Weld Range Metals Ltd v Western Australia

[2011] NNTTA 172

NATIONAL NATIVE TITLE TRIBUNAL

Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji, [2011] NNTTA 172 (21 September 2011)

Application No:              WF10/26

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

Weld Range Metals Limited (Applicant/grantee party)

- and -

The State of Western Australia (Government party)

- and -

Ike Simpson and Others on behalf of Wajarri Yamatji (WC04/10) (native title party)

SUMMARY

As this matter may be of public interest, the Tribunal has prepared a summary to accompany the determination that is delivered today. However, it must be emphasised that the summary forms no part of the Tribunal’s determination. The only authoritative statement of the Tribunal’s reasons is to be found in the reasons for the determination. This summary is intended to assist in understanding the principal conclusions reached by the Tribunal but is necessarily incomplete. The published reasons for the determination and this summary will be available on the internet at and on

Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji, [2011] NNTTA 172 (21 September 2011)

Today the National Native Title Tribunal made a determination under s 38 of the Native Title Act 1993 (Cwlth) (NTA) that certain future acts, namely the grant of four mining leases (M51/543-546) to Weld Range Metals Limited, must not be done. Weld Range Metals Limited applied for the leases primarily to mine for chromium and nickel.

The Wajarri Yamatji people have a registered native title determination application over the area concerned and so the registered native title claimant for that application is the native title party in these proceedings. Weld Range Metals Limited (WRML), as the company seeking the grant of the leases, is the grantee party and the State of Western Australia is the Government party.

The Tribunal’s decision is based principally on the special significance of the Weld Range area, which includes the area proposed to be subject to the mining leases, to the Wajarri Yamatji people in accordance with their traditions.

Background of WF10/26

The NTA requires any person or organisation who applies for a mining lease to negotiate in good faith with any registered native title claimants or determined native title holders over the area of the proposed mining lease before it can be granted by the government party.

On 24 September 1997, the government party published a notice in the press advertising its intention to grant the four mining leases sought by WRML, as is required by s 29 of the NTA. This led to negotiations between WRML and the Wajarri Yamatji people’s representatives.

However, negotiations did not lead to an agreement about the grant of the leases and so, on 8 September 2010, WRML applied to the Tribunal for a determination (known as a future act determination) that the future acts concerned (i.e. the grant of the mining leases) could be done.

Before it could consider WRML’s application, the Tribunal was required to determine whether negotiations in good faith had taken place between the parties with a view to getting the native title party to agree to the doing of the proposed acts, with or without conditions applying, as required under the NTA. Deputy President Christopher Sumner decided on 19 December 2010 that such negotiations had taken place.

Parallel to the good faith inquiry proceedings, the Tribunal attempted to assist the parties to reach agreement on the issues in dispute by conducting mediation. However, no agreement was reached and so the Tribunal proceeded with the future act determination inquiry.

The inquiry

In this case, the native title party submitted that the Tribunal should make a determination that the mining leases must not be granted or should be granted only in accordance with a number of special conditions proposed by the Wajarri Yamatji people’s representatives. The grantee and Government parties submitted that the Tribunal should make a determination that the leases may be granted without any additional conditions being imposed by the Tribunal or subject only to the conditions suggested by the Government party.

On 1 to 2 June 2011, as part of the inquiry, the Tribunal conducted an ‘on country’ hearing which incorporated visits to sites on the area of the mining leases and other sites in the Weld Range. All of the parties and their representatives attended. There was also a hearing in the Cue Shire Hall where Wajarri Yamatji people and an anthropologist and an archaeologist gave evidence, along with evidence from WRML’s Chief Geologist and Managing Director. The Tribunal gave leave for all of the witnesses to be cross examined by the other parties’ legal representatives. The Tribunal also convened a hearing in Perth on 24 June where parties made closing submissions.

The native title party’s evidence was mainly directed to illustrating the cultural and spiritual significance of the area concerned, and wider Weld Range area, to the Wajarri Yamatji people in accordance with their traditions. The Wilgie Mia Aboriginal Ochre Mine is in the Weld Range area, about 8 kilometres south of the proposed mining lease area. Wilgie Mia is on the National Heritage List. It is also a registered site and protected place under the Aboriginal Heritage Act 1972 (WA). It is located on the Wilgie Mia Aboriginal Reserve, an area set aside for the use and benefit of Aborigines. During the proceedings, it became apparent that the location of the resources intended to be mined is directly underneath a traditional Aboriginal quarry site which is of particular significance to the Wajarri Yamatji people.

The grantee and Government parties’ evidence was largely directed at demonstrating the economic benefit of, and the public interest in, the mining project going ahead. The grantee party’s proposed method of mining was open cut.

The Tribunal’s role

The Tribunal’s role in relation to the right to negotiate process is governed by the NTA. Parties can ask the Tribunal to arbitrate (determine) a future act matter if they are unable to reach an agreement through negotiation, provided the requirements for applying to the Tribunal are met.

When making a future act determination, there are certain criteria found in section 39 of the NTA the Tribunal must take into account. This includes taking into account the effect of the proposed mining on registered native title rights and interests and on any sites of special significance to the native title holders in accordance with their traditions and the native title party’s opinions or wishes in relation to the management or use of the area concerned, as well as the economic or other significance of the proposed mine and the public interest in mining going ahead or not.

The Tribunal’s findings

The Tribunal considered evidence about the Weld Range area, including the area of the proposed mining leases. Although the Wilgie Mia ochre mine would not be directly affected by the proposed mining, the Tribunal noted that the Weld Range and surrounding area is associated with a number of important Dreaming stories of mythological significance to the Wajarri Yamatji people in accordance with their traditions. It is historically an area of both intense occupation by Aboriginal people and traditional ceremony, including initiation. There are a number of sites of significance within the Weld Range, including quarries, rock holes, grinding stones and caves with rock art.

According to the evidence, because the Weld Range area is so spiritually and culturally important to the Wajarri Yamatji people in accordance with their traditions, they have developed a special agreement for exploration and mining in the area designed to protect it.

Deputy President Sumner concluded that the interests, proposals, opinions or wishes of the Wajarri Yamatji people in relation to the use of the area of the mining leases should be given greater weight than the potential economic benefit or public interest in the mining project proceeding. He found that the Weld Range area is of such significance to the Wajarri Yamatji people in accordance with their traditions that mining on it should only be permitted with their agreement. This conclusion was arrived at in the special circumstances of this case. Deputy President Sumner also found that certain quarries located on the mining leases are areas of particular significance to the Wajarri Yamatji people in accordance with their traditions.

The Tribunal’s decision does not preclude the parties from resuming negotiations and reaching agreement if they wish to do so.

Alternatively, WRML or the Government party can appeal to the Federal Court against the Tribunal’s decision. The NTA also provides for the Commonwealth Minister (in this case, the Attorney-General) to overrule the Tribunal’s determination if the Minister considers it to be in the national interest or in the interests of the State of Western Australia.

NATIONAL NATIVE TITLE TRIBUNAL

Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji, [2011] NNTTA 172 (21 September 2011)

Application No:              WF10/26

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

Weld Range Metals Limited (Applicant/grantee party)

- and -

The State of Western Australia (Government party)

- and -

Ike Simpson and Others on behalf of Wajarri Yamatji (WC04/10) (native title party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  21 September 2011

Catchwords:  Native title – future acts – application for determination for the grant of mining leases – on country hearing – s 39 criteria considered – effect on area or sites of particular significance – significance of Weld Range area – significance of quarry sites – interests, proposals, opinions or wishes of native title party – economic or other significance of acts – public interest in doing of acts – native title party opposed to mining without agreement on Aboriginal heritage – determination that the acts must not be done.

Legislation:Native Title Act1993 (Cth), ss 24MD, 29, 31, 35, 36, 38, 39, 75, 109(3), 146, 150, 151(2), 155, 156(5), 237

Mining Act 1978 (WA), ss 82, 84, 85

Aboriginal Heritage Act 1972 (WA), ss 5, 16, 17, 18, 28, 37(1), 38, 62

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 324JJ

Aboriginal Affairs Planning Authority Act 1972 (WA)

Cases:Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF09/30, [2010] NNTTA 101 (16 July 2010), Hon C J Sumner

Austmin Platinum Mines Pty Ltd and Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of the Wajarri Yamatji, NNTT WF10/26, [2010] NNTTA 212 (19 December 2010), Hon C J Sumner

Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472; (2004) 207 ALR 539

Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea

Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126; (2008) 107 ALD 316

Cheinmora v Striker Resources NL & Ors; Dann v State of Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21

Evans and Another v Western Australia and Others [1997] FCA 741; (1997) 77 FCR 193

FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141

Hughes v Western Australia [2003] NNTTA 69; (2003) 182 FLR 362

Ike Simpson & Ors on behalf of the Wajarri Yamatji /Western Australia/Giralia Resources NL, NNTT WF07/42, [2008] NNTTA 15 (5 February 2008), John Catlin

Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Peter Andrew Wiltshire, NNTT WO08/299, [2009] NNTTA 119 (6 October 2009), Daniel O’Dea

Ike Simpson and Ors on behalf of Wajarri Yamatji/Western Australia/Diana Austin Trigg, NNTT WF09/21, [2009] NNTTA 144 (5 November 2009), John Catlin

Ike Simpson & Ors on behalf of the Wajarri  Yamatji/Western Australia/Alchemy Resources (Murchison) Pty Ltd, NNTT WO09/957, WO09/958 & WO09/959, [2010] NNTTA 151 (15 September 2010), Daniel O’Dea

Ike Simpson and Ors on behalf of Wajarri Yamatji People/Sinosteel Midwest Corporation Limited/State of Western Australia, NNTT WF10/35, [2010] NNTTA 185 (10 November 2010), Daniel O’Dea

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner

Minister for Mines, State of Western Australia v Evans [1998] NNTTA 5; (1998) 163 FLR 274

Harrington-Smith and Others on behalf of the Wongatha People v State of Western Australia and Others [2002] FCA 934; (2002) 121 FCR 82

Parker v State of WesternAustralia [2008] FCAFC 23; (2008) 167 FCR 340; (2008) 245 ALR 436

ReA Solicitor [1993] QB69, 77;

Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73

Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482; (1979) 26 ALR 247

Robin Boddington and Others on behalf of the Wajarri Elders (WC01/3)/Western Australia/Hampton Hill Mining NL, NNTT WO01/486, [2002] NNTTA 43 (11 April 2002), Hon C J Sumner

Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/ Richmond Resources Pty Ltd, NNTT WO02/87, [2002] NNTTA 236 (18 November 2002) Hon C J Sumner

Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso

Seven Star Investments Group Pty Ltd/Western Australia/Wilma Freddie and Others on behalf of Wiluna, NNTT WF10/10, [2011] NNTTA 53 (24 March 2011), Hon C J Sumner

Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia and Others [1999] FCA 3; (1999) 87 FCR 565; (1999) 168 ALR 359

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

WMC Resources and Another v Evans [1999] NNTTA 372; (1999) 163 FLR 333

Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124

Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi)/Valerie Holborow & Ors (Yaburara and Mardudhunera)/Wilfred Hicks & Ors (Wong-goo-tt-oo), NNTT WF02/17, WF02/18 & WF02/27, [2003] NNTTA 4 (21 January 2003), Hon C J Sumner

Western Desert Lands Aboriginal Corporation v Western Australia and Anor [2009] NNTTA 49; (2009) 232 FLR 169; (2009) 2 ARLR 214

Hearing dates:                 1-2 June 2011, 24 June 2011

Counsel for the

grantee party:                 Mr Ken Green, Green Legal

Solicitors for the

grantee party:                 Green Legal

Counsel for the

Government party:         Mr Matthew Pudovskis, State Solicitor’s Office

Solicitor for the

Government party:         Ms Jade Harman, State Solicitor’s Office

Counsel for the

native title party:            Ms Carolyn Tan, Yamatji Marlpa Aboriginal Corporation

Solicitor for the

native title party:            Ms Lisa Randall, Yamatji Marlpa Aboriginal Corporation

REASONS FOR FUTURE ACT DETERMINATION

Introduction

1. On 24 September 1997, the State of Western Australia (the Government party) gave notice under s 29 of the Native Title Act1993 (Cth) (the Act/NTA) of future acts, namely the grant of mining leases M51/543 (863.4 hectares), M51/544 (880.8 hectares), M51/545 (851.07 hectares) and M51/546 (559.6 hectares) (the Tenements) under the Mining Act 1978 (WA) to Austmin Platinum Mines Pty Ltd (Austmin). The Tenements are all located 85 kilometres south-westerly of Meekatharra, approximately 65 kilometres north-west of Cue and in the vicinity of the Weld Range.

2. The Government party’s Mining Tenement Register Searches for all Tenements now show the applicant for the Tenements to be Weld Range Metals Limited (Weld), and who are ‘the grantee party’ in these proceedings.

3. There are eight other mining leases already held by Weld (granted Tenements) which are immediately adjacent to the Tenements and together with the Tenements comprise Weld’s mining proposal (the mining proposal), which is to provide chromium and nickel ore for its Refined Stainless Alloys Project (the Project).

4. The Tenements are 100 per cent overlapped by the registered native title claim of the Wajarri Yamatji People (WY People/native title party/NTP) (WC04/10 - registered from 5 December 2005).

5. On 8 September 2010, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to ss 35 and 75 of the Act for a future act determination under s 38 of the Act. The application was made on the basis that the negotiating parties (Government party, grantee party and native title party) had not reached an agreement of the kind mentioned in s 31(1)(b) of the Act as to the doing of the future act.

Good faith negotiations – power of the Tribunal to make a determination

1. The native title party challenged the Tribunal’s power to conduct an inquiry and make a determination on the basis that the grantee party had not negotiated in good faith (ss 31(1)(b), 36(2) NTA). On 22 September 2010, I made directions to deal with the good faith challenge and substantive inquiry. On 19 December 2010, I found that the grantee party had negotiated in good faith with the native title party as required by s 31 of the Act, and that the Tribunal has power to conduct the inquiry and make a determination (Austmin Platinum Mines Pty Ltd and Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of the Wajarri Yamatji, NNTT WF10/26, [2010] NNTTA 212 (19 December 2010), Hon C J Sumner) (good faith decision).

2. On 22 September 2010, I directed pursuant to s 150 of the Act, that conferences be held to attempt to resolve matters relating to the inquiry. Several conferences were convened, however, no agreement of the kind mentioned in s 31(1)(b) of the Act or otherwise could be reached and the process was terminated by Member Daniel O’Dea on 9 March 2011.

Legal principles

1. I rely on the principles enunciated in the following Tribunal future act determinations:

• Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 (Koara 1);

• Evans and Another v Western Australia and Others [1997] FCA 741; (1997) 77 FCR 193 (Evans). Federal Court, RD Nicholson J – an appeal from the Tribunal determination in Koara 1;

• Minister for Mines, State of Western Australia v Evans [1998] NNTTA 5; (1998) 163 FLR 274 (Koara No. 2) - Tribunal determination following the successful appeal in Evans;

• Western Australia v Thomas and Others [1996] NNTTA 30; (1996) 133 FLR 124 (Waljen);

• WMC Resources and Another v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (WMC/Evans); and

• Western Desert Lands Aboriginal Corporation v Western Australia and Anor [2009] NNTTA 49; (2009) 232 FLR 169; (2009) 2 ARLR 214 (Martu/Holocene).

1. Section 38 of the Act sets out the types of determination that can be made, being a determination that the act must not be done or may be done with or without conditions (s 38(1)). No condition can be imposed entitling a native title party to payments worked out by reference to the amount of profit made, income derived or things produced by the grantee party (s 38 (2)).

1. Section 39 lists the criteria for making such a determination:

‘39 Criteria for making arbitral body determinations

(1)In making its determination, the arbitral body must take into account the following:

(a)    the effect of the act on:

(i)the enjoyment by the native title parties of their registered native title rights and interests; and

(ii)the way of life, culture and traditions of any of those parties; and

(iii)the development of the social, cultural and economic structures of any of those parties; and

(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

(c)     the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

(e)     any public interest in the doing of the act;

(f)     any other matter that the arbitral body considers relevant.

Existing non‑native title interests etc.

(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:

(a)    existing non‑native title rights and interests in relation to the land or waters concerned; and

(b)    existing use of the land or waters concerned by persons other than the native title parties.

Laws protecting sites of significance etc. not affected

(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

Agreements to be given effect

(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:

(a)    must take that agreement into account; and

(b)    need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’

1. The Tribunal’s duty in making a determination requires the exercise of a discretion which involves a weighing of the various effects, interests and other relevant factors referred to in the s 39 criteria in accordance with the circumstances before it (Waljen at 165-166).

Evidentiary issues

Tribunal not bound by rules of evidence: In carrying out its function the Tribunal is not bound by technicalities, legal forms or rules of evidence (s 109(3) NTA).  The Tribunal’s approach to its inquiry function is summarised in Waljen (at 162-163) and involves, among other things, making a determination based on logically probative evidence and application of the law (see also Koara 1 at 81; Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482; (1979) 26 ALR 247; Hughes v Western Australia [2003] NNTTA 69; (2003) 182 FLR 362 at [15]-[16]). In some cases, the rules of evidence will assist the Tribunal to make findings of fact, including in cases where the evidence is contested. The Tribunal is relieved of an obligation to take a technical approach to evidence but must be satisfied that the facts upon which its determination is based are properly established.

Admissibility of evidence:The Government party objected to the admissibility of some of the NTP’s affidavit evidence.  The Tribunal’s general approach is to admit documentary evidence unless it is patently irrelevant or otherwise inappropriate. The List of Exhibits comprises the documentary evidence before the Tribunal and to which it has had regard, taking account of any submissions relating to its admissibility, relevance and weight to be given to it.

Evidence relating to good faith negotiations: Good faith negotiations are usually conducted on a confidential and without prejudice basis.  The general principle is that the Tribunal will not have regard to the evidence presented in the good faith hearing in the substantive hearing, unless a party seeks to adduce it, although the Tribunal may refer to or adopt reasons in the good faith decision if appropriate (Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi)/Valerie Holborow & Ors (Yaburara and Mardudhunera)/Wilfred Hicks & Ors (Wong-goo-tt-oo), NNTT WF02/17, WF02/18 & WF02/27, [2003] NNTTA 4 (21 January 2003), Hon C J Sumner at [23]). In this case, the NNTT provided assistance under s 31(3) of the Act and, therefore, the more specific requirements of s 31(4) apply. It provides that:

‘If the NNTT is the arbitral body, it must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than:

(a)     providing that assistance; or

(b)    establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b);

without the prior consent of the person who provided the NNTT with the information.’

In the present case, all parties waived any confidential and without prejudice privilege and all the good faith evidence was before the Tribunal and has been taken into account where relevant.

Directions to witnesses:  Although no formal submissions were made, Mr Ken Green, Counsel for Weld, raised the issue of whether any directions should be given about witnesses communicating with each other or with other persons once the taking of evidence had commenced (Transcript p 37).  I did not consider such a direction necessary (cf Harrington-Smith and Others on behalf of the Wongatha People v State of Western Australia and Others [2002] FCA 934; (2002) 121 FCR 82 at [27]-[28] (Harrington-Smith)).

Non disclosure directions – s 155 NTA:  In respect of a number of documents, the Tribunal, without objection from the parties, directed that the document must not be disclosed to anyone but the parties to the proceedings and must only be used for the purpose of the proceedings.  These documents are identified in the reasons. Despite these directions I have found it necessary to refer to some of this evidence in these reasons and to this extent the directions are hereby varied. Some of the evidence referred to is already in the public domain and I have made an assessment that other evidence referred to can be disclosed without rendering the non disclosure direction pointless.  Some of the evidence of the NTP which could be regarded as of a secret or sacred nature (such as the evidence in previous determinations of the Tribunal) has for the most part been publicly disclosed previously. It is important to refer publicly to evidence so that the Tribunal’s reasons are fully understood and the factual basis of any determination is clear (Parker v State of WesternAustralia [2008] FCAFC 23; (2008) 167 FCR 340).

Description and location of key places

1. The following are key places; their locations are referred to in these reasons and identified on the map attached:

• Weld Range is a series of roughly parallel hills, ridges and valleys that extend for approximately 60 kilometres long from south-west to north-east and which is approximately four kilometres wide.

• Wilgie Mia Aboriginal Reserve (the Reserve) is Reserve R16670, for the use and benefit of Aborigines under Part III of the Aboriginal Affairs Planning Authority Act 1972 (WA). It comprises an area of 10,500 acres (4,250 hectares, 42.5 square kilometres). The Reserve is located in the Weld Range and the northern boundary is some three kilometres south of the Tenement area at the closest point.

• Wilgie Mia (Thuwarri Thaa) is an Aboriginal site under the Aboriginal Heritage Act 1972 (WA) (AHA) (DIA Site ID 11132, registered, closed, no restriction, mythological, skeletal material/burial, man-made structure, quarry, artefacts/scatter). It is also a protected area under s 19 of the AHA on the basis that it is an Aboriginal site ‘of outstanding importance’. It is a traditional ochre mine located within the Reserve, approximately 8 kilometres south of the Tenement area.

• National Heritage Listed area (NHL area) is an area of approximately 2,000 hectares (20 square kilometres) which partly overlaps the Reserve and extends beyond it to the west, encompassing the sites of Wilgie Mia and Little Wilgie Mia. The NHL area was included on the National Heritage List (NHL) pursuant to s 324JJ of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) on 5 October 2010.

• The National Heritage Listing Report Application area (NHL Report area) is a rectangular area of 40 by 70 square kilometres (280,000 hectares, 2,800 square kilometres) and was the area originally submitted to the Commonwealth Minister in the application by the WY People for inclusion on the NHL.  During the proceedings it was also referred to as the Weld Range Complex Area or the pink pin/pink box area (which referenced how it was marked out on various maps).  This area encompasses the whole of the Weld Range and the mining operations area, including the proposed and granted Tenements.

• The Tenements are immediately adjacent to each other and comprise a total area (Tenement area) of 3,154.87 hectares (31.548 square kilometres).  The granted Tenements (M20/246, M51/434, M51/442, M51/443, M51/457, M51/481, M51/498 and M51/719) are adjacent to the Tenements to the north, east and west and comprise a total area of 4,699.658 hectares (46.996 square kilometres). 

Directions for the inquiry and hearing on country

1. The original directions for the substantive inquiry programmed a hearing for the week commencing 14 February 2011, bearing in mind the requirement of the Tribunal to take all reasonable steps to make a determination as soon as practicable (s 36(1) NTA) and report to the Minister if a determination is not made within six months of the application (s 36(3) NTA).  For various reasons, this timetable could not be met, principally because the Tribunal considered an oral hearing, including an ‘on country’ hearing, was necessary to adequately determine the matter (s 151(2) NTA).

2. The NTP in its Response (para 21) of 18 March 2011 submitted that an on country hearing encompassing a site visit and members of the NTP giving oral evidence was appropriate for the following reasons:

• The Weld Range is one of the most significant sites in Wajarri Yamatji country.

• The Tenements encompass an area in respect of which an application for National Heritage listing (NH listing) was made, and lie approximately 6.5 kilometres from the site ultimately announced as the NH site.

• The Weld Range is comprised of a number of areas of significance, each connected through the stories and customs of the Wajarri Yamatji People.

• The NTP believe that the entire Weld Range Site Complex (pink box) is sacred and interconnected. It would be culturally appropriate for the traditional owners to explain this connection on country.

• A site visit will give the Tribunal and other parties a greater understanding of how the area of the Weld Range and proposed tenements are currently used by the traditional owners.

1. Although at an earlier listing hearing on 7 February 2011 all parties had indicated that a hearing ‘on the papers’ was appropriate, there was no formal opposition to the NTP’s request at the listing hearing on 28 March 2011.  Taking into account the evidence indicating the cultural significance of the Weld Range area and the nature of the mining proposal being an open cut mine, I was of the opinion that an on country hearing was necessary in order to adequately determine the matter.  

2. The logistics involved in arranging the on country hearing and the availability of counsel for the NTP meant that the hearing did not commence until 1 June 2011.  The hearing involved one day taking evidence on and in the vicinity of the mining proposal area and a hearing at the Cue Shire Hall on 2 June 2011.  Parties were directed to file any written responses to the evidence by 22 June 2011 and a final hearing took place in Perth on 24 June 2011. 

3. At the hearing on 2 June 2011, at the request of the Tribunal and grantee party, the NTP produced evidence electronically which had been referred to in early contentions and evidence but not provided in full, being:

• Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation, ‘National Heritage Listing Application – Weld Range, Wilgie Mia (Thuwarri Thaa) and Surrounds’, not dated (Exhibit NTP 43) (NHL Report).

• Sarah Burke et al, Eureka Archaeological Research and Consulting, University of Western Australia, ‘Aboriginal Archaeological Site Avoidance Assessment’, 2 Volumes, Priority Areas 1, June 2009 (NTP 41) and Priority Area 2, August 2009 (NTP 42) (Eureka Report). These documents contain the results of a site avoidance survey carried out for Sinosteel and are subject to a s 155 direction.

1. At the hearing, the grantee party also agreed to the NTP’s request to produce Weld’s Scoping Study: ProMet Engineers, Snowden and Somerley Australia Limited, ‘Weld Range Metals Refined Stainless Alloys Project Scoping Study’, August 2010, which incorporates as Appendix 2 an Independent Technical Review (GP 143). This document is also subject to a s 155 direction.

2. At both hearings on 2 June 2011 and 24 June 2011 concern was expressed by the Tribunal, and Government and grantee parties, that the NHL Report had only been retrieved from the computer system of Yamatji Marlpa Aboriginal Corporation (YMAC) (the native title representative body assisting the NTP in these proceedings) and given to the parties via a USB stick and it was not clear whether it was a draft or the final application made to the Commonwealth Minister for inclusion in the NHL.  As a consequence, on 27 June 2011 I directed the NTP to contact the Commonwealth Department of Sustainability, Environment, Water, Population and Communities (Commonwealth Department) with a view to verifying that Exhibit NTP 43 was the final NHL Report submitted and provide affidavit evidence in respect of its preparation and the decision to list a part of the area applied for on the NHL.

3. On 4 July 2011, following further submissions from the parties, I made the following directions:

• NTP to provide the NHL Report together with any anthropologist review of it and other information by 19 July 2011.

• Government and grantee parties to provide any submissions and documentary evidence on this issue by 26 July 2011.

• NTP be at liberty to file submissions in reply by 28 July 2011.

Final submissions relating to conditions on the determination were provided by the NTP on 11 August 2011 and responses from the Government and grantee parties on 19 August 2011.

1. On several occasions I expressed concern that the NHL Report and the Eureka Survey had not been provided by the NTP until late in the proceedings, but I have taken the view that the documents cannot be rejected on that basis.  The directions of 4 July 2011 were designed to ensure that procedural fairness was accorded to the other parties, taking into account the convenience of the Government party’s Counsel on this occasion.

Details of hearing on country – 1 June 2011

1. On 1 June 2011 the Tribunal conducted a hearing involving a site visit to the Weld Range and the mining proposal area, including aspects of the Tenements.  I was assisted by Tribunal staff and accompanied by Ms Helen Shurven (Tribunal Member who was observing the proceedings). 

2. The following members of the Wajarri Yamatji claim group and NTP were present and gave evidence:  Colin Hamlett, Brendan Hamlett, Ansell Egan, Carl Hamlett and Brian Jones.  Kendall Hamlett also accompanied them.

3. The NTP was represented by Carolyn Tan (of counsel), YMAC; Lisa Randall, Lawyer, YMAC; Nathan Xu, Lawyer, YMAC; YMAC staff Silas Piotrowski, Archaeologist; Lara Whitton, Anthropologist, and other YMAC staff who provided support for the hearing.

4. The grantee party was represented by Ken Green (of counsel) and accompanied by Neale Edwards, Geologist, Weld Range Metals Limited and Peter Fisher, Managing Director.

5. The Government party was represented by Matthew Pudovskis (of counsel), State Solicitor’s Office (SSO) and Jade Harman, Lawyer, SSO.

6. Everyone departed Cue in a convoy at approximately 9.00 am and throughout the day travelled to various areas as guided by the NTP.  Maps were used and marked up to identify the various stops and places referred to (A1 size topographical map prepared by the Tribunal’s Geospatial section (NNTT 21) and Weld Range Metals Tenement Holding map with Aboriginal sites marked thereon and tendered by the NTP (NTP 39)).  A summary of each area visited and the evidence given is outlined below.

7. The first stop was to the south of the Weld Range, near the compound of Sinosteel Midwest Corporation Limited (Sinosteel), which has an iron ore mining project in the vicinity (Sinosteel Project). I made opening remarks to explain the purpose of the hearing.  The other areas visited (to the north of Weld Range) were:

• Quarry Stop 1 - an area within Tenement M51/546, located in the middle of the other Tenements.  It was identified by NTP witnesses as part of a quarry which runs to the east at least as far as Quarry Stop 2.  This area was identified in the Eureka Survey (Weld - Q - 0997, DIA Site ID 28137) and is listed as an ‘Other Heritage Place’ on the Department of Indigenous Affairs (DIA) Database.

• Quarry Stop 2 - also on Tenement M51/546.  This site is some distance east of Quarry Stop 1 but forms part of the same quarry line which NTP witnesses think runs further to the east through another of the Tenements (M51/543) to an area called Wanderie Bore, which is just outside the Tenement area.  This site has been identified but is not recorded on the DIA Database (affidavit of Victoria Winton, para 7).

• Vivienne’s Granite - located approximately two kilometres north of the northern most part of the Tenement area and one kilometre from a granted Tenement.

• Grinding Stone Stop - approximately one kilometre from the nearest of the Tenements. Here the Tribunal was shown a grinding stone for ochre used in ceremonies and one used for grinding seeds to make damper.

• Quarry Stop 3 - the last stop for the site visit day at an area called Airellas quarry.  This site is located some five to six kilometres west of the nearest of the Tenements, on or nearby one of the granted Tenements.  At this location Mr Carl Hamlett gave evidence of an area further to the west, close to Darbabuma Rock Waterhole called Cosmo or Galaxy, which was a training ground for young Wajarri Lawmen.

1. At the hearing in Cue on 2 June 2011 the following witnesses gave evidence:  Colin Hamlett, Carl Hamlett, Silas Piotrowski, Lara Whitton, Neale Edwards and Peter Fisher.

2. All witnesses made an affirmation and on both days I gave leave for the witnesses to be cross-examined (s 156(5) NTA).

Government party’s contentions and evidence

1. The Government party has provided the following contentions and documentary evidence:

• Statement of contentions in relation to s 39 criteria, 5 January 2011 (GVP Contentions).

• Response to the native title party’s contentions in relation to s 39 criteria, 23 February 2011 (GVP Response).

• Closing Submissions, 22 June 2011 (GVP Closing Submissions).

• Closing Submissions dealing with the NHL Report, lodged in accordance with directions made on 1 July and amended on 4 July 2011, 27 July 2011 (GVP NHL Submission).

• Submissions in reply to conditions to be sought by the NTP in the alternative, 19 August 2011 (GVP Conditions Response).

• Government party documents (Exhibits GVP 1-51).

1. Government party documentation establishes that the Tenements are entirely overlapped by pastoral leasehold (Madoonga or Beebyn pastoral leases).

2. Tribunal Geospatial mapping shows that there are no Aboriginal communities identified within or in the vicinity of the Tenement area but the evidence establishes that the Reserve is used for camping by WY people from time to time.

3. DIA documents provided by the Government party reveal sites recorded on the Register of Aboriginal Sites as ‘Other Heritage Places’, overlapping three of the four Tenements. The Tribunal Geospatial Services map (NNTT 2) confirms that there are a number of DIA sites on three of the Tenements.

1. Section 85 of the Mining Act 1978 (WA) sets out the rights which the holder of a mining lease may exercise, subject to the covenants and conditions in s 82, as well as any further conditions and endorsements that the Minister may, at any time, impose, pursuant to s 84. The grant of a mining lease is for a term of 21 years from notification of the grant and there is a right of renewal for a further 21 years.

2. The standard Endorsements (the breach of which does not render the tenement liable to forfeiture) and standard Conditions to be imposed on the grant of the Tenements are as follows:

   ‘ENDORSEMENTS

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

   2. 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;

   ·     Iron, unless specifically authorised under Section 111 of the Act

   3. 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.’

   ‘CONDITIONS

   1.   Survey.

   2.   All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.

   3.   All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.

   4.   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.

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

   6.   The lessee submitting a plan of proposed operations and measures to safeguard the environment to the Director, Environment, DMP for his assessment and written approval prior to commencing any developmental or productive mining or construction activity.

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

   8.   The lessee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

   ·     the grant of the Lease; or

   ·     registration of a transfer introducing a new Lessee;

   advise, by registered post, the holder of any underlying pastoral or grazing lease details or the transfer.

   9.   Mining on any road, road verge or road reserve being confined to below a depth of 15 metres from the natural surface.’

3. In the course of negotiations, the Government party also offered to impose the following four ‘Extra Conditions’ on the grant of the Tenements:

   ‘1.Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act 1993) 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 the exploration or mining operations or for safety or security reasons relating to those activities.

   2.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.

   3.Where, prior to commencing any development or productive mining or construction activity, the grantee party submits a plan of proposed operations and measures to safe guard the environment or any addendums thereafter to the Director of Environment at the Department of Mines and Petroleum for his 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.

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

4. The circumstances of the imposition of these Extra Conditions was considered by the Tribunal in Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF09/30, [2010] NNTTA 101 (16 July 2010), Hon C J Sumner at [35]-[40]. The Government party’s position is that these Extra Conditions are offered by it during negotiations and need to be responded to by the other parties. Unlike the standard conditions, they are not automatically imposed. The Government party originally contended (and the grantee party agreed) that these conditions should not be automatically imposed by the Tribunal in this case unless justified by substantial, credible evidence provided by the NTP. In their final submissions, both of these parties conceded that the Extra Conditions could be imposed.

The grantee party’s contentions and evidence

1. The grantee party has provided the following contentions and documentary evidence:

• Statement of contentions for determination hearing, 5 January 2011 (GP Contentions).

• Reply to native title party’s statement of contentions addressing s 39 criteria, 23 February 2011 (GP Response).

• Final submissions for determination hearing, 22 June 2011 (GP Final Submissions).

• Closing submissions for determination hearing dealing with the NHL application, lodged in accordance with the directions made on 1 July and amended on 4 July 2011, 28 July 2011 (GP NHL Submissions).

• Submissions on native title party document 44 (substituted), 19 August 2011 (GP Conditions Response).

• First affidavit of Neale Edwards, Weld’s Chief Geologist, dated 30 November 2010 and received 1 December 2010 (relating to negotiations in good faith).

• Second affidavit of Neale Edwards, dated 5 January 2011 and received on the same date.

• Third affidavit of Neale Edwards, dated 30 May 2011 and received on the same date (NE Aff no 3).

• Grantee party documents (Exhibits GP 1-146).

Weld Range Metal’s Refined Stainless Alloys Project

1. Neale Edwards, Chief Geologist of Dragon Mining Limited (holder of 40 per cent of the issued capital of Weld) has submitted three affidavits and gave evidence at the on country hearing for the grantee party. Weld was formerly named Dragon Resources Ltd.  Mr Edwards’ duties include acting as Weld’s Chief Geologist and he has had the responsibility of dealing with native title related issues for the Project. I accept Mr Edwards’ evidence, which, together with documents provided by the grantee party, reveal the key features of the Project as described below. 

2. Weld’s eight live mining leases (granted Tenements) were granted between 1992 and 1998.  It also holds sixteen prospecting licences (P51/1564-1579) which lie under the area of the Tenements the subject of this determination.  These prospecting licences were all granted on 14 May 1991, before the right to negotiate provisions of the NTA came into effect on 1 January 1994.  The grantee party previously held mining leases on the area of the Tenements, but these were surrendered in 1991 in favour of the prospecting licences.  As far as Mr Edwards is aware, the only ground disturbing work on the Tenements so far has been exploration drilling.

3. Summary of the Project: According to Mr Edwards, the Tenements and granted Tenements are prospective for the economic mining of chromium laterite ore (chromium resource); nickel laterite ore (nickel resource) and platinum group metals (platinum resource).  Weld’s current plan is to mine the chromium resource, mine the nickel resource at a later time and continue exploration of the platinum resource.  The grantee party has provided plans showing an outline of the location of the chromium and nickel resources within the proposed and granted Tenements.  Most of the identified chromium resource is within M51/546 and the adjacent M51/544.

4. Stage One of the Project (after further evaluation by way of a feasibility study) is to mine and process the chromium resource for production of refined stainless alloys containing chromium, nickel and iron as feed stock for stainless steel manufacturing mills in Asia, Europe and the United States for the manufacture of stainless steel products, proposed to commence in 2013/2014.  The exploration phase of the evaluation will involve an extensive drilling program.  The scope of the Project being evaluated comprises low cut, open cut mining of 600,000 tonnes per annum of high grade ore within the chromium resource to produce 305,000 tonnes of refined stainless alloy per annum.  Over $10 million has already been spent identifying large areas of mineralisation containing chromium, iron, nickel and platinum group metals in the mining area; some by earlier holders of mineral tenements of various kinds.

5. Weld currently plans to mine and primary crush the chromium resource at the mine site or nearby, and then transport the crushed ore to an alloy production plant located at either the Narngulu or proposed Oakajee industrial estates near Geraldton. 

6. History of activity in relation to the Tenements:  Mr Edwards provides the following timeline of past activity on the Tenement area which has been the subject of extensive exploration activity:

• Initial exploration for nickel sulphides by International Nickel Australia Ltd between 1969 and 1971, then by Australian Consolidated Minerals NL during 1971 who entered a joint venture with BHP from 1972 to 1973.

• CRA investigated the area between 1976 and 1977.

• Weld and Austmin acquired adjacent tenements in the late 1980s and formed a joint venture to further explore the area.

• Copper mineralisation previously identified by BHP was explored by Austmin in 1990.

• Drilling by Austmin to ascertain nickel-cobalt laterite potential in the mid 1990s.

• Minara Resources Ltd (formerly named Anaconda Nickel Ltd) entered into a joint venture with Weld and Austmin in 1999.

• Minara carried out drilling to estimate the Nickel resource in 1999 and 2000.

• Weld purchased majority mining interests from Minara and Austmin in 2009.

• Weld commissioned ProMet Engineers Pty Ltd (ProMet) to complete the Scoping Study (completed August 2010).

1. Outline of proposed mining activity:  Approximately 85 per cent of the chromium resource and 79 per cent of the nickel resource occurs within the area of the Tenements.

2. The mining of both the chromium resource and the nickel resource will be open pit mining.  The proposal is to have a Chromium Starter Pit extending over 3,250 metres in length and 625-700 metres in width.  The chromium resource goes down about 32 metres and the nickel resource about 40 metres.  The nickel resource covers the total mining proposal area, including the central portion where a substantial part of the chromium resource is located.  Rehabilitation plans have not yet been finalised but, according to evidence from the grantee party, because the stripping ratio of waste to ore will be very low, large waste piles, similar to those viewed by the Tribunal on the road from Cue to the Weld Range, resulting from gold operations, will not be necessary.  Before rehabilitation plans are finalised, further exploration of the nickel resource (below the existing chromium laterite resource) will be carried out.  Mr Edwards says that it is an easy mining operation compared to the deep open pits needed for gold.

3. Related infrastructure and logistics:  In relation to the vehicles and process that will be used, Mr Edwards explained that one hydraulic excavator will operate ‘pretty much all year round’ on a day shift basis, loading a fleet of three 40 tonne rear dump trucks.  Ore will be stockpiled in two areas adjacent to a primary crusher.  Material from the stockpiles will be reclaimed by a front end loader and fed to the crusher at required rates.  Sufficient material will be stockpiled to maintain production at required levels at all times.  A mobile crusher will be erected on site, to complete crushing of material prior to the ore being transported to the process facility.  It is likely that, if ore is trucked by rail, the mobile primary crusher will be located near the proposed Oakajee Port and Rail Authority rail loop, but otherwise near the mine pit.  Other equipment will include a track dozer for road maintenance and pit work, a road grader and water truck for road works and maintenance, a single blast hole rig (in the mine pit) and vehicles for the personnel.  According to the Independent Technical Review carried out by Snowden Mining Industry Consultants as part of the Scoping Study, mining operations are likely to require an on-mine site workforce of 20 to 25 personnel.  Weld’s current plan for accommodating the workforce is to either base them in Cue, located approximately 65 kilometres from the mining area, or reach some agreement with Sinosteel to have Weld’s personnel accommodated within Sinosteel’s accommodation facilities.

4. Transport of resource:  Weld proposes to transport ore from the mining operations area by either rail or road.  The Oakajee Port and Rail Authority has plans for a rail corridor from Oakajee to the Weld Range to transport iron ore from the Sinosteel iron ore project which is within a few kilometres of Weld’s tenements.  Mr Edwards says that rail is the preferred option but is subject to the construction of the Oakajee railway and the availability of capacity to haul Weld’s ore.  If the rail haulage option is used the ore will be trucked along a haulage road, to be constructed, to the Sinosteel rail loop which is currently proposed to be some eight to ten kilometres to the west of the Tenement area.  If the road haulage option is used, a haulage road will be built approximately 18 kilometres to the west of the mine pit to link to the Beringarra - Cue Road from which the trucks will travel along the highway to Mt Magnet and then to Geraldton.

5. Mr Edwards says ‘If the Oakajee railway is not constructed within a timeframe acceptable to Weld, then Chromium project economics shows that road haulage is viable.’ Rail is preferred to road because road transport is more expensive, but the Scoping Study considers the cost to be within acceptable limits. Further evidence relating to processing plant aspects of the Project is dealt with below.

Tribunal exhibits

1. At a listing hearing on 7 April 2011, Mr Green raised the issue of what mining tenements, apart from the Tenements the subject of this determination, exist in the Weld Range. I then directed the Tribunal to provide a series of maps showing other tenements in the area.  The Tribunal’s Geospatial Services created a series of maps of the pink box area (NNTT 13-18) depicting:

• All of the live and pending tenements in the Weld Range.

• Live and pending exploration licences in the Weld Range.

• Live and pending miscellaneous and prospecting licences and temporary reserves in the Weld Range.

• Live and pending mining leases in the Weld Range.

• The top seven grantees to hold the most number of live and pending tenements in the Weld Range.

• Tribunal involvement with live and pending tenements in the Weld Range.

1. A further map (NNTT 26) was also prepared showing the tenements in the pink box area or its vicinity in relation to which the Tribunal has made expedited procedure objection and future act determinations.

2. Each of these maps show the NHL Report area, the NHL area and the Tenements. These maps and evidence of the various tenement holdings in the Weld Range and pink box surrounds illustrate the following points:

• There are an extensive number of pending and live mineral tenements in the Weld Range.

• Active exploration licences surround the NHL area in a circumference of between 10 and 30 kilometres.

• There are few live prospecting licences in the area.

• There are 30 live or pending mining leases in the area.

• Sinosteel holds a substantial number of the live or pending mineral tenements (exploration and mining) in the area (44 tenements) with Weld being the next biggest holder (28 tenements).

• The Tribunal has been involved with the grant of some of the tenements (mostly by dealing with expedited procedure objection applications made in relation to proposed exploration licences).

• Many objections to the expedited procedure in relation to exploration licences were withdrawn, due to agreement being reached.

1. Three consent determinations that a future act may be done have been made in relation to mineral tenements in the Weld Range (exploration, prospecting and mining) (see below).

The native title party’s contentions and evidence

1. The NTP has provided the following contentions and documentary evidence:

• Statement of contentions addressing s 39 criteria, 2 February 2011 (NTP Contentions).

• Reply to Government party’s response and grantee party’s reply to native title party’s statement of contentions addressing s 39 criteria, 18 March 2011 (NTP Reply).

• Closing submissions, 22 June 2011 (NTP Closing Submissions).

• Closing submissions in reply, 21 July 2011 (NTP Reply to Closing Submissions).

• Affidavit of Akmal Raea Khan, affirmed 15 November and received on 16 November 2010 (relating to negotiations in good faith).

• Affidavit of Colin Hamlett, affirmed 1 February and received on 2 February 2011. On 2 June the NTP provided to the Tribunal and parties an updated and corrected affidavit of Colin Hamlett, dated 31 May 2011. This determination will refer to the updated affidavit, showing changes made (CH Aff).

• Affidavit of Lara Whitton, YMAC Anthropologist, affirmed 1 February and received 2 February 2011 (LW Aff).

• Affidavit of Sanna Nalder, YMAC Anthropologist, affirmed 18 March 2011 and received on the same date (SN Aff).

• Affidavit of Victoria Winton, Eureka Anthropologist, affirmed 20 May 2011 and received on the same date.

• Affidavit of Silas Piotrowski, YMAC Anthropologist, affirmed 20 May 2011 and received on the same date.

• Affidavit of Robin Stevens, affirmed 18 July and received on 19 July 2011.

• Affidavit of Lisa Randall, affirmed 20 July 2011 and received on the same date.

• NTP documents (Exhibits NTP 1-54).

Affidavit of Colin Hamlett

1. The original affidavit of Colin Hamlett was made on 2 February 2011 but subsequently corrected on 31 May 2011 and in the evidence he gave on 2 June 2011 in a number of respects.  Colin Hamlett lives in Morawa.  The affidavit with the corrections shown is made in the following terms:

   ‘1.     I am a winja/bardani [Elder] and an applicant of the Wajarri Yamatji claim.

   2.Statements contained in this affidavit are made from my own knowledge or to the best of my knowledge information and belief.

   3.I have seen a map, which shows the location of the tenements M51/543, M51/544, M51/545, M51/546 (“the Tenements”) and it is an area I know very well. I visited the area of the Tenements with YMAC anthropologist Lara Whitton on Thursday 27 January 2011.

   4.I am recognised under the traditional Wajarri laws as speaking for and protecting the sites and traditional stories of the Tenements area. It is my responsibility to care for and maintain the sites in this area. I regularly visit these sites to make sure they have not been disturbed. My great-grandmother is buried on Madoonga Station.around the area of Tenement M51/546.

   5.The Tenements area is located in the area called the Weld Range. The Weld Range is important to my family and to all Wajarri people. It is a very sacred place. The area is important not just to Wajarri people but to Aboriginal people all around the state, as there are dreaming stories which link the Wajarri people with other Aboriginal groups. It is one of the most important areas in Wajarri country.

   6.There are a few dreaming stories about the Weld Range. One story starts all the way on the coast near Kalbarri, where seven sisters ran away after being chased by an old man. They travelled through the Weld Range and stopped and rested or hid at many places there. The old man who was chasing the sisters also stopped and rested in the Weld Range. The story continues to the Western Desert and ends up somewhere in Queensland, linking many different Aboriginal groups.

   7.There is also a dreaming story about the Weld Range of an injured marlu (red kangaroo) who travelled through the Murchison leaving red ochre deposits where he bled after being speared. The marlu dug out a cavern into which its blood and its bile turned into red, yellow and green ochre.

   8.There are also several law grounds and ceremony grounds in the Weld Range with most of these relating to where the seven sisters and the old man stopped and rested. There are also places in the Weld Range where old tribal gear for ceremonies and law business were stored and some of it is still there.

   9.The law grounds and ceremony grounds are not specifically located in the area of the Tenements. The area of the Tenements is however within the Weld Range, and I consider the whole of the Weld Range to be sacred to the Wajarri People, because the old people who would come to the Weld Range for ceremonies and to go through the law would use the entire area for various reasons, such as to hunt and to gather stones for the ceremonies. Most importantly, the old people would use various areas of the Weld Range to gather red, yellow and green ochre for the ceremonies, which is a very spiritual matter for the Wajarri people as it is connected to the story of the marlu.

   10.The area of the Tenements is located in between two significant sites, being Wilgie Mia to the South and Vivienne’s Granite to the North. Wilgie Mia is significant because that is where the marlu in the dreaming story died and left all of the ochre. That is the most important ochre quarry in the Weld Range. Vivienne’s Granite is significant because this is where the old people used to camp and grind the ochre. The area of the Tenements was used as a kind of highway between these sites where the old people would hunt, gather stones and ochre and camp.

   11.There are heaps of sites within the area of the Tenements where we have seen evidence of the old people having used the land previously. Most of these sites have been registered with the Department of Indigenous Affairs, but there are still plenty of sites that are not yet registered that we know about. The type of evidence at these sites vary, such as red ochre on the grind stones, stone dishes or soaks set up at more permanent camps.

   12.There are a lot of stones in the area of the Tenements which were used by the old people to make shields, weapons and dishes, and to crush and grind seeds and other bush food. The stones were the heart and soul of the Aboriginal people before white people came, as without them they would not have been able to eat a lot of the foods that needed to be crushed or make shields and weapons for hunting and fighting. We still use the stones to show our children how the old people used to live and to pass on the knowledge and culture of the Wajarri people.

   13.There are heaps of useful trees in the area of the Tenements. One of them is a flower which you suck the end off and eat. These were eaten by the old people, and are still eaten by the Wajarri people today when they are in season. There is also a tree which you use to make a spear after you straighten the branches out in a fire. I was taught how to make a spear using this method and I have passed this knowledge onto my children, but we do not hunt with spears anymore. There is also the Waladarah tree which has edible nuts and the Gabawanna tree which has big berries located all throughout the area of the Tenements.

   14.Many Wajarri Yamatji people, including myself, regularly visit the Weld Range still with their families. Some families maintain rockholes and camp out during weekends and holidays to teach their children about the important places, collect bush food, gather ochre and hunt. Ochre is still gathered these days by the Wajarri people, including myself, for paintings and ceremonies. There are a few ochre quarries in various parts of the Tenements, some of which have been registered with the Department of Indigenous Affairs, but there are still more which have not been registered nor reported to the Department.

   15.My sons Carl and Brendan Hamlett both used to live on the Weld Range with me on and off when they were younger. We now come out to the Weld Range on holidays and as often as we can to hunt and gather ochre at the quarries, and to pass on the stories and visit the sites of the old people. Carl and Brendan bring their children as well so we can pass on the knowledge. Carl is now employed full-time in the Weld Range in a position that requires him to identify sacred sites within the Weld Range for mining companies.

   16.I am aware that there have been lots of mining leases tenements granted to various mining companies in the past within the Tenements area, but I believe all the ones I am aware of these have all been prior to the Government recognising our rights through the Native Title Act. I am aware of exploration and prospecting licences being granted since we have had rights under the Native Title Act. So far there have not been any mines constructed within the Tenements area, but there have been drill holes made in the ground without us having any say, which makes me very angry because the drill holes have gone into special sites. Also, the drill holes kill lizards and other native animals which fall in the holes.

   17.The Wajarri people are taught, and I strongly believe, that if we do not look after our country, particularly the special sites, then the Wudaji and Mondong spirits will punish us and make us sick. As I am considered a guardian of the Weld Range, I fear that if I do not protect the sites in the Weld Range, me and my family will get very sick or even killed by the spirits.

   18.I am concerned about any mining activity in the Tenements area because we were told by old people and we teach our young people that they need to look after country especially areas that are very important such as the Weld Range, including the Tenements area, and we need to prevent these from being damaged. If there are mines in the area, we will lose the ability to keep accessing sites to gather ochre, hunt and to share the stories and culture of the old people with our families.

   19.I still consider that our native title rights have not previously been affected in this area as we have never been prevented from accessing any of our sites.

   20.I believe that the conduct of mining activities within the Tenements will disturb the country greatly. The ground and vegetation would be disturbed by the creation of tracks through the tenement area and the drilling could disturb and anger the Wudajis and the sites around the Tenements.’

Evidence of Wajarri Yamatji people on site visit – 1 June 2011

1. Quarry Stop 1:  The first stop was at an area within the middle Tenement, M51/546, that exhibited a lot of artefacts such as cutting implements and shards of broken off rock. Mr Colin Hamlett gave evidence that the Hamletts are the family within the Wajarri group who speak for this area because it is where their ancestors came from. He gave evidence that the quarry runs for a substantial distance further east and that it is an area where Aboriginal people would get material to make stone tools such as spears and boomerangs. He said that he used to come to this area regularly but now he only comes here sometimes. He said that when he comes here he and other Wajarri people look for emu eggs and check the quarries to make sure people have not been removing artefacts. There are Wajarri laws and customs about who and what activities are allowed in this area; only initiated Wajarri people are allowed to come and collect stones or other items from here to take with them. When Wajarri people find artefacts they leave them at their original location.

2. When asked about the importance of this quarry compared with other quarries in the area, Mr Colin Hamlett said that they are all important but that when people were travelling they would get material from this area because it was the pathway used when traditional law business was taking place. He demonstrated how a sharp rock rubbed against a fresh green stick was used to create objects for ceremony, such as corroborees.  In relation to the features that mark out the Weld Range, Mr Hamlett talked about breakaways in the boundaries where people used to camp in the caves.  There are prints on the walls of the caves. In the summertime the caves were used for shade and as a hiding place from which to hunt.

3. When asked about the connection between this area and Wilgie Mia, Mr Colin Hamlett gave evidence that there is a connection in a radius of about 30 or 40 kilometres around where people used to ‘go out and get stuff’; that people used to come from all around to hunt and conduct other activities and that there could be people buried anywhere in the soft ground around this area. Mr Colin Hamlett gave evidence about why people came to the Weld Range: to get ochre from Wilgie Mia and for traditional law purposes. He said that people came from all directions; as far as Mount Augustus, Wiluna, Badimia country and Mount Magnet area. He said that when people travelled to come to the Weld Range they would follow song lines.

4. Mr Colin Hamlett gave evidence about the songlines along which people would travel within the Weld Range, and said that there are songlines through this area. When asked about what happens if areas such as this are damaged, he said that Aboriginal people get sick. In another area where mining went ahead without the ‘proper approvals,’ the five people that wanted the mining to go ahead all died. He said that lots of Wajarri people are afraid of things like that happening and that the Weld Range is the most important area in Wajarri country. Mr Colin Hamlett said that when he talks about the Weld Range, he is not just referring to the line of hills which he understands to be the English language word for it, but a wider area (Guagabuna in Wajarri Yamatji language) which extends up to 30 kilometres on each side of the Range in the breakaway country. This area was marked on the Tribunal’s Geospatial topographic map (NNTT 21) by Mr Carl Hamlett at his father’s request on the basis that he was ‘not very good with maps’ (TR p 30). Mr Colin Hamlett gave evidence that Wajarri people have a different standard agreement for grantee parties in the Weld Range due to its significance and that the Wajarri have such an agreement with Sinosteel. 

5. Mr Colin Hamlett’s sons, Carl and Brendan, both initiated Wajarri men, also gave evidence. Mr Brendan Hamlett said that he comes to the Weld Ranges a lot and that he brings his children with him. His son who is also an initiated man, was with him during the site visit.  Brendan talked about the purposes for which he comes to the area of the first quarry: respect for country and for the old people and to preserve and look after the area. He said that the artefacts seen at the quarry were created by hitting a rock with a stone tool or a hammer, to break flakes off and that the artefacts seen at the quarry are usually used for cutting, such as cutting out shields from trees, or skinning, and for making spears. The rocks were used for cultural business too. He said that there are a vast number of quarries, evidencing different kinds of material, in the vicinity, all used for the same sorts of reasons. Brendan gave evidence that the area is significant because his ancestors have been there. He said that this quarry in particular is significant because the rock material located at it is only found in the hills, on ridges such as this.

6. Mr Carl Hamlett spoke about rock pools (also called rock holes or water holes) in the Weld Range situated along the songlines. These are Cattle Pool, situated to the east of the Tenements, Darbabuma Rock pool, located to the south west of the Tenements, and Vivienne’s Granite, to the north of the Tenements. The location of the rock pools determine where the songlines are because people travelled from one source of water to the next.

7. Mr Carl Hamlett talked about the breakaways on the outskirts of the Weld Range, and marked their location on the Tribunal topographic map (NNTT 21). The breakaways run in a circular shape, with Vivenne’s Granite at the north most tip and the ‘Weld Range’ row of hills in the middle. These breakaways are all within the NHL Report area and the Tenements are located between the eastern part of the area marked and the Weld Range. According to Mr Carl Hamlett, the breakaways all connect to Wilgie Mia. He described the breakaways as areas of eroded rock, where there are caves in which Aboriginal people put their gear and made hand stencils and carvings.

8. Mr Brian Jones gave evidence that he and Carl are on the Weld Range subcommittee of the Wajarri Working Committee. Brian and Carl have been selected for the subcommittee because they speak for the area.

9. Quarry Stop 2:  Quarry Stop 2 is also on the central Tenement, M51/546. This site is east of the first quarry site visited, but forms part of the same quarry line. Colin and Carl Hamlett gave evidence that they think the quarry, part of which is at the Quarry Stop 1 and 2 areas, continues to run east, out through another of the Tenements, M5/543, to an area called Wanderie Bore, which is just outside of the Tenements. This quarry site shows artefacts very similar to those seen at the first area visited. At this site Carl showed the group a cutting implement made out of chert stone that had been worked on, or retouched, to give it a jagged edge, like a carving knife. Carl gave evidence that he thinks that there are a number of quarries similar to this one, running in the same direction, parallel to each other, in the area of M51/546.

10. Vivienne’s Granite:  Vivienne’s Granite is located approximately 1.5 kilometres north of the Tenements. The breakaways spoken about at Quarry Stop 1 could be viewed from this area. There is a rock hole at Vivienne’s Granite. Mr Colin Hamlett described Vivienne’s Granite as part of the travel path for Aboriginal people.  He said that people would camp in this area on their way to Wilgie Mia and to Cattle Pool.

11. Mr Carl Hamlett showed the group a rock carving, located close to the rock hole, which acts as a map of the water sources in the area. He explained that the circles in the carving represent water holes and that when people travelled they would look at the carving to determine where they could go and camp and get water. Animals travel to the water sources during the wet season so people also camped near rockholes because there was good hunting. He pointed out prints in the carving that represent emu footprints, showing where emus and emu eggs can be found, to be used as a food source. Mr Carl Hamlett confirmed that he thinks Vivienne’s Granite was used as a camping place. He talked about an amphitheatre in the breakaways close by where people would have ‘hid the young blokes.’ Mr Carl Hamlett said that women and uninitiated people would not have been able to camp at Vivienne’s Granite but would have had to camp further away from wherever they did the law business with ‘the young blokes.’

12. At this stop Mr Carl Hamlett also showed the group a large balancing rock with a rock carving and hand stencils, made using red ochre, beneath it. He said that the hand stencils were made using red ochre from Wilgie Mia, indicating that that they were made by someone travelling through from Wilgie Mia. He said that he knows the red ochre used for the hand stencils has come from Wilgie Mia because it is not possible to get red ochre from anywhere else in this area. Mr Carl Hamlett showed the group the stencil of a kangaroo next to the handprints, made by carving the outline into the rock. He gave evidence that this area is important because the ancestors were here: Wajarri people follow in their footsteps to keep their culture alive.

13. At the area near the waterhole carving, Mr Carl Hamlett noticed a group of stones comprising different tools and artefacts that had not been there the last time he visited. When asked how he felt when seeing those stones there he said that they should not have been moved, but should have been left where they were found.

14. In cross examination, Mr Pudovskis for the Government party asked about restrictions that apply to accessing the area. Colin and Carl Hamlett said that non Wajarri people need a permit to attend here, but that everyone attending the site visit was able to be present because they were accompanied by the traditional owners of the land and were conducting a native title proceeding.

15. Grinding stones:  At the Vivienne’s Granite stop Mr Carl Hamlett gave evidence that rocks used to grind ochre had been found in the ‘Wanderie area’ where the site visit party had driven in from. He said that the rocks had red ochre from Wilgie Mia around them. Mr Colin Hamlett said that the location of the grinding stones is a place where they would grind up the ochre and ‘paint the young blokes up in preparation for their initiation when they get to the Weld Ranges.’

16. The group subsequently drove to the area and viewed a grinding stone, used to grind ochre for ceremony, and showing red pigment on it. The location of the grinding stone is north, outside of the Tenements, between the Tenements and Vivienne’s Granite. On the way back to the vehicles from viewing the ochre grinding stone, Mr Brendan Hamlett came across another grinding stone used for a different purpose, for grinding seeds to make damper. Seeds are taken from trees and crushed up using the grinding stone. A wooden bowl is used to catch all the powder and then water is added to make the powder into a dough. The dough is put on the coals with bark on top of it and it rises.

17. Quarry Stop 3 (Airellas):  The third quarry visited, and the last stop for the site visit day, was at an area called Airellas quarry. This site is located to the west, outside of the Tenements.  Mr Carl Hamlett talked about lumps of red ochre Wajarri people had found near a fence line in an area west of the Tenements, on one of the mining tenements already granted to Weld Range Metals Limited.

18. Mr Carl Hamlett gave evidence that the Airellas quarry is different from the first two quarry sites in that it provides a different kind of rock material, called kanga. It is used for the same purpose as the other quarries, for tools and cutting implements. He pointed out a hammer site and gave evidence that this quarry is more significant than the others. He said that the same rules apply to this quarry as the others in that only initiated people can come here. Mr Carl Hamlett talked about an area close to the Darbabuma Rock Waterhole, west of the Tenements, called the Cosmo, or Galaxy: a training ground for young Wajarri lawmen. They trained so that they could navigate the area at night.

19. Mr Carl Hamlett told a story about non-indigenous people, geologists and drilling operators, who had been tricked or attacked by spirits in the Weld Range. He explained that Wajarri people worry about these sorts of events happening again.

Evidence of Colin Hamlett at Cue – 2 June 2011

1. At the hearing in Cue, Mr Colin Hamlett gave evidence to the effect outlined below. He said that he is an initiated Wajarri man, that his father was a Wajarri elder and that his family come from and can speak for the Weld Range area, which means the NHL Report area.  He spoke of ‘Wandarie country’ which is soft and could be dug into for burials.  Although not specific, he said that there is ‘Wandarie country’ in the Tenement area.

2. Mr Colin Hamlett said that only initiated men can take stones from quarry areas for making boomerangs, spears and shields.  He has rights under Wajarri Yamatji laws and customs to live in the Weld Range and he has a camp in the Wilgie Mia Reserve.  He talked about rights to camp, hunt and gather plants and about younger people being brought to the Weld Range area and taught about it.

3. Whether in the Weld Range hills or on the flats, quarries are important and there are ‘lots of quarries’ in and off the hills.  The only time we find quarries is when we do surveys or go hunting, Mr Colin Hamlett said.

4. Mr Colin Hamlett confirmed the existence of highways or pathways which were used by different Aboriginal groups to reach Wilgie Mia and were associated with songlines followed when young people were brought for initiation in the Weld Range.  People no longer use the highways and the Wilgie Mia area is no longer used for ceremonies.  The songlines remain spiritually important to Wajarri Yamatji people and adverse consequences flow if they are destroyed.  There is no trading of the ochre today but it is taken to other places.  The ochre from Wilgie Mia is still used for ceremony on Wajarri Yamatji country and by other Aboriginal groups. Mr Colin Hamlett said that it would be very possible to find grinding stones on the Tenement area.

5. Mr Hamlett also gave evidence of his attitude to mining in the Weld Range and elsewhere, which is further considered below in relation to s 39(1)(b).

Consideration of Colin Hamlett’s evidence

1. Mr Green submits that there are significant issues of credibility with respect to Mr Colin Hamlett’s evidence in relation to the Tenement areas and raises the following arguments:

• Mr Green criticises the fact that Mr Hamlett amended his affidavit in the manner indicated above after the field trip evidence and says that these amendments are not trivial.

• The language and drafting of the affidavit do not bear similarity to the oral evidence given and do not seem to be in Mr Hamlett’s own words.

• Mr Hamlett was asked leading questions and at times was involved in unsatisfactory joint oral evidence where he conversed with his sons to explain matters.

I am satisfied that Mr Hamlett gave his evidence in an open and frank manner and that there are no grounds for rejecting it on the basis that it is generally unreliable or not credible.  The amendments to his affidavit did not fundamentally change the thrust of his evidence.  The examples given by Mr Green of conferring are in my view more a case of the witnesses giving evidence at the same time rather than conferring about it.  In any event, these instances were not frequent and do not seriously call into question Mr Hamlett’s knowledge or understanding of the issues. One example is the assistance given by Mr Carl Hamlett to his father by marking up the map showing the breakaways.  Further, witnesses have been permitted to confer with others when giving evidence in some native title matters before the Federal Court (see Harrington-Smith case).

1. Mr Green says that the fact that Mr Hamlett was not aware of the quarry at Stops 1 and 2 until the recent site survey means that there is no modern or current tradition of the NTP linked to the quarry site, which would make it a site of particular significance to them. For reasons further explained below, the mere fact of Mr Hamlett not being aware of the quarry site does not necessarily disqualify it as a site or as part of an area of particular significance to the NTP. There is ample evidence of the special nature of the Weld Range (including the Tenement area) and that it is of sacred and spiritual significance to WY people, even though some of the traditional activities, including initiation ceremonies, are no longer carried out there.

2. Mr Green also criticises Mr Hamlett’s evidence about the potential for harm to him and his family from the Wudaji or Mondong spirits, which Mr Green says is a belief for which no source or basis is given. In this respect, Mr Green says, the evidence compares unfavourably with that given in Martu/Holocene where much more detail of the nature of potential harm from spirit beings was given. Mr Green says that Mr Hamlett’s affidavit evidence is that drilling ‘could’ (para 20) disturb the Wudajis and as such the evidence is of no probative value to the Tribunal.

3. The relevance of the existence of the spirit people in and around the Weld Range is dealt with later in these reasons. At this point, it is enough to say that there is ample evidence of belief in their existence by WY people and the consequences to members of the NTP and others if they are disturbed. These beliefs are relevant to whether the NHL Report area is a site or an area of particular significance to the NTP ‘in accordance with their traditions’ (s 39(1)(a)(v)). The evidence establishes that the belief in the existence of these spirit people is an important part of the Wajarri Yamatji people’s traditional beliefs.

1. Mr Hamlett’s evidence is generally consistent with other evidence before the Tribunal from other sources, particularly evidence given by other members of the NTP, including evidence contained in the NHL Report and in previous Tribunal determinations. Neither the Government nor grantee parties have produced evidence to contradict the main features of this evidence. I am satisfied that Mr Hamlett as a Wajarri Yamatji elder and as one of the persons comprising the applicant for native title determination application, brought on behalf of the Wajarri Yamatji people, has authority to speak on behalf of the NTP and I generally accept his evidence. The findings of fact which arise from this and other evidence and the parties’ contentions in relation to them is considered later. 

2. I am also satisfied that the evidence given by Carl and Brendan Hamlett is generally reliable and can be accepted as part of the basis for relevant findings of fact necessary for a determination.

Evidence of Lara Whitton

1. The affidavit of Lara Whitton is made in the following terms:

   ‘1.I am an anthropologist with a degree in Anthropology and First Class Honours, from La Trobe University, Victoria. I gained specialised knowledge of Native Title during my honours year, in which I focused on Native Title issues in Australia. Following this I completed an internship at the Northern Land Council in Darwin, where I developed this knowledge further. I have been employed at Yamatji Marlpa Aboriginal Corporation (YMAC) since October 2010.

   2.   I have seen a map, which shows the location of tenements M51/543, M51/544, M51/545, M51/546 (“the Tenements”). The Tenements are located entirely within the boundaries of the Wajarri Yamatji Native Title claim area known as the Weld Range.

   3.   Unless otherwise stated, all of the matters contained in this affidavit are within my own knowledge and are true and correct based upon my research and informed opinion as an anthropologist.

   THE TENEMENTS AND THE LINK TO THE WELD RANGE AND WILGIE MIA

   4.   I have conducted desktop research into the cultural and spiritual importance of the Weld Range and the Tenements area. I have consulted earlier field notes and published materials. I have reviewed the internal YMAC anthropological records relating to the Wajarri Yamatji people, and records taken and maintained by my follow in-house anthropologist Sanna Nalder. Where identified, facts stated in this affidavit are based upon my knowledge gained from such sources.

   5.   On Thursday 27 January 2011, I visited the Tenements during a field trip to gather evidence for this matter with Wajarri Yamatji elder Colin Hamlett and his two sons Carl and Brendon Hamlett (“the Fieldtrip”).

   6.   During the course of my employment and in preparation of the Fieldtrip I have considered both historical research material and research material conducted by external researchers and other anthropologists engaged by YMAC regarding the Wajarri Yamatji people. Through this consultation I have gained a general knowledge of Wajarri Yamatji sites, genealogies and law and custom.

   7.   The whole Weld Range area is considered a significant site, or a site complex. Reflective of this, the area encompassing Weld Range, Wilgie Mia, Little Wilgie Mia (and other significant sites) is currently under consideration for entry onto the Commonwealth National Heritage List. I have read the report attached to the National Heritage List application for the Weld Range area lodged on behalf of the Wajarri Yamatji in early 2008.

   8.   The significance of the Weld Range and associated sites is manifold. There are numerous registered and unregistered sites of significance in Weld Range. Weld Range is also a part of Dreaming Tracks or songlines, which connect it to other sites of mythological importance within and outside of Wajarri Yamatji country.

   9.   The Tenements are located between two important Wajarri sites, being Wilgie Mia to the South and Vivienne’s Granite to the North. Wilgie Mia is significant because that is where the marlu in the dreaming story died and left all of the ochre. That is the most important ochre quarry in the Weld Range. Vivienne’s Granite is significant because this is where the old people used to camp and grind the ochre. The area of the Tenements was used as a kind of highway between these sites where the old people would hunt, gather stones and ochre and camp.

   10.    I have also read a report entitled “The Cultural Significance of the Weld Range and Wilgie Mia to Aboriginal people” prepared by Kali Napier, an anthropologist, employed by YMAC at the time. Attached and marked “LW-1” is a true copy of that report. The report clearly highlights the special cultural significance Wilgie Mia and its surrounds holds for the NTP. The area comprising of the Tenements and therefore intrinsically important to Wilgie Mia itself as that ground comprising the Tenements was used as an essential “highway” allowing the NTP to access Wilgie Mia and linking it to surround sites, including sites within the Tenements themselves.

   11.    The red ochre mined from Wilgie Mia was traditionally traded and is still used in Aboriginal Law ceremonies in places like Jigalong, Wiluna, Warburton and Warakurna today. Wilgie Mia is thought to be the oldest mine in the world, has been the subject of many publications, both popular and scientific.

   12.    The knowledge and stories about the sites in Weld Range and the ochre from Wilgie Mia has been passed on from generation to generation to the present day and is not restricted to Wajarri Yamatji people, who are held responsible for looking after the site as the traditional owners. This became evident, for example, when the National Heritage Listing started, YMAC records show that representatives from Wanmulla, Wongawol, Martu and Badimia tribes came forward to support the protection of Weld Range, as the Dreaming stories and trade routes associated with Weld Range form part of a vast network linking significant places and indigenous groups from the coast at Kalbarri to Warburton Ranges and Eucla to south-west Noongar country all the way up to Jigalong in north.

   13.    Aboriginal Dreaming stories and Songlines are placed in the mythical past during which geological features we can see today were created by the ancestral beings. The stories and songs traverse the continent, one group picking up where the other leaves it, each responsible for maintaining and protecting their section of the Dreaming, song and associated places on the country within their boundaries. This creates the cultural landscape and the basis of the spiritual significance of all country.

   14.    The Dreaming stories passing through the Weld Range hold profound importance. Red ochre for Wajarri, and in Aboriginal mythology in general, is seen as the sacred blood of the ancestral beings throughout Australia and has been associated with notions of sustaining and regenerative powers for thousands of years. It has therefore been used, and is still used, in law ceremonies, mortuary practices, rock paintings and body and artefact decoration. Ochre can be found in the Tenements.

   15.    The Wajarri Yamatji story associated with Wilgie Mia is of an injured marlu (red kangaroo) who travelled east through the Murchison leaving red ochre deposits where he bled. Other variations of the story state that a great hunter speared a giant kangaroo, who, while thrashing about, dug out a cavern into which its blood spilled creating the red ochre, and its bile turned into yellow and green ochre. The Two Brothers myth tells a story of the kangaroo being chased by the brothers, then being hit by one of them with a fighting stick. His drops of blood formed the ochre deposits as it travelled to Weld Range, and Wilgie Mia is where it finally lay down to die. The Dreaming thus links Wilgie Mia with other important sites on Weld Range and beyond. Little Wilgie Mia,  for example is an earlier red ochre mine and a yellow ochre site, and is located in Weld Range.

   16.    The Marlu Dreaming also links the Wajarri Yamatji with other groups who pick up their part of the story from where it continues on from Wajarri Yamatji country to south, east, north and west. The Marlu story has been continuously taught to Wajarri Yamatji men each year in tribal law, through song, dance, body painting and the use of Wilgie Mia red ochre.

   17.    Weld Range forms also part of the storyline of the Seven Sisters, Rainbow Snake and Two Women Dreamings. The numerous cave-like rockholes in Weld Range mark the places where Two Women rested or hid from the man, who was chasing them through Wajarri Yamatji country to the desert country. Similarly, the Seven Sisters and the Rainbow Serpent created important rockholes in Wajarri Yamatji country, enabling trade and travel over great distances.

   18.    The Wajarri Yamatji people regularly visit Weld Range with their families, while some live there permanently. Families maintain and look after numerous rockholes and camp out during weekends and holidays and teach their children about the culture and important places, collect bush food and bush medicine, and hunt kangaroo. The ochre is still collected and used annually in traditional law ceremonies in a number of law grounds throughout Western Australia.

   19.    Weld Range hosts a number of significant and sacred sites, including sites relating to both men’s and women’s Law business, secret sites, rock art sites, waterholes and the ochre mines. Dreaming stories and songlines connect the Weld Range and Wajarri Yamatji people to other Aboriginal groups. Weld Range is thus part of the living cultural heritage of a number of Aboriginal groups. Wajarri Yamatji, as the custodians for the Weld Range, have the responsibility of looking after and protecting the country and the people.

   20.    Parts of Weld Range (although not these Tenements) have already been disturbed by mining, which has caused Wajarri Yamatji great distress and partly launched the National Heritage Listing process as a supplementary measure to protect the Weld Range from any further damage.

   21.    The Tenements are a part of the site complex that is the Weld Range and are intrinsically connected to other important sites, such as Wilgie Mia, through the Tenements.

   THE AREA LOCATED WHOLLY WITHIN THE TENEMENTS       

   22.    During the Fieldtrip Colin Hamlett explained to me how important this area was to his family and his people, and how the Tenements contained many important sites and the area comprising the Tenements was an important link between various other surrounding sites, such as Wilgie Mia and Vivienne’s Granite.

   23.    Within the Tenements traditional use of the land is evident and many of the sites are not yet registered. During the Fieldtrip I saw stone artefacts and grind stones.

   24.    The Tenements contain many stones used by the Wajarri Yamatji forbearers to make shields, weapons and dishes, and to crush and grind seeds and other bush food. Colin Hamlett told me that the stones are still used to show the children how the old people used to live and to pass on the knowledge and culture of the Wajarri people.

   25.    The Tenements also contain plant and tree varieties, including Waladarah tree (which has edible nuts) and the Gabawanna tree (which has big berries), used by the Wajarri people in bush tucker and bush medicine, both historically and today. Within the Tenement a special tree also grows which the Wajarri people use to make spears after the branches are straightened in a fire. Collin Hamlett told me that this method is still taught to the children.

   26.    In the South-Eastern part of the Tenement M51/543 Carl Hamlett pointed out an area of shiny worn stones about 5 metres squared which he said archaeologists would refer to as a quarry.

   27.    The Wajarri people believe that if they do not look after their country, particularly the special sites, then the Wudaji and Mondong spirits will punish them and make them and their families sick. Colin Hamlett takes his responsibility as a traditional custodian of the Weld Range area, including the Tenements, very seriously and he told me that he fears that if he fails to protect the sites he and his family will get very sick or even killed by the spirits.

   28.    In accordance with Wajarri Yamatji Law and custom, the landscape is spiritual and certain behavioural rules and protocols need to be observed to avoid repercussions. Wajarri Yamatji country is inhabited by spirits, Wudaji and Mondong, who look after the country and punish or play tricks on those who do not behave respectfully. Knowledge of some places in Weld Range is kept secret and some places are only accessible for people authorised to do so, such as initiated law men.

   29.    The Law and custom also places the responsibility of looking after the country on the custodians, whose duty it is to teach and pass it on, undisturbed, to the next generation. The country and knowledge, in this sense, encompasses physical, mythological, social and cultural value to the Wajarri Yamatji people.

   30.    As the physical, mythological, social and cultural are interconnected, any physical disturbance to a significant site is also harming to the spirit and the wellbeing of the Wajarri Yamatji people. The consequences of interfering with a Dreaming track would be felt in all the communities who hold their part of the song.

   31.    In my expert opinion the granting of the Tenements would adversely impact the Wajarri Yamatji people and have a negative impact upon their enjoyment of their registered native title rights and interests, their culture and traditions, and the preservation and passing of knowledge of such culture and traditions.’

1. In summary, my finding is that the mining operations proposed for the Tenement area will affect part of an area of particular significance to the NTP in accordance with their traditions and the quarry sites within it which are also of particular significance for the purposes of s 39(1)(a)(v) NTA.

Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters

1. Wajarri Yamatji attitude to mining:  Ms Tan in her final oral submission said that the WY people are not opposed to mining as such and have entered into mining agreements in areas outside the Weld Range.  I generally accept what the NTP says in its Closing Submissions (paras 5.5, 5.6 and 5.7):

   ‘There has been past exploration and drilling in the area of the Tenements, although this has not been extensive and have not amounted to major destruction of sites, although they have had an adverse impact on the Weld Range complex area. All of these have been of concern to the Wajarri People, although much of this occurred prior to the time when Wajarri people had any legal ability to make objections...the NNTT should take into account the inability of the Wajarri People to prevent past drilling in the area...

   Since the enactment of the NTA and the right to negotiate, the Wajarri People have entered into exploration and prospecting agreements, but these have been agreed on the basis that ultimately the Wajarri People have no right of veto and have therefore negotiated as much protection as they can within the circumstances. They have taken the view that it is better to reach agreements to protect the most important areas within the Weld Range complex area than risk unlimited mining being allowed on all of it...

   The exploration agreements entered into have generally involved significant protection for areas of significance within the Weld Range complex area, covering avoidance of sites...and also any other areas of religious or cultural significance identified in surveys which had to be carried out prior to ground disturbing work beyond low impact activity. Applications for s 18 consents to damage or affect such avoidance areas are not permitted in this area without the consent of the Wajarri People. These provisions are set out in a special different heritage agreement applicable for the Weld Range complex area only, recognising the importance and significance of the area.’

2. Evidence of Colin Hamlett on mining.  Colin Hamlett would not like to see mining activities happen in the Weld Range area (TR p 77).  He says that the WY claimants have agreed to exploration licences on conditions within the Weld Range area but have not agreed to the grant of mining leases. As explained above, this evidence was subsequently clarified to the effect that the NTP have agreed to the grant of one mining lease but not to actual mining.

3. Mr Hamlet would not be happy to sign a survey agreement if there was a possibility of s 18 AHA application being made to destroy sites. He would consider signing agreements that protect sites and to consent to s 18 AHA disturbance with the consent of the WY people.

1. Mr Colin Hamlett explained his general attitude to mining (TR pp 24, 25):

   ‘COLIN HAMLETT:    Yes, Carolyn, look, we’ve been – we – we’ve got to make it quite clear, you know, mining has to happen.  That’s – it’s progress, you know, and it will eventually – it will eventually happen.  We’re not against entire – stopping the mining entirely;  we’re wanting respect, and to talk to us and that, and pay some respect to the traditional owners of this country, instead of going back to the 60s, 70s and 80s, where they just used to do anything they want with Aboriginal cultural stuff.

   The things that the Europeans built here, like Sydney Harbour Bridge and all that sort of stuff, is more important than Aboriginal traditional stuff that’s been here for centuries and centuries before white fellas came out here.  And all we need is showing a little bit of respect for our traditional country.

   MS TAN:    Yes, but in terms of respect, then, can you – what about damaging this place?  Is – it’s not – is it enough to just show respect, or do you need to keep it - - -

   COLIN HAMLETT:    Well - - -

   MS TAN:    - - - keep it - - -

   COLIN HAMLETT:    Well, we try to keep as much as possible.  We know it’s inevitable that the government will give the approval to mine the stuff, but we’d like negotiating with people to make sure we can preserve the most important bits that we feel are important to us.  The really important things.’

2. The grantee party says (GP Final Submissions para 13) that this statement of Mr Hamlett appears inconsistent with the consent determination made in WF10/35 and the various exploration agreements which have been entered into with the NTP.  I cannot agree.  These and other statements from Mr Hamlett express a wish that mining should not happen in the Weld Range but that if it does it should be after agreement which preserves as much as possible of WY’s culture and heritage.  The consent determination and exploration agreements were made on the basis that exploration could proceed subject to special conditions in the Weld Range and that mining would be the subject of further agreement.

3. Exploration agreement and mining negotiations with Sinosteel:  Colin Hamlett said he was opposed to the Sinosteel project (TR pp 86 and 95). The grantee party tendered an article from The Australian newspaper, dealing with Wajarri Yamatji mining negotiations with Sinosteel which includes a prominent photograph of Colin Hamlett and reports: (The Australian, ‘Mine site will test China’s iron will’ Tuesday 4 January 2011, GP 141)

   ‘Hamlett says that as the process at Weld Range moves from exploration into mining, he is confident agreement can be reached on preserving the most significant cultural sites. He is pragmatic enough to realise a mine will proceed, and that some sites will be destroyed, but is encouraged by the sensitivity his new Chinese partners have shown to his concerns. “They have something similar to our culture,” Hamlett says. “When I talk to them about it, you know, they have their special places...” Hamlett’s objective, he says, is “to save as much as possible of our history and our culture and heritage as much as I possibly can.”’

4. The article also reports on statements by Sinosteel’s Chief Operating Officer Julian Mizera:

   ‘Sinosteel chief operating officer Julian Mizera says the company expects to be able to sign a mining agreement with traditional owners this month.

   “There are certainly some sites of very strong significance that not only we will not mine but we will actively preserve,” Mizera says. “Wilgie Mia is a site of national and international significance. We are not only going to preserve it but put in place a lot of additional safeguards, including fencing, security and rangers.”

   Some areas, however, will inevitably be disturbed and artefacts relocated.

   “We have agreed to a process that allows us to take identified sites, sit down and work out how to manage those sites,” he says.

   “Some caves we will not be able to relocate.

   “They may be deemed significant enough to stop mining.”

   ...

   “We have got to strike the balance to preserve the things that are important and provide a compensation package for areas that are disturbed,” he says.’

5. In cross-examination by Mr Green on the article, Colin Hamlett said (TR p 106):

   ‘MR GREEN:    Notwithstanding all that, is it – is it correct to say that you’re confident that you can reach agreement with Sinosteel?

   COLIN HAMLETT:    I’m not sure about – that was that comment I made, but we have to reach the agreement.  We haven’t reached any agreement.

   MR GREEN:    In this article, the CEO of Sinosteel is reported as saying that he expects:

   … to be able to sign a mining agreement with the traditional owners this month -

   which is January.  So that – that hasn’t happened.

   COLIN HAMLETT:    It hasn’t, has it?

   MR GREEN:    Is it – do you think it’s likely to happen?

   COLIN HAMLETT:    It’s a possibility it’ll happen.

   MR GREEN:    Do you hope that it happens?

   COLIN HAMLETT:    No, I don’t.

   MR GREEN:    Okay.  So you are – you possibly will just walk away from the negotiations?

   COLIN HAMLETT:    No, we won’t.  If we walk away from negotiations, Aboriginal people won’t benefit out of it at all.  So just rip up the Aboriginal country and no one benefits, apart from the mining company and the State and Federal governments.’

6. On the issue of mining, even though the quarry area over the Tenements would be disturbed or destroyed, Mr Colin Hamlett had this to say (TR p 109): 

   ‘MR GREEN ...

   The – the quarries sit on or very near to the resource that this company wants to mine.

   COLIN HAMLETT:    Yes.

   MR GREEN:    And you can see that the quarries are very close to most of the resource.

   COLIN HAMLETT:    Yes.

   MR GREEN:    Your position is that, because those quarries are there, they shouldn't be allowed to mine that resource.

   COLIN HAMLETT:    However, if – if that whole area was surveyed, and the decision would be made by the Wajarri and the Wajarri group on what happens there.  With those quarries – there’d be – more quarries than those if – when you start doing surveys.  There would be more quarries than those, and then we could sit at the table and talk about it.  But when you’re not at the table talking about it, these things happen, what we’re doing here today.

   MR GREEN:    So what – what you would say is there should be more surveys, and perhaps more quarries can be identified, and in that way Wajarri people could ensure that some quarries were preserved to show - - -

   COLIN HAMLETT:    But that’s just what I’m saying, yes.  The more important ones – we – we feel is more important than the others, but we don’t know.’

(TR pp 115-116)

‘DP SUMNER:    Okay.  What – what’s your position if you get to a point where a mining company says, “Look, this is where the resource is, and this is where we have to mine, and it happens to be underneath the area of the quarries that you looked at yesterday.  And, really, you can’t do it without disturbing the quarries, because it’s open cut mining”?  What’s your attitude to that and that situation?

COLIN HAMLETT:    Well, if they’re going to destroy our sites, we need compensation for any damage to our sites.  But this – if it’s – I mean, I would take it as far as I possibly could through the court system if it were so important to me, or to Wajarri people.

DP SUMNER:    So would you be prepared to negotiate about – about it?

COLIN HAMLETT:    So we’d be prepared to negotiate.

DP SUMNER:    Even though a lot of the quarry area would, of necessity, be disturbed by open cut mining?

COLIN HAMLETT:    Yes.  Because there could be other sites there as significant as that or more significant than that in that area, if it was surveyed and checked out.

DP SUMNER:    So you’d – well, would you do – if you were negotiating, what would you do?  You’d try to keep some – preserve some and – and perhaps let some others go?  Is that what you would - - -

COLIN HAMLETT:    That’s what I’m saying.  That what – that’s what would happen, because we’d be – otherwise we’d be tied up in the court system for years and years.

DP SUMNER:    So your – your position is that you’d prefer for there to be no mining in this area - - -

COLIN HAMLETT:    That’s right.

DP SUMNER:    - - - in these ranges.

COLIN HAMLETT:    That’s the preference.

DP SUMNER:    Including by Sinosteel.

COLIN HAMLETT:    Yes.

DP SUMNER:    But that the reality is that mining happens, and if it is to happen, then it’s – it should happen after discussions and agreement with the Wajarri People.

COLIN HAMLETT:    Exactly.

DP SUMNER:    And if there is such an agreement, you – you would be prepared to talk about places that could be disturbed and other places that shouldn't be disturbed.

COLIN HAMLETT:    That’s right.’

1. Findings in relation to WY attitude to mining:  The interests, proposals, opinions or wishes of the NTP in relation to the management use or control of the land which I have dealt with above establishes that the NTP is not opposed to mining, but would prefer it does not occur in the Weld Range (pink box) area and has special requirements if it does.  These requirements are reflected in the special heritage protection provisions which the NTP insists on in return for agreeing to exploration and that the NTP wishes to see reflected in any mining agreement.  While the NTP is prepared to negotiate mining agreements, and was doing so with Sinosteel, it has not until this point entered into an agreement that permits mining over the pink box area.  Mr Colin Hamlett’s evidence is consistent with this position.

2. The WY people’s approach is similar to that of the Martu People described in Martu/Holocene at [211]:

   ‘The Martu community along with many Aboriginal communities throughout Australia are in transition from a traditional society to one which accommodates the reality of living among a dominant culture that has little in common with their traditions.  As part of this accommodation, the Martu are prepared to contemplate activity on their land which traditionally they would not have agreed to in return for benefits of an appropriate kind.’

In addition the WY want appropriate measures to protect their heritage in the Weld Range area. 

1. Does the NTP have a veto?  The Tribunal accepts that the NTA does not give the NTP a veto over mining.  The approach to this issue was summarised in Martu/Holocene at [161]-[162] citing also Australian Manganese/Nyiyaparli at 407-409, [55]-[57] and at 412-413, [71]-[72]. The Tribunal cannot make a determination that a future act must not be done solely because there is no agreement or a native title party is opposed to mining. The Tribunal is required to take into account evidence relating to all the factors in s 39 NTA. In a case such as this, where the mining operations will affect an area (the pink box area and the Tenement area within it) and sites (including the quarry sites and possibly burial sites) of particular significance to the NTP then the evidence, interests, proposals, opinions or wishes of the NTP can be given significant weight.

Section 39(1)(c) – economic or other significance

1. Grantee party evidence and submissions:  Mr Edwards says in his second affidavit that the chromium resource and the nickel resource have a combined in situ value (exclusive of mining and processing costs) of approximately US$107 billion. Approximately 79.3 per cent of this value is located within the area of the Tenements.  The chromium resource project has a net present value (after tax) of A$681 million for the rail haulage option and A$590 million for the road option.  Weld commissioned ProMet Engineers Pty Limited to undertake a preliminary technical and economic evaluation of the alloy production process as the base for a preliminary assessment of the capital and operating cost and economics of the chromium resource project.  Mr Edwards says that the evaluation prepared by ProMet shows that the alloy production process is technically and economically viable based on proven iron and steel making process equipment and technology.

2. Weld has also commissioned ProMet to undertake a Scoping Study (GP 143) for the mining of the chromium resource and the production of the iron/chromium/nickel alloy ingots. The Scoping Study concludes that the chromium resource project is highly viable under a number of development scenarios.

3. The Scoping Study conducted by ProMet deals with certain parameters described as ‘Stage 1’ of the Project.  A Weld Range Metals Press Release dated 30 August 2010 (GP 60) reports a number of findings of the Scoping Study in relation to Stage 1:

• An initial mine life of 25 years.

• Open pit mining and crushing of 600,000 tonnes of ore per annum containing chromium, iron and nickel.

• A construction workforce of around 1,000 contractors and permanent employment for 225 people for the Project. [NOTE: Mr Edwards gives evidence that the mining operations are likely to require an on-minesite workforce of 20 to 25 personnel (NE Aff no 3, GP 142, at para 26) – see above.]

• Generating approximately A$2 billion in taxes and royalties.

• Production rate of 310, 000 tonnes of refined stainless alloys per annum.

• Selling to stainless steel mills in Asia, Europe and USA.

• Capital costs of A$590 million.

• Annual operating income of A$407 million.

• Annual operating costs of A$135 million.

1. Most of the capital investment in Stage 1 relates to the establishment of the stainless steel refinery for export of refined stainless alloys and import of raw materials including chromite and nickel concentrates. The report states that: ‘industry conditions are improving and that recovery is underway in the international stainless steel industry’; and ‘Independent studies show that the demand for stainless steel is forecast to grow at an average of 7% per annum to 2015.’

2. The Weld Range Metals Press Release of 30 August 2010 also reports the following statements:

   ‘Weld Range Chief Executive Officer, Michael Naylor, said that the Company was very pleased with the key findings of the Scoping Study.

   “The results find that Stage 1 of the Project is technically and financially robust.”

   “The two key factors in the positive results are the favourable characteristics of the Chromium resources and the attractive economics of the three stage pyro-metallurgical processing plant for the production of refined stainless alloys.

   “The findings are based on more than $10 million in project expenditures, which include approximately 60,000 metres of drilling within the mining tenements of Weld Range to date,” he said.

   “The project has a significant resource base which will underpin a long mine life – well beyond the first 25 years anticipated in Stage 1.

   Mr Naylor said the project will position Weld Range as a strategic player in the supply of refined stainless alloys as feedstock to stainless steel mills for the manufacture of stainless steel products in Asia, Europe and the United States.

   “By locating the stainless steel refinery in Western Australia, Weld Range retains the ‘value adding’ process.  Rather than merely exporting bulk raw materials, Weld Range will export value added products in the form of refined stainless alloys containing chromium, nickel and iron,” he said.

   “The Scoping Study results give us the confidence to proceed directly with the Definitive Feasibility Study.”

   We expect to progress the DFS upon completion of funding by the Company towards a development decision by the First Quarter 2012.’

3. There is no evidence to contradict Weld’s assessment of the economics of the Project and I accept this evidence subject to the qualifications expressed below.

4. In terms of the economic value of the Project for the State, at the hearing in Cue, Mr Edwards stated ‘we’re not selling the ore, as such; we’re down – or we’re processing the ore to produce a product, and that product is the thing that is on-sold.’ He said (TR pp 284-285):

   ‘So that’s different from the direct shipping groups who mine it, put it on a truck, put in on a ship, and send it off.  So we’re bringing industry to the west and creating an industry which could basically generate other industries coming to Western Australia, basically adding on to what we’re producing.’

5. The grantee party (GP Final Submissions para 14.1) submits that the following factors are matters of economic significance arising from the grant of the Tenements:

• Benefits to the local economy arising from the development of a local resource; engagement/employment of local communities; and expenditure within the local community.

• Benefits to the State arising from factors outlined above; payment of royalties in accordance with the Mining Act; and establishment of a downstream processing plant.

• Benefits to the nation arising from the earning of foreign capital from the sale of the mining product; and contribution to the national tax base.

1. The Government party submits that: ‘To establish a downstream processing plant in Western Australia’s northwest would be a very significant development for the Western Australian mining industry and the economy in general’ (GVP Closing Submissions para 95). They say that the Tribunal should conclude that the Project is likely to be of significant economic and other significance to the local, State and national economies and should place significant weight on this factor.  Benefits include royalties and export income; and benefit to the local economy in and around the greater Geraldton area (GVP Contentions para 66).

1. In general, I accept the Government and grantee parties’ submissions and accept that the Project, including the proposal to value add by processing in Australia, has potential to provide economic benefits to Australia and Western Australia, and given considerable weight to it.  The NTP has queried this significance on several grounds: the Scoping Study forecasts are outdated and incorrect, particularly the net profit based on the current exchange rate; further drilling is necessary; a definitive feasibility study is still needed; there is no definite evidence about the financing of the Project and it is too early to predict the return to the State or nation.  It may also be that uncertainty over the Sinosteel Project and the OPR railway has affected Weld’s plans. There is some uncertainty as to whether the Oakajee Port Project will proceed.  There is a difference of A$91 million in the net present value of the Project if Weld is forced to use road haulage instead of rail.  However, I am satisfied that the Project does not depend on the infrastructure from these projects as there is still a viable option to transport the ore by road and other options for the location of the processing plant.

2. There is no doubt that further work needs to be done to finalise the Project and it cannot be said at this stage that the Project will definitely proceed. It is more accurate to describe the Project as of potential economic benefit at this stage.  Nevertheless, the evidence establishes that there are reasonable prospects for a successful Project and I have not discounted the weight to be given to its economic significance to any great extent because a final decision on it has yet to be made.

1. Paragraph 39(1)(c) NTA also talks of the economic significance of the act to the area in which the land or waters concerned are located and to Aboriginal people (and Torres Strait Islanders) who live in the area.  The land concerned is the Tenement area, which means that the broader economic consideration applicable to the Project is not strictly relevant.  I accept that there will be some economic benefit to the locality of Cue but it is uncertain how significant this will be.  The mining operation is not a large project and will employ some 20-25 people on site.  There was no evidence dealing with whether this would be local employment or fly in fly out.  Nevertheless, some weight can be given to this local effect, even though it may be relatively small.

2. Any potential benefit to local Aboriginal people is another matter, including any positive effect on the NTP’s economic structures. The grantee party has not, at any stage, offered to provide WY people with employment opportunities during negotiations or in the draft agreement (GP 99).  At the hearing in Cue, Mr Edwards said that he saw no problem with implementing a policy to provide WY people with jobs, but that he has no involvement with the employment aspect of Weld (TR p 272).

3. I find that the future act is not likely to have any positive impact on the economic structures of the NTP or to be of any economic significance to them or the local Aboriginal people.  Despite Mr Edwards’ views on this issue, there is no evidence that the Weld Board has shown any interest in considering whether its Project will benefit local Aboriginal people.  There has been a consistent policy from Weld throughout the negotiations and the inquiry to oppose any conditions which would have encouraged WY employment or contracting opportunities.  It can hardly be said that the NTP’s proposals were onerous as they do not impose any absolute obligation for WY people to be employed.  Therefore, I have not given any weight to the possibility that the local Aboriginal community (including the NTP) will benefit from these mining operations.

Section 39(1)(e) – Public Interest

1. The Tribunal accepts that there is a public interest in the continuing development of the mining industry in Western Australia and Australia (Waljen at 215-216; Evans at 214-215) and that this Project has the potential to enhance it. There is also a public interest in ensuring that places of importance to Aboriginal people are preserved (Martu/Holocene at [182]).

2. For the reasons already given in relation to s 39(1)(c) NTA, I find that there is a public interest in the Project proceeding but that the weight to be given to this needs to be balanced against the public interest considerations in mining not proceeding in areas of special significance to Aboriginal people without their agreement.

3. Weld’s attitude to negotiations and benefits offered: The NTP’s submissions on this issue were raised in relation to the development of the NTP’s economic structure, the public interest and any other relevant issue.  The NTP contends (NTP Closing Submissions para 92) that there is likely to be a major adverse impact on WY people’s ability to develop economic structures if the future act is allowed to proceed.  This is said to come about because, if the Tribunal makes a determination in favour of Weld in the knowledge that no benefits will flow to the WY people, then this will be a disincentive for other grantees to offer reasonable agreements.  In other words, the Tribunal should not reward companies that do not offer benefits to WY People, the NTP says.

4. The NTP says (Closing Submissions para 124) that it is a relevant consideration that there was no substantive attempt by Weld to negotiate an agreement with the WY people and no response was made by Weld to the NTP’s proposed WY Mining Agreement of 8 February 2011.  The NTP summarises its position on this issue:

   ‘125.Even if there is a public interest in mining, there is a greater public interest in ensuring mining takes place in circumstances where there are negotiated agreements with the native title party.  If the Tenements are not granted, this does not mean that another company may not seek to mine in the area and that party would be well advised to negotiate a proper agreement with the Wajarri People.  If mining is allowed in the Weld Ranges complex area, it should be limited to companies that act in a fair and reasonable manner towards the Wajarri People.

   126.The NNTT should consider the impact that allowing a grant of Tenements at all or without stringent conditions will have on the ability of Wajarri People to continue to negotiate agreements with other companies which provide for strong protections.  As set out above, to allow the Grantee Party to have Tenements without any protections for the Wajarri People is to reward parties who will not show respect to the Wajarri people nor enter into reasonable agreements and drastically lower the standards applicable, and given companies little incentive to try to engage in best practice.’

5. Mr Green says that the above considerations are irrelevant and it would constitute an error of law for them to be taken into account in the way contended for by the NTP. I agree with Mr Green. Once a Government or grantee party has fulfilled its obligation to negotiate in good faith, that party may continue negotiations after a s 35 application is made but there is no obligation on them to do so. Having fulfilled its obligation to negotiate in good faith, Weld was under no obligation to respond to the NTP’s Mining Agreement or engage in negotiations about it. The provisions of the Act (s 31(1)(b)) as currently interpreted are clear. There is no requirement for the negotiations to have reached a particular stage or for the parties to negotiate about substantive issues relating to the effect of the future act on native title rights and interests (FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141; good faith decision at [29]-[35])). Once a Government or grantee party has fulfilled its obligations to negotiate in good faith, it is entitled to seek a determination from the Tribunal and there is no requirement for negotiations to continue. I am aware that some negotiation/mediation occurred after the good faith decision but the fact that these (and the good faith negotiations) were not satisfactory to the NTP is not, in itself, relevant.

6. In assessing whether good faith negotiations have occurred, the Federal Court has said there is no obligation on the Tribunal to consider whether offers made are reasonable, although it may do so if it assists in deciding the issue (Walley v Western Australia and Others [1999] FCA 3; (1999) 87 FCR 565; (1999) 168 ALR 359 para 15).If it is not necessary for the Tribunal to engage in an assessment of the beneficial nature of any proposal for the purpose of determining whether there has been negotiation in good faith, it is difficult to see how it is relevant to a substantive determination. While there may be some special circumstances where the behaviour of a grantee party is a relevant factor (Seven Star Investments Group Pty Ltd/Western Australia/Wilma Freddie and Others on behalf of Wiluna, NNTT WF10/10, [2011] NNTTA 53 (24 March 2011), Hon C J Sumner), simply failing to offer an agreement which the NTP considers to be adequate is not one of them once the grantee party has fulfilled its obligation to negotiate in good faith. The potentially negative impact on other grantees behaviour is likewise not relevant.

7. The differences of view between the NTP and Weld about an agreement are only relevant to s 39(1)(b) NTA in so far as the NTP’s view reflects the interests, proposals, opinions or wishes of the NTP in relation to the use and management of the Tenement area and the relative weight to be given to them. There will be cases such as Martu/Holocene and this one where considerable weight will be given to this factor where the evidence of the effect of a proposal on the s 39(1)(a) NTA factors will be substantial.

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

1. I accept that it is appropriate to have regard to the previous expenditure of A$10 million on prospecting/exploration on the Tenement area.  While it appears most of this was incurred by Weld’s predecessor companies, it is legitimate to give some weight to it as it no doubt all contributed to the current assessment of the mineral profile of the area. 

2. The Government party submits that a determination that the act must not be done will affect other mining proposals in the area, including the large Sinosteel Project. Apart from the fact that it is now uncertain whether the Sinosteel Project will proceed, I do not consider that great weight should be given to this factor. The consideration of the various criteria in s 39 NTA is very fact specific. It could be that another project will be of much greater economic significance or that another grantee’s policies relating to the protection of Aboriginal interests referred to in s 39 NTA will be different and a native title party’s interests, proposals, opinions or wishes may be different. Each case will turn on its own facts as assessed against the s 39 NTA criteria.

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

1. The existing non-native title rights and use of the land by other than the NTP are the pastoral leases and Weld’s prospecting licences. I have taken them into account.  The pastoral lease has partially extinguished native title and it is likely that past pastoral activity has affected, to some extent, the enjoyment of the NTP’s native title rights and interests.  The prospecting licences have not extinguished native title and there is no evidence that the activity carried out pursuant to them has affected the enjoyment of native title rights and interests. The existence of the prospecting licences is a relevant factor but they were granted prior to the right to negotiate provisions of the Act coming into effect and it is acknowledged by all parties that the grant of the Tenements constitutes separate future acts involving substantially different considerations.

2. The granted Tenements are not strictly existing non-native title interests ‘in relation to the land or waters concerned’ but are related to the Tenement area in forming part of the overall mining operations.  The evidence in this case has concentrated on Stage 1 and it is the Tenements, not the granted Tenements, which are of principal relevance.  I can have regard to the granted Tenements but the weight to be given to them is lessened by the fact that the current proposal does not involve the granted Tenements to any great extent.  If the bulk of the mining were to occur on already granted Tenements then different considerations could apply.

Conclusion

1. As with Martu/Holocene, the weighing up of the various often conflicting factors found in s 39 NTA in exercising the Tribunal’s power under s 38 NTA has not been an easy task. However, on balance, I have concluded that a determination that the act must not be done is justified. The principal factors in the weighing up exercise are the potential economic significance of the grant of the Tenements and the Project generally, and the NTP’s interests, proposals, opinions and wishes in relation to the management, use and control of the land, which are that mining should not be permitted on an area of special significance to them without their agreement, including (particularly) agreement relating to the protection of the heritage of the WY people.

2. The importance of the Weld Range area to the NTP should not be understated.  They have put in place means to try to ensure protection of it as far as possible, as explained by Mr Colin Hamlett.  They have not, to this point, agreed to mining over any of it but are prepared to negotiate about acceptable agreements with grantee parties.

3. There is no doubt that the Weld Range area is highly prospective for, in particular, iron ore mining.  The large number of granted and pending mineral tenements are testament to that fact.  There will be substantial disturbance to the landscape, including the Weld Range itself, from the Sinosteel project if it proceeds.  The Atlas mining proposal will also occur on the NHL area in the heart of the Weld Range.

4. At the outset, the evidence seemed to suggest that the WY people had agreed to some mining in the pink box area but closer examination demonstrates that they have not yet done so.  They have agreed to exploration on terms which include that mining will not proceed without a subsequent mining agreement.  Negotiations with Sinosteel were at an advanced stage but no agreement had yet been reached.  The WY people have adopted this approach because of the special importance the Weld Range area holds for them.

5. If this matter was confined to the effect of the mining operations on the NTP interests referred to in s 39(1)(a) NTA considered apart from s 39(1)(a)(v) NTA, then the potential economic significance of the Project would have taken precedence.

6. Mr Green has argued (TR p 357) that this case is to be distinguished from Martu/Holocene.  While the essential conflict is the same between an area or site of particular significance and the economic significance of the future act, there are distinguishing features.  In Martu/Holocene I gave weight to the fact that it was already the subject of a determination of exclusive native title.  In this case the WY people have not yet had their native title claim determined and, if it is it determined in their favour, it will not be of an exclusive nature.  However, while a positive determination of exclusive native title is a relevant factor, it cannot be decisive in the sense that there can never be a determination under s 38 NTA that an act must not be done unless there is a determination recognising the existence of native title.  The Act contemplates a s 38 NTA future act determination being made at the claimant stage and, in this case, I have been confronted with an impressive range of evidence about the significance of the Weld Range area including the Tenement area to the NTP in accordance with their traditions which I am obliged to give appropriate weight to.

7. In Holocene, there were also factors which could be said to weigh against the NTP, in that the Martu had reached an agreement with the grantee party on commercial terms which is not the case here.  Factual comparisons with other determinations will not always be helpful because the facts will rarely be exactly the same in relation to all the factors which the Tribunal must weigh up.

8. My conclusion is that the interests, proposals, opinions or wishes of the NTP in relation to the use of the Tenement area should be given greater weight than the potential economic benefit or public interest in the Project proceeding.  The Weld Range area (including the Tenement area) is of such significance to the NTP in accordance with their traditions that mining on it should only be permitted with their agreement.  This is not to incorporate a general right of veto over mining projects into the NTA but is a conclusion arrived at in the special circumstances of this case.

Determination

1. The determination of the Tribunal pursuant to s 38 NTA is that the acts, namely the grant of mining leases M51/543, M51/544, M51/545 and M51/546 to Weld Range Metals Limited, must not be done.

Hon C J Sumner
Deputy President

21 September 2011

(Map attached below at p 125)