Vandeleur Superannuation Pty Ltd and Another v Gwen Peck & Ors on behalf of the Gnulli People - [2019] NNTTA 73

NATIONAL NATIVE TITLE TRIBUNAL

Vandeleur Superannuation Pty Ltd and Another v Gwen Peck & Ors on behalf of the Gnulli People [2019] NNTTA 73 (25 September 2019)

Application No:

WF2019/0003

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

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

Gnulli People (WC1997/028)

(native title party)

- and -

Vandeleur Superannuation Pty Ltd

(grantee party)

- and -

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:	25 September 2019

Catchwords:	Native title – future act – s 35 application for a determination – mining lease application M09/170 – jurisdiction – power – whether grantee party has negotiated in good faith – grantee party has negotiated in good faith – s 39 criteria considered – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect of act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of the native title party – economic or other significance of act – public interest in doing of act – determination that the act may be done subject to conditions
Legislation:	Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18, 39 Mining Act 1978 (WA) ss 74, 78, 82 Native Title Act 1993 (Cth) ss 29, 30, 30A, 31, 35, 36, 38, 39, 41, 76, 150, 151
Cases:	Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People [2008] NNTTA 38 (Australian Manganese v Stock) Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152 (Brownley v Western Australia) Doxford/Janice Barnes, Jessie Diver, Owen McEvoy, Deree King, Patrick Fisher (Wangan and Jagalingou)/State of Queensland [2008] NNTTA 54 (Doxford v Barnes) Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/Queensland [2012] NNTTA 9 (Drake Coal v Smallwood) FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 38 (FMG v Cheedy) Gregory Mark Jensen/Scott Gorrine & Ors (Mithaka People)/Queensland [2011] NNTTA 41 (Jensen v Queensland) June Ashwin, Geoffrey Alfred Ashwin, Ralph Edward Ashwin and Raymond William Ashwin on behalf of the Wutha People/Western Australia/Contact Uranium Limited [2008] NNTTA 129 (Wutha v Contact) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC v Lodestar Minerals Limited and Another [2019] NNTTA 25 (Mangarlu Ngurrarankatja Rirraunkaja v Lodestar) Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (Northern Territory v Griffiths) Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha people [1999] NNTTA 361 (Placer v Western Australia) Rusa Resources (Australia) Pty Ltd v Sharon Crowe and Others on behalf of Gnulli [2018] NNTTA 81 (Rusa Resources v Gnulli) St Ives Gold Mining Company Pty ltd v John Walter Graham & Ors on behalf of the Ngadju People and Another [2017] NNTTA 35 (St Ives v Graham) Western Australia/Johnson Taylor on behalf of the Njamal people/Garry Ernest Mullan [1996] NNTTA 34; (1996) 134 FLR 211 (Western Australia v Taylor) Western Australia/Koara People/Sons of Gwalia Ltd.; Mount Edon Gold Mines (Aust) Ltd; Dj & Rm Cottee & Pj Townsend [1996] NNTTA 31 (Western Australia v Koara People) Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (Wa) Ltd [1996] NNTTA 30; (1996) 133 FLR 124 (Western Australia v Thomas) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalikunu)/Western Australia/Holocene Pty Ltd [2009] NNTTA 49 (Western Desert Lands v Holocene) WMC Resources Ltd/Western Australia/Richard Evans on behalf of the Koara people [1999] NNTTA 372; (1999) 163 FLR 333 (WMC Resources v Evans)
Representatives(s) of the native title party:	Ms Megan Highfold, Yamatji Marlpa Aboriginal Corporation

Representative(s) of the grantee party:

Ms Janet Procak, All Mining Legal Pty Ltd

Representatives(s) of the Government party:

Ms Emily Archer, State Solicitor’s Office

Ms Viviana Gorlato, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

This decision considers whether the National Native Title Tribunal (‘Tribunal’) has power to conduct an inquiry into a future act determination application lodged by Vandeleur Superannuation Pty Ltd (‘Vandeleur’) under s 35 of the Native Title Act 1993 (Cth) for the grant of mining lease M09/170 (‘the proposed tenement’).[1] I was appointed by the President of the Tribunal to conduct the inquiry.
[1] Unless otherwise specified, all legislative references are to the Native Title Act 1993 (Cth) (‘the Act’).
The Gnulli People claimants (‘Gnulli’) are a negotiation party in this matter because at all relevant times the proposed tenement was, and remains, over land and waters the subject of their registered native title claim (see ss 29(2)(b)(i), 30(2) and 30A).
Gnulli contends that Vandeleur did not negotiate in good faith as required by s 31(1)(b). I must therefore consider whether or not Vandeleur did so negotiate before I can proceed to make a determination on the application. For the reasons outlined under the heading of ‘Did Vandeleur Negotiate in Good Faith?’, I find that Vandeleur did negotiate in good faith as required by s 31(1)(b).
As such, I find that the Tribunal has the requisite power to proceed to make a determination on the s 35 application. For the reasons outlined under the heading of ‘s39 Criteria’, I find that the act may be done subject to conditions (pursuant to s 38(1)(c)).

Good Faith Materials

In accordance with the directions set, Gnulli provided the following documents:
(a)‘Submissions in support of the Native Title Party’s contention that the Grantee Party has not negotiated in good faith in relation to the grant of mining lease M09/170’ (‘Gnulli contentions’);
(b)Affidavit of Megan Highfold affirmed on 13 June 2019 (including Annexures MFH1 to 16) (‘Highfold affidavit’); and
(c)Chronology of correspondence and events regarding mining lease M09/170.
Vandeleur provided the following documents:
(a)‘Grantee Party Statement of Contentions in Support of Negotiations in Good Faith’ (‘Vandeleur contentions’); and
(b)Affidavit of Janet May Procak sworn 21 June 2019 (including Annexures JMP1 to JMP44) (‘Procak affidavit’).
Gnulli provided the following documents in reply:
(a)‘Submissions in reponse [sic] to the Grantee Party’s Contentions in relation to the Grant of Mining Lease M09/170’ (‘Gnulli Reply’); and
(b)Affidavit of Megan Highfold affirmed 27 June 2019 (including Annexure MFH1) (‘Highfold Reply affidavit’).
The parties provided an agreed statement of issues and facts, which identifies material facts not agreed (‘Agreed Statement’). At [6]-[8] of the Agreed Statement, all parties expressed their view that the matter could be heard ‘on the papers’ and the remaining directions be vacated. There is nothing before me which suggests the good faith issue ‘cannot be adequately determined on the papers’ and that I ‘must hold a hearing’ (s 151(2)(b)).
In the circumstances, I was satisfied that I could determine the good faith issue without the need for a hearing and this was communicated to parties.

Section 150 Conferences

On 10 May 2019, Tribunal records indicate that Gnulli requested mediation assistance in relation to the proposed tenement negotiations. Pursuant to s 150, the President appointed Member Helen Shurven to convene a conference with all parties to this inquiry.
Tribunal records indicate that the first joint conference was held on 12 June 2019. The following conferences were subsequently held:
(a)a single party conference with Vandeleur on 17 June 2019;
(b)a joint party conference on 17 June 2019; and
(c)a single party conference with Gnulli on 28 June 2019.
On 28 June 2019 the Vandeleur’s representative wrote to the Tribunal advising that Vandeleur no longer wished to continue with Tribunal-assisted conferencing. Consequently Member Shurven terminated the s 150 assistance.

Issues for good faith

Government Party

In this matter, Gnulli provided contentions and evidence alleging Vandeleur failed to negotiate in good faith. Gnulli also made a rhetorical statement concerning possible bad faith on the part of the State of Western Australia (‘Government party’) (Gnulli contentions at [38]):
… [It] is unclear what actions, if any, the Government Party has taken to prosecute the unlawful mining. If the Government Party has taken actions to facilitate or enable the Grantee Party’s unlawful mining it may evidence bad faith on behalf of the Government Party.
Both the Government party and Vandeleur had the opportunity to exercise their ‘evidential choice’ to lodge contentions and evidence in accordance with the directions made in this inquiry. The Government party chose not to provide contentions and evidence.
Relevantly, in Rusa Resources v Gnulli, President Dowsett said (at [16]):
Section 36(2) contemplates a negotiation party undertaking the burden of satisfying the Tribunal that another negotiation party has not negotiated in good faith. The question is not as to the adequacy of the latter party’s negotiation technique or strategy. The question is whether that party’s behaviour demonstrates that is has not negotiated in good faith. The conduct of all other parties may be relevant in considering whether a party has been guilty of conduct which is in some way inconsistent with the duty imposed by para 31(1)(b).
Further, as found in Rusa Resources v Gnulli (at [24]), s 36(2) places upon Gnulli the burden of establishing that any other negotiation party has not negotiated in good faith. It is not incumbent on Vandeleur, or anybody else to prove that it has negotiated in good faith.
In this matter, I find that Gnulli has not discharged the burden of establishing that the Government party has not negotiated in good faith and I do not propose to consider that matter further.

Grantee Party

Gnulli describe five reasons upon which it contends Vandeleur failed to meet its obligation to negotiate in good faith. Vandeleur has addressed those same five reasons. I reframe the reasons as issues for my consideration of whether Vandeleur negotiated in good faith with Gnulli as follows:
(a)Did Vandeleur provide Gnulli with sufficient information about the effect of the act to enable Gnulli to meaningfully negotiate about the doing of the act? If not, did this hinder Gnulli’s capacity to negotiate?
(b)Did Vandeleur adopt a rigid non-negotiable position, and fail to make counter offers?
(c)Was Vandeleur insincere in its intention to reach agreement with Gnulli?
(d)Was Vandeleur’s financial offer so perfunctory, unreasonable, and inadequate such that it affected its negotiating behaviour?
(e)Did Vandeleur’s overall conduct meet the threshold of good faith?

Did Vandeleur negotiate in good faith?

(a) Did Vandeleur provide Gnulli with sufficient information about the effect of the act to enable Gnulli to meaningfully negotiate about the doing of the act? If not, did this hinder Gnulli’s capacity to negotiate?

Failure to provide sufficient information about proposed activities can indicate a lack of good faith if it hampers the native title party’s ability to properly consider the effect of the future act on their registered native title right and interests and hinders their capacity to negotiate (Brownley v Western Australia at [24]-[25]).
Gnulli contends that Vandeleur failed to respond to reasonable requests for relevant information within a reasonable time and note this is one of the indicia of failure to negotiate in good faith (Gnulli contentions at [21] citing Western Australia v Taylor). Specifically, Gnulli states that Vandeleur ‘did not provide useful information the Native Title Party needs, to be able to assess the impact on their native title rights and interests’ and ‘without (these) details, it is difficult or impossible for the Native Title Party to assess the effect the doing of the act would have on its native title rights and interests’ (Gnulli contentions [18] and [21]).

What information did Vandeleur provide?

The Government party gave notice under s 29 on 15 November 2017 of its intention to grant M09/170 to Vandeleur (Agreed Statement at [2.2]). By letter dated 20 November 2017, the Government party requested Vandeleur provide Gnulli with the following information ‘to assist the Native Title Party in making its submissions regarding the grant of the Mining Lease’ (Procak affidavit [8]):
(a)an outline of the proposed work program for the tenement area;
(b)copies of the company’s last annual report, if available;
(c)whether Aboriginal heritage surveys are proposed or have been completed;
(d)any company policies or information which may be relevant to the native title claimants; and
(e)a suitable map of the project area.
In response to the above letter, Vandeleur provided material to Gnulli on 13 December 2017 (Agreed Statement at [2.3]). Vandeleur’s letter outlined that the proposed tenement was sought for the purpose of extending an existing commercial sand mining operation. Vandeleur advised that dune sand material and fine non-plastic sands were intended to be extracted and transported to a stockpile site where it would then be transported offsite. Further, the materials were intended to be used for construction purposes for industrial and residential developments. Vandeleur’s letter said that the company does not issue a public annual report but attached a document ‘Supporting Statement, Mining Lease Application’ dated 10 August 2017 (‘the Supporting Statement’).
Vandeleur advised that no Aboriginal heritage surveys had occurred over the proposed tenement but one would be carried out if required and Vandeleur would adhere to any obligations under the Aboriginal Heritage Act 1972 (WA) (AHA). It was also noted that there were no registered Aboriginal heritage sites on the proposed tenement. Vandeleur advised it would not restrict Gnulli’s access except for where safety concerns or regulations required. Finally, a map was attached to the letter (Procak affidavit [9]; JMP2).
The Supporting Statement provides more information concerning the project and its stages. The stage 1 operation is said to involve the mining of approximately 20,000t of sand from the dune, it describes the method, the transport arrangements, and the likely use of the material. In relation to stage 2 it says: ‘A much larger stage 2 mining operation will be undertaken when required supply contracts are in place’ (Supporting Statement p5).
A Mineralisation Report containing a ‘preliminary resource estimate’ accompanied the Supporting Statement. The area of the proposed tenement is 42ha and the volume of sand is ‘crudely estimated’ to be 1.8M tonne (Supporting Statement p5).
A description of mining operations is given in the Supporting Statement as follows:
The mining operation will see the use of a tracked excavator to carry out initial excavation of the material and loosen the sand from its natural compacted state. A wheel loader will then be used to load the material into haulage trucks for haulage to project sites.
In relation to site layout, the Supporting Statement says (p.7):
The site layout will evolve as the mining operation migrates north to south along the resource however initially access to the site and the laydown area used will remain consistent with current operations being carried out on M09/27 and accessed via L09/61.
…
The MLA [Machinery Laydown Area] coordinates significance mineralisation (i.e. dune sand) and growth of the excavation face along the continuous dune from North & South.
Other matters relevant to the project referred to in the Supporting Statement include: there will be minimal supporting facilities on site; there will be no permanent facilities installed on site; repairs and servicing of mobile plant will occur on site using mobile mechanics or machinery demobilised from site for repair; refuelling etc will occur using a service truck that will commute from Carnarvon; hydrocarbons used on site will be minimal; no fuel will be stored on site; minimal waste will be generated and rubbish created will be disposed of at the Carnarvon Waste Facility; the workforce of four will commute from Carnarvon on a daily basis; and, the Bibbawarra Road and current access track situated on L09/61 will be used as the primary transport corridor.
Gnulli says that the Supporting Statement is of limited use (Contentions [17]). In particular, it is said that ‘the Supporting Statement does not contain details about how “Stage 2”, the remaining 17980kt of sand would be extracted’. Gnulli indicates that, in order to enable it to assess the impact on native title rights and interests, the following information would be useful:
(a)what steps Vandeleur intends to take to ensure that sites or areas of significance to the native title party are not affected;
(b)the likely full extent of the mining operations;
(c)the likely lifetime of the mine; and
(d)the effect of the mining on the country and landscape including the environmental impact of the mine and what steps Vandeleur intends to take to mitigate negative environmental impacts.
Gnulli also says that on several occasions throughout the negotiations, and in particularised correspondence, it indicated to Vandeleur the need to provide ‘some or all of these further details’ (Gnulli contentions [19]). Gnulli says that Vandeleur did not provide these details, or useful details, or provided inconsistent information (Gnulli contentions [20]). Vandeleur says these allegations ‘are misleading and inaccurate’.
Vandeleur advises that it only became aware of Gnulli’s dissatisfaction with the information provided when Gnulli provided its contentions in the course of these proceedings (Vandeleur contentions at [49]). In summary, Vandeleur identifies the following as evidence of adequate information having been provided:
(a)letter dated 13 December 2017 and Supporting Statement;
(b)attendance at the 13 February 2018 Gnulli working group meeting;
(c)outline of expected performance on the lease dated 30 May 2018;
(d)email correspondence of 14 February 2019 responding to Gnulli’s queries; and
(e)attendance at the 20 February 2019 Gnulli working group meeting.

Did Vandeleur provide Gnulli with sufficient information to enable Gnulli to meaningfully negotiate?

The focus of Gnulli’s concerns regarding the alleged insufficent information relates to stage 2 (and presumably beyond) activities on the proposed tenement and their effect. The sufficiency of information concerning stage 1 is not challenged, except to the extent stage 1 might affect ‘country and landscape’ and the ‘overall environmental impact’ of the mine (Highfold affidavit [25]; MFH10).
Gnulli’s concerns about inadequate information regarding the likely full extent of the mining operations focussed on the potential volume of the resource and its value. In the absence of information to the contrary, Gnulli speculated that the entire resource could and would be exploited.
In response to a number of questions from Gnulli ahead of the 20 February 2019 working group meeting, Vandeleur says that at some point in the future the sand dune on their existing lease will have been fully used, and ‘this application’ is to ensure supply for the foreseeable future (JMP20). Vandeleur says that average extraction per financial year for the last 5 years ‘has been circa 5,700 tonnes’ and the ‘best guess’ market rate is $8. It also says that it expects the dune to service their needs for years to come, ‘more than 20 years is my estimate’. Vandeleur did not respond to the question ‘Will all 1.8M tonnes of sand be extracted?’ When asked for ‘a preliminary assessment of the likely cultural and environmental impacts’ and risk management strategies, Vandeleur said:
Our preliminary assessment is there will be few to no cultural and environmental impacts. If anything our 54 operation improves the area, part of this lease used to be used as a rubbish tip and we are inadvertently cleaning it as we take sand.

In response to a question about the works program Vandeleur said ‘History suggests we might be on the lease for 7 days to 21 days per calendar year’.
In an earlier email on 30 May 2018 (JMP13), Vandeleur provided a table outlining the performance of the existing lease M09/27 over a five year period. The table identified tonnes extracted, royalties paid, estimated market value, and reported expenditure. The email said this ‘will provide some context’ as the new application is effectively an extension of the existing lease and ‘reflective of future performance forecast of M09/27’. Further, the 30 May 2018 email said that the:
economics of the lease/s are not strong from a mining perspective and fluctuate dependent mostly on government contracts in the area. For this reason, Vandeleur’s preference is to negotiate fixed lump sum payments based on milestones; rather than ongoing or annul (sp) payments.
A proposal was then made in these terms:
Vandeleur suggests the following:
Mining Lease Grant $2000
Commercial Production Commencement $3000
Would you please pass our proposal on to the Gnulli Group and advise if they would like me to attend another meeting?
A definitive projection of volume and value and the expected life of the mine should not prevent meaningful negotiation. There are many ways to take account of such uncertainties in negotiation and agreement making.
It is agreed that on 20 February 2019 Vandeleur attended the Gnulli working group meeting in Carnarvon (Agreed Statement at [2.12]). Vandeleur says that at the meeting it provided the project overview and addressed questions in relation to the proposed tenement (Contentions [49(e)]). The Highfold affidavit refers to the same meeting and states (at [20]):
Members of the GWG spoke to Luke about their concerns about the magnitude of the Lease application area and the possible consequential negative impacts on the land, environment, and their cultural heritage, including destruction of fauna and flora. Members of the GWG raised corners (sp) about the loss of vegetation and land and the cultural impacts when land is removed. When asked about the rehabilitation plans, Luke responded that the company was obligated to revegetate an area when they left. When asked if the Grantee Party would reduce the Mining Lease application area, Luke responded that the reason for the size of the tenement as for cost savings on the application progress. When asked how long mining operation on the mining lease would last, Luke said 150 years.
It should be noted that pursuant to s 78 of the Mining Act 1978 (WA) (the Mining Act), a mining lease shall remain in force for an initial term of 21 years, and may be renewed for further terms of 21 years.

Conclusion

The Supporting Statement, Mineralisation Report and December 2017 letter (JMP2) are quite descriptive of the scope and nature of activities proposed. While the information primarily concerned stage 1, there is nothing in the material to suggest that the methods to be applied would be significantly altered in stage 2, noting that the entire tenement is an area of 42ha.
There is nothing in the material to suggest that the extraction rate is expected to increase significantly over a prolonged period. Evidence concerning fluctuations and five year averages is instructive. The material suggests that the product is not one where substantial stockpiling would occur. The volume and rate of extraction is seemingly short term demand driven. The primary source of demand appears to be government, and there appears the possibility of some competition in that regard.
In my view the statements attributed to Vandeleur concerning the life of the mine are not necessarily inconsistent. At the current and forecast stage 1 extraction rate it is conceivable that, if future tenements were granted, the resource life could be long. The suggestion of ‘more than 20 years’ is correct, as is the theoretical potential of more than 100 years.
While more detailed information concerning stage 2 projections may have assisted negotiations, this of itself is not indicative of a failure to negotiate in good faith. In my view Gnulli were not hindered in the negotiations by the lack of that information.
In that regard, I am of the view that overall the material was adequate to enable Gnulli to meaningfully negotiate about the grant of the proposed tenement – certainly regarding the impact on the exercise of native title rights and interests, the protection of sites, landscape and environmental impacts, and their use and enjoyment of the area.

(b) Did Vandeleur adopt a rigid non-negotiable position, and fail to make counter offers?

Gnulli contends that Vanderleur ‘delayed making an offer, and terminated negotiations instead of making a counter offer’ (Gnulli contentions [22]).
Gnulli says that Vandeleur delayed 9 months (February 2018 to November 2018) in responding to a precedent agreement prepared and provided by Gnulli.

12 February 2018 and 30 May 2018 ‘offers’

Vandeleur and Gnulli (through the Gnulli working group) first directly discussed the proposed tenement at the 13 February 2018 working group meeting. Details of the discussion at the meeting are scant but included reference to an earlier agreement with the ‘original lease holder’ the content of which no one then present could recollect, and, a general sense held by Vandeleur that the meeting was ‘quite positive’(Vandeleur contentions [49(b)], [54(b)]; JMP9).
Vandeleur say that the ‘precedent agreement’ was provided by Gnulli on 12 February 2018 for the purposes of the 13 February 2018 Gnulli working group meeting. The covering email to which the precedent agreement was attached (MFH5) said that:
…this is no way a representation or an offer from the Gnulli Group. It is just to be taken as an example of an MA [Mining Agreement] for your reference for tomorrow’s meeting.
Vandeleur say the precedent agreement was not discussed at the 13 February 2018 meeting although an email from Jessica Pollock (YMAC) to Janet Procak (for Vandeleur) dated 3 May 2018 suggests that at the meeting it was ‘indicated to Mr Vandeleur …’ that he should send a marked up copy of the precedent agreement with his ‘amendments and offer to the group for their review’ (JMP34; MFH6).
It is not uncommon in these types of negotiations for a redacted form of agreement which has been acceptable to that party in other circumstances to be presented to assist negotiations. In fact, such documents are often requested prior to any engagement.
As outlined above, the 30 May 2018 email (JMP13) informed Gnulli that Vandeleur’s proposal for the proposed tenement was ‘effectively an extension’ of their existing lease M09/27. The suggestion inherent in that correspondence was that, taking account of fluctuations arising from government contracts, averages over a five year period provide a production and profit forecast for the proposed tenement. For this reason, Vandeleur’s stated preference was to negotiate ‘fixed lump sum payments based on milestones; rather than ongoing or annual payments’.
Vandeleur asked that this proposal be passed on to Gnulli and was advised it would be put to Gnulli at the next working group meeting tentatively proposed for July or August. It appears the next correspondence was on 24 October 2018 (JMP14), when Vandeleur was requested to provide an explanation of the financial information provided on 30 May 2018 and how it related to the precedent agreement provided by Gnulli. Vandeleur’s position in relation to the remainder of the agreement was also requested.
I note that the 30 May 2018 email is, at least, the financial component of an offer. I note that the proposal identifies only two milestones, the grant of the tenement and the commercial production commencement, and no ongoing production milestones.
In response, Gnulli says that Vandeleur failed to explain how ‘the full and final offer of $5000 is proportionate and fair and reasonable in the circumstances’ (Gnulli Reply [12]). This will be discussed further at d) below.

20 February 2019 Gnulli working group meeting outcomes

On 20 February 2019 Vandeleur attended a Gnulli working group meeting and gave a presentation in relation to its project. YMAC on behalf of Gnulli wrote to Vandeleur on 26 February 2019 (MFH10) saying that:
(a)the working group had significant concerns about the proposed tenement area and ‘impact on their cultural heritage and the environment, including the destruction of flora and fauna’;
(b)‘YMAC is instructed … to request that the company reduce the size of the application by 50% …’; and
(c)the working group instructed YMAC ‘to present their counter offer to your proposal on the key terms of the draft mining lease, if the company agrees to reduce the size of the mining lease application’.
Of the three points in the 26 February 2019 letter, the third suggests that substantive negotiation concerning the terms of an agreement was contingent upon the agreement of Vandeleur to reduce the proposed tenement area by 50%. That is, Gnulli’s counter offer would only be presented to Vandeleur if the company agreed to reduce the proposed tenement area by 50%.
The information necessary to elicit Gnulli’s ‘counter offer’ (per 26 February 2019 letter) would be a ‘letter of acceptance from DMIRS to reduce the size of the area of the company’s mining application’.
Gnulli says ‘[t]he Native Title party made its formal counter offer to the Grantee Party a week after the Grantee Party attended its first Native Title party meeting in person’ (contentions [32]).
In my view the 26 February 2019 letter is, at best, a contingent proposal to make a counter offer, and is not itself a counter offer. Vandeleur expresses a similar view and say that they could not make a counter offer where no offer was made by Gnulli (contentions [64]-[66]).
On 1 March 2019, Vandeleur sent an email to the Government party providing an update regarding negotiations (JMP22). The email confirms attendance by Vandeleur at the Gnulli working group meeting on 20 February 2019 and says:
We are instructed that during the meeting the Gnulli group indicated that they would like Vandeleur to reduce the application area by 50% in the interest of preserving the native vegetation and culture of the area.
We have subsequently been informed by YMAC that the Gnulli will not continue negotiating an agreement over the current area of the mining lease.
As there are no productive negotiations since the initial meeting with the Gnulli over 12 months ago, and as the Gnulli do not wish to provide comment on the agreement returned to the Gnulli over the current area of the application, we are instructed that Vandeleur intends to make an application for pursuant to section 35 for a Determination.
In response to the 26 February 2019 letter Vandeleur emailed Gnulli (MFH11) stating:
…At this time decreasing the size of the application area is not viable for us.
We are of the view negotiations have not progressed or are progressing and have elected to make an application for a Section 35 Determination. Please note we have informed the state of our intention to apply.
The future act determination application was made by Vandeleur on 11 April 2019 (Vandeleur contentions [6]). Gnulli’s allegation suggesting improper motive in making this application is discussed at (c) below.
As outlined above, Vandeleur’s response to the request to reduce the proposed tenement area was ‘not viable for us’, although a further explanation was not provided at that time. It is apparent from the 1 March 2019 email from Vandeleur to the Government party that the suggestion of decreasing the size of the area was first raised at the 20 February 2019 Gnulli working group meeting although the extent to which it was discussed is not disclosed.
In contentions, Vandeleur explains that decreasing the proposed tenement area could not be done by letter: a new tenement application would need to be made (as per s 74 of the Mining Act); it would require Vandeleur to re-peg the area; and require re-notification under the Act (contentions at [68]-[70]). Gnulli says Vandeleur had not previously provided this explanation (Gnulli Reply [20]).
Given that the Government party has chosen not to make submissions in this inquiry, no explanation of its attitude or approach to requests for the reduction of tenement application areas, nor the relevant operation of the Mining Act and any Native Title Act implications has been provided.
Despite the terms of the 26 February 2019 letter, Gnulli say that ‘further offers’ were made on 15 and 29 March 2019, prior to Vandeleur’s lodgement of the s35 application, and on 18 April 2019 (Contentions [28]; Reply [26]; MFH14).

15 March 2019 and 29 March 2019 ‘further offers’

On 15 March 2019, Gnulli set out in more detail the terms of an offer in a letter (MFH12). The letter asks Vandeleur to ‘reconsider its position and agree to reduce the size of its mining lease application area, to take account of some of our clients’ concerns as expressed …’, and then says ‘In the event the company reconsiders and agrees to reduce its application area our client is prepared to make the following counter offer …’. Certain direct and indirect financial benefits are then described. In the penultimate paragraph it says ‘We also seek the company to reconsider and withdraw the application for a section 35 determination’. I note that no s 35 application had in fact been made at this time. In the final paragraph the following is stated:
Should the company agree to continue working towards reaching an agreement, and are agreeable to the above counter-offer of key terms, we are prepared to recommend to our client that they agree to forgo the reduction of the mining lease application area.
It is unclear how to reconcile the final paragraph with the statements which preceded the terms of the ‘counter offer’. The Gnulli ‘counter offer’, on the face of it, is contingent upon agreement to reduce the proposed tenement area – although it appears YMAC is also saying they would recommend that the contingency be removed if the terms are accepted. If that is the correct interpretation, it places Vandeleur in a position that, at best, it could only make a contingent response. In response Vandeleur said (MFH11):
While we would like to continue negotiating an appropriate land and access agreement over the Mining Lease with the Gnulli people, the costs proposed … are not viable to a small mining operation. Also, we cannot agree to reducing the size of the Mining Lease to half the size.
Finally Vandeleur says:
We will be submitting an application for a section 35 Determination, however, we are happy to continue the negotiation process while we await the outcome.
In 29 March 2019 correspondence, YMAC confirms receipt of Vandeleur’s advice that ‘the proposed counter offer of direct financial benefits outlined in our letter of 15 March, are not viable to a small mining operation’ (MFH13). YMAC also asks Vandeleur to reconsider its s35 application and the request to reduce the size of the proposed tenement ‘even if the overall reduction is less than half’. YMAC then says it is prepared to recommend to Gnulli that it agree to accept a ‘compromise position in relation to the direct financial benefits under the agreement’. Certain, now reduced, direct and indirect financial benefits are then described. Once again, the statement is made that if Vandeleur were agreeable to the benefits proposed ‘we would also be prepared to recommend to our client that they reconsider their requirement for the company to reduce its application area. Alternatively, please provide a counter offer to the direct financial benefit payments set out in our letter of 15 March 2019’. In the final paragraph it says that ‘the above proposals are provided on a without instructions basis. We will need to obtain our client’s consent to the above recommendations. In the event the company agrees’ (emphasis in original document).
This correspondence appears to confirm what is not asserted in the 15 March letter, that is, that the proposals are those of YMAC and are made on a ‘subject to instructions’ basis.
Vandeleur says that the ‘alleged offers’ made by Gnulli on 15 March and 18 April 2019 were made on the basis that Vandeleur reduce the size of the proposed tenement area (Contentions [72]). It says the ‘alleged offer’ made on 29 March 2019 was made by YMAC on a “without instructions” basis, and if accepted by Vandeleur, YMAC would recommend to Gnulli that it reconsider its position on reduction of the proposed tenement area (Vandeleur contentions [73]). Vandeleur says that on 9 April 2019 Vandeleur confirmed its position on reduction of the tenement area and asked YMAC to present the draft agreement and the information provided on 14 February 2019 (JMP20) to the Gnulli working group in order to obtain instructions in relation to the agreement as a whole (Contentions [74]).
There is no evidence that YMAC were not authorised to meaningfully negotiate with Vandeleur. YMAC came with an apparent authority greater than one which would merely confine them to having a capacity to argue or listen (see Western Australia v Taylor). This is demonstrated by the modification of offers, albeit subject to instructions. In FMG v Cheedy at [65] per Member O’Dea:
… It is not my understanding that it is necessary in order to be said to be negotiating in good faith that a negotiator must be in a position at all times and at all meetings to sign off on a final agreement without reference to any higher authority. It is clear …. that should agreement have been reached … it would have been necessary for confirmation of that agreement to be undertaken, not only by the grantee party, through its board, but also by the native title party through its governing structures. It would be unreasonable to assume that either a native title party or a grantee party had to authorise a negotiator to make unequivocal decisions on behalf of the respective entities that they represent …
While I agree with this analysis and conclusion, YMAC references an intermediate step, being a recommendation by YMAC to Gnulli to reverse its position regarding the condition to reduce the proposed tenement area. To this point, there was no suggestion that Gnulli’s position was ‘negotiable’.

Conclusion

Vandeleur responded by email on 9 April 2019 (MFH11) confirming ‘that Vandeleur will not agree to any reduction of, or amendment to, the boundaries of the Mining Lease application’. The email did not address the revised direct and indirect financial benefits. In the closing paragraph it says:
On this basis, could you please present the draft agreement, along with the information provided to you by email on 14 February 2019 (see attached), to the Gnulli Group at the Working Group Meeting and then let me know your instructions in relation to all proposed amendments, financial or otherwise.
It is well established that the consideration of good faith negotiations requires contextual evaluation. I agree with the finding in Wutha v Contact (at [25]) that:
It would be incorrect to impose on parties altruistic or artificial standards of behaviour removed from the financial, regulatory and interpersonal reality that they face.
In this case, while Vandeleur was unwilling to negotiate an outcome which would see the reduction in the proposed tenement area (whether that was in fact achievable or not), the later correspondence from YMAC suggests that Gnulli’s position might have, in fact, been negotiable. In relation to other financial and non-financial benefits, Vandeleur made an offer and modified its offer. There is no requirement in good faith for a party to capitulate or to accept the other party’s position (Western Australia v Taylor at 223).
As such, I find that Vandeleur did not adopt a rigid, non-negotiable position or failed to make counter offers.

(c) Was Vandeleur insincere in its intention to reach agreement with Gnulli?

Gnulli contends that the context and timing of Vandeleur bringing a future act determination application indicates that Vandeleur was ‘not sincere in (its) intention to reach an agreement with the Native Title Party’ (contentions [14(c)]).
Specifically Gnulli says that the making of such an application can be evidence of a lack of good faith ‘if in doing so the government or grantee party had improper motives, or adopted a negotiation strategy so unreasonable as to indicate a lack of sincerity in its desire to reach agreement’ (Placer v Western Australia at [30]).
Gnulli suggests Vandeleur’s subjective intent is disclosed by the act of making a future act determination. That, it says, was unreasonable and indicated a lack of sincerity in Vandeleur’s desire to reach agreement.
Gnulli says (Reply [25]) in further support of the allegation that Vandeleur did not evidence a genuine intention to negotiate in good faith, that the Government party was informed of Vandeleur’s intention to pursue a s35 application within days of Gnulli’s 26 February ‘counter offer’ and well before Gnulli was informed of this intention (Reply [25]). Further, Gnulli notes the application was made without Vandeleur making any counter offer (to Gnulli’s offers made 26 February, 15 March and 29 March 2019 discussed below).
The future act determination application was made by Vandeleur on 11 April 2019 (Vandeleur contentions [6]).

Conclusion

In context and in isolation I cannot attribute a lack of good faith negotiations to advice of an intention to make a s35 application contained in the 1 March 2019 correspondence from Vandeleur to the Government party. Whether this might be relevant to findings concerning overall behaviour will be addressed later in this determination.

(d) Was Vandeleur’s financial offer so perfunctory, unreasonable, and inadequate such that it affected its negotiating behaviour?

In contentions, Gnulli submits (at [36]) that the:
[F]inal offer of $5000 for the grant of a mining lease with mineral worth $14,400,000 and an estimated time life of more than a century is disproportionate, and evidence the Grantee Party did not negotiate in good faith.
The ‘final offer of $5000’ which Gnulli references is contained in the 30 May 2018 email. The mineral worth, assessed by Gnulli, is total estimated volume of 1800kt as disclosed in Mineralisation Report at the ‘best guess’ market rate of $8t (JMP20).
Financial and non-financial benefit proposals are found in the precedent agreement provided to Vandeleur by YMAC on 12 February 2018 – albeit subject to the caveat described above at [57]. The agreement includes a Schedule 5 which identifies specific execution payments, milestone payments and production payments (Vandeleur’s contentions at [96]). I note also Project Agreement Clause 15 which says that benefits under this agreement are in full and final satisfaction of any obligation by the company to pay compensation to the native title party for the effect on traditional rights of the grant or renewal of project tenure.
The next Gnulli ‘offer’ was contained in a letter dated 15 March 2019, with considerably lower direct financial benefit payments proposed, but as discussed above, seemingly contingent upon agreement to reduce the proposed tenement area.
The third Gnulli ‘offer’ was contained in a 29 March 2019 letter from YMAC to Vandeleur (JMP25). It contained a further reduced direct financial benefit proposal and different payment structure.
Vandeleur contends that Gnulli misrepresents Vandeleur’s financial position and extraction capabilities. Vandeleur says that its 30 May 2018 correspondence provided an outline of expected performance, based on past performance, of approximately 5,700 tonnes per annum and that $8t was their best guess of the market rate of the sand. Vandeleur says this equates to $45,600 per annum less operational costs (JMP13; MFH3).
While Vandeleur asserts that its financial position and extraction capability are misrepresented by Gnulli, it suggests only that the extraction rate and return will remain constant over the life of the project. That may be the case.
In the email correspondence of 14 February 2019 (JMP20), Vandeleur says that it expects the dune to service its needs for years to come ‘more than 20 years is my estimate’. I note that Vandeleur did not answer the question whether all 1.8M tonnes of sand would be extracted. Vandeleur’s 30 May 2018 email (JMP13), includes a table outlining performance over 5 years and says that the ‘economics of the lease/s are not strong from a mining perspective and fluctuate dependent mostly on government contracts in the area’. This, Vandeleur asserts, is the reason for its preference to negotiate fixed lump sum payments.
Vandeleur says that the amounts proposed by Gnulli in its ‘first offer agreement are unreasonable and unviable’, although it makes no specific comment regarding Gnulli’s later offers (Contentions at [93]-[96]).
The second proposal presented by YMAC (as the financial benefits are considerably reduced) may reflect a consideration by YMAC of the information provided by Vandeleur on 14 February 2019.
There was a significant distance between Vandeleur’s and YMAC’s proposals. While YMAC did make subsequent financial ‘offers’, those later offers appeared contingent upon a reduction in the proposed tenement area discussed at (b) above.
Vandeleur provided further information at stages of the negotiations concerning the project and past performance, however the financial terms it proposed did not change.
Vandeleur’s current business on its existing lease M09/27 is a relatively small operation. All the correspondence and material lodged in this inquiry indicates that Vandeleur is of the view that if the proposed tenement is granted, that despite access to a much greater resource volume, extraction will not accelerate, it will fluctuate dependent on government contracts, but overall extraction and income will be fairly constant.
In Drake Coal v Smallwood Sosso DP said:
[200] ….. The Act imposes an obligation to negotiate in good faith. One of the indicia of negotiating in good faith is acting reasonably. A reasonable grantee party seeking to negotiate in good faith would put to the native title party a reasonable offer. The reasonableness of the offer would depend on a number of factors, including the financial and logistic capacity of the grantee party, the potential size and revenue flow from the proposed mine and the views and aspirations of the native title party.

[201] The Tribunal would only consider the fairness of a compensation package in two circumstances. First, if the offer of the grantee party is so manifestly and obviously unfair that any reasonable person would regard it as a “sham” or “unrealistic” offer. Second, if independent material is produced to the Tribunal which indicates that an offer is potentially unfair or unrealistic, such that the party put that proposal forward is not negotiating in good faith.
In this matter, there has been no independent material presented of the kind referred to in Drake Coal v Smallwood to objectively conclude the offer a sham or unrealistic.

Conclusion

In the absence of context, a financial offer might not match expectations of potential revenue based on full production. In my view, there is context which disabuses certain assumptions such that it could not be said that Vandeleur acted unfairly in putting forward the offer it made in the negotiations.

(e) Did Vandeleur’s overall conduct meet the threshold of good faith?

As observed by Sosso DP in Doxford v Barnes:
[37] When the Tribunal has to determine if a grantee party has negotiated in good faith it is incumbent on the Tribunal to assess the overall conduct of that party in the context of that party’s capacity to negotiate, the attitude and actions of the other parties and the general negotiating environment faced by each of the negotiation parties. In short a contextual evaluation is required…
At [41] to [45] I concluded that, overall, the material provided by Vandeleur was adequate to enable Gnulli to meaningfully negotiate about the grant of the proposed tenement. I found that the failure to settle a form of agreement was not evidence of a failure to negotiate in good faith and was not evidence of a rigid, non-negotiable approach by Vandeleur. Nor did I find that statements attributed to Vandeleur about the life of the mine were necessarily inconsistent or information regarding the extraction rate necessarily misleading. I said that while more detailed information concerning stage 2 projections may have assisted negotiations, that of itself was not indicative of a failure to negotiate in good faith and Gnulli were not hindered in the negotiations as a result.
In considering whether Vandeleur had adopted a rigid non-negotiable position, I noted the need for a contextual evaluation and expressed my view that Vandeleur had provided a reasonable amount of information concerning its business, the nature of its enterprise, its current activities, and its plans, in order for Gnulli to appreciate the impact and scale of the project. Failure to agree to a reduction in the area of the proposed tenement also, of itself, was not evidence of a failure to negotiate in good faith.
Finally, I was unable to conclude (at [85]) that advice of the intention to bring the future act determination application by Vandeleur demonstrated a lack of good faith negotiations. While I noted a significant distance between the financial benefits proposed by Vandeleur and YMAC on behalf of Gnulli, I concluded at [101] that in the absence of context, the financial offer might not match expectations, however it could not be said that Vandeleur acted unfairly in putting forward the offer it made in the negotiations.

Good Faith Determination

Having regard to the entirety of Vandeleur’s conduct in the negotiations, on balance I am satisfied Vandeleur has fulfilled its obligation under s 31(1)(b). I therefore have the power to proceed to make a determination on the substantive issues (s 36(2)).

Section 39 Criteria

Having determined that the Tribunal has power to make a determination under s38, I will now proceed to do so.
According to s 38, the determination I must make is:
(a)the grant of the proposed tenement may not be done;
(b)the grant of the proposed tenement may be done; or
(c)the grant of the proposed tenement may be done subject to conditions.
This determination is made having regard to the matters set out in s 39. In making my determination, I must have regard to and weigh a range of criteria, including the effect of the proposed tenement on the rights and interests of Gnulli, its economic and other significance, and the public interest in the grant of the proposed tenement (Western Australia v Thomas at 165).

Section 39 Materials

In accordance with the directions set, the government party provided the following documents:
(a)‘GVP Contentions’ (Government party contentions);
(b)‘GVP List of Authorities’; and
(c)‘GVP Book of Documents’.
Vandeleur provided the following documents:
(a)Grantee Party Statement of Contentions (Vandeleur s39 contentions); and
(b)Affidavit of Janet May Procak sworn 5 July 2019 (including Annexures JMP1 to JMP11).
Gnulli provided the following documents:
(a)‘Native Title Party’s s38 & 39 Inquiry Contentions and Annexure A (Gnulli s39 contentions);
(b)Witness Statement of Mr Ashley Penny;
(c)Witness Statement of Ms Sharon Crowe;
(d)‘YMAC Desktop Assessment Report’ (Desktop Report);
(e)Affidavit of Max Serjeant affirmed 29 July 2019;
(f)Aboriginal Heritage Inquiry System – List of Heritage Surveys (Search Results for M09/27); and
(g)Mining Tenement Summary Report of M09/27 (Tenement Summary Report).
In relation to the document referred to above at [112(e)], Mr Max Serjeant says he is an anthropologist employed by YMAC and he had been working with the Gnulli claimants since December 2018. I accept his authority and expertise.
In his witness statement, Mr Ashley Penny describes himself as a Yinggarda man and as having authority to make the statement. Mr Serjeant also deposes to holding the belief that Mr Penny has traditional connections to, and is able to speak for, the proposed tenement area (at [6]). Mr Penny’s statement is signed, however it is not witnessed, sworn nor affirmed. His authority is not challenged. I note his relative youth but I accept his authority.
In the witness statement of Ms Sharon Crowe she describes herself as a Yinggarda person and says she has authority to make the statement. Mr Serjeant deposes to holding the belief that Ms Crowe has traditional connections to, and is able to speak for, the proposed tenement area (at [6]). Her statement is signed, however it is not witnessed, sworn nor affirmed. Her authority is not challenged. I accept her authority.
The government party provided ‘GVP Reply’ (Government party Reply). Vandeleur provided ‘Grantee Party Statement in Reply’ (Vandeleur s39 Reply).
The parties requested the remaining directions be vacated and the matter could be heard ‘on the papers’. There is nothing before me which suggests the s 39 issues ‘cannot be adequately determined on the papers’ and that I ‘must hold a hearing’ (s 151(2)(b)).
In the circumstances, I was satisfied that I could determine the s 39 issue without the need for a hearing and this was communicated to parties.

Some relevant facts

As disclosed above, the proposed tenement is sought for the purposes of extending an existing commercial sand mining operation on Vandeleur’s existing lease (M09/27). The Tenement Summary Report for M09/27 provided by Gnulli discloses that it was granted on 4 December 1986 and is due to expire on 3 December 2028. The lease, initially granted for 21 years, has been renewed and covers an area of 8 ha. Vandeleur notes that M09/27 has only been held by Vandeleur since 2 August 2013 (Vandeleur s39 Reply [21]). I mention this to note that the initial grant pre-dates the Act and, on the assumption that the grant was otherwise valid and the renewal occurred in compliance with the future act provisions of the Act – there were no native title procedural rights which would have accrued to Gnulli in relation to M09/27. Nevertheless, any applicable heritage and environmental laws would have applied.
Gnulli notes that the proposed tenement M09/170 would be granted for 21 years with an option to renew (s39 contentions at [12]). Gnulli says ‘[t]here is no limit on how many times a Mining Lease can be renewed’. The Government party does not address this in its reply.

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

Section 39(1)(a)(i) directs me to consider the effect of the act on Gnulli’s enjoyment of their registered native title rights and interests. The rights and interests that potentially could be affected are those set out in the Register of Native Title Claims (WMC Resources v Evans).[2] I must consider evidence of what are the likely effects of the act (the grant of the proposed tenement) on those registered native title rights and interests (Western Australia v Thomas at 167).
[2] Government party contentions [17] incorrectly say that the rights and interests which could potentially be affected are those set out in the Register maintained under the Aboriginal Heritage Act 1972 (WA).
The registered native title rights and interests identified by Gnulli are:
(a)the right to possess, occupy, use and enjoy the claim area (the ‘land’);
(b)the right to make decisions about the use and enjoyment of the land;
(c)the right of access to the land;
(d)the right to use and enjoy resources of the land;
(e)the right to maintain and protect places of importance on the land under traditional laws, customs and practices.
The native title rights and interests Gnulli says are captured in these five subparagraphs (which apply in respect of the whole claim area) are re-worded as four, relevant to the proposed tenement area (Gnulli s39 contentions at [20]). In this determination I will adopt Gnulli’s description.
Gnulli repeats assertions made in the good faith inquiry that the full extent of mining operations and the lifetime of the mine are unclear, and that the Mineralisation Report and Supporting Statement support a conclusion that 1800kt of sand is available for extraction which could continue for 150 years, although current plans are to only mine 20kt (s39 contentions [18]).
It is further contended that while current operations on the existing lease M09/27 focus on a 400m by 200m part of the dune, ‘the sand dune proposed to be further mined is 900m by approximately 250m’ (Gnulli s39 contentions [19]).

The right to possess, occupy, use and enjoy the land; the right to use and enjoy resources of the land

Gnulli contends that Gnulli people continue to exercise their traditional right to possess, occupy, use and enjoy their land today, including in relation to the proposed tenement area (s39 contentions [22]).
The traditional uses emphasised by Gnulli include hunting, collecting bush foods and medicines; and, telling stories of the creation of the cultural landscape and natural objects within and in near vicinity of the proposed tenement (s39 contentions [23]).
In relation to hunting, Gnulli refers to Ms Crowe’s statement, which says ‘the mining lease and surrounding area’ is a good source of (our) bush foods and medicine (Statement at [6]). Ms Crowe says it is an important place for hunting, particularly to the old people, because of its proximity to the mission. The references to the mission in context suggest that it is no longer occupied although Ms Crowe says ‘It is meeting place used by my Dad and our old people’; ‘… the old people use to come together to tell stories here and go hunting’ (Statement at [9]). Gnulli says places in the vicinity of the proposed tenement are considered important hunting places because of the stories attached to them – referring to Ms Crowe recounting her childhood hunting experiences with her father and the old people (s39 contentions at [25]).
A map attached to Ms Crowe’s statement shows the location of the proposed tenement in relation to Maboolya Beach, Maboolya Beach Road, Bibbawarra Road, Carnarvon, a place marked ‘mission’, the Gascoyne River, and numerous other places – although the scale makes it somewhat difficult to read. She says ‘[l]ots of Yinggarda people go hunting near the Mining Lease on their way back from visiting the blowholes or Maboolya beach’ (at [6]).
Ms Crowe says when travelling through the area ‘we often stop near current mine for a feed on our way back to town (Carnarvon)’ (at [6]). She says her dad showed her how to travel through ‘this area of our country and I have shown my children and grandchildren this way’.
Ms Crowe says there is bush medicine ‘around this area’ including on the mining lease. She recalls going on to ‘the mining lease’ and being ‘shown where the Milunyun berries are’ – the berries are a bush medicine and grow ‘all over the mining lease’ and are used ‘for anything, for example sores’ (at [14]). Also growing on the mining lease is a fruit gum they call bimba; boogardy wood (which is smoked); and a silky pear called goglas (at [14]).
It is not clear from Ms Crowe’s statement whether her reference to ‘the mining lease’ is a reference to existing lease M09/27, or the proposed tenement the subject of this inquiry – noting that this latter tenement has been defined in the statement as the ‘Proposed Mining Lease’ but that terminology doesn’t appear elsewhere in the statement (at [3]).
In his statement, Mr Penny says the sand hill is a very important source of (our) bush medicines and foods (at [27]). He says emus come to the sand hill to lay their eggs; the eggs are gathered and eaten (at [28]). Mr Penny says that if the sand dune is destroyed the emus will stop going there to lay their eggs (at [32]). A ‘good season’ for emu eggs is read in the constellations. Mr Penny says ‘all our traditional foods are linked by the seasons’ (at [33]). He refers to the season called Bidijin where ‘there are flowers on the gumtrees in the dune, you know the (mullet) are nice and fat and ready to be eaten’. Finally he says ‘we come to collect bush medicine from the sand hill because it grows best here’ (at [34]). He says Wogardu is the name of a medicine tree which grows in the sand hill and if the sand is taken away ‘these trees won’t have the same healing effect anymore’.

In response, Vandeleur says that in order to consider the effect of the grant of the proposed tenement on Gnulli’s enjoyment of its registered native title rights and interests, it is necessary to understand the scale of Vandeleur’s proposed operations (Vandeleur s39 Reply [29]). Vandeleur says that the proposed tenement is small, covering less than 0.5 square kilometres, operations will consist of one or two pieces of equipment, and activity will be conducted 7 to 21 days a year.
Vandeleur also contends that the grant of the proposed tenement will not restrict the access of Gnulli people for activities such as collecting bush foods and medicines and passing on traditional stories of the creation of the area and objects ‘unless an area is deemed temporarily unsafe’ (Vandeleur s39 Reply [30]).
The Government party refers to the Mining Act, in particular the covenants and conditions referred to in s 82(1) regarding use of the proposed tenement area ‘only for mining purposes’; the prohibition on the use of ground disturbing equipment unless there is an approved ‘programme of work’ or ‘that use is dealt with in a relevant mining proposal’; and that the lessee is liable to forfeiture for breach of any covenant or condition (Contentions [33]).
It is not clear to me what solace is to be taken from statements concerning covenants and conditions which are contingent upon an application and approval process, unless a key criteria for approval is the avoidance of adverse effects on the matters referred to in s 39 of the Act.
The Government party lists other State and Commonwealth environment, biodiversity and water legislation which ‘will regulate the exercise of the rights conferred by the proposed tenement’ (contentions [36]). The Government party, citing WMC Resources v Evans at [82], concludes:
By regulating impacts on various aspects of the environment and Aboriginal heritage, each of these laws will play a role in regulating and minimising any impacts on the exercise and enjoyment of the Native Title Party’s native title rights and interests (as well as other factors identified in s39(1)(a).

The right to make decisions about the use and enjoyment of resources of the land subject of the Proposed Tenement

Gnulli says they will lose their right to speak for and make decisions about the use and enjoyment of their land if the proposed tenement is granted without an agreement (s39 contentions at 29). That is, without agreement, Gnulli ‘will not be able to exercise their right to make decisions about the use and enjoyment of their claimed land’. Such an agreement would, according to Ms Crowe, include heritage protocols to protect special places.
Gnulli references the existing tenement M09/27 asserting that there is no evidence that a heritage survey was conducted nor evidence that the Government party ensured conditions were complied with (s39 contentions at [32]).
The Government party says the AHA does not require that a heritage survey be conducted (Reply at [8]). They also describe the ‘s18 process’ – discussed further below – concluding that the AHA ‘does provide a level of consultation and engagement with the Native Title Party on the Grantee Party making an application under s18 of the AHA’ (Reply at [8.3]).
Vandeleur says it is inappropriate for Gnulli to rely on M09/27 as an indicator of Vandeleur’s past compliance with heritage matters – noting the ownership history and unsubstantiated allegations (s39 Reply at [19] and [24).

Looking after country, sites and access

Gnulli says (at [26]):
The site of significance within the Mining Lease and nearby are checked upon by members of the Native Title Party who are the custodians of this area to make sure the land is being looked after. The Native Title Party expect to be consulted so they know what is happening on their traditional lands and permission sought to access land to ensure country is looked after.
Gnulli says it is unclear to what extent Vandeleur will fully exercise their rights under the proposed tenement and how much of the dune will be extracted. Despite this, Gnulli expresses concern that the operations could exclude Gnulli people from the area ‘or at least limit their access’; damage and destroy sites of significance; damage and remove bush foods and medicines; and generally allow activities on the land without consultation or involvement of Gnulli (s39 contentions at [28]).
Ms Crowe says this is an important area (at [15] Ms Crowe says ‘this area is of strong importance to Yinggarda People’) at [7]:
We often visit this area to make sure it is looked after … We go there for our country rights …. We don’t know if the company is caring for our country in the right way … The sand dune where the mining is proposed and the current mine is important to us and there is a story and song line for this area. You need to talk to the right people to tell you about that story.
Ms Crowe does not describe sites by feature or location, nor does she explain their significance. She says ‘I know there is an important cultural site located within the Mining Lease but you need to talk to the right people about it’ (at [8]). Mr Penny however in his statement speaks of the dreaming story of the place (sand dune) and its meaning. This evidence is detailed at [152]-[156] below.

The right to maintain and protect places of importance on the land in the area of the Proposed Tenement

Gnulli says this is a fundamental cultural right and obligation passed down through each generation (s39 contentions [33]) – linked to their cultural belief system of caring for significant places, some created during the dreamtime. Ms Crowe at [7] refers to visiting the area ‘to make sure it is looked after’ – however does not further explain what this means.
Contentions refer to concerns that Gnulli will not be able to protect artefacts which ‘are potentially of cultural significance and may be discovered’ by Vandeleur in its proposed operation. In particular, Gnulli’s Desktop Report identifies that several burial sites have been located within the Shire where the proposed tenement is located. Further, the Report notes that coastal locations and dunes are locations with high potential for burial sites (at pp 6, 17). Gnulli’s submission is that further burials could be present and revealed during extraction activities.
Mr Serjeant says that based on his interview with Mr Penny ‘there is a site within and outside the Mining Lease’, that ‘this is a site based upon a belief system of the Native Title Party’, and, in his opinion, ‘it is both an ethnographic and mythological site to the Native Title Party’ (at [7]). Mr Serjeant goes on to express his opinion that the site meets the definition of a site under the AHA, ‘and is highly significant under Yinggarda law and custom’ (at [8]). He says (at [8]):
It consists of a sand dune and a creek which runs adjacent to the western, northern and eastern sides of the sand dune. The sand dune is located completely within the proposed mining lease, and the creek is partly located within it.
Gnulli contends that Gnulli people will not be able to protect and maintain this site being the creek, the sand dune and their associated spirits and that the spirits are already upset ‘by the current works to the dune pursuant to M09/27’ (s39 contentions [36]-[37]).
The evidence of Mr Penny concerning this site, the dreaming story Marlyoongarti Meerdard, is strong, although somewhat solitary. Ms Crowe confirms that ‘there is an important site within the Mining Lease but you need to talk to the right people about it’ (at [8]). I assume that this is a reference to the site described by Mr Penny, and recounted by Mr Serjeant.
Mr Penny says the Marlyoongarti Meerdard Dreaming story is connected to the creation of a creek and sand dune which are within or partially within the proposed tenement area. The story is said to have been passed down to each generation and Mr Penny says he will pass it onto his children (at [9]).
Mr Penny explains that old creation ladies dug out a creek running within the eastern boundary of the lease during the dreamtime (at [8]). It was created, under Wannawagu (law), the women were not allowed to access the Gascoyne River. Marlyoongarti, the old Yinggarda law man boss, would patrol the country to make sure the ladies did not dig further than the sand hill/dune – which formed the law boundary (at [8]). It is explained that this is the same dune/hill in which the proposed tenement is sought.
Mr Penny knows the story in language and English, noting that there is a song and dance associated with the dreaming (at [10], [12]-[13]). He says ‘You can only dance on this sand hill for Marlyoongarti. You dance and sing the story. I know the dance too’.
The creek is described as very important to women, being both a birthing place and a place to prepare women for marriage (at [15]-[16]): ‘… the ladies were never allowed to come over and past that sand hill/dune so they had their babies in the creek’. The sand dune is said to be where the men and women met for the marriage ceremony – acting as mutual territory (at [16]-[18]).
The story details the separate men’s and women’s marriage preparations which were ‘recreated when we had marriages’. Mr Penny says at [20]:
We need to protect this place so that the story stays strong and other Yinggarda people can learn it. Not every Yinggarda person knows this story or perform this traditional law of marriage because their parents or grandparents living on the Mission were not able to learn their culture from their elders.
Vandeleur only references this evidence is that it is not familiar with the creek (s39 Reply at [36]).
Gnulli outlines its concern that Gnulli people will not be able to, and currently have not been able to, protect and maintain the significant site being the creek, sand dune and their associated spirits – which it says overlaps both the existing lease M09/27 and the proposed tenement (s39 contentions at [36]). Gnulli again expresses concern that current operations on M09/27 may have ‘already commenced without providing notification or conducting a survey’.
Vandeleur notes the ownership history of M09/27 - the lease was first granted in 1986 and has been held by Vandeleur only since 2013. Vandeleur considers it inappropriate to rely on the existing mining operation on M09/27 ‘as an indicator of the Grantee Party past compliance … with the Aboriginal Heritage Act 1972 (WA)’ (s39 Reply at [19]-[25]).
The Government party, while asserting that the AHA does provide a level of consultation and engagement in the s18 process, says that the AHA ‘does not expressly require that a heritage survey be carried out’ (Reply at [8]). Further, it says that there is no evidence that Vandeleur has failed to comply with conditions imposed on the grant of M09/27 (at [10]). The Government party contends Gnulli (in their contentions [39]) misconstrue the presumption of regularity which it says is directed to whether a grantee party will act in breach of relevant statute law, regulations and conditions, not to whether the regime is effective. I agree.
The Government party, while not specifically referencing Mr Penny’s or Mr Serjeant’s evidence state: ‘It is highly likely that the AHA would apply to the sand dune and creek by virtue of s5 (a) or (b) of the AHA’ (Reply at [8]).
This is a significant acknowledgement by the Government party.
This would suggest that it is the Government party’s view that it would be offence to damage the sand dune and creek unless the Minister’s consent under s 18 AHA was first obtained. This may also suggest that it is the Government party’s view that activities that might currently be affecting the sand dune on M09/27 such as excavation, might constitute offences pursuant to s 17 AHA.
The relevant sections of the AHA are as follows:
5. Application to places
This Act applies to —
(a) any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
(b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent …
17. Offences relating to Aboriginal sites
A person who —
(a) excavates, destroys, damages, conceals or in any way alters any Aboriginal site; …. commits an offence unless he is acting with the authorisation of the Registrar under section 16 or the consent of the Minister under section 18.
18. Consent to certain uses
(1) For the purposes of this section, the expression the owner of any land includes a lessee from the Crown, and the holder of any mining tenement ….
(2) Where the owner of any land gives to the Committee notice in writing that he requires to use the land for a purpose which, unless the Minister gives his consent under this section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land, the Committee shall, as soon as it is reasonably able, form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation in writing as to whether or not the Minister should consent to the use of the land for that purpose, and, where applicable, the extent to which and the conditions upon which his consent should be given.
(3) Where the Committee submits a notice to the Minister under subsection (2) he shall consider its recommendation and having regard to the general interest of the community shall either —
(a) consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or
(b) wholly decline to consent to the use of the land the subject of the notice for the purpose required
As outlined above in s 18, the role of the Aboriginal Cultural Material Committee (ACMC) is pivotal in this process. While ‘community’ (for the purposes of s 18(3)) is not defined in the AHA, further guidance regarding the ACMC is found in Part V. As noted by the AHA, the first function of the ACMC is: “to evaluate on behalf of the community the importance of places and objects alleged to be associated with Aboriginal persons” (s39(1)(a)). In conducting this evaluation the ACMC are to have regard to (per s 39(2)):
(a)Any existing use or significance attributed under relevant Aboriginal custom;
(b)Any former or reputed use or significance which may be attributed upon the basis of tradition, historical association, or Aboriginal sentiment;
(c)Any potential anthropological, archaeological or ethnographical interest; and
(d)Aesthetic values.
The evidence provided by Gnulli in the course of this inquiry may be of assistance to the ACMC in the above regard.
As Sumner DP noted in Australian Manganese v Stock, the ACMC also requires a s 18 applicant to: outline the nature and extent of Indigenous consultation (including with native title parties); outline strategies to minimise impacts on sites; and complete a declaration that it has read and understood any heritage survey report tendered in support of the application (at [52]).
For the above reasons, some weight should be given to the AHA and its associated processes and the likely effects of the grant of the proposed tenement must be considered in the context of the regulatory environment and the likely extent of any interference (St Ives v Graham at [113]).

The right of free access to the area of the proposed tenement including the right to pass on knowledge of the area.

Gnulli says that the right to pass on the dreaming story of the creek and associated sand dune within the proposed tenement area will be significantly impaired if the proposed tenement is granted and the dune removed (s39 contentions at [40]). Gnulli also says that the right to access the area to collect medicines and hunt will also be negatively affected.
The focus of Gnulli’s contentions is that the dune itself, rather than the area alone, is integral to not only the dreaming, but as the source of healing plants and food – and if it is removed then access is rendered less relevant.
While it might be argued that access to the area might be temporary, and only to discrete areas of the proposed tenement area at any one time for between 7 and 21 days a year - and while it might be said that despite mining activity the ‘knowledge’ of the dreaming might continue, Gnulli appears to be saying that if the dune is removed then the dreaming and therefore the knowledge is denied. I address this assertion in the discussion concerning s 39(1)(a)(v) below.
The Government party contends that in assessing any effect on the enjoyment of registered native title rights and interests, the Tribunal should have regard to the size of the proposed tenement relative to the much larger Gnulli native title claim area.

Conclusion

I accept there is evidence of the continuing exercise of traditional rights to possess, occupy, use and enjoy land including the area of the proposed tenement. The evidence of the rights exercised include hunting, collecting bush foods and medicines; and telling stories of the creation of the cultural landscape and natural objects within and in near vicinity of the proposed tenement. I accept that the sand hill is an important source of Gnulli bush medicines and foods. Gnulli raises concerns of the possibility of burial remains in the sand dune which I also acknowledge.
There is strong evidence of the Marlyoongarti Meerdard dreaming story attached to the sand dune and creek which Gnulli says requires protection. Gnulli says that the right to pass on knowledge of the area is part of the right of free access. Gnulli claims that the right to pass on the dreaming story will be significantly impaired if the proposed tenement is granted and the dune removed. Gnulli says that if the proposed tenement is granted without an agreement Gnulli people will lose their right to speak for and make decisions about the use and enjoyment of their land. These rights and effects are also discussed at s39(1)(a)(iv) and (v) below.
Vandeleur says that Gnulli’s access to the proposed tenement area will not be restricted and Gnulli will be free to carry out rites, ceremonies and other activities unless it is temporarily deemed unsafe due to the mining activities. The Government party identifies a range of regulations, covenants and conditions which play a role in minimising impacts on the exercise of native title rights and interests.
I note that the evidence does not suggest a significant impact on the enjoyment or exercise of native title rights and interests has resulted from the existing activities undertaken by Vandeleur on the existing tenement of M09/27. The evidence supports a conclusion that Vandeleur’s activities on the proposed lease will be an extension of those activities.
I conclude that access to the site will be restricted over fairly discrete areas for a reasonably short time each year – and as a result the impact on exercise of Gnulli’s native title rights and interests relating to the more physical exercise of native title rights and interests will not be greatly affected.
The right to pass on knowledge in this matter is tied to the sand dune and creek which Gnulli says is an area of great significance under Gnulli’s traditions. In my view consideration regarding the sand dune and creek and the story attached to them is more relevantly addressed under s39(1)(a)(iv) and (v) below.

Section 39(1)(a)(ii) – Effect on the way of life, culture and traditions

Gnulli refers to Mr Penny’s evidence concerning the significance of the particular dune the subject of the proposed tenement, noting that other dunes do not have the same significance. It is stated that there has already been disturbance caused by the removal of sand without consultation or a heritage survey (s39 contentions at [43]). Vandeleur notes it is not the original holder of existing tenement M09/27, and that it acquired that tenement on 2 August 2013.

Gnulli says (at [90]):
The primary purpose for needing an agreement with the Grantee Party is to ensure that they can care for country by being informed about the Grantee Party’s proposed operations, assessing these operations and performing a heritage survey to identify unregistered sites, assessing the potential impact of the activities on the unregistered sites and identifying appropriate steps to avoid of minimise the impact(s).
Finally, Gnulli contend that the significant site can be considered to be of historic and heritage value to Aboriginal people and to the wider Australian community and therefore to remove or destroy it is not in the public interest (s39 contentions at [92]).
Vandeleur says that due to the lack of readily available construction materials in the Carnarvon region, the mining operations are considered important to regional development (s39 contentions at [74]). It says that, more broadly, it will contribute to ongoing mining activities essential to the health of the industry and the economy.
The Government party cites numerous cases as authority for the proposition that ‘mining activities are in the public interest’ – and that there is no evidence in this case of countervailing public interest considerations based on the proposed mining having a substantial effect on the factors in s39(1)(a) of the NTA.

Conclusion

I note the observation in Western Desert Lands v Holocene that there may be public interest considerations against mining over areas of particular significance to Aboriginal people (at [182]).
However, overall I am satisfied that the grant of the proposed tenement will marginally contribute to the development of the mining industry and assist regional development and I accept there is a public interest in the grant of the proposed tenement for these reasons.

Section 39(1)(f) – Any other relevant matter

Section 39(1)(f) affords a wide discretion for the Tribunal to take into account other matters the Tribunal considers relevant, provided they fall within the scope, subject matter and purpose of the Act (see Western Australia v Koara People).
Gnulli contends that the future relationship and risk of performing works without a heritage survey should be taken into consideration (s39 contentions [97]).
The Government party in reply repeat it contentions regarding Vandeleur’s intention to work with Gnulli to manage any impact on sites of significance within the proposed tenement area.
Government party says the Tribunal is entitled to consider the effect of the grant on the natural environment which it says will be regulated and minimised by the covenants and conditions required to be imposed under the Mining Act and Mining Regulations, the draft conditions and endorsements the Government Party will impose (discussed further below), and State and Federal regulatory regimes with respect to environmental protection and Aboriginal heritage.

Conclusion

As noted at s 39(a)(iv) above, there are heritage concerns regarding the dune which, in my view, the risk to which might only be avoided by the imposition of conditions requiring a heritage survey prior to work on the proposed tenement. .

Section 39(2) – existing non-native title rights and interests

The Government party has noted that the area of the proposed tenement is currently vacant Crown land and it (contentions at [9]-[12]) and Vandeleur (s39 contentions at [76]) simply notes the previous non-native title rights and interests:
a) one timber reserve (TR70/3194); and
b) one (now-expired) general lease (GEL59379);
No submission is made by the parties about the possible impacts of these interests on the matters relevant to this inquiry. In my view the existing interests identified are of no relevance to my consideration of the effect of the grant of the proposed tenement on the matters mentioned in s39(1)(a).

Should the proposed tenement be granted and, if so, should conditions be applied?

Section 38 of the Act provides that I 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 Act (see Western Australia v Koara People). Any conditions take effect as if they were terms of a contract among the negotiation parties (as per s 41 of the Act).
Gnulli contends that if the grant of the proposed tenement may be done, it should be subject to ‘conditions that will minimise the impact of the Gnulli registered native title rights and interests’ (s39 contentions at [101]). As such, Gnulli has attached a list of five pages of proposed conditions covering matters such as: protection and management of Aboriginal sites and cultural heritage, employment and training opportunities, a cultural awareness program and liaison committee (s39 contentions at Annexure A).
The Government party contends that I should determine that the act may be done (Reply at [24]). If this is done, the Government party will impose the ‘Draft Endorsements and Conditions’ and an additional four conditions (Reply at [24]).
The Government party opposes Gnulli’s proposed conditions and submits they are ‘problematic’, potentially rendering legislative regimes ‘meaningless’, and ‘unduly onerous’ (s39 Reply at [27]-[31]).
Similarly, Vandeleur categorises Gnulli’s proposed conditions as being ‘in effect a non-negotiable agreement between the Parties’ (s39 Reply at [57]). Noting the length and breadth of topics contained in Gnulli’s proposed conditions, I agree. Vandeleur points to the small nature of the operation as being a hindrance to it being able to meet the obligations these proposed conditions impose. Finally, Vandeleur submits at [58]:
The Grantee party will however, adhere to all conditions in relation to Aboriginal heritage and native title matters that the Tribunal and the Government Party consider reasonable to impose on grant of the Mining Lease.
By email on 18 September 2019, Tribunal staff requested the parties to consider and comment on draft conditions should a determination of the kind mentioned in s 38(1)(c) be made. Comments were received and considered.
I have weighed the likely effect of the grant of the proposed tenement on the matters in s 39(1)(a) and the interests of the native title parties at s 39(1)(b), against its economic significance, the public interest in the grant of the proposed tenement and other relevant matters at ss 39(1)(c)-(f).
I am satisfied the effect of the proposed tenement on these matters can be managed and mitigated by appropriate conditions. I have had regard to the conditions proposed by the parties in this matter and their comments responding to the draft conditions provided on 18 September 2019 and apply the conditions outlined in Annexure A.
I also determine that the Government party’s draft ‘endorsements and conditions’, as amended by the State in correspondence of 23 September 2019, outlined in Annexure B, apply.

Determination

My determination is that the act, namely the grant of the mining lease M09/170 to Vandeleur Superannuation Pty Ltd, may be done subject to conditions set out in Annexure A, noting also the endorsements and conditions to be imposed by the Government party set out in Annexure B.

Mr JR McNamara
Member
25 September 2019

ANNEXURE A: CONDITIONS TO BE COMPLIED WITH BY THE PARTIES

Aboriginal cultural heritage

1.1 The grantee party shall comply with the Aboriginal Heritage Act 1972 (WA) (AHA) and any other applicable Aboriginal heritage legislation, noting the Government party’s contention that s 5 (a) or (b) of AHA is highly likely to apply to the sand dune and creek located in M09/170.
1.2 To ensure compliance with condition 1.1 and subject to conditions 1.4 and 1.5, the grantee party must not conduct productive mining over a part or whole of mining lease M09/170 unless it has first caused an Aboriginal heritage survey to be conducted over that part or whole of the mining lease.
1.3 The heritage survey must be conducted by a Site Survey and Clearance Team which (subject to condition 1.4) 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 AHA to the extent that those guidelines or requirements are relevant to the conduct of heritage 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 Heritage Survey and Clearance Team at the discretion of the grantee party.
1.4 The grantee party must give written notice to the native title party of its intention to conduct the heritage 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 Heritage 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 AHA. If a survey or clearance is required to meet the requirements of the AHA then the grantee party must take reasonable steps to consult with the native title party.
1.5 The heritage survey required under condition 1.2 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 AHA. If a survey or clearance is required to meet the requirements of the AHA then the grantee party must take reasonable steps to consult with the native title party.
1.6 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.
1.7 Where, in respect of a part or the whole of the mining leases, 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(s) (as the case may be).
1.8 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.

1.9 No mining operations are to be carried out by the grantee party on sites indicated by the heritage survey except pursuant to s 18 of the AHA.
1.10 If the grantee party gives notice to the Aboriginal Cultural Material Committee under s 18 of the AHA it must forthwith serve a copy of that notice on the native title party and the Government party.
1.11 Within 30 days of receipt of a copy of any notice given to the Aboriginal Cultural Material Committee under s 18 of the AHA, 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.
1.12 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 area of the mining lease, 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.
1.13 Where the Minister gives or declines to give consent under s 18 of the AHA 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.

General

2.1The grantee party shall take all reasonable action to ensure compliance with these conditions by its employees, agents and contractors.

ANNEXURE B: DRAFT ENDORSEMENTS AND CONDITIONS TO BE IMPOSED ON THE PROPOSED LEASE BY THE STATE

ENDORSEMENTS

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.
This mining lease authorises the mining of the land for all minerals as defined in Section 8 of the Mining Act 1978 with the exception of uranium ore.
The Lessee’s attention is drawn to the National Native Title Tribunal determination of Vandeleur Superannuation Pty Ltd and Another v Gwen Peck & Ors on behalf of the Gnulli People [2019] NNTTA 73 and the conditions set out in that determination at Annexure A.
The Lessee’s 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

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

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 and Environmental Regulation (DWER) 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 Department of Water and Environmental Regulations (DWER) 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 an artesian well is prohibited unless current licences for these activities have been issued by Department of Water and Environmental Regulation (DWER).
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.

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

In respect to Proclaimed Surface Water Areas, (Gascoyne River & Tributaries) Irrigation District Area ID/4 Carnarvon and Rivers (RIWI Act) the following endorsements apply:

11.The taking of surface water from a watercourse or wetland is prohibited unless a current licence has been issued by the Department of Water and Environmental Regulation (DWER).
12.Advice shall be sought from the Department of Water and Environmental Regulation (DWER) and the relevant water service provider if proposing mining activity in an existing or designated future irrigation area, or within 50 meters of a channel, drain or watercourse from which water is used for irrigation or any other purposes, and the proposed activity may impact water users.
13.No mining activity is to be carried out if:
·it may obstruct or interfere with the waters, bed or banks of a watercourse or wetland
·it relates to the taking or diversion of water, including diversion of the watercourse or wetland

unless in accordance with a permit issued by the Department of Water and Environmental Regulations (DWER).

In respect to Proclaimed Ground Water Areas (Gascoyne & Carnarvon Irrigation) the following endorsement applies:

14.The taking of groundwater and the construction of altering of any well is prohibited without current licences for those activities issued by the Department of Water and Environmental Regulation (DWER), unless an exemption otherwise applies.

CONDITIONS

All disturbances to the surface of the land made as a result of exploration, including costean, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines, Industry Regulation and Safety. Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, Department of Mines, Industry Regulation and Safety.
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, Department of Mines, Industry Regulation and Safety is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costean 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 submitting a plan of proposed operations and measures to safeguard the environment to the Executive Director, Resource and Environmental Compliance, Department of Mines, Industry Regulation and Safety for their assessment and written approval prior to commencing any developmental or productive mining or constructive activity.
No interference with Geodetic Survey Station SSM-QUOBBA 2 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
Mining on any road, road verge or road reserve being confined to below a depth of 15 metres from the natural surface.
Any right of the native title party (as defined in sections 29 and 30 of the Native Title Act 1993 (Cth)) to access or use the land the subject of the mining tenement is not to be restricted except in relation to those parts of the land which are used for mining operations or for safety or security reasons relating to those activities.
If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.

Where, prior to commencing any development or productive mining or construction activity, the grantee party submits a plan of proposed operations and measures to safeguard the environment or any addendums thereafter to the Executive Directors Resource and Environmental Compliance at the Department of Mines Industry Regulation and Safety 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 mining operations and related infrastructure, including proposed access routes.

10.Upon assignment of the mining tenement the assignee shall be bound by these conditions.