Wunna Nyiyaparli People v FMG Pilbara Pty Ltd
[2015] NNTTA 37
•27 August 2015
NATIONAL NATIVE TITLE TRIBUNAL
Wunna Nyiyaparli People v FMG Pilbara Pty Ltd and Another [2015] NNTTA 37 (27 August 2015)
Application No: WO2015/0174
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Betty Peterson and Others on behalf of the Wunna Nyiyaparli People (WC2012/001) (native title party)
- and -
The State of Western Australia (Government party)
- and -
FMG Pilbara Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: H Shurven, Member
Place: Perth
Date: 27 August 2015 (Corrigendum dated 28 August 2015)
CORRIGENDUM
Correction to the Future Act Determination made on 27 August 2015 at page 4: Paragraph [7], dot point 2 is corrected to read ‘FMG provided the affidavit of Thomas James Weaver which includes a copy of FMG’s Land Access Procedure’.
Ms Helen Shurven
Member
28 August 2015
NATIONAL NATIVE TITLE TRIBUNAL
Wunna Nyiyaparli People v FMG Pilbara Pty Ltd and Another [2015] NNTTA 37 (27 August 2015)
Application No: WO2015/0174
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Betty Peterson and Others on behalf of the Wunna Nyiyaparli People (WC2012/001) (native title party)
- and -
The State of Western Australia (Government party)
- and -
FMG Pilbara Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: H Shurven, Member
Place: Perth
Date: 27 August 2015
Catchwords: Native title – future act – proposed grant of exploration licence amalgamation – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure is attracted – expedited procedure applies
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 32, 44H, 237
Mining Act 1978 (WA), s 66
Mining Regulations 1981 (WA), reg 20
Cases:Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’)
Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd [2013] NNTTA 86 (‘Cosmos v Croydon Gold’)
Little and others v Oriole Resources Pty Ltd [2005] FCAFC 243 (‘Little v Oriole Resources’)
Silver and Others v Northern Territory and Others (2002) 169 FLR 1 (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Walley v Western Australia (2002) 169 FLR 437 (‘Walley v Western Australia’)
Western Australia/David Stock and Others on behalf of the Nyiyaparli People/FMG Pilbara Pty Ltd [2011] NNTTA 4 (‘Western Australia v Nyiyaparli’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representative of the
native title party: Mr Alan Newton, Newton Vincent Barristers and Solicitors
Representatives of the Ms Sarah Power, State Solicitor’s Office
Government party: Mr Michael McMahon, Department of Mines and Petroleum
Representative of the
Grantee party: Ms Nerolie Nikolic, Fortescue Metals Group Ltd
REASONS FOR DETERMINATION
This decision considers whether the State Government of Western Australia can grant exploration licence amalgamation E46/728-I (AM 452792) to FMG Pilbara Pty Ltd, without the normal requirement for negotiations with registered native title claimants or registered native title body corporates which overlap the amalgamation. Both the Wunna Nyiyaparli People and the Nyiyaparli registered native title claims overlap the amalgamation. The State considers the grant can be made without such negotiations. They deem the activities permitted under the amalgamation are not likely to interfere with either of the People’s community or social activities, sites of particular significance, or involve major disturbance to the land and waters. So, in their notice of grant, they included a clause asserting the expedited procedure should apply (see s 29, s 31 and s 237 of the Native Title Act 1993 (Cth) - all references to legislation in this decision are to that Act, unless otherwise stated).
The Wunna Nyiyaparli People and the Nyiyaparli have each lodged claim applications with the Federal Court of Australia. Their claims have been accepted for registration by the Native Title Registrar or Delegate. Their place on the Register of Native Title Claims at this time gives each of them certain procedural rights including the right to be a native title party and lodge an objection against the State’s assertion that the expedited procedure applies to the grant of the amalgamation. The Wunna Nyiyaparli People have exercised their right to object and have lodged an objection with the National Native Title Tribunal. The Nyiyaparli have not. To answer the question of whether the grant can be made in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry. I must determine whether or not the expedited procedure applies (s 32(4)).
A decision that the expedited procedure applies means the State can grant the amalgamation and FMG can proceed to explore without negotiating with the Wunna Nyiyaparli People and the Nyiyaparli (s 32(4)). A decision that the expedited procedure does not apply means FMG and the State must negotiate in good faith with both groups, with a view to reaching an agreement about the grant (s 32(5)). Those negotiations may be done with or without mediation assistance from the Tribunal (s 31(3)).
The amalgamation is located within FMG’s exploration licence E46/728, some 64 kilometres south of Nullagine in the East Pilbara Shire. The amalgamation is approximately 17.5 hectares in size, and sits near the centre of E46/728 which comprises over 21,000 hectares.
The amalgamation is completely overlapped by both the Wunna Nyiyaparli People and the Nyiyaparli native title claims. According to the State, the amalgamation area was not included in the grant of E46/728 because at that time, the area was a part of prospecting licence P46/1224 which was surrendered in 2009. The area then became a part of P46/1807. Following the surrender of P46/1807 in 2014, FMG applied to have the area amalgamated into E46/728.
When the State gave notice for the grant of E46/728, they did not assert the expedited procedure. So, at the end of the notice period, FMG and the State were required to negotiate in good faith with all native title parties overlapping E46/728. At that time, only the Nyiyaparli native title claim had been registered. The Wunna Nyiyaparli People had not yet lodged their claim with the Federal Court. Therefore, the Nyiyaparli were the only native title party which overlapped E46/748. FMG and the Nyiyaparli proceeded to negotiate a Land Access Agreement (LAA) which provides for issues including aboriginal cultural heritage protection and compensation. In return, the Nyiyaparli agreed to the grant of FMG’s project tenure within their claim area. E46/728 was granted following a Tribunal determination made with the consent of all the parties – Nyiyaparli, FMG and the State (Western Australia v Nyiyaparli). The LAA, therefore, includes the amalgamation.
To determine this inquiry, I provided the Wunna Nyiyaparli People, the State and FMG with a copy of a map produced by the Tribunal’s Geospatial Unit. No party objected to its use in the inquiry. Each of the parties provided contentions. In addition:
·the Wunna Nyiyaparli People provided the affidavit of Ailsa Margaret Joy; and
·FMG provided the affidavit of Thomas James Weaver which includes a copy of the LAA between FMG and Nyiyaparli.
Ms Roy describes herself as a member of ‘the Wunna Nyiyaparli Native Title Claim Group’ and her name is listed under the Applicant on the Register of Native Title Claims. I accept Ms Roy has authority to speak on behalf of the Wunna Nyiyaparli People.
The Wunna Nyiyaparli People argue it is highly likely the grant of the amalgamation will directly interfere with their community or social activities, sites of particular significance, and involve major disturbance to the land and waters. I will address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant, as required of me by s 237:
a)Will the grant interfere directly with the carrying on of the Wunna Nyiyaparli People's community or social activities?
i.What are the social or community activities and where do they take place?
ii.Are there any other interests that have already interfered with these activities?
iii.What are FMG’s proposed activities?
iv.Is the grant of the amalgamation likely to directly or substantially interfere with community or social activities?
b)Will the grant interfere with areas or sites of particular significance the Wunna Nyiyaparli People?
i.What areas or sites are identified?
ii.Are any of these areas or sites of particular significance?
iii.What are FMG’s proposed activities in relation to these areas or sites?
iv.Will the regulatory regime be sufficient to protect these areas or sites?
c)Will the grant, or the exercise of any rights created by the grant, involve major disturbance to any land or waters?
i.Is there any evidence that the land and waters have any special characteristics?
ii.Will the regulatory regime be sufficient to protect these land and waters?
Will the grant interfere directly with the carrying on of the Wunna Nyiyaparli People's community or social activities?
In considering this issue, I note the following principles (Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [15]-[16]):
·The inquiry into interference with community or social activities is contextual, and I may have regard to other factors that might constrain the community or social activities.
·I must determine whether FMG’s activities are likely to be the proximate cause of interference.
·The level of interference with community or social activities must be substantial and not trivial.
i.What are the social or community activities and where do they take place?
Ms Roy says that along with ‘other members of the Wunna Nyiyaparli Native Title Claim Group, I engage in the activities of hunting kangaroo, collecting bush tucker and medicines in the area of the application’. She says the ‘proposed exploration activity will interfere with the water and vegetation of the area and scare away bush animals, interfering with the resources available to engage in hunting and collecting bush tucker and medicines’ (at 1-2).
ii.Are there any other interests that have already interfered with these activities?
I must take into account other lawful activities, such as those of pastoralists, which are likely to have already impacted on the Wunna Nyiyaparli People's community or social activities in the area. The amalgamation is completely overlapped by the Roy Hill pastoral lease. The extent of pastoral activity is important to consider, in particular because the Native Title Act specifies a pastoralist’s activities will prevail over any native title rights and interests, although do not extinguish them (s 44H). Therefore, in circumstances where an area is overlapped by a pastoral lease, the Tribunal may conclude some interference with a native title party’s community or social activities is likely to have already occurred. I also note the amalgamation area contains the Roy Hill Jasper 1 open pit mine, which has since been closed.
Both the State and FMG observe the entire area of E46/728 has prior mineral exploration activity as well as current pastoral activity. I do note the amalgamation area has been subject to an open pit mine. The State contends community and social activities have already been subject to these, or have co-existed, for a significant period of time. Therefore, they submit the grant of the amalgamation would have no more impact than the previous and current use of the area. They contend hunting and mineral exploration activities are inherently capable of coexistence, that the Tribunal has found this to be the case on numerous occasions, and there is no particular or unusual evidence in this matter to suggest otherwise.
While there is no specific evidence as to the degree of such interference, I regard it is likely that pastoral activities and the open pit mine has, to some extent, interfered with the Wunna Nyiyaparli People's social or community activities in the amalgamation area.
iii.What are FMG’s proposed activities?
FMG have provided evidence regarding their proposed activities. Mr Weaver says an approved work programme (POW) for E46/728 and other exploration tenements ‘is active and referred to in tenement Condition 11’ for the amalgamation (see appendix A). He says ‘I am informed by Doug Kepert, FMG’s Geology Manager, that the ground disturbing activities approved in the POW are unlikely to be conducted in the area...due to the geological characteristics’ (at 7-8). Therefore, there is evidence before me which indicates FMG is unlikely to exercise the full suite of rights which would result from the grant of the amalgamation (see Mining Act 1978 (WA), s 66; Mining Regulations 1981 (WA), reg 20).
iv.Is the grant of the amalgamation likely to directly or substantially interfere with community or social activities?
In answering the above question, I must consider the activities currently being undertaken by the Wunna Nyiyaparli People and weigh these against the activities FMG are likely to undertake on the amalgamation if granted. The evidence provided by Ms Roy appears to refer to activities undertaken in the area of E46/728 and not just the amalgamation area. There is no detailed evidence of: the frequency of visits; the numbers of community members involved; or whether the amalgamation area is used more than other areas. The evidence is not specific enough for me to conclude FMG’s activities are likely to affect the Wunna Nyiyaparli People's social or community activities in a substantial way.
I find the grant of the amalgamation is not likely to substantially and directly interfere with the Wunna Nyiyaparli’s community or social activities.
Will the grant interfere with areas or sites of particular significance to the Wunna Nyiyaparli People?
In considering this issue, I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at 34-35).
·To be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91]).
·If I am satisfied the site or area is of particular significance, I must analyse very carefully the potential interference, because of the importance it has to the native title holders. The nature of the site or area, the nature of the potential interference and the laws and traditions of the native title holders are relevant considerations (Silverv Northern Territory at [88]).
·Even slight interference may be unacceptable but it must involve physical intervention (Silverv Northern Territory at [88]).
·There must be a real chance or risk of interference with the site or area, not just a possible chance (Smith v Western Australia at [23]).
·I will give weight to State’s heritage and regulatory regime (Walley v Western Australia at [11]).
i.What areas or sites are identified?
The Wunna Nyiyaparli People contentions, supported by Ms Roy's affidavit, refers to a search of the Department of Aboriginal Affairs (DAA) Aboriginal sites database for sites and heritage places within the entire of E46/728. Ms Roy states the search returned three results which ‘are of particular significance to me and other native title party members because they record the historical activities of our ancestors’ (at 3 and 5). According to Tribunal mapping, none of these are located within the amalgamation area itself.
Ms Roy also states:
·There ‘are likely’ to be further artefact sites which ‘are not readily identifiable and can only be found on close examination’ and that ‘driving across the area for the purposes of exploration activity and the exploration activity itself is likely to destroy artefact scatters unless...identified, recorded and protected’ (at 6-8).
·‘The floodlands of the upper Fortescue plain and Fortescue valley, Martuyitha, and Fortescue River salt plain, Kurtanakurtana, within the application area, are areas of mythological significance associated with the water spirit which is of significance to me and other members of the Wunna Nyiyaparli Native Title Claim Group and other Aboriginal people of the region (at 9).
·‘Burial grounds within the area need to be identified, recorded and protected’ (at 10).
I note the original objection application lodged by the Wunna Nyiyaparli People also states there 'are burial grounds', but provides no further information. Their application refers to artefact scatters, and states the marsh and surrounds are sacred to them and to their neighbours. The three sites recorded by the DAA are categorised as artefact/scatter sites, but as previously noted, these areas are located in E46/748, and not in the amalgamation area. No further information is provided in their application, or in their contentions or evidence, regarding sites on the actual amalgamation.
ii.Are any of these areas or sites of particular significance?
I must be satisfied: that each area or site has been sufficiently identified as existing on the amalgamation; that its significance has been explained and distinguished from other areas within the amalgamation; and that it is of more than ordinary significance to the Wunna Nyiyaparli People in accordance with their traditions. These questions are a precondition for inquiring whether the grant of the amalgamation is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). In other words, if there is insufficient evidence to answer these questions, I will go no further and will not address the question of interference.
In this inquiry, there is insufficient evidence for me to conclude there are areas or sites of particular significance within the amalgamation.
Will the grant, or the exercise of any rights created by the grant, involve major disturbance to any land or waters concerned?
In considering this issue, I note the following principles:
·I must determine whether there is a real chance or risk of major disturbance to land and waters. The term ‘major disturbance’ is to be given its ordinary English meaning as understood by the whole Australian community, including the Aboriginal community (Little v Oriole Resources at [52]-[54]).
·The concerns of the Aboriginal community are relevant to evaluating the degree of disturbance. However, the concerns must relate to direct, physical disturbance arising from the grant or any rights created by it (Cosmos v Croydon Gold at [29]).
i.Is there any evidence that the land and waters have any special characteristics?
There is nothing in the documents lodged by the parties which indicates the land and waters in the amalgamation area have any special characteristics.
ii.Will the regulatory regime be sufficient to protect these land and waters?
The State proposes to include a series of endorsements and conditions on the grant of the amalgamation which relate to waste disposal, land rehabilitation, and the protection of water and native vegetation. There is no evidence FMG will not abide by the regulatory regime.
Because there is no evidence to indicate otherwise, I conclude the regulatory regime is sufficient. The grant of the amalgamation, or the exercise of any rights created by the grant, is not likely to involve major disturbance to the land or waters concerned.
Conclusion
The community or social activities carried on within the amalgamation area have been described, and I am not satisfied the grant of the amalgamation is likely to directly or substantially interfere with these activities. Insufficient evidence has been provided to support a finding that sites or areas of particular significance exist on the amalgamation. There is no evidence the grant of the amalgamation, or the exercise of any rights created by the grant, is likely to involve major disturbance to the land or waters concerned.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence amalgamation E46/728-I to FMG Pilbara Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
27 August 2015
Appendix A: Draft Tenement Endorsement and Conditions
The grant of the amalgamation will be subject to the following conditions:
All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
· the grant of the licence; or
· registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
The rights of ingress to and egress from Miscellaneous Licence 46/40 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
No activities being carried out within the proposed railway corridor (designated FNA 9531) that interfere with or restrict any rail route investigation activities being undertaken by the rail line proponent.
Consent to conduct exploration activities on Stock Route Reserve 18938 granted, subject to:
No exploration activities being carried out on Stock Route Reserve 18939 which restrict the use of the reserve.
The construction and operation of the project and measures to protect the environment to be carried out in accordance with the document titled:
· (Reg. ID 34292) "Programme of Work on E46/728, E46/741 and E46/862 for Fortescue Metals Group Ltd" dated 24 February 2012 signed by Fiona Rowland and retained on Department of Mines and Petroleum file No. EARSPOW-34292.
Where a difference exists between the above document and the following conditions, then the following conditions shall prevail.
The development and operation of the project being carried out in such a manner so as to create the minimum practicable disturbance to the existing vegetation and natural landform.
All topsoil and vegetation being removed ahead of all mining operations and being stockpiled appropriately for later respreading or immediately respread as rehabilitation progresses.
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the amalgamation if breached) are also noted:
The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The Licensee’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.
The Licensee’s attention is drawn to the existence of a licence for Roy Hill to Port Hedland Railway Refined Area granted pursuant to section 91 of the Land Administration Act 1997 and which is shown designated as FNA 9531 in TENGRAPH.
The licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
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