself, an area or site of particular significance in accordance with the traditions of the Ngadju people.

Are there any other areas or sites of particular significance in the proposed lease area?

Although none of the evidence given by the Ngadju witnesses in relation to Lake Lefroy, including that of Mr Smith, identifies any specific areas or sites of significance within the proposed lease area, I consider there to be a real possibility that areas or sites of significance to Ngadju people exist on or in the vicinity of the proposed lease area.
The first Taylor report, which outlines the findings of the September 2015 survey over the proposed lease area, states that no cultural, historical or material heritage values were identified. But the report also notes that this ‘does not preclude the possibility that such values may exist but were not evident during the survey.’ On this basis, the report concludes that the traditional owners had ‘no objection to the proposed exploration developments as sought by the proponent and specified in this report.’ However, it also notes that the area clearance was approved ‘solely for the purpose of the specified exploration activities’ and the traditional owners ‘requested that the proponent inform the Ngadju should any further developments occur in the specified work area which may in turn necessitate further heritage clearance, relative to the extent of any proposed future ground disturbance.’
The report from the July 2016 survey made a similar finding about the existence of cultural heritage in the areas surveyed and contains a similar disclaimer regarding the possible existence of certain material or cultural values that could not be identified during the survey. The report also notes that the Ngadju consultants ‘stipulated that any further activities to be undertaken by the proponent that would extend beyond the proposed development work area are to be forwarded to the Ngadju for consideration’ and ‘may necessitate an extended and more detailed heritage survey as deemed appropriate for such activities.’
While there is no onus of proof in an inquiry such as this, the Tribunal must take a common sense approach to the evidence. This means that, among other things, the Tribunal may draw unfavourable inferences if a party fails to produce evidence about facts that are peculiarly within the knowledge of that party (see Ward v Western Australia at [26]). The existence of areas or sites of significance to the Ngadju people which are not registered or recorded under the Aboriginal Heritage Act is a matter which could only reasonably be expected to be within the knowledge of members of the native title party.
Although the survey report from September 2015 does not identify any cultural or heritage values, I do not consider the report to be conclusive evidence that no areas or sites of particular significance exist in or around the proposed lease area. While there is no specific evidence about the existence of areas or sites of particular significance within or in the vicinity of the proposed lease area, there is evidence concerning the existence of Dreaming stories associated with Lake Lefroy and the St Ives area. There is also evidence that one of these stories is subject to cultural laws restricting the disclosure of information about the story and sites related to the story.
In these circumstances, it is possible there are areas or sites of significance to the Ngadju people within or in the vicinity of the proposed lease area that are associated with the Dreaming story but were not identified during the September 2015 survey because the information was culturally sensitive and the areas or sites were unlikely to be affected by the proposed exploration.

Is the proposed lease likely to interfere with any areas or sites of particular significance?

In light of the evidence of the Ngadju witnesses and the heritage survey reports, I find that the proposed exploration is unlikely to interfere with areas or sites of particular significance, having regard to the Aboriginal Heritage Act and its associated processes. However, I consider there is a real possibility that future mining activity could interfere with areas or sites of significance that may exist within the proposed licence area.
The State contends that, in evaluating the effect of the proposed lease on areas or sites of particular significance to Ngadju people, I need to be satisfied that actual interference with one or more places of particular significance is likely. According to the State, this would depend on the location and nature of the area and the SIGM’s intentions with respect to the nature and location of proposed mining activities.
Ngadju contend that, in assessing the probable effect of the proposed lease, I should proceed the basis that the entirety or a majority of the area may be subject to significance disturbance. SIGM says this argument is entirely speculative and any authority to exercise its rights under the proposed lease is subject to the Mining Act and any conditions to which the lease is subject, including the approval of a mining proposal. Ms Carter states that SIGM’s future exploration plans are focused on the paleochannels and, if any future mining does become viable, the most likely scenario is that mining would be limited to the areas in and around the paleochannels.
The State submits that the Aboriginal Heritage Act and its associated processes are likely to prevent interference with any area or site of particular significance to the Ngadju people. In the State’s submission, it is entirely appropriate that I have regard to the regime under the Aboriginal Heritage Act and other government measures have considering the possible effect of the propose lease on any area or site of particular significance. Ngadju, on the other hand, contends that no weight should be given to the existence of any regulatory regimes, as I should only have regard to the ‘absolute extent of the probable impacts’ and not whether those effects will be minimised or regulated.
I disagree that no weight should be given to the Aboriginal Heritage Act and its associated processes. The likely effects of the proposed lease must be considered in the context of the regulatory environment and the likely extent of any interference. The Aboriginal Heritage Act provides for the protection and preservation of a wide range of Aboriginal sites and objects. It is an offence to excavate, destroy, damage, conceal or in any way alter any Aboriginal site without authorisation, whether or not the site is registered. If a person seeks ministerial consent to disturb a site, that person will be required by the Aboriginal Cultural Material Committee to outline the nature and extent of consultation with key Indigenous stakeholders (including any native title party); outline strategies to minimise the impact on sites; and complete a declaration that he or she has read and understood any heritage survey report tendered in support of the application (see Australian Manganese v Stock at [52]). Each of these matters is relevant to evaluating the likely effect of the proposed lease.
Ngadju make particular reference to ministerial consent. Specifically, they say the Minister must take into account and balance a variety of factors, whereas the criteria in s 39(1)(a) are directed to the impact on the traditional owners of the affected land. I do not consider the fact that a ministerial discretion exists to permit interference with Aboriginal sites, even if that discretion can be exercised according to criteria which may not exist in the Native Title Act, is of itself sufficient to say there is likely to be interference with sites in every case of this kind. It would be necessary to look at the exercise of the Minister’s discretion and conclude that it had become a matter of common practice for the Minister’s consent to be granted to enable exploration or mining to proceed, such that the regulatory regime is ineffective (see Dann v GPA Distributors at 14). That has not been established and I do not accept it is the case.
The endorsements on the proposed lease draw SIGM’s attention to the provisions of the Aboriginal Heritage Act. It does not, as the State contends, refer to SIGM’s obligations under that legislation. It would be more relevant if the endorsements referred to or required compliance with the State’s published heritage guidelines. Nonetheless, I have no reason to believe SIGM will not comply with its obligations under the Aboriginal Heritage Act. SIGM has already undertaken a heritage survey over the area in relation to its exploration programme and I infer from this that SIGM is aware of their legal obligations with respect to Aboriginal cultural heritage. However, I also note that the conduct of the survey means SIGM may potentially be able to rely on the defence in s 62 of the Aboriginal Heritage Act, which applies if the person can prove that he or she did not know and could not reasonably expect to have known that the place to which the charge relates was an Aboriginal site.
In light of the September 2015 heritage survey, I am satisfied the proposed exploration is unlikely to interfere with any area or site of particular significance to the Ngadju people. However, there remains a possibility that future mining activity may affect areas or sites of significance that may exist within the proposed lease area and have yet to be identified. Considering the evidence about Lake Lefroy’s association with the Dreaming story and the cultural laws which apply to the story, that possibility is not necessarily remote. For these reasons, I consider that further heritage surveys should be undertaken in relation to any future mining proposals, especially if they relate to the surface or shoreline of Lake Lefroy.

Interests, proposals, opinions or wishes of Ngadju in relation to the management, use or control of land or waters: s 39(1)(b)

Section 39(1)(b) directs me to consider the effect of the act on Ngadju’s interests, proposals, opinions or wishes in relation to the management, use or control of land or waters to which there are native title rights and interests. Although I am obliged to have regard to these matters, the fact that Ngadju has not been able to negotiate a satisfactory agreement is not on its own a sufficient justification for a determination that a mining lease cannot be granted (see Western Desert Lands v Western Australia at [162] - [163]).
SIGM states that the native title party cooperated with SIGM in conducting heritage surveys over the area of the proposed lease. SIGM notes that Ngadju suggested the negotiation of a Deferred Production Agreement (‘DPA’), to which SIGM agreed. It says that a requirement of the DPA involved further negotiation with Ngadju prior to any productive mining commencing. Ms Carter contends that SIGM understood that agreement in principle had been reached with the native title party in relation to the terms of a DPA; however, Ngadju then refused to sign the finalised agreement.
Ngadju state that, in the past, they have acted pragmatically to negotiate with mining proponents to ensure that mining projects are done with minimal disruption and harm to the Ngadju People’s culture and country. These discussions included details regarding the location of infrastructure, arrangement for environmental conservation, cultural competency and the logistics of restricted access. In regard to the proposed lease, they contend that relevant information necessary to enable them to negotiate about the proposal was not available before the lease application was made. Ngadju state that the DPA amounts to no more than an ‘agreement to agree’ about these matters and that SIGM could achieve its current exploration aims by obtaining an exploration licence. One of the main concerns raised by Ngadju in relation to management and use of the land or waters is that the proposed lease covers the last part of the St Ives area that is not subject to a mining lease held by SIGM.
It is also apparent that members of the claim group hold serious concerns about the cultural and spiritual integrity of the area. For example, Michael Smith states that there is an ‘extremely serious and important’ Dreaming story for Lake Lefroy. Mr Smith contends that the existing mining operations in the St Ives area has disrupted Ngadju’s connection with country and raises concerns about their ability to maintain their culture and way of life.
The State contends that as a general proposition, there is a difference between making a future act determination over an area of exclusive possession and making a determination over an area where the right to exclusive possession has been extinguished and the capacity to exercise and enjoy other native title rights is seriously attenuated because of the exercise of non-native tile rights, such as pastoral interests. Although I accept that the pastoral lease will have extinguished any exclusive rights and interests, I have dealt with the application on the basis that, without purporting to make any determination of the ultimate issue, exclusive native title can arguably still be maintained over Lake Lefroy. I also note that mining activity, should it occur, will have an altogether different impact to pastoral activity both in nature and scale.
I accept that Ngadju have, in the past, acted pragmatically in relation to previous mining proposals but that, in the circumstances of the present case, they have genuine concerns about the proposed use and future management of the area should the proposed lease be granted. It can be inferred from the witness statements that the Ngadju People have a particular interest in preserving the land as a means of maintaining their traditional connection and association with Lake Lefroy and the St Ives area and I have given particular weight to these interests in light of their claim for exclusive possession over Lake Lefroy.

Economic and other significance of the act: s 39(1)(c)

Section 39(1)(c) directs me to consider the economic or other significance of the act to Australia, the State, the area on which the land or waters concerned are located and the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the propose lease rather than a generalised inquiry into the importance of exploration or mining to the local or national economy.
The inquiry under s 39(1)(c) is not limited to the economic significance of the act and I may have regard to other ways in which the grant of the proposed lease may be of significance to Australia, the State of Western Australia, the area concerned and the Aboriginal peoples who live in the area. I must also have regard to the significance to the proposed lease not just to Ngadju people but to any Indigenous people who reside there (see Drake Coal v Smallwood at [102]- [104]).

What economic benefits are likely to accrue from the proposed use?

SIGM contend that the grant of the lease will benefit the local economy by allowing for the improved management and use or development of a local resource. SIGM says it will endeavour, as it has done on other projects, to provide employment and contracting opportunities to local communities and businesses, and have committed considerable expenditure and investment in the region as a result of its gold mining activities. Ms Carter advises in her affidavit that SIGM spent approximately $100,000 on community based activities around the St Ives area, and in the last five years have been responsible for payment to the State of approximately $75M in royalties.
Ngadju contend that SIGM have presented no actual evidence about the possible or likely economic benefits that may accrue from the grant of the proposed lease. They state SIGM’s objectives are to continue exploration in the area and secure existing dewatering infrastructure and argue that is not likely to bring any great economic benefit to the local community, the State or the nation. If productive mining does not occur, I accept that the economic benefits will be minimal. However, I note that the Tribunal has previously accepted the economic benefits arising from the grant of mining and exploration tenure in Western Australia in the absence of any evidence to the contrary (see FMG v Yindjibarndi Aboriginal Corporation at [35]).
The State contends that the grant of the proposed lease will be of economic significance to the nation, the State and the local region through royalties (to the State) and export income (for the nation). They state that there is also likely to be benefit to the local economy in and around the general area although no specific information has been provided to support this claim.

I accept that SIGM have demonstrated sufficiently a track record when it comes to providing employment, business opportunities, royalties and export income on previous projects. SIGM have stated for this proposed lease that there are currently no gold resources within the boundaries of the mining lease, and their intentions are to continue exploration activity over the palaeochannels at St Ives. Whilst this is with a view to conduct productive mining in the future if a viable resource is found, the evidence does not provide details of the proposed future mining activity. The exploration program proposed is likely to produce immediate economic benefits associated with exploration expenditure and rental payments, but the impact of these are likely to be marginal.

What economic or other significance can be attributed to the potential future use?

I note that SIGM’s investment in the region for previous projects has been a result of gold mining activity. SIGM has stated for the proposed lease that there are currently no known gold resources within the boundaries of the mining lease, and its intentions are to continue exploration activity over the palaeochannels at St Ives. The grant of the lease will also secure existing infrastructure and SIGM contends that this bears economic significance in support for other productive mining tenure. The exploration of the palaeochannels and the securing of infrastructure is stated to play a role in the expansion of SIGM’s existing operations. With this in mind, I accept that the granting of the proposed lease has the potential to provide economic or other significance.

What is the economic or other significance to Indigenous people who live in the area?

There is limited evidence before me as to the economic or other significance of the proposed lease to the Aboriginal peoples or Torres Strait Islanders who reside in the local area. Ms Carter states that, of the 475 people employed by SIGM, two percent identify as Indigenous.
As discussed above, it is possible that the grant of the proposed lease will lead to a general increase in employment opportunities, although this is dependent on whether a resource is identified. There is no evidence that SIGM has implemented any Indigenous employment strategy or similar policies. In this context, I consider the grant will be of marginal significance to the Aboriginal peoples and Torres Strait Islanders who reside in the area.

Public interest in the doing of the act: s 39(1)(e)

Section 39(1)(e) directs me to consider the public interest in the grant of the proposed lease. The term ‘public interest’ derives its content from the subject matter, scope and purpose of the legislation in which it appears (see Hogan v Hinch at [31]). The question of what is ‘in the public interest’ may require consideration of competing arguments about, or features or facets of, the public interest (see Osland v Secretary, Department of Justice at [137]).
SIGM states that the grant of the proposed lease is in the public interest as the mining operations will have economic and social benefits for the local communities. They contend that the mining operation will have economic, employment and revenue benefits that may enhance the capacity of State and Commonwealth governments to provide essential public services.
Ngadju contends that the only benefits that are certain to accrue will be the modest ‘exploration’ and ‘securing infrastructure’ gains to the SIGM. Ngadju says that these interests are private, not public. The State contends that the public interest is served by the development of mines on the proposed tenement due to the economic benefits that will accrue at a local, State and national level.
I am satisfied the grant of the proposed lease will contribute to the development of the mining industry and, specifically, the identification and exploitation of any gold reserves that may exist within the paleochannels to the east of Lake Lefroy. Although it is possible the potential economic benefits of the project will not be realised, I accept there is a public interest in the grant of the proposed lease for these reasons.

Is the public interest in the proposed lease affected by the contaminated sites notice?

On 9 January 2017, the Goldfields Land and Sea Council, the representative body for Ngadju, received a ‘Notice of Classification of a Known or Suspected Contaminated Site Given Under Section 15 of the Contaminated Sites Act 2003’ from the Department of Environment Regulation (DER), dated 30 December 2016. On 12 January 2017, Ngadju sought leave to submit this notice as evidence. I granted leave for Ngadju to submit further material, specifically paragraphs 1 to 8 (inclusive) and Annexures AB1 and AB2 of the draft affidavit of Andrew Burke dated 16 January 2017 that had been previously provided to parties.
The Site Notice indicates that 59 mining tenements held by SIGM near Kambalda have been given an updated site classification of ‘Possibly contaminated – investigation required.’ According to the Notice, the classification has been updated because the sites may be impacted by:
·hydrocarbons such as petrol, diesel and oil in the sand;
·potential release of acidity and metals into the environment;
·potential release of asbestos fibres into soil next to the pipeline; and
·waste of unknown composition in parts of site used for landfill.
Mr Burke prepared a map of the 59 tenements possibly contaminated, noting that the proposed lease is not one of the tenements listed, but showing the proposed lease surrounded by three SIGM tenements which are indicated as possibly contaminated.
Ngadju state that SIGM and the State have not filed any material explaining what the environmental concerns may be about, nor what action is being taken in response to the notice. They contend that they were not informed of possible contamination on other sites other than SIGM sites, which ‘counters the suggestion … about contamination being from historic use unconnected with the Grantee Party’s activities.’ Ngadju state that the Tribunal should consider the public interest in the grant of the proposed lease in light of the contamination report.
SIGM contends that no weight should be given to the further material submitted by Ngadju as the proposed lease is not listed in the notice and the notice is not determinative of contamination and does not provide any evidence as to the possible source of contamination or seek to attribute responsibility. It states that, as outlined in the notice, gold mining and processing has been carried out on the land for 90 years, whereas SIGM has been operating in the area since 2001, and that it is the DER’s view that the investigations required are a low priority based on the current land use. SIGM contends that the fact the mining lease is surrounded by three other SIGM tenements is of no relevance and should be given little or no weight. It states that the material contained in the affidavit of Mr Burke does not provide any evidence to displace the presumption of regularity which would otherwise apply in the circumstances.
The State’s submissions note that the classification is based on:
·visual observations at various locations of the site;
·parts of sites which stores or processes minerals and have the potential to release acidity or metals into the environment;
·the existence of asbestos and the potential for asbestos fibres to be released; and
·historical use of some parts of the site.
The State says that the notice says that ‘further works are required to determine the contamination state of the site.’ It submits that the notice is not evidence of contamination, and the affidavit of Mr Burke is of limited relevance and should be given no weight. It contends that in the event there is any contamination, there is no evidence that such contamination was caused by SIGM, or when it occurred, or what regulations or laws were in place at the time (the notice stating that activities on the relevant land have been ongoing for approximately 90 years).
I do not give significant weight to the contamination notice as it only refers to ‘possible contamination’ and says that further investigation is required. The change in classification was brought about due to additional information submitted to DER in December 2016. As per the notice, these investigations will involve soil and groundwater sampling and a risk assessment to adequately characterise and delineate the nature and extent of contamination across the site. The areas in question have been subject to mining for almost a century, and the notice does not necessarily identify SIGM as the cause of the possible contamination, nor is the proposed lease for this determination listed as contaminated.

Any other matter the Tribunal considers relevant: s 39(1)(f)

Section 39(1)(f) affords a wide discretion for the Tribunal to take into account other matters that the Tribunal considers relevant, provided they fall within the scope, subject matter and purpose of the Native Title Act (see Re Koara People).

Application of international instruments

Ngadju state that there is a legitimate expectation that administrative decision makers will act in conformity with treaties ratified by Australia (see Minister of State for Immigration & Ethnic Affairs v Teoh). They say that, accordingly, property rights are to be enjoyed without distinction based on race which involves guarantees of the right of Indigenous people to own, develop, control and use their land, resources and communal territories. It notes that the Australian government has committed itself to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which confirms the rights of Indigenous people to the land and resources they have traditionally owned or occupied and to redress where they are used or damaged without their free, prior and informed consent.
In light of these international commitments, the native title party says: the Ngadju People have not had the opportunity to consult with SIGM about the actual disruption, interference and destruction that will ultimately take place; consequently granting of the proposed lease is premature; by the time the SIGM has sufficient information to properly consult the proposed lease will be granted and the Ngadju People will have no further legal right to negotiate; and finally, the Ngadju People do not consent to the grant in these circumstances.
In relation to these submissions, I am bound by the findings of the Full Federal Court in Cheedy v Western Australia, where it was held that there is no relevant ambiguity in s 39 of the Native Title Act and that, accordingly, international instruments such as UNDRIP are not relevant to the interpretation of s 39 or the Tribunal’s deliberation. I also note that negotiation in good faith, which may be seen as giving effect to some of these principles, was not raised as an issue by the native title party.

Form of tenure

Ngadju contend that SIGM could achieve its current exploration aims on the area of the proposed lease by obtaining an exploration or miscellaneous licence (which is less invasive tenure) rather than a mining lease. They argue that the current proposal by SIGM is predicted on minimal disturbance. If a viable resource is found, then SIGM will be able to lodge a revised mining proposal and exercise rights granted by a mining lease without further interaction with the native title party. Ngadju contend that SIGM has not presented any evidence as to why its commercial position would be any worse off if it held an exploration licence instead of a mining lease until such time as a viable mineral deposit is identified.
SIGM states that, as the holder of prospecting licences P15/4753 and P15/4754, it had the right to apply for and have granted a mining lease in respect of the land subject of the prospecting licences pursuant to s 49 of the Mining Act. SIGM had no such priority for the grant of a miscellaneous or exploration licence. SIGM argues that it could not undertake any mining operations prescribed in regulation 32A of the Mining Regulations 1981 (WA) without first lodging a mining proposal and obtaining approval. The guidelines require the tenement holder to undertake and demonstrate effective and appropriate engagement with stakeholders, which includes internal and external parties who are likely to affect, be affected by, or to have an interest in the proposed mining activities. Furthermore, SIGM contends that it is open for the Tribunal or the State to impose supplementary conditions on the proposed lease.
I accept that SIGM’s application for a mining lease over the area was made for legitimate commercial and operation reasons. I do not consider it to be relevant in the circumstances of this application that SIGM could have achieved the same objections by way of an exploration licence or a miscellaneous licence.

Should the proposed lease be granted and, if so, what conditions should apply?

Section 38 of the Native Title Act provides that I must make one of three determinations:
(a)a determination that the act must not be done;
(b)a determination that the act may be done; or
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.
The Tribunal has a broad discretion to impose conditions, subject to certain statutory limitations. That discretion must be exercised by reference to the s 39 criteria and is controlled by the subject matter, scope and purpose of the Native Title Act (see Re Koara People at 93). Any conditions take effect as if they were the terms of a contract among the negotiation parties (see s 41 of the Native Title Act).
SIGM contends that, upon weighing the various criteria in s 39 against each other, I should determine that the proposed lease should be granted. The State contends that I should make a determination that the proposed lease may be granted without conditions, though it intends to impose its own set of standard conditions and endorsements. These conditions and endorsements are set out in Annexure B and Annexure C.
Ngadju contend that, in light of the limited evidence before the Tribunal regarding the effect to the proposed lease and its economic or other significance, the fact that SIGM and the State are seeking a determination that the proposed lease may be granted without conditions suggests the public interest favours a determination that the act must not be done. They note that, in cases such as Koara 2 where determinations have been sought in relation to the proposed grant of mining leases with no current mining proposal, the Tribunal has imposed extensive conditions. They also note that, in other cases, the State has proposed further conditions regarding access and notification of proposed works but it has not done so here.
SIGM says the fact that it has not proposed any particular conditions in this case needs to be considered in the overall context of the matter including:
(a)the area of the proposed lease is a small relative to the overall claim area;
(b)the proposed lease has been the subject of heritage surveys in which the Ngadju participants involved raised no objections to the proposed operations;
(c)there are no Aboriginal communities in the vicinity the proposed lease area;
(d)the State has proposed further endorsements and conditions in addition to those prescribed under the Mining Act; and
(e)the Guidelines for Mining Proposals issued by the Department of Mines and Petroleum require ‘effective and appropriate engagement with stakeholders’ in relation to any new mining proposal.
The State also denies that its position is that the proposed lease should be allowed to occur with no conditions. The State notes that it intends to impose its standard conditions and says at no time has it indicated any opposition to additional conditions being imposed. The State submits that it is a matter for Ngadju to identify any additional conditions it believes are necessary and has not demonstrated that any further conditions are needed.
Ngadju argue that SIGM has applied to the Tribunal for a specific remedy (that is, that the act may be done without conditions) and that in the circumstances the public interest requires the Tribunal to refuse that remedy. Ngadju argue that, in light of the uncertainty as to the nature of its effect, a determination that the proposed lease may be granted, whether or not that is subject to conditions, would stand as an example of an approach which says ‘agree or lose any rights.’
I do not consider that to be a fair or accurate characterisation of the Tribunal’s task. The Tribunal is required to make a determination having regard to all the criteria in s 39, informed by the factual material provided by the parties. Those criteria reflect an attempt to strike a balance between the protection of native title and the rights and interests of the broader community. The Tribunal’s task is to weigh those criteria by giving proper consideration to them on the basis of logically probative evidence (see Western Australia v Thomas at 149-150, 158 and 162).
I have weighed the likely effect of the proposed lease on the matters in s 39(1)(a) against its economic significance and the public interest in the grant of the lease. Specifically, I have taken into account the likely effect on hunting, the right to make decisions about the use and enjoyment of the area and the right to maintain and protect important places, Ngadju people’s freedom of access and their way of life, culture and traditions. I have also had regard to the possible risk of interference with areas or sites of particular significance to the Ngadju People in accordance with their traditions.
Although it is difficult in the circumstances to form a complete view of the likely effect of the grant, I am satisfied the effect of the proposed lease on these matters can be managed and mitigated by appropriate conditions. While I have had regard to the conditions imposed by the Tribunal in Koara 2, I accept the State’s submission that not all of those conditions are relevant or appropriate.

Conditions on access

Although there are existing restrictions on access to the area, the grant of the proposed lease may lead to further restrictions, particularly if the area is eventually used for active mining operations. It is therefore appropriate to impose a condition ensuring that any right of access to the proposed lease area is not to be restricted except in relation to those parts of the land to be used for exploration or mining operations or for safety or security reasons.
In light of the concerns expressed by the Ngadju People regarding the implementation or enforcement of restrictions on access on other SIGM tenements and whether the implementation or enforcement of those restrictions are proportional to the needs of safety and security, I consider it appropriate to impose a condition requiring any persons engaged by SIGM who enter the proposed lease in connection with exploration or mining operations to undergo cultural awareness training.

Conditions on heritage

Although the area has already been subject to heritage surveys in connection with the proposed exploration, it is possible in my view that areas or sites of particular significance to the Ngadju people were not identified in the course of those surveys.
While I am satisfied, in reliance on those surveys, that the proposed exploration is unlikely to cause interference, it is appropriate to impose conditions requiring SIGM to undertake further heritage surveys with the participation of the Ngadju People in the case of any future mining proposals.
The possible effect on any proposed exploration or mining operations on areas or sites of particular significance will also be mitigated by conditions requiring persons engaged by SIGM to undergo cultural awareness training.

Conditions regarding notice of proposed works and consultation

Given that the nature, scale and extent of any future mining operations has yet to be determined and the effect of this on Ngadju’s right to make decisions about the use and enjoyment of the area and their right to protect and maintain important places, further conditions are appropriate to ensure that Ngadju have notice of and the opportunity to comment on and be consulted about any future mining proposal.
Accordingly, I have imposed a condition requiring SIGM to provide to Ngadju copies of any proposed exploration, mining or construction works which it is required to provide to the State for assessment in approval. In addition to this, I have imposed conditions requiring the establishment, prior to the commencement of productive mining operations, of a liaison committee comprising members nominated by SIGM and Ngadju.

General conditions

I have also imposed conditions requiring SIGM to take reasonable measures to ensure its employees, agents and contractors comply with the conditions and ensuring that any entity to which the proposed lease is assigned is also bound by the conditions.

Determination

The determination of the Tribunal is that the act, being the grant of M15/1802 to St Ives Gold Mining Company Pty Ltd, may be done subject to the conditions set out in Annexure A.

Mr JR McNamara
Member

19 June 2017

ANNEXURE A: CONDITIONS TO BE COMPLIED WITH BY THE PARTIES

Access
1.       Any right of the native title party to access or use the land the subject of mining lease M15/1802 is not to be restricted except in relation to those parts of the land which are used for exploration or productive mining operations or for safety or security reasons related to those activities.
Notice of proposed works
2.       When, prior to commencing any exploration or productive mining or construction activity on mining lease M15/1802, the grantee party submits a plan of proposed operations and measures to safeguard the environment or any addendums thereafter to the Government party for assessment and written approval, the grantee party must at the same time give to the native title party a copy of the proposal or addendums, excluding sensitive commercial data, and a plan showing the location of the proposed operations and related infrastructure, including proposed access routes.
Aboriginal cultural heritage
3.1     The grantee party shall comply with the Aboriginal Heritage Act 1972 (WA) and any other applicable Aboriginal heritage legislation.
3.2     To ensure compliance with condition 3.1 and subject to conditions 3.4 and 3.5, the grantee party must not conduct mining operations (other than works identified as being within the scope of works covered by the heritage survey report dated 18 September 2015) over a part or whole of mining lease M15/1802 unless it has first caused an Aboriginal site survey to be conducted over that part or whole of the mining lease.
3.3     The site survey must be conducted by a Site Survey and Clearance Team which (subject to condition 3.4) must include as many persons as are nominated by the native title party up to a maximum of three nominees, and be conducted in a professional and efficient manner in accordance with the ‘Aboriginal Heritage Due Diligence Guidelines’ published by the Government of Western Australia dated 30 April 2013 or any subsequent guidelines or requirements which may be published or prescribed for the purpose of the Aboriginal Heritage Act 1972 (WA) to the extent that those guidelines or requirements are relevant to the conduct of site surveys, or as otherwise agreed between the native title party and the grantee party. The grantee party must pay the reasonable fees and expenses of the nominees of the native title party in relation to the survey. Further unpaid nominees of the native title party may be included in the Site Survey and Clearance Team at the discretion of the grantee party.
3.4     The grantee party must give written notice to the native title party of its intention to conduct the site survey and when giving notice must include a suitable topographical map showing the areas proposed to be surveyed, and the location of the mining lease. If, within 30 days of receipt of the notice, the native title party fails to nominate any persons for the Site Survey and Clearance Team then the grantee party need not conduct such survey or clearance unless required to do so to meet the requirements of the Aboriginal Heritage Act 1972 (WA). If a survey or clearance is required to meet the requirements of the Aboriginal Heritage Act 1972 (WA) then the grantee party must take reasonable steps to consult with the native title party.
3.5     The site survey required under condition 3.2 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 or clearance unless required to do so to meet the requirements of the Aboriginal Heritage Act 1972 (WA). If a survey or clearance is required to meet the requirements of the Aboriginal Heritage Act 1972 (WA) then the grantee party must take reasonable steps to consult with the native title party.
3.6     If requested in writing either by the native title party or the grantee party at any time before, or in the course of, or at the conclusion of the site survey, the native title party (or their nominees) and the grantee party (or its agents, representatives or contractors) must meet on the mining lease area for the purpose of identifying the boundaries of the sites.
3.7     Where, in respect of a part or the whole of the mining lease, a site survey has been conducted in accordance with these conditions the grantee party is not required to conduct any further site survey and clearance over that part or the whole of the mining lease (as the case may be).
3.8     The grantee party must not disclose to any person any information given to it by the native title party regarding sites, except (and only then on a confidential basis):
(a)with the written consent of the native title party;
(b)to a bona fide prospective assignee of the mining lease;
(c)to an actual assignee of the mining lease;
(d)to employees, agents, contractors and consultants for the sole purpose of ensuring that no sites are interfered with and as far as the information relates only to the location of those sites; and
(e)as required by law

3.9     No exploration or mining operations are to be carried out by the grantee party on sites indicated by the site survey except with the written consent of the native title party or pursuant to s 18 of the Aboriginal Heritage Act 1972 (WA)
3.10 If the grantee party gives notice to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA) it must forthwith serve a copy of that notice on the native title party and the Government party
3.11 Within 30 days of receipt of a copy of any notice given to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA), the native title party will inform the grantee party in writing if the native title party wishes to be consulted concerning the proposed use of the land in the notice under s 18 of that Act. If so informed, the grantee party will promptly supply details of the proposed use and make itself available to meet with the native title party to describe that proposed use within 21 days of the native title party giving it notice. The native title party will organise for interested members of the native title claim group to attend the meeting.
3.12     The Government party must forthwith upon receipt by the Minister of a notice and recommendation from the Aboriginal Cultural Material Committee in respect of a site on the mining lease area, give a copy of the recommendation and any related report excluding any confidential information provided to the Committee by other than the native title party to the native title party.
3.13 Where the Minister gives or declines to give consent under s 18 of the Aboriginal Heritage Act 1972 (WA) to the proposed use of the land the subject of the notice and recommendation, the Government party must forthwith inform the native title party of the decision.
Cultural awareness program
4.1     Following the commencement of exploration or productive mining operations on mining lease M15/1802, the grantee party must ensure that all persons who are not the native title party and who are engaged directly or indirectly by or on behalf of the grantee party and who may enter the mining lease area in relation to the exploration or productive mining operations are given appropriate information for the following purposes:
(a)to familiarise such persons with the traditions and culture of the native title party;
(b)to promote a knowledge and understanding of and respect for the traditions and culture of the native title party; and
(c)to foster good relationships between the native title party and others.

4.2 The native title party or their nominee and the grantee party shall cooperate in formulating and directing the presentation of the information.
Liaison Committee
5.1Subject to conditions 5.2 and 5.5 and prior to the commencement of productive mining operations on mining lease M15/1802, the grantee party must establish and continue a liaison committee comprising:
(a)up to two persons nominated by the grantee party; and
(b)up to two persons nominated by the native title party.

5.2The grantee party must give written notice to the native title party of its intention to form the consultation committee (the committee) and invite written nominations from the native title party in respect of its representatives on the committee. If within 30 days of the receipt of the notice the native title party fails to nominate 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.
5.3Each party may replace one or both of its members on the committee by giving at least seven days written notice to the other party. Where a committee member is temporarily not available to attend meetings of the committee, the member may substitute another person to represent the interests of the relevant party during the period when that member is unavailable.
5.4The functions of the committee will be the following:
(a)to provide a forum for the exchange of information between the parties concerning:
(i)the mining operations, including proposed changes to those operations;
(ii)matters of importance to either the native title party or the grantee party as they relate to those exploration or mining operations or the area covered by the mining lease;
(iii)the methodology and budget for any site survey required by condition 3.2.

5.5The committee must meet at least every six months. If all the committee members nominated by the native title party or their substitutes fail, without giving at least three days written notice to the grantee party, to attend three committee meetings in a row the grantee party is not required to continue the committee. The committee meetings must be open to other grantee party representatives and members of the native title claim group to attend as observers if they wish.
5.6The location of the committee meetings will be on the mining lease area unless agreed otherwise by the committee members.
5.7The reasonable costs incurred by committee members in attending up to two committee meetings per year will be met by the grantee party. This does not cover the professional costs of legal representation.

General
6.1 The grantee party shall take all reasonable action to ensure compliance with these conditions by its employees, agents and contractors.
6.2 Upon assignment of mining lease M15/1802, the assignee shall by bound by these conditions.

ANNEXURE B: DRAFT CONDITIONS TO BE IMPOSED ON PROPOSED LICENCES BY GOVERNMENT PARTY

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

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

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

The Lessee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
• the grant of the Lease; or
• registration of a transfer introducing a new Lessee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

ANNEXURE C: DRAFT ENDORSEMENTS TO BE IMPOSED ON PROPOSED LICENCES BY GOVERNMENT PARTY

The Lessee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

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

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

The Lessee attention is drawn to the provisions of the:
• Waterways Conservation Act, 1976
• Rights in Water and Irrigation Act, 1914
• Metropolitan Water Supply, Sewerage and Drainage Act, 1909
• Country Areas Water Supply Act, 1947
• Water Agencies (Powers) Act 1984

The rights of ingress to and egress from, and to cross over and through, the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

The taking of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless current licences for these activities have been issued by DoW.

Advice shall be sought from the DoW if proposing any mining/activity in respect to mining operations within a defined waterway and within a lateral distance of:
• 50 metres from the outer-most water dependent vegetation of any perennial waterway, and
• 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
Measures such as drainage controls and stormwater retention facilities are to be implemented to minimise erosion and sedimentation of adjacent areas, receiving catchments and waterways.

All activities to be undertaken so as to avoid or minimise damage, disturbance or contamination of waterways, including their beds and banks, and riparian and other water dependent vegetation.

In respect to Proclaimed Ground Water Areas (GWA/21, Goldfields) the following endorsement applies:

The taking of groundwater and the construction or altering of any well is prohibited without current licences for these activities issued by DoW, unless an exemption otherwise applies.