Western Desert Lands Aboriginal Corporation v Western Australia and Another
[2009] NNTTA 49
•27 May 2009
NATIONAL NATIVE TITLE TRIBUNAL
Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu)/Western Australia/Holocene Pty Ltd, [2009] NNTTA 49 (27 May 2009)
Application No: WF08/27
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
Holocene Pty Ltd (Applicant/grantee party)
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The State of Western Australia (Government party)
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Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu) – (WC96/78) (native title party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 27 May 2009
Catchwords: Native title – future act – application for determination for the grant of mining lease – relevance of international instruments – Declaration of the Rights of Indigenous Peoples – interaction of Racial Discrimination Act and Native Title Act – interpretation of Native Title Act – s 39 criteria considered – without prejudice and confidential negotiations – relevance of in principle agreement to mining – cash payments, royalties and equity in grantee party offered in negotiations – relevance of benefits offered in negotiations – effect of act on site of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – any other matters the Tribunal considered relevant – native title party opposed to mining unless adequate terms agreed – determination that the act must not be done
Legislation:Native Title Act1993 (Cth), ss 3, 7, 24, 29, 31, 33, 35, 36(2), 38, 39, 41(3), 51, 109, 150, 155, 156(1)
Mining Act 1978 (WA), ss 8, 29(2), 35, 82, 84, 85, 123, 125(A)
Aboriginal Heritage Act 1972 (WA), ss 5, 6, 17, 18, 62
Racial Discrimination Act 1975 (Cth), s 10
Environmental Protection Act 1986 (WA)
Cases:Australian Manganese Pty Ltd v State of Western Australia & Others [2008] NNTTA 38; (2008) 218 FLR 387
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193
FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49
Haines v Bendall (1991) 172 CLR 60
Holocene Pty Ltd/Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu)/Western Australia, NNTT WF08/27, [2009] NNTTA 8 (6 February 2009), Hon C J Sumner
James & Ors on behalf of Martu People v State of Western Australia [2002] FCA 1208
Kanak v National Native Title Tribunal (1995) 61 FCR 103
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 (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73
Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi People); Valerie Holborow & Ors (Yaburara and Mardudhunera People) and Wilfred Hicks & Ors (Wong-goo-tt-oo People), NNTT WF02/17, WF02/18 and WF02/27 [2003] NNTTA 4 (21 January 2003), Hon C J Sumner
Western Australia v The Commonwealth (1995) 183 CLR 373
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
Western Desert Lands Aboriginal Corporation v State of Western Australia [2008] NNTTA 22; (2008) 218 FLR 362
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Hearing dates: 6 and 8 April 2009
Counsel for the
native title party: Mr Marshall McKenna, Hunt & Humphry Project Lawyers
Solicitor for of the Ms Melissa Watts, Hunt & Humphry Project Lawyers
native title party: Ms Christina Araujo, Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)
Counsel for the Mr Kenneth Pettit, SC, Francis Burt Chambers
grantee party: Mr Stephen Wright
Solicitor for the
grantee party: Wright Barristers & Solicitors Pty Ltd
Counsel for
Government party:Mr Domhnall McCloskey, State Solicitor’s Office
Solicitor for the
Government party: Mr Timothy Sharpe, State Solicitor for Western Australia
Representative for the
Government Party: Ms Paola O’Neill, Department of Mines and Petroleum
REASONS FOR FUTURE ACT DETERMINATION
Introduction
On 31 October 2007, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’/’NTA’) of a future act namely the grant of mining lease M45/1171 (‘the proposed lease/the subject area’) under the Mining Act1978 (WA) to Holocene Ltd (‘the grantee party’). The proposed lease comprises 3144.25 hectares located 187 kilometres southerly of Telfer in the Shire of East Pilbara. Most of the subject area falls over Lake Disappointment which is within the Gibson Desert of Western Australia some 320 kilometres east of Newman but approximately 460 kilometres along roads or tracks.
On 17 September 2007, Holocene Ltd was converted to a proprietary company – Holocene Pty Ltd. Holocene Pty Ltd is a wholly owned subsidiary of Reward Minerals Ltd (‘Reward’).
The proposed lease entirely overlaps the determination area of the Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) (‘WDLAC’/’the Martu People’) (‘the native title party’). Native Title Claim No. WC96/78 was registered from 26 June 1996 as the native title claim of the Martu People. On 27 September 2002 they were determined by the Federal Court to hold native title. WDLAC is the registered native title body corporate, being the prescribed body corporate (‘PBC’) on the National Native Title Register, determined by the Court on 17 July 2003 to hold the native title rights and interests in trust for the common law holders.
On 4 September 2008, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38. The application was made on the basis that negotiating parties had been unable to reach agreement of the kind mentioned in para 31(1)(b) of the Act.
Good faith negotiations – jurisdiction
The native title party challenged the Tribunal’s jurisdiction on the basis that the grantee party had not negotiated in good faith (ss 31(1)(b), 36(2)). This challenge was rejected on 21 November 2008 and reasons were handed down on 6 February 2009 (Holocene Pty Ltd/Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu)/Western Australia, NNTT WF08/27, [2009] NNTTA 8) (‘good faith decision’).
Directions for the Inquiry
On 25 September 2008 the Tribunal set directions to deal with the good faith challenge and the substantive inquiry. In relation to the substantive inquiry the following contentions and submissions were provided:
Government Party’s Statement of Contentions 14 Nov 2008 Government Party’s Statement of Contentions in Reply 4 Feb 2009 Grantee Party’s Statement of Contentions 20 Nov 2008 Grantee Party’s Statement of Contentions in Reply 30 Jan 2009 Parties’ Agreed List of Issues 20 Feb 2009 Grantee Party’s Written Outline of Submissions for Hearing on 8 April 2009 8 April 2009 Native Title Party’s Statement of Contentions 14 Jan 2009 Native Title Party’s Rejoinder to Grantee Party’s Statement of Contentions in Reply 10 Feb 2009 Native Title Party’s Key Contentions and accompanying matrix (untitled) 8 April 2009
I directed pursuant to s 150 of the Act that conferences be held to attempt to resolve matters relating to the inquiry. Separate conferences were convened by an officer and a member of the Tribunal, but no agreement pursuant to para 31(1)(b) of the Act could be reached.
The Tribunal’s directions required the parties to confer with a view to agreeing issues before the inquiry, the facts and documents to be relied on, and procedures for the conduct of the inquiry. At the listing hearing on 11 February 2009 the grantee and native title parties reported that agreement had been reached in relation to the native title party’s request for an ‘on-country’ hearing to be attended by only the Tribunal and native title party but be digitally recorded so the grantee and Government parties could subsequently view the recording of the proceedings. The parties agreed that the evidence given on-country would be limited to that which was contained within the affidavit filed by the Martu Elders. I agreed to conduct the inquiry in this way, and a one day on-country hearing was held at the remote community of Jigalong. An independent videographer was engaged to film the hearing. Parties agreed that leave would not be requested for the purposes of cross-examination. The parties filed an agreed list of issues and agreed list of documents which has been of considerable assistance to the Tribunal.
The on-country hearing, which was scheduled to occur in early March 2009, was postponed due to cyclonic activity in the region, and the hearing was unable to take place until 6 April 2009 when all parties were available. The hearing of final submissions took place in Perth on 8 April 2009 after the grantee and Government parties had viewed the video recording of the on-country hearing.
Government party’s evidence
Government party documentation establishes the following underlying tenure on the proposed lease:
Unallocated Crown Land (100 per cent overlap); and
Lake Disappointment (Savory Creek) System AW/52 (86.6 per cent overlap). This means that 86.6 per cent of the proposed lease area overlaps the actual Lake with the balance being on an area adjoining the Lake’s edge.
There are no Aboriginal communities identified within the subject area or in the near vicinity of the proposed lease. Tribunal mapping indicates the nearest Aboriginal community as Parnngurr (Cotton Creek) some fifty kilometres north westerly of the north western tip of the proposed lease but some 125 kilometres by track.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals one site registered under the Aboriginal Heritage Act1972 (WA) (‘AHA’) overlapping the proposed lease at 100 per cent: Site ID 12103 – Gumbubindil/Lake Disappointment (‘the Lake’).
Four active exploration licences in the name of the grantee party currently overlap the proposed lease (E45/2801, E45/2802, E45/2803 and E69/2158). There is no mining activity in the area of the proposed lease. A dead temporary reserve, active from 1959 to 1964, overlapped the proposed lease by 100 per cent.
The Mining Act entitles the grantee party to exercise the rights set out in s 85 of that Act subject to the covenants and conditions referred to in s 82 and such further conditions and endorsements that the Minister may at any time impose under s 84.
The grant of the proposed lease will contain the following 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.
4.The Lessee’s attention is drawn to the provisions of:
· Water and Rivers Commission Act 1995 and any Regulations thereunder; and
· Identification of environmental sensitive wetlands listed within the RAMSAR Convention 1971, ANCA’s Directory of important wetlands, the National Estates Register and the Environmental Protection Policies 1999.’
The standard conditions applicable to mining leases will be imposed:
‘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 Industry and Resources (DoIR). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DoIR.
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, DoIR 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, DoIR for his assessment and written approval prior to commencing any developmental or productive mining or construction activity.’
The following additional conditions will be imposed to the area of land designated AW/52:
‘7.Written notification, where practicable, of the time frame, type and extent of proposed ground disturbing activities being forwarded to the Department of Water Karratha seven days prior to commencement of those activities.
8.Any significant waterway (flowing or not), wetland or its fringing vegetation that may exist on site not being disturbed or removed without prior written approval from the Department of Water.
9.The rights of ingress to and egress from the Lease being at all reasonable times preserved to officers of the Department of Water for inspection and investigation purposes.
10.The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the Department of Water’s Guidelines and Water Quality Protection Notes.
11.Measures such as effective sediment traps and stormwater retention facilities being implemented to preserve the natural values of receiving catchments and those of adjacent areas of native vegetation.
12.Groundwater quality monitoring bores being installed, maintained and utilised for water quality monitoring on and near the mine-site and downstream where aquifers are present.
13.Petroleum hydrocarbon and other chemical storage areas being appropriately contained using bunded retention compounds incorporating stormwater disposal and the removal of sediments.
14.All Mining Act tenement activities prohibited within 200 metres of RAMSAR or ANCA listed wetlands unless written permission of Department of Environment and Conversation, in consultation with the Department of Water, is first obtained.
15.All Mining Act tenement activities prohibited within 200 metres of “Conservation” and “Resource Enhancement” Category wetlands unless written permission of the Department of Water is first obtained.
16.Abstraction of groundwater from within 500 metres of a wetland is prohibited unless authorised by the Department of Environment.’
The Government party will impose a further four conditions on the grant of the proposed lease:
·‘Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.
·If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
·Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental/productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
·Upon assignment of the mining lease the assignee shall be bound by these conditions.’
The grantee party’s evidence
The grantee party’s evidence includes the affidavit of Gregory Rolland Cunnold (‘GRC affidavit’), Exploration Manager of Holocene Pty Ltd since July 2005, sworn 19 November 2008 annexing the following documentation:
Native title determination in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208;
Map of proposed lease and associated infrastructure and photographs of Lake Disappointment;
Heritage survey report by Dr Guy Wright dated 7 August 2006 (‘the Wright Report’);
Letter from Ngaanyatjarra Council dated 7 November 2006 relating to the Wright Report and consent to interfere with a site under s 18 of the Aboriginal Heritage Act1972 (WA);
Notice under s 18 Aboriginal Heritage Act 1972 (WA) dated 20 November 2006 and consent under s 18 granted by the Minister for Indigenous Affairs on 23 January 2007;
Email exchange between Jeremy Maling and Greg Cunnold of 27 May 2008, 3 June 2008 and 16 June 2008 relating to finalisation of the Maling heritage survey report;
IndiEnergy release to the Australian Stock Exchange in respect of the Lake Disappointment Project dated 31 March 2008;
Submissions to the Senate Select Committee on Agricultural and Related Industries Inquiry into Chemical and Fertiliser Pricing and Supply Arrangements; and
Letter from the Western Australian Department of Agriculture and Food dated 28 October 2008.
Additional evidence of the grantee party includes:
Extracts from a book by Professor Robert Tonkinson (second edition 1991, originally published in 1978) ‘The Mardu Aborigines: Living the Dream in Australia’s Desert’;
Internet sourced documents relating to changes affecting the Department of Indigenous Affairs; and
Affidavit of Dr Michael Ruane, managing director of Holocene Pty Ltd since 2004, sworn 19 February 2009, annexing various market analysis reports pertaining to fertiliser and potash production.
The grantee party proposes to use the area of the proposed lease to extract and process potash (potassium sulphate) from Lake Disappointment. Currently the Lake Disappointment Project (‘the Project’) on and around Lake Disappointment comprises:
seven exploration licences already granted to Holocene Pty Ltd – E45/2801 to E45/2803 and E69/2156 to E69/2159;
two pending exploration licences – E45/3285 and E45/3286 – which were applied for by the grantee party on 14 July 2008;
the proposed lease; and
one pending miscellaneous licence L45/172 for the purposes set out below. I note that the miscellaneous licence is currently the subject of proceedings before the ‘independent person’ in Western Australia following notice of it and objections lodged by the native title party in accordance with s 24MD(6B) of the Act.
Mr Cunnold provided the following uncontested evidence about the Project:
A Joint Ore Reserves Committee compliant resource of 25 million tonnes of potash has been established within the grantee party’s exploration licences over Lake Disappointment.
That mining is likely to take place on the surface of the Lake by means of a brine collection trench, expected to be 5 metres wide with a depth of up to 3 metres, which will expose the potash bearing brine, facilitating the collection of brine by pumping. A causeway will be built adjacent to the trench for the purposes of excavation and subsequent maintenance and rehabilitation of the trench, pumps and weirs. The length of the trench is a function of the transmissivity of the brine and the brine requirements of the operation. The mining lease area also includes the trench to a distance of approximately 20 kilometres. The brine is to be pumped from the collection trench into a series of evaporation (crystallizer) ponds from which potassium salts (and others) are precipitated. The evaporation ponds are at the end of the collection trench near the northern shore of the Lake and the exact dimensions may vary subject to the results of a pilot scale operation.
The final stage ponds are where the potassium salts are collected. The crude salts are harvested using a fleet of harvesters and trucks.
The refining process will require a bore field for water for the treatment process. The milling of the salt product will require diesel powered generation plants. The plant site would be located on the shore of the Lake close to the evaporation ponds.
The final product will be transported to Perth via Newman from the Lake to the north along the proposed access road to the Talawana Track which runs through the Martu determination area but which is available for public access.
It is possible an alternative option of transporting the final product north through the Rudall River National Park to the Telfer Mine Road and then to Port Hedland for sea freight.
The potash will be sold to national distributors of fertiliser.
The roads and tracks from the subject area to Newman (including the Talawana Track) will require upgrading and regular maintenance. The Talawana Track will be upgraded to an all weather road with bituminising of some sections and potentially all of it. A new purpose built access road from the Lake to the Talawana Track will be constructed (part of miscellaneous licence).
The infrastructure on the mining lease area will include the brine trench and service causeway and evaporation ponds on the Lake itself. The process plant and accommodation village will be constructed on the land nearby together with mine and access roads, an administration area, flood protection levy banks, power generation plants and maintenance workshop. Mr Cunnold says that the areas to be occupied by the various facilities within the subject area are: accommodation/administration block (2 hectares maximum); plant/stockpile areas (10 hectares maximum); evaporation (crystallizer) ponds/brine collection trench (9.88 square kilometres); and salt quarantine ponds (10 square kilometres) making a total affected area of 20 square kilometres.
Other facilities such as access roads, including the access road from the Lake to Talawana Track (4 square kilometres – 20 kilometres by 0.2 kilometres), bore fields and an aerodrome (0.5 square kilometres – 1 kilometre by 0.5 kilometres) are likely to be built on miscellaneous licence L45/172.
The grantee party proposes to commence mining within 2 years of the necessary approvals and the anticipated lifespan of the Project is 40-50 years.
The Project will require a workforce of approximately 60 people. Employment will be on a fly in/fly out basis unless local people can be employed.
Native title party’s evidence
The native title party tendered the affidavit of Teddy Biljabu, Mitchell Biljaba, Billy (Nyaparu) Landy, Timmy Patterson, Bobby Roberts, Brian Samson and Allan Charles (‘Martu Elders affidavit’), dated 9 January 2009.
At the hearing in Jigalong on 6 April 2009 Brian Samson and three other witnesses confirmed the contents of the affidavit of the Martu Elders.
The Martu Elders’ affidavit annexes the following documentation:
Lake Disappointment Project Tenement and Plant Location Map;
Map of mining tenements held by Holocene Pty Ltd in the vicinity of Lake Disappointment;
Map of registered sites in the vicinity of Lake Disappointment; and
Letter from Wright Barristers and Solicitors to Teddy Biljabu, dated 27 March 2008 (‘the Term Sheet’), previously subject to s 155 confidentiality direction in the good faith hearing (see good faith decision at [16]-[18]).
The native title party’s evidence also includes the following:
‘Statement Regarding the Cultural Significance of Lake Disappointment to its Aboriginal Owners and Related Issues’ by Professor Robert Tonkinson (subject to s 155 confidentiality direction) (‘the Tonkinson Statement’);
Martu Native Title Claim Connection Report by Robert Tonkinson, Stephen Bennetts and Sarah Bell dated May 2001 (subject to s 155 confidentiality direction) (‘the Connection Report’);
Affidavit of Jeremy Maling, anthropologist engaged to conduct heritage survey in May 2008, sworn 6 January 2009 annexing draft heritage survey report the subject of a s 155 confidentiality direction (‘the Maling Report’);
Letter from Wright Barristers & Solicitors to Hunt & Humphry dated 10 December 2008 relating to the status of the Project design, specifications and feasibility studies;
Lake Disappointment Aboriginal Heritage Survey Discussions May 2008 conducted by Jeremy Maling on DVD;
‘Report of the Review of the Department of Indigenous Affairs’, prepared by Dr Dawn Casey PSM FAHA dated April 2007; and
Financial and ASX documents relating to Reward Minerals Limited for the 2008 and 2009 period.
The s 155 confidentiality directions referred to above provided that the evidence not be disclosed to anyone except counsel, instructing solicitors or expert anthropologist employed by grantee party and Dr Michael Ruane and Mr Greg Cunnold (and later Mr Bill Brooks) of the grantee party and Ms Paola O’Neill of the Government party (Department of Mines and Petroleum). The directions also applied to submissions made by Mr Kenneth Pettit (Counsel for the grantee party) on the Connection Report during the hearing on 8 April 2009. The directions stated that the documents subject of the s 155 confidentiality directions be returned to the native title party or destroyed and their destruction to be verified by affidavit at the expiration of the appeal period. Although the subject of these directions, I have considered it appropriate to refer to some of the evidence covered by them and to that extent the directions are hereby varied. In deciding to include this material I have been influenced by the fact that much of it is already in the public domain in a book written by Professor Robert Tonkinson (The Mardu Aborigines, Living the Dream in Australia’s Desert (2nd edition 1991)) extracts from which were before the Tribunal. I appreciate that from an Aboriginal perspective the fact that material which is of secret and sacred kind has been made public does not mean that they are happy to see its continuing dissemination. However given the issues in this inquiry I considered it important to refer publically again to the material in order to ensure that my reasons are fully understood and the factual basis of my determination is clear [Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340].
On-country hearing on 6 April 2009 at Jigalong
The hearing was conducted under the meeting tree near the Jigalong community office with approximately one hundred people in attendance at the beginning of proceedings. Mr Nyaparu Landy, known as Butler, welcomed the Tribunal onto Martu land and I made opening remarks explaining the purpose of the hearing. All of the deponents of the Martu Elders affidavit gave evidence with the exception of Mr Bobby Roberts who was unable to attend for personal reasons. Six additional witnesses also gave evidence including Mr Baker Lane who participated in the Maling heritage survey in May 2008. A total of twelve witnesses were called to give evidence, being Messrs:
Muuki Taylor Nyaparu Landy (Butler) Darson Wumi
Nyari Morgan Timmy Patterson Mitchell Biljaba
Wakka Taylor Baker Lane Brian Samson
Allan Charles Peter Rowlands Teddy Biljabu
Without formally administering an oath or affirmation in each case I sought a general undertaking from persons giving evidence to tell the truth. Section 156(1) permits but does not oblige the Tribunal to take its evidence under oath or by affirmation. The practice adopted here has been used in other hearings and accords with the provisions of the Act relating to the Tribunal’s way of operating, in particular the need to be economical, informal and prompt, not be bound by technicalities, legal forms or rules or evidence and to take into account the cultural and customary concerns of Indigenous people (s 109 NTA). Counsel for the native title party, Mr Marshall McKenna, also sought a similar undertaking from each witness prior to giving evidence.
The native title party tendered two additional documents at the hearing in Jigalong: a map of Western Australia showing the Lake Disappointment area which was annotated by several of the witnesses, and a picture of a painting titled Kartarru and Kalpaa by Mr Peter Rowlands, contained within a catalogue of art produced by the Martumili Artists. An additional map of the Project area and general surrounds prepared by the Tribunal’s Geospatial Services Section was annotated by one of the witnesses at the hearing and was also admitted into evidence.
The native title party provided interpreters from within the group to assist in the interpretation of evidence given in language and by some witnesses who could not orally communicate in English.
A representative from the grantee company, Mr Bill Brooks, director of Reward, attended the hearing as an observer but, as agreed, no representative for the Government party was present.
Legal principles
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 v Western Australia [1997] 741 FCA; (1997) 77 FCR 193 (‘Evans’). Federal Court, RD Nicholson J – an appeal from the Tribunal determination in Koara 1;
·Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 (‘Koara 2’) - Tribunal determination following the successful appeal in Evans;
·Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’); and
·WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (‘WMC/Evans’).
Section 38 of the Act sets out the types of determination that can be made and relevantly are:
‘38 Kinds of arbitral body determinations
(1)Except where section 37 applies, the arbitral body must make one of the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determinations may cover other matters
...
Profit‑sharing conditions not to be determined
(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.’
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.’
The making of a determination involves the exercising of discretionary power by reference to the criteria in s 39. The Tribunal’s task was explained in Waljen (at 165-166).
‘We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interest of the Aboriginal people concerned.
The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enable by virtue of s 39(1)(f) to take into account any other matter we consider relevant.
The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.’
The Tribunal’s inquiry function is summarised in Waljen (at 162-163) and involves, among other things, the Tribunal making a determination based on logically probative evidence and application of the law.
The native title party contends that even though the Tribunal has never determined that a future act must not be done, this is not the inevitable result of an inquiry and it is within the Tribunal’s powers to determine that an act must not be done. The Tribunal agrees with this statement which is the basis upon which it has acted since the test cases of Koara 1 and Waljen.
Native title party’s contentions on interpretation of Native Title Act
The native title party makes a number of contentions based on the importance of protecting Martu native title rights which are of a determined and exclusive nature and include a right to make decisions as to use of country. It says that where it is self evident that determined and exclusive native title rights and important cultural sites will be interfered with the wishes of the native title party should be a paramount consideration. This issue is more fully dealt with below and undoubtedly is one of the central matters for consideration in these proceedings.
In making this contention, the native title party raises a number of issues which require brief preliminary comments. The native title party cites the Preamble to the Act in support of their view that the Martu have a fundamental right to protection of their land and rights:
‘They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.
...
The people of Australia intend:
(b)to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
....
It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.’
The native title party also relies on the principle, which the Tribunal accepts, that a beneficial construction should be given to the provisions of the Act which are designed to protect native title rights and interests or which otherwise reflect other interests and concerns of native title parties and Aboriginal people so as to give the fullest relief which the fair meaning of the language will allow (Koara 1 at 81; Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124). As the Federal Full Court recently noted, the right to negotiate regime is an element of the protection of native title, one of the main objects found in s 3 of the NTA and, given its beneficial nature, it is not to be narrowly construed - FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49 at [18], Spender, Sundberg and McKerracher JJ.
The native title party also contends that the underlying principles of the Racial Discrimination Act1975 (Cth) (‘RDA’) are reflected and supplemented in international law. It refers to aspects of a number of international instruments which support the rights of indigenous people in various respects viz the Universal Declaration of Human Rights (United Nations General Assembly 10 December 1948), the Declaration of the Rights of Indigenous Peoples (United Nations General Assembly 13 September 2007) and the Convention concerning Indigenous and Tribal Peoples in Independent Countries (International Labour Organisation Convention 169 - 7 June 1989). It also refers to Department of Foreign Affairs and Trade publication –‘Australia: Seeking Human Rights of All – Celebrating the 60th Anniversary of the Universal Declaration of Human Rights’ (9 December 2008) in which the current Australian Government publicly acknowledges the significance of the Declaration on the Rights of Indigenous People for the advancement of their welfare globally. No doubt it would also refer to the fact that on 3 April 2009 the Australian Government made a statement in support of this Declaration.
In one of the early test cases on the right to negotiate provisions of the NTA, the Tribunal gave detailed consideration to the proper approach to its interpretation which has been applied since (Waljen at 139-150). The Preamble and a beneficial interpretation (where appropriate) of the substantive provisions of the Act must be considered in the context of the objects and purpose of the Act and its plain meaning. Section 3 describes the main objects relevantly to provide for the recognition and protection of native title (s 3(a)) and to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings (s 3(b)). The Tribunal has held that the Act attempts to strike a balance between native title rights and the interests of the broader community (Waljen at 149). It has pointed out that the rationale for the right to negotiate provisions is generally freehold equivalence and that mining grants can be made over freehold land (Waljen at 150). These purposes are also apparent from the Preamble.
The Tribunal has also said that the Act was enacted with the knowledge of the importance of the mining industry and that the right to negotiate provisions were intended to deal with the ongoing grant of mining titles (Waljen at 150).
The native title party contentions are not entirely clear about the use it says the Tribunal can make of the various positive statements in international instruments applicable to the rights of indigenous people. The general proposition is that international instruments cannot be relied upon unless they have been enacted into the domestic law. This has been the case for instance with the RDA which gives effect to International Covenant on the Elimination of all Forms of Racial Discrimination. While the Declaration on the Rights of Indigenous Peoples is now endorsed by the Australian Government, there is no specific legislation which gives effect to it. The Tribunal is of the view that the use which can be made of international instruments is as an aid to the interpretation of statutes where the terms of the statute are ambiguous. It is, however, generally inappropriate to rely upon an international instrument for such a purpose when the relevant instrument had not been ratified by or entered into by Australia or such acts were not in contemplation by Australia at the time when the provisions in question were enacted. In any case there is no relevant ambiguity in s 39 of the NTA and thus these are not matters which can directly impact on the Tribunal’s deliberations in this inquiry.
Interaction between the Racial Discrimination Act and the Native Title Act
The native title party seeks to invoke the RDA to say that the same rights which are accorded to private landholders under s 29(2) of the Mining Act should be accorded to the Martu as holders of exclusive native title. Section 29(2) of the Mining Act says that a mining tenement may not be granted over certain private land except with the consent of the owners or occupiers being that which is in regular use as a yard, stockyard, garden, orchard, vineyard, plant nursery or plantation, land under cultivation; a cemetery or burial ground; a dam, bore, well or spring; has a substantial improvement; is within 100 metres of any of the above; or which is a separate parcel of land of an area of 2000 square metres or less, unless the grant relates to land at least 30 metres below the surface. Land the subject of a determination of native title is not encompassed by the definition of private land in s 8 of the Mining Act.
The native title party says that s 10 of the RDA means that the holders of exclusive native title should be allowed the same rights and protection as are given to holders of freehold land. As s 29(2) of the Mining Act gives ordinary freeholders a veto over mining on areas of special value to them, the same right should be given to native title holders in case of areas of value or significance to them such as culturally significant areas or sites. The native title party says it would be repugnant to everything that the RDA and the international covenants relating to the rights of Indigenous people stand for if an area of utmost cultural significance such as Lake Disappointment could not be protected. The NTA is said to be expressly subject to the RDA.
The Tribunal has previously considered the interaction between the NTA and the RDA (Western Desert Lands Aboriginal Corporation v State of Western Australia [2008] NNTTA 22; (2008) 218 FLR 362) (‘WDLAC/Kitchener’).
While s 7(1) of the NTA says that it is to be read and construed subject to the provisions of the RDA s 7(2) makes clear that this only means that the provisions of the RDA apply to the performance of functions and exercise of powers conferred or authorised by the NTA (for instance by the Tribunal) (s 7(2)(a)) and to ensure that any ambiguous terms are construed consistently with the RDA (s 7(2)(b)). The High Court has said that the general provisions of the RDA must yield to the specific provisions of the NTA in order to allow those provisions a scope for operation (Western Australia v The Commonwealth (1995) 183 CLR 373 at 484).
In this inquiry the Tribunal is concerned with the provisions of the NTA which must be followed to ensure the validity of a grant which affects native title. The actual grant of the mining lease is made under the Mining Act. If there are requirements under that or other State legislation which must be followed before a grant can be made either because of the direct operation of the State legislation or by virtue of other legislation such as the RDA which may apply to its operation this is not a matter for the Tribunal. Any such issues will need to be pursued before an appropriate court.
The Tribunal accepts the grantee party’s submission that s 29(2) of the Mining Act does not in its terms apply in this case. Even though the native title party is probably an owner or occupier of the subject area (WDLAC/Kitchener at 380-381 [43]-[44]) the categories of activity for which consent is required are not established on the facts of this case. There are also no ambiguities in the relevant provisions of the NTA which would require resort to the RDA to resolve them.
The ‘Term Sheet’ agreement of 27 March 2008
The relevance of the ‘Term Sheet’ agreement entered into between the native title and grantee parties as part of the good faith negotiations became an issue in this inquiry. The agreement was documented by correspondence dated 27 March 2008 from Wright Barristers and Solicitors acting for the grantee party to Teddy Biljabu, Chairman of WDLAC and letter in response from Mr Biljabu of the same date (good faith decision at [16]-[21]). Mr Wright referred to it as ‘in principle’ agreement. The Term Sheet has been tendered by the native title party.
The key aspects of the Term Sheet (excluding details of the specific commercial terms which are covered by a confidentiality direction pursuant to s 155 of the Act) are:
The native title party agrees, either by way of an Indigenous Land Use Agreement or a s 31 agreement or both, to the grant of the proposed lease and miscellaneous licence L45/172 to the grantee party and furthermore agrees to the extension or renewal of eight exploration licences associated with the Project and the grant of other (unidentified) mining leases and tenements for the purposes of the Project.
The native title party agrees to facilitate the development and commissioning of the Project subject to reasonable environmental and Aboriginal heritage protection measures including by arranging and conducting archaeological and ethnographic Aboriginal surveys of the Project tenements.
The grantee party will reimburse the past negotiation costs of WDLAC with respect to the Project and pay certain future costs of the negotiation.
The grantee party will pay WDLAC a specified agreed sum ‘upon execution and registration under the Native Title Act of the Agreement’.
The grantee party will pay WDLAC a specified agreed sum ‘upon Holocene obtaining all necessary approvals to commence mining operations on M45/1171 and L45/172 (including approvals under the Mining Act1978 (WA) and consent under s 18 of the Aboriginal Heritage Act 1972 (WA)).
The grantee party will pay a specific agreed value based royalty to WDLAC in relation to potassium sulphate and other minerals derived from the Project mining leases in each financial year.
Upon execution of the agreement Reward will issue to WDLAC 7,000,000 options to acquire fully paid ordinary shares in Reward exercisable at $0.50 within four years of the execution of the agreement.
Mr Biljabu’s correspondence noted that the commercial terms were an acceptable outcome to Stage 1 of the negotiations. WDLAC were authorised to include those terms in a binding agreement subject to completion of the authorisation process relating to those matters affecting native title (i.e. obtaining informed consent as to the tenements proposed to be granted and the activities proposed to be conducted); an acceptable outcome to Stage 2 of the negotiations; and a resolution of the WDLAC Board approving the final terms of the agreement. It is common ground that none of these things happened and no final agreement was reached.
The Term Sheet agreement was the subject of public announcements and statements including to the ASX. The grantee party has tendered an ASX Release of 31 March 2008 from Mr Joe Procter of IndiEnergy described as the exclusive commercial advisor for the Martu People entitled “Traditional Owners Fully Support Reward Minerals Limited Lake Disappointment Potash Project’. The release in summary says:
The agreement paves the way for a comprehensive mining agreement allowing Reward full access to test and ultimately develop their existing potash development.
Martu fully supports Dr Michael Ruane, Managing Director of Reward, in his endeavours to accelerate the project to reach its full potential in a timely fashion.
Mr Proctor says that the agreement comprises excellent commercial terms accepted at a full country meeting and that generous indigenous equity is the way of the future in mining negotiations.
A joint statement from WDLAC Chairman Mr Teddy Bilajbu, Community Leader Mr Brian Samson and WDLAC Chief Executive Mr Clinton Wolf which endorsed the Project in positive terms.
The native title party tendered a Reward Minerals Ltd ASX Release of 31 March 2008 ‘Commercial terms agreed with Martu for Lake Disappointment’ which identified the commercial terms as agreed cash payments, a production royalty and an allocation of 7 million unlisted options in Reward exercisable at $0.50 with an expiry date of four years, representing 10.31% of the fully diluted capital of the company. It further said that the terms agreed are subject to project development approval from the Martu and usual statutory authorities.
The grantee party says it does not rely on the Term Sheet and that it is not relevant to the Tribunal’s consideration, in the substantive hearing. The grantee party says that the good faith negotiations were confidential and without prejudice and that the Term Sheet letter of 27 March 2008 was marked confidential and without prejudice. It says that the without prejudice privilege cannot be waived by one side only and that the disclosure of the Term Sheet was for the purpose of the negotiation in good faith hearing to decide whether the Tribunal had jurisdiction to conduct the inquiry and does not constitute a waiver of the privilege in a substantive arbitration. It says that this accords with previous authorities: Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi People); Valerie Holborow & Ors (Yaburara and Mardudhunera People) and Wilfred Hicks & Ors (Wong-goo-tt-oo People), NNTT WF02/17, WF02/18 and WF02/27 [2003] NNTTA 4 (21 January 2003), Hon C J Sumner at [23].
The native title party seeks to rely on the Term Sheet as relevant to whether the Tribunal should impose conditions on the determination for the payment of certain monies by the grantee party and for the native title party to acquire shares in the grantee party and/or Reward. It also says that the fact that the level of benefit or compensation in the Term Sheet agreement is no longer available is a factor that can be taken into account in determining whether or not the future act may be done.
In my view the Term Sheet agreement is covered by the without prejudice privilege attached to the negotiations with the exception of the public announcements that were made in relation to it and which were made with the consent of both parties. These are admissible for the purpose of establishing the fact of the in principle agreement and some of its terms.
Martu native title determination
The parties agree that the registered native title rights and interests are set out in the determination of native title made by the Federal Court (Justice French) at Parnngurr (Cotton Creek) on 27 September 2002 (‘the Martu determination’) (James & Ors on behalf of the Martu People v State of Western Australia [2002] FCA 1208):
‘(1)The nature and extent of the native title rights and interests held by the common law holders in the determination area are:
(a)the right to possess, occupy, use and enjoy the land and waters of the determination area to the exclusion of all others, including:
(i) the right to live on the determination area;
(ii) the right to make decisions about the use and enjoyment of the determination area;
(iii) the right to hunt and gather, and to take the waters for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial, and communal needs;
(iv) the right to control access to, and activities conducted by others on, the land and waters of the determination area;
(v) the right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs; and
(vi) the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the determination area;
(b) the right to use the following traditionally accessed resources:
(i) ochre;
(ii) soils;
(iii) rocks and stones; and
(iv) flora and fauna
for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs; and
(c)the right to take, use and enjoy the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs, including the right to hunt on and gather and fish from the flowing and subterranean waters.’
The determination covers an area of over 136,286 square kilometres and includes the subject area. It is agreed that the Tribunal may accept the facts set out in the Martu determination judgment. These include:
‘5 The connection of the Martu People to their country is shown in the report prepared by Professor Robert Tonkinson, Professor of Anthropology at the University of Western Australia, Mr Stephen Bennetts, an Anthropological Consultant at the Centre for Anthropological Research at the University and Ms Sarah Bell, a Research Officer at the University of Western Australia. The report which was delivered in May 2001 was commissioned by the Ngaanyatjarra Council acting on behalf of the applicants. In the report it is said:
‘The claimants are among a number of Western Desert peoples who maintain a very strong cultural base in their traditional laws and customs, and have retained close connections to their lands despite many decades of change stemming from the advent of Whites and the powerful impacts of governmental policies and practices. Because the frontier of contact between Whites and Aborigines continued in their lands until as recently as the 1960s, these groups are able to describe and demonstrate in great detail their laws and customs. Their religiously based traditions are embedded in a wealth of cultural elements: mythology, story, song, ritual, the features of the landscape, and secret-sacred paraphernalia – all of which contribute to a vibrant religious life that connects them to their creators and their homelands.’
6. The claimant group numbers 1,600 people whose territories lie on the western side of the Western Desert surrounding Lake Disappointment and straddling the Tropic of Capricorn. Most of them live at Parnngurr, Punmu, Kunawariji and at Jigalong. Jigalong is just outside the claim boundary but it has been an important centre for many claimants at some stage over the past fifty years. Two hundred of them still live there.
7. Over thirty of the Martu people travelled by road from the Western Desert and Eastern Pilbara in June 1996 to deliver their application to the main registry of the National Native Title Tribunal in Perth. They also presented the Tribunal with sand from their country, on the understanding that it was to be returned when a determination of their native title claim was made. As the report asserts:
‘This symbolic gesture was a demonstration of the claimants’ strongly-held belief in their ownership of their traditional territories’.
After making the determination I propose to make today, and before adjourning, I will invite Mr Graeme Neate, the President of the National Native Title Tribunal to return the sand to the Martu people in a Piti or traditional wooden dish.
8. The anthropological report shows there was a gradual migration of Western Desert People from the desert heartland to the fringes as a consequence of the spread of European settlement. But this resulted in only a brief period of physical absence of the claimants from their traditional territories. Through the cultural mechanism of dream-spirit journeys, they kept contact with and responsibility for their countries while physically elsewhere. That is what they had always done in the desert where such absences were sometimes forced by lack of water and/or food resources in their core territories. Their hunter gathering activities continued and they went back into the desert from time to time so they did not lose contact. There was no serious cultural break with their traditional roots. The return of people to live on the country has supported the maintenance of law and custom among them. They remain one of the most strongly “tradition-oriented” groups of Aboriginal people in Australia today partly because of the protection that their physical environment gave them against non-Aboriginal intruders. It is not a welcoming environment for those who do not know how to locate and use its resources for survival. Of great importance is the continuing strength of their belief in the Dreaming.’
Contentions on s 38 future act determination
The agreed list of issues is:
Grantee party contends for a determination that the act may be done subject to conditions (as set out in grantee party’s Statement of Contentions in Reply dated 30 January 2009).
Government party contends for a determination that the act may be done, and at this stage reserves its position regarding the grantee party’s proposed conditions.
Native title party contends for a determination that the act must not be done with or without the grantee party’s proposed conditions.
A schedule of conditions proposed by the grantee party was provided with the Statement of Contentions in Reply (30 January 2009). They are based on conditions determined by the Tribunal in Koara 2 (at 278) and summarised as follows:
The native title party’s right of access is not to be restricted except in relation to the parts of the mining lease actually being used for exploration or mining or for safety or security reasons.
No mining on exclusive zones identified in Mr Maling’s affidavit.
Grantee party to give notice of grant to the native title party.
Compliance with the Aboriginal Heritage Act.
The conduct of an archaeological survey over the non Lake area i.e. the area already covered by the ethnographic surveys of Dr Wright and Mr Maling.
The conduct of the survey to be done by a Site Survey and Clearance Team with up to three Martu persons in a professional efficient manner and in accordance with the established guidelines. The grantee party will pay the reasonable fees and expenses of the Martu nominees.
Procedures for the conduct of the survey.
No exploration or mining to be carried out on sites identified except with the consent of the native title party or pursuant to s 18 of the Aboriginal Heritage Act.
Consultation with the native title party in relation to stone artefacts or human burials.
The erection of signs to identify sites other than the Lake itself on the mining lease area unless otherwise agreed by the grantee party and native title party.
Grantee party to pay the reasonable costs of filming Nyaparu Williams and Mark Jeffries about their stories in relation to the mining lease area if they are part of the survey team.
Notice of any application under s 18 of the Aboriginal Heritage Act to the Aboriginal Cultural Heritage Committee to be given to the native title party and Government party.
Consultation with the native title party if requested by them about the proposals the subject of the s 18 notice.
The provision to the native title party of the notice and recommendation of the Aboriginal Culture Heritage Committee to the Minister and
The native title party to be informed of the Minister’s s 18 application decision.
The engagement of at least two Martu monitors to oversee ground disturbing construction within the mining lease.
The grantee party to give the native title party a reasonable opportunity to perform a ceremony on the mining lease before commencement of mining.
A copy of the Mining Proposal to be given to the native title party including certain specified details relating to it.
Consultation with the native title party prior to lodging a Mining Proposal.
Consultation with the native title party about upgrading the Talawana Track.
Government party to provide an opportunity to the native title party to make submissions to it and the Environmental Protection Authority on whether it wishes the mining proposal referred to the EPA and to advise the EPA of the proposal.
The maintenance of a recruitment and training policy and program which subject to the requirement of the grantee’s business and availability of native title holders is designed to provide employment opportunities for native title holders.
The recruitment and training policy involves a regular exchange of information between the grantee party and native title party on employment and training opportunities for Martu people and an obligation to consider applications fairly and objectively having regard to the attributes of the person and requirements of the grantee party’s business.
The recruitment and training policy must also include exchange of information relating to business and contracting opportunities and include an obligation to give contract work to Martu entities after fair and objective consideration having regard to the capacity to perform the work and requirements of the grantee’s business.
Cultural awareness training for the grantee party’s employees involving the native title party.
Establishment of a Liaison Committee of two persons nominated by each of the grantee party and native title party, which must meet at least once each quarter. The purpose of the committee is to provide a forum for the exchange of information on matters of importance to each party in relation to the mining operations and the employment and training policy and to co-ordinate the development and implementation of the cultural awareness program. The grantee party is to provide information about the number of Martu people employed by or involved in contracts with the grantee party.
Section 39(1)(a)(i) – enjoyment of registered native title rights and interests
The Tribunal’s task is to examine the effect of the proposed mining activities over the area of the proposed lease on the enjoyment of the native title rights and interests of the native title party. Although by definition the native title party is WDLAC, it is self-evident that the Tribunal is concerned with the effect of the act on the Martu native title holders. The issue is considered by examining the evidence relating to the actual exercise or enjoyment of the rights in the relevant area not by reference to a worst case scenario which assumes the existence and enjoyment of all the registered native title rights equally over the whole of the determined area including the particular locality under consideration (Waljen (at 166-167); WMC/Evans (at 339-341); Australian Manganese Pty Ltd v State of Western Australia & Others [2008] NNTTA 38; (2008) 218 FLR 387 (‘Australian Manganese/Nyiyaparli’) (at 400-403 [36]-[39]). The Tribunal is directly concerned with the effect of the future act which is the grant of the proposed lease, but this effect must be considered in the context of the whole Project which would involve mining operations on the surface of the Lake (trench, evaporation ponds etc) and infrastructure on the edge of the Lake (accommodation village etc) within the subject area as well as an airstrip, the access road and the upgrading of the Talawana Track which are outside it. Most of the proposed lease covers the surface of Lake Disappointment and is where the actual mining operations would take place, the balance of it being a relatively small area near the edge of the Lake. The evidence is considered under each of the determined native rights bearing in mind that the evidence is often relevant to more than one of the rights and more than one of the s 39 criteria.
There is no dispute that the non-extinguishment principle applies to the grant of a mining lease but that native title rights which are inconsistent with the grant will be suspended for the duration of the lease (s 24MD(3)(a) NTA).
Right to possess, occupy, use and enjoy the land and waters of the determination area to the exclusion of all others, including the right to control access to, and activities conducted by others on, the land and waters of the determination area.
The agreed list of issues is:
All parties agree that as a matter of law the Martu possess and occupy the area of the mining lease. The parties agree that the rights to possess, occupy, use and enjoy the land and waters of its determination to the exclusion of others, including the right to control access to, and activities conducted by others, on the area of the mining lease will be affected. The parties are not agreed as the extent of physical use or enjoyment on the area of the mining lease.
The native title party contends that the granting of the mining lease will have a detrimental effect on Martu authority and culture.
The grantee party and Government party contend that there is no effect on culture or authority; alternatively the effect if any is not substantial.
With respect to the extent of the current use or enjoyment of native title rights, most of the evidence is found in the following parts of the Martu Elders affidavit:
‘18The Martu have lived around the Lake for generations. The Martu go to the Lake, mostly the western and northern parts at least once or twice every year to make sure our sites are looked after, to keep our Law strong and to teach our young ones about their country. The Martu go to the Lake usually during winter months.
19We do not go to the south or east part of the Lake. The Martu cannot walk over these areas, no one can. Many people believe it is dangerous to fly over the Lake.
20The Martu know which parts of the Lake are safe to go to and which are not. The Lake is an area where we and other Martu go to hunt for rabbits, emu, bush turkeys and kangaroos. It is also an area which has bush foods like quandong and bush berries. We take our young ones to the Lake to teach them to hunt and find foods. We are able to live off the land around the Lake as we have done since the beginning of time. Lake Disappointment itself has little if any food on it, depending on the seasons and the water in Lake Disappointment.
21The Martu are also working with the Department of Environment and Conservation in relation to a land management plan for the Lake, and will next year be going to the Lake more often to do work cleaning up and maintaining the wells and water holes, burning the bush around Lake Disappointment to manage the country and to put up signs and fences to protect various important sites.’
In addition at the Jigalong hearing there was some limited evidence to the same effect from some of the witnesses. Brian Samson spoke of visiting the Lake with his children two years ago, Allan Charles said he visits ‘that place every year’ and Timmy Patterson said he goes out there in a car but did not specify the frequency of those visits. Nyaparu Landy Butler spoke of looking after Martu land by visiting sites, caring for the land and ‘burning up the country again for the next season and all that’.
The Martu Elders’ description of infrequent visits to the western and northern parts of Lake Disappointment on at least one to two occasions each year of some Martu does not suggest intensive access particularly to the subject area. The oral evidence given in Jigalong confirms that the Lake (or at least parts of it) is a dangerous place and needs to be avoided. That evidence supports the grantee party’s contention that the native title party has not traditionally accessed or used the surface of the Lake. There is very little evidence that the current access extends to the surface of the Lake including the area of the proposed lease.
I am satisfied that the physical use and enjoyment of Martu native title rights do not currently occur over the surface of the Lake and probably never have done to any great extent. There is no evidence that the activities deposed to by the Martu Elders take place specifically on the area of the proposed lease which covers the land beyond the edge of the Lake. However, even if some of the activities deposed to were to take place over the area of the proposed lease, the restrictions on them from the grant of the mining licence need to be considered taking into account that there is generally a very large area around the edge of the balance of the Lake where the activities will not in any practical way be affected. The Canning Stock route runs for some 30 kilometres to the western side and in the general vicinity of the Lake area and provides access to the native title party for the enjoyment of their native title rights.
The native title party says that the exclusive right to control the activities of others over the proposed lease would be lost. That is acknowledged by the grantee party, but it can be accepted that the native title party will continue to control access to, and activities conducted by others over, the proposed lease with the exception of the grantee party and its officers, employees, agents, contractors and invitees.
Right to live on the determination area. The Parties agree that the right to live on the area of the lease will be affected, but the Martu do not live on the area. Although the Martu Elders say that they have lived around the Lake for generations there is no evidence that this is the case at present and particularly there is no evidence that they have lived specifically in the subject area (i.e. on the surface of the Lake, any islands or the area of the proposed lease on the edge of the Lake).
Right to make decisions about the use and enjoyment of the determination area. The parties agree that the native title party’s right to make decisions in relation to the area of the proposed lease would be abrogated.
Right to hunt and gather, and to take the waters for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs. The parties agree that the right would be affected, but Martu People do not presently do those things in the area of the mining lease. As discussed the evidence from the Martu Elders of these activities does not relate specifically to the mining lease area but the area of Lake Disappointment generally.
Right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and custom. This right is discussed below under s 39(1)(a)(v).
Right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the determination area. The agreed list of issues is:
The parties agree that this right will not be directly affected by the doing of the act.
There is an issue as to whether this right will be indirectly affected, through other Aboriginal people potentially entering and working on the area of the mining lease without the permission and/or against the wishes of the Martu.
In my view even if other Aboriginal people were to be employed on the Project this would not directly or indirectly affect this right. The fact of them being employed on Martu land could not in any way be used to say that they are traditional owners of the area.
Right to use ochre, soils, rocks and stones and flora and fauna for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs. The parties agree that the right would be affected, but the Martu People do not presently do those things in the area of the mining lease.
Right to take, use and enjoy the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs, including the right to hunt on and gather and fish from the flowing and subterranean waters. The parties agree that the right is affected, but the Martu People do not presently do those things in the area of the mining lease.
Minerals. The parties agree that the Native Title Party has no right to the minerals. The native title party contends that the taking of minerals affects, amongst other things, the native title party’s right of exclusive possession.
With respect to this criterion generally (excluding issues relating to the significance of Lake Disappointment and the impact on the Martu People’s culture and authority in relation to it) I agree with the Government and grantee parties that the effect on the physical enjoyment of these rights will not be substantial. The subject area is very small compared to the areas over which the native title rights are capable of being enjoyed on the whole of the Martu determined lands. In the general area of Lake Disappointment the enjoyment of them is infrequent. I accept that the capacity to access the Lake Disappointment area for these purposes even on the basis outlined is important to the Martu, but the evidence does not suggest that the mining activities will interfere with the capacity physically to enjoy this right except possibly to a minor extent. It is also true that the upgrade of the Talawana Track and access road will improve access to the area and the capacity to exercise the rights on a more regular basis.
Section 39(1)(a)(ii) – way of life, culture and traditions
The agreed list of issues is:
The native title party contends that a determination that the act can be done will have a detrimental effect on the way of life, culture and traditions of the Martu community.
The grantee party contends that the act will not detrimentally affect the way of life, culture or traditions of the Martu.
There is an issue as to whether the development of the project absent the approval and support of the Martu and without a relevant sense of Martu “ownership” will undermine their traditional authority structures and their culture.
The strength of Martu traditional culture and connection to country is described in the Martu consent determination judgment which is accepted by all parties. In addition the ‘Connection Report’ prepared by Professor Tonkinson and others was before the Tribunal as was Professor Tonkinson’s Statement regarding the cultural significance of Lake Disappointment which was prepared for the purpose of these proceedings
The first part of Professor Tonkinson’s Statement (para 2) provides a summary of the Martu traditional social structure, culture and attachment to land reflecting the contents of the Connection Report and includes:
‘Martu today continue to see both human and spiritual realms as part of a wider cosmic order, a totality that includes the all-powerful spiritual beings of their Dreaming. The major components of this order are characterised at base as being in harmony, and their religion teaches them that, for the maintenance and reproduction of the cosmic order, human actions are absolutely essential. Like most Australian Aboriginal peoples, the Martu believe that, during the world-creative activities of all the ancestral Dreaming beings, all the structural and legal essentials of life were laid down, and in a kind of contract, these beings demanded from their human descendants two big things: obedience to the dictates of ‘the Law’ and the faithful performance of rituals, which together will guarantee the continuing flow of enabling powers into the human realm, thus assuring the ongoing fertility of all living things and the continuance of Martu society. The Dreaming’s blueprint is clear and, as embodied in Martu Law, it has demanded only an unquestioning assent to its terms, as just briefly outlined.’
The affidavit of the Martu Elders provides more contemporary confirmation of the position:
‘12Our culture is a living culture. In our songs and in our spirit we go to the land. The Martu are still traditional aboriginal communities, with most Martu living on their traditional lands and speaking language. We still practice our traditions and laws and teach our young ones their culture, which sets their obligations to the land and to their people. We know and sing our song lines and dances. We still hunt and get food from our lands, and take care of our lands and sites, as required by our law.
...
14We work very hard to retain our culture, to teach our young ones about culture and our Law. Our culture and our Law come from the land. The Martu are part of the land and the land is part of the Martu. If we give away our land, then we lose our culture, there would be nothing left but a shadow of our culture. Every bit of the land that is taken away from us means that we lose that little bit of our culture, of our soul.
15The land was made by the Dreaming being and we look after it with ceremonies and songs. The Martu have always cared for their land. We do this by actions and ceremonies and songs and our beliefs. Burning is an important activity to clear land and grow new bush food. Burning flushes out goannas, snakes, lizards and other animals. Water holes need to be looked after.’
Despite some difficulties in communication at the Jigalong hearing, I am satisfied that the evidence given particularly from Messrs Nyari Morgan, Muuki Taylor and Wakka Taylor was a powerful endorsement of the strength of feeling about Martu culture. The Martu People’s traditional strong affiliation to the land reflected in the Martu Elders’ evidence, the Connection Report and Professor Tonkinson’s Statement and the importance of the Dreaming, songs, stories, law and custom relating to it are not as I understand it in dispute in these proceedings.
The native title party contends that if the proposed lease were to be granted without the permission of the Martu People, the authority of Martu culture and a sense of pride in their community will be undermined and, as a result, the social and cultural structures of the native title party will suffer. The grantee party says that because of the strong culture of the Martu People it is unlikely that mining on the land and in the location proposed will have an adverse impact on the culture of the native title party.
The grantee party correctly says that there is no specific evidence that Martu authority will be affected by the Project if it goes ahead without this consent and, accordingly, it is difficult to make a finding about whether the authority will be diminished and what the consequences of that might be. There is evidence that authority to do certain things rests with senior Martu people including those with special responsibility for Lake Disappointment or by way of general Martu community meeting. However, beyond that, the native title party’s contention amounts to a general assertion which cannot support a finding of the kind suggested. Even if it could be said that authority was adversely affected, this would need to be viewed taking into account that entry upon and interference with the Lake had been agreed to by the Martu for exploration purposes and mining.
Because this is not expected to be a large mine earning billions of dollars in export income and employing large numbers of people, it cannot be given the greatest weight conceivable. Nevertheless it is potentially of considerable importance in providing import replacement and a product that will assist to maintain food production in Australia. I do not discount the weight which can be given to it by virtue of its unconfirmed status to any great extent, but it is a minor consideration in the difficult task of weighing up the competing considerations.
With respect to the economic or other significance to the local Aboriginal people and the related issue of any positive effect on the development of the Martu’s economic structures, the grantee party refers to its proposal to upgrade the Talawana Track and the employment, training and contracting opportunities which will be available. In addition the access road to the mine from the Talawana Track may also provide some benefit to the Martu. It is not entirely clear from the evidence whether this will be a road the Martu can use but for the purpose of considering this issue I have assumed that it will be. For all practical purposes, the local Aboriginal people are the Martu although the Tribunal is aware members of other claim groups reside at Jigalong.
The Martu Elders agree to the grantee party’s plan to upgrade the Talawana Track but want appropriate consultation about the upgrade and the route it takes to ensure site protection, including the avoidance of burial grounds. They also want a say in the route of the access road as it passes near burial sites (Martu Elders affidavit paras 39-40). A desire for jobs, contracts and further training is also expressed by the Martu Elders (paras 42-44) who want to see benefits from the Project to assist their young people to further their education.
With respect to the upgrade of the Talawana track and the access road I accept that, while these works are not likely to be of any direct economic significance to the Martu, they are of other significance and a benefit by increasing ease of access to Parnngurr, Lake Disappointment and the Canning Stock route and surrounds and can be taken into consideration to some extent. However, I do not give great weight to a coincidental benefit of this kind given the Martu’s wishes relating to the use of the subject area.
The grantee party’s proposed conditions provide a process whereby Martu people can be informed of employment and contracting possibilities and given a reasonable opportunity to apply for them. These conditions would have the potential to provide some benefit to the native title holder but the nature of them by no means guarantees this result. Again, while I have had regard to this potential benefit, it is not something to which I attach great weight in the overall circumstances of the case.
It is accepted by all parties that the native title party will be entitled to compensation for the effect of the grant on their native title rights on the basis set out below. However compensation cannot be seen as an economic benefit. Rather, it is a legal entitlement to be recompensed for the loss or damage suffered. At common law compensation seeks to restore plaintiffs to the position they occupied before the wrong (Haines v Bendall (1991) 172 CLR 60 at 63). In the present case, which would involve a lawful act, compensation would be for any loss, diminution, impairment or other effect of the act on native title rights and interests (s 51 NTA) and as explained below would be assessed pursuant to s 123 of the Mining Act. Whether under the common law or legislation the principles relating to compensation are essentially the same. It does not constitute a benefit, economic or otherwise.
I accept the native title party’s contention that the benefit, economic or otherwise, to the Martu People from this Project is not likely to be very great. They are limited to the possibility of some of them being employed and their businesses engaged in work contracts and an upgraded road.
Section 39(1)(e) – public interest
The agreed list of issues is:
The grantee party and Government party contend that if the project goes ahead, there will be improved access to Lake Disappointment and along the Talawana Track which will benefit the Martu people.
The native title party contends that public interest requires that the rights of the Martu should be given precedence over the economic interests of the grantee party and any economic benefit to the broader community.
The native title party says that there is no public interest in the development of this resource but that it is only a grant to a private interest, being a company and its shareholders. In my view this contention is based on too narrow an interpretation of the meaning of this criterion. There can be a public interest in a project that is privately owned if it has economic, employment and revenue benefits which can in turn enhance the capacity of governments to provide essential public services. The Project has the potential to provide benefits of this kind to the extent already described.
The Tribunal accepts that there is a public interest in a thriving mining industry in Western Australia and Australia (Waljen at 215-216; Evans at 214-215) and that this grant has the potential to enhance it.
The native title party makes what it describes as a ‘nice point’ by suggesting that the upgrade of the Talawana Track is the subject of a separate approval process and that the suggested benefits in relation to it would not result from the Tribunal’s determination in this matter. In my view, the Tribunal is entitled to have regard to infrastructure which benefits the native title party and arises from the grant of the mining lease even if not specifically authorised by it. Self-evidently, if the mining lease is not granted the approvals of the track upgrade will not proceed.
The native title party contends that it is in the public interest for the rights of the native title party to be given precedence over the economic interests of the grantee party and economic benefits to the broader community. The Tribunal accepts that, in the abstract, it is possible to say that there is a public interest in a mining grant being refused depending on the circumstances such as the size, economic potential and location of the mine. To take an extreme example, it is unlikely that it would be in the public interest for an open cut coal mine to be approved for Kings Park in Perth. Likewise there would be public interest considerations against mining on the Burrup Peninsula if this involved the destruction of large areas of petroglyphs or rock carvings which are of high heritage value not just to Aboriginal people but the general community. Specifically in the native title context, there may be public interest considerations against mining over areas of special significance to Aboriginal people.
I am satisfied that the public interest would be served by this mining development however this interest must be balanced against the interests of the native title party and their wishes in relation to the interference with an important traditional site.
Section 39(1)(f) – any other matter which the Tribunal considers relevant
The agreed list of issues is:
The parties agree that the grantee party has invested substantial time and resources in seeking to progress this project.
The parties agree the proposed act will have reversible impact on the physical environment and agree that the proposed project life is up to 50 years.
The native title party contends that the commercial prospectively of the grantee party’s project has not altered substantially or at all from the position prior to the entry into the Term Sheet in March 2008.
I accept that it is appropriate to have regard to the previous expenditure of the grantee party in relation to the Project (Waljen at 176). The grantee party has expended approximately one quarter of a million dollars in payments to the native title party for meetings and heritage surveys in addition to high cost exploration programmes in relation to the Project. The grantee party contends that this was done on the basis that the native title party consistently advised that it did not object in principle to the Project. I have already dealt with the attitude of the native title party to the use of the land. Although I am not convinced that the native title party’s agreement to exploration constituted an in principle agreement to mining, I accept that the Term Sheet agreement indicated a readiness to proceed with it, albeit subject to final agreement from stage two of the negotiations.
Under this criterion the Tribunal can have regard to the environmental protection regime of the Government party described in Waljen (at 212-214) and Koara 2 (at 292-295), the findings of which are adopted. The environmental controls imposed by the Government party can be taken into account because they may assist to ameliorate the effect of the future act on some of the factors in s 39(1)(a).
The affidavit of Mr Cunnold (para 23) deals with some environmental issues including rehabilitation of the mine site at the conclusion of mining operations and compliance with the Mining Act and any conditions under the Environmental Protection Act. The conditions to be imposed on the mining lease and the environmental protection regime would require infrastructure on the Lake and its edge to be removed when the Project is completed. Furthermore, the Government party’s third supplementary condition would require the grantee party to give to the native title party a copy of its proposal to undertake developmental/productive mining or construction activity. I am satisfied that any amendment to the grantee party’s proposal which would increase the footprint of the activity would be covered by this condition. The grantee party’s conditions would expand on those proposed by the Government by requiring consultation between the grantee and native title parties; by providing an opportunity for the native title party to make submissions to the Government and the Environmental Protection Authority on whether the Project should be referred to the EPA and advice to the EPA of the proposal. These conditions would enable the native title party to raise any concerns with the grantee party and government agencies.
Rehabilitation of the proposed lease area would enable the native title party to again exercise native title rights in relation to the subject area, although that would not be of great significance given the current level of enjoyment of those rights. In practice this would mean restoration of the full right to access the area and control of persons who come to it. Because the agreed reversible impact to the physical environment would only occur after 50 years, it is not, in my view, a factor that should be given a great deal of weight in these proceedings. For the whole of this time there would be development on Martu land that would have a considerable impact on the surface of the Lake and on the spiritual relationship of many of the Martu to it.
The other matter to which the native title party says the Tribunal can have regard under this criterion is their current opposition to mining based on the fact that there has been a failure to agree acceptable terms. This is disputed by the grantee party. For the reasons which are further explored below, I consider the Tribunal can take this matter into account in the manner described.
Conditions
The agreed list of issues is:
The grantee party proposes the conditions in the Schedule to the grantee party’s Statement of Contentions in Reply dated 30 January 2009.
The native title party contends that the Tribunal should determine that the act cannot be done and that it cannot be done even on the basis of the proposed conditions.
The grantee party says that the conditions it proposes address the evidence and concerns of the native title party. The native title party opposes these conditions and argues that they are one sided and afford benefits to the grantee party without significant benefit to it.
Paragraph 38(1)(c) of the Act gives the Tribunal a very wide discretion to make a determination than an act may be done subject to conditions to be complied with by any of the parties. The discretion must be exercised by reference to the criteria set out in s 39 and is controlled by the subject matter, scope and purpose of the Act (Evans at 201; Koara 1 at 93). There is no legal impediment to imposing the conditions proposed by the grantee party. However the question of how far this power extends to permit conditions for monetary payments which are in the nature of compensation is an issue in these proceedings.
Conditions for ‘compensation’
The agreed list of issues is:
The grantee party contends that, in the course of deciding whether the act can be done, it is beyond the jurisdiction of the Tribunal, and it is otherwise improper, to take into account any offer of payment or lack of offer of payment. The native title party contends to the contrary.
The native title party contends that the Tribunal has jurisdiction to impose conditions as to payment of money by the grantee party to the native title party (other than to the extent excluded by section 38(2) of the Act).
With respect to a condition for the payment of money the native title party contends:
‘8. While the Native Title Party reiterates its primary submission that in the circumstances of this matter the application should not be granted without the Native Title Party’s informed consent, the Native Title Party disputes the Grantee Party’s contention that the Tribunal does not have the power to impose conditions that require the payment of money by the Grantee Party to the Native Title Party. In this regard, section 38(2) expressly prevents the Tribunal from imposing conditions requiring payments by reference to profits, income derived or production. However, it does not prevent the Tribunal from imposing other conditions requiring the payment of money (or the provision of equity) by the Grantee Party to the Native Title Party. If Parliament had intended that the Tribunal should not have any power to impose conditions as to payment, there would be a full stop after the word “payments” in section 38(2).’
The Tribunal has on a number of occasions considered at length the issue of conditions relating to compensation for future acts. The Tribunal’s views are summarised in Australian Manganese/Nyiyaparli at 410-411 [64]-[66].
‘[64] The Tribunal has on a number of occasions considered at length the issue of conditions relating to compensation. I commend the following material to the native title party’s representatives and other persons representing native title parties in negotiations about the grant of mining tenements and any subsequent future act inquiry:
· Waljen at 177-205;
·Western Australia v Evans & Ors [1999] NNTTA 231; (1999) 165 FLR 354 (at 364-373, [24]-[42] and cases cited therein (at para [25]) including Western Australia v Thomas [1999] NNTTA 99; (1999) 164 FLR 120 (Anaconda 1));
·Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003), Hon C J Sumner at [58]-[60], [98];
·Griffin Coal Mining Co Pty Ltd v Nyungar People [2005] NNTTA 100; (2005) 196 FLR 319 at [37]-[38]; and
·C J Sumner, Deputy President, NNTT, ‘Getting the most out of the future act process’. Paper presented to the AIATSIS 2007 Native Title Conference, Cairns, 7 June 2007, pp. 36-43 ( summary:
·the Tribunal has no power to make a determination containing a condition for the payment of compensation to a native title party.
·the Tribunal is specifically precluded from making a determination with a condition that royalty type payments be made (s 38(2)) (although the parties can voluntarily enter into such an agreement if justified on the evidence (s 33(1))).
·the Tribunal, if justified on the evidence, can impose a condition which requires the grantee party to secure a specified amount of money by a bank guarantee in favour of the Registrar of the Tribunal (s 41(3)). (The bank guarantee condition provision was inserted by the 2007 amendments to the Act in lieu of a provision which provided for an amount to be paid into trust by a grantee party.)
·monies secured by a bank guarantee are dealt with in accordance with s 52 depending on whether or not a determination of native title or a determination of compensation is made.
·A determination of compensation under the Act can only be made by a Court following a determination that native title exists.
·in Western Australia, whether compensation is determined under the Act or by direct operation of the Mining Act the underlying principle is the freehold equivalence test which entitles a native title party to compensation if it is available to holders of freehold title and which is assessed according to the principles applicable to them. In Western Australia this means s 123 of the Mining Act which provides:
§ minerals are the property of the Crown and that no compensation is payable:
· for permitting entry on the land for mining purposes;
· in respect of the value of any mineral;
·by reference to any rent, royalty or other amount assessed in respect of the mining of the mineral; or
·in relation to any loss or damage for which compensation can not be assessed according to common law principles in monetary terms (s 123(1).
§the owner and occupier are ‘entitled according to their respective interests to compensation for all loss and damage suffered or likely to be suffered by them resulting or arising from the mining’ (s 123(2)).
§ the amount payable under s 123(2) may include compensation for:
(a)being deprived of the possession or use, or any particular use, of the natural surface of the land or any part of the land;
(b) damage to the natural surface of the land or any part of the land;
(c)severance of the land or any part of the land from other land of, or used by, that person;
(d) any loss or restriction of a right of way or other easement or right;
(e) the loss of, or damage to, improvements;
(f) social disruption;
…
(h)any reasonable expense properly arising from the need to reduce or control the damage resulting or arising from the mining, and where the use for mining purposes of aircraft over or in the vicinity of any land (whether or not private land) occasions damage that damage shall be deemed to have been occasioned by an entry on the land thereby affected (s 123(4)).
[67] It is quite clear that the existing state of the law does not permit a condition to be imposed by the Tribunal for payment to be made for compensation based on the market capitalisation of the grantee party (or as has been previously argued based on expenditure on mining operations – Anaconda 1 at 86-90) as such an amount would bear no relationship to the criteria in s 123 of the Mining Act.’
The grantee party correctly points out that in this case the native title party would be entitled to compensation pursuant to s 123 of the Mining Act and by direct operation of the Mining Act without resort to the similar compensable interest test in s 24MD(3) of the Act because the Martu as determined exclusive native title holders fall within the definition of ‘owner’ in the Mining Act (WDLAC/Kitchener at 380-381 [43]-[44]). By virtue of s 125A of that Act, the compensation is payable by the grantee party. The grantee party also says that, although the land the subject of the Martu determination is not private land as defined in the Mining Act, by operation of the Racial Discrimination Act the provisions of s 35 of the Mining Act apply to them such that no mining operations can commence until compensation is either agreed or determined in accordance with the Mining Act. On this basis the grantee party also argues that there is no basis for imposing a bank guarantee condition.
In my view the law relating to the powers of the Tribunal to impose conditions for the payment of monetary amounts is clear. For the reasons summarised above in Australian Manganese/Nyiyaparli, it is not within the Tribunal’s power to impose conditions of the kind sought by the native title party for the awarding of compensation or payments in the nature of compensation. It can be accepted that the Tribunal has power to direct the payment of monies to the native title party for matters which it must attend to under conditions such as the conduct of heritage surveys or attendance at liaison committee meetings. However once a payment or benefit is properly identified as compensation the Tribunal has no power to impose provision of it by way of condition. Its powers are limited to imposing a condition for bank guarantee in favour of the Registrar of the Tribunal (s 41(3)) to secure monies on account of any future determination of compensation made by a Court.
The native title party has submitted financial documentation including ASX information, the grantee party’s 2008 quarterly and interim financial reports and two articles evidencing high potash prices. These are provided to support its case that the grantee party thus has the capacity to meet the requirements of a condition for at least the cash payments and equity in the grantee party, as circumstances have not changed significantly since the negotiations in 2008. Dr Ruane contested this evidence and pointed to the general decline in the share market since mid 2008, the decline in Reward’s share price and the deterioration in the world economic outlook and the availability of debt financing. I agree with the grantee party that this evidence is not relevant to the imposition of conditions for compensation. The proposal for cash payments, royalties and equity in Reward can properly be characterised as compensation conditions which the Tribunal has no power to impose. In addition there is the direct prohibition in s 38(2) of the Act, which the native title party acknowledges, on imposing a condition requiring royalty type payments.
The native title party cites the grantee party’s contention that the amount of compensation will be small to argue that this is a factor which the Tribunal can take into account to determine that the act may not be done. This contention is dealt with elsewhere, but I observe that, because of the paucity of judicial authority on the topic, it is not clear what the amount of compensation would be for the doing of this future act. It is conceivable however that in relation to a site of such importance special factors such as the Martu’s relationship (spiritual or otherwise) to the land may make compensation for all loss and damage arising from the mining more than would be awarded to a normal freeholder.
With respect to a bank guarantee condition, if there had been a determination that the act may be done I would have sought further submissions on this topic. On the face of it, if the grantee party is correct in its interpretation of the effect of s 35 of the Mining Act (namely that mining cannot proceed until the issue of compensation is resolved), there would be little utility in imposing such a condition.
Conclusion
The weighing of the various factors involved in exercising the Tribunal’s discretion under s 38 of the Act has not been an easy task.
If it were confined only to a consideration of the effect of the act on native title rights and interests and other factors listed in s 39(1)(a) without the need to consider s 39(1)(a)(v), then a conclusion that the act may be done would be the likely outcome. The evidence does not disclose that there will be any substantial effect on these other matters, either directly in relation to the proposed lease or to its immediate environs. The evidence of the potential economic significance and public interest in the act proceeding would support a determination that the act may be done with some conditions, even over the opposition of the native title party. Opposition to the grant of the mining licence based on the interests, proposals, opinions or wishes of the native title party in relation to the use of the land would in this context be of less weight. As already explained the facts would be similar to those in the Australian Manganese/Nyiyaparli case where a determination that the act may be done was made. On this scenario the native title party would have the benefit of an upgraded Talawana Track and improved access to the general area for the purpose of exercising their native title rights. The disadvantage to them would be a minor impact on those rights over the limited area of the mining lease. However that is not the situation here.
The main issue in this case involves considering the effect of the Project on a site of particular significance (Lake Disappointment), particularly in the context of the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the land.
It is possible to imagine a scenario where good faith negotiations on a without prejudice and confidential basis take place and there is nothing before the Tribunal about the content of those negotiations i.e. a situation which is most common where negotiations occur to resolve a dispute but fail and an independent arbiter must make a decision without having regard to what passed between the parties during the negotiations. In that scenario, the Tribunal would be faced with considering the facts especially about the significance of the site unencumbered by the knowledge of the in principle agreement and some of the circumstances in which it was made and the terms of it. Again, on that scenario the task would be simpler. However, in the present case the Tribunal has a different situation before it. Not only is there evidence about the in principle agreement but, unlike most cases where without prejudice negotiations break down, the Tribunal is tasked with making a determination having regard to a specific statutory requirement to take into account the interests, proposals, opinions or wishes of one of the parties in relation to the management, use or control of the land over which the proposed development is to occur.
The agreed issues referred to above identify the following contentions in relation to the relevance of the Term Sheet agreement and the benefits to the native title party which were part of it. The parties agree that the native title party is prepared to consider the future act but only on terms acceptable to it and that one of the reasons for their opposition is the failure to agree acceptable terms. The native title party contends that the mining lease should not be granted without an agreement demonstrating a satisfactory working relationship with and respect for them and agreement on protection of heritage, regulation of the grantee party’s activities, appropriate involvement of the Martu and reasonable benefits and compensation including relevant ‘ownership’ of the Project.
The grantee party denies any lack of respect or that such respect is relevant but, most importantly, says the native title party has no right of veto and cannot rely on an alleged inadequacy of commercial terms or terms previously negotiated. It says that it is beyond the jurisdiction of the Tribunal and otherwise improper to take into account any offer of payment or lack of offer of payment.
The grantee party also makes the following points:
The grantee party says that the native title party’s in principle consent to mining (for exploration in 2006 and mining in 2008) which occurred after exhaustive inquiry and negotiation, full inspection and full community meetings is highly relevant. Indeed, it is the principal hurdle for the native title party in now resisting a determination that the act may be done.
The native title party cannot rely on the fact that the Tribunal has no power to make a condition requiring the payment of compensation or to impose conditions reflecting the previous agreed commercial terms. The grantee party says that the native title party will be entitled to compensation according to law, and that the amount of compensation (whether small or not) that is ultimately determined is irrelevant to the Tribunal’s determination. The fact that the native title party now cannot get money or other benefits which they regard as adequate from the procedures of the Act is not something which is relevant.
The current opposition of the native title party to the mine is solely because acceptable commercial terms are no longer on the table. Their change in attitude is not based on concern about the effect of the act on the s 39(1)(i)-(v) factors and particularly the cultural significance of Lake Disappointment but on the failure to agree acceptable commercial terms There is no reason by virtue of Martu culture, tradition or way of life why the Project cannot proceed.
The native title party not only does not have a veto but that their wishes cannot be ‘paramount’.
The native title party makes the following further points:
Their wish is that their culture and their right to preserve their land be respected. Their current opposition to the grant is a most powerful factor for the Tribunal to take into account given the cultural significance of Lake Disappointment.
The in principle agreement was only a step on the way to reaching final agreement which never eventuated and should not now be used to undermine the native title party’s current position relating to its interests, proposals, opinions or wishes in relation to the use of the land in the light of the significance of the Lake.
The fact that they were prepared to negotiate an agreement which involved interference with a traditional site of considerable importance to them other than on terms acceptable to them should not now be used to downgrade their current wishes in relation to the use of the land.
The fact that the Term Sheet agreement is not on the table and the native title party will only receive what the grantee party asserts is a small amount of compensation under the Mining Act is a relevant factor which the Tribunal can take into account.
Although the reasons for their change of heart about the Project are relevant, the major factors relied on by them are the impact on Martu rights, law, culture and particularly on Lake Disappointment.
Although the specific details of the Term Sheet benefits are not before the Tribunal the general fact that cash payments, royalties and equity in Reward were part of the in principle agreement is in evidence as a result of the public announcements made about them with the approval of both parties.
I make the following findings with respect to the relevance or otherwise of the evidence which is before the Tribunal about the Term Sheet agreement. Under s 39(1)(f) of the Act the Tribunal can have regard to both the fact of the Term Sheet agreement and the known details of the benefits proposed in it in the following way. The fact of the in principle agreement and heritage surveys that were carried out as part of the negotiations are relevant including to assist in the assessment of the level of significance of Lake Disappointment. I also think the level of benefits contemplated by the in principle agreement are relevant to explain the context in which the native title party was prepared to enter into negotiations and contemplate disturbance of a site of considerable importance to them.
The evidence of Professor Tonkinson supports a finding that traditionally the Lake is an area where no interference would be contemplated by the Martu. The evidence at Jigalong of the traditional importance of the site, especially from Messrs Nyari Morgan, Muuki Taylor and Wakka Taylor, traditional Martu Elders who lived in the desert until approximately 20 years old, reinforces Professor Tonkinson’s view. The Martu Elders’ affidavit also provides evidence for this point of view. Even though subsequent events confirm that parts of Lake Disappointment are not of the highest level of significance and mining can be permitted on acceptable terms, it is still a very important place for the Martu. The whole of Lake Disappointment is a place of special significance to the Martu in accordance with their traditions and parts of it are of the highest significance and danger to them.
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 my view, negotiations about mining on part of Lake Disappointment falls into this category.
The grantee party says there is now no cultural impediment to the future act being done. In my view that is too simplistic a characterisation of the situation. In reality, the issue is more nuanced. It involves the native title party in a compromise which would have seen them give up some of their traditional culture and way of life (including as a result of interference with a place of great importance to them) in return for benefits which would see them and particularly their children involved in the mainstream economy. As a result of the breakdown in negotiations, this compromise is no longer available. They were willing to make serious sacrifices in relation to the integrity of their culture and traditions with prospects of gaining benefits from the Project that assist them to achieve their long term goals of employment, business opportunities and economic advancement. The approach of the Martu Elders is very candidly set out in paragraph 44 of their affidavit about the Project. They express a desire for benefits which will enhance their community and provide jobs and educational opportunities for their young people. This is not a group of people who expect their culture to be frozen in time. There is a process of adaption to and involvement in the mainstream economy happening to the Martu. But the tenor of their evidence is that they want this to happen in a way that pays respect to their culture and traditions as far as possible.
The Tribunal as a specialist Tribunal is aware that under the right to negotiate it is common place for agreements to be entered into with mining companies that provide for milestone cash payments prior to productive mining and royalty type payments during production. These payments may bear no relationship to and (depending on the circumstances) may be considerably more than the legal entitlement to compensation. The agreement which was being negotiated in the Australian Manganese/Nyiyaparli case (at [55]) (see details in paragraph [161] above) is of this kind. Section 33 of the Act also specifically sanctions the possibility that agreement between a native title and grantee party may include royalty type payments.
The clear inference from the evidence is that the native title party would not have permitted exploration or entered into negotiations beyond what it was required to do as part of its obligation to negotiate in good faith, or would not have continued to negotiate, if the only result was going to be a legal entitlement to compensation and not the other benefits that were clearly in contemplation. The expectation of the Martu and their negotiators during the negotiations would have been that, in return for mining on a place that is very special to them, benefits of this kind could be negotiated. What they now say is that the substantial interference with one of their important traditional sites is not acceptable in the light of the limited benefits available to them i.e. effectively for the upgrading of a road and the possibility of some employment and business opportunities.
It is accepted that a native title party under the Act does not have a veto in the sense that they can say ‘no’ to a development proposal and have the Tribunal automatically accept that view no matter what the circumstances. However, they are entitled to say ‘no’ and to have the Tribunal give considerable weight to their view about the use of the land in the context of all the circumstances. In my view this is such a case.
In my view the interests, proposals, opinions and wishes of the native title party in relation to the use of Lake Disappointment should be given greater weight than the potential economic benefit or public interest in the Project proceeding.
In coming to this conclusion I have not ignored the fact that the grantee party has invested considerable time, effort and money in attempting to advance this Project. My determination is no adverse reflection on the grantee party. It negotiated in good faith and complied with the AHA. There is also no evidence that it treated the native title party with disrespect. Despite this negotiations broke down without a final agreement. The Tribunal had to determine the matter by reference to the criteria in the Act. The native title party (as was the grantee) were entitled to take different positions in the inquiry than they adopted during the negotiations.
Determination
The determination of the Tribunal is that the act, namely the grant of mining lease M45/1171 to Holocene Pty Ltd, must not be done.
Hon C J Sumner
Deputy President
27 May 2009
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