Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another - [2014] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA [2014] NNTTA 14 (10 February 2014)

Application Nos: WO2013/0261, WO2013/0262, WO2013/0263, WO2013/0264, WO2013/0265, WO2013/0266

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Yindjibarndi Aboriginal Corporation RNTBC (as Trustee for, and on behalf of, the Yindjibarndi People) (native title party)

- and -

The State of Western Australia (Government party)

- and -

FMG Pilbara Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Member Helen Shurven

Place: Perth
Date: 10 February 2014 (Corrigendum dated 17 December 2014)

CORRIGENDUM

Correction to the Future Act Determination made on 10 February 2014 on the basis that the following typographical errors were made:

Page 42, paragraph 120, line 19 is corrected to read “I could not extend that conclusion to the rockshelter and caves with remains as little specific information has been provided about them (for example, are they significant because of their proximity to the sacred hill or the navigation point?)”.

Page 44, paragraph 122, line 30 is corrected to read “In addition, I note the grantee party’s approach to heritage and their internal policies and procedures”.

Helen Shurven
Member

17 December 2014

NATIONAL NATIVE TITLE TRIBUNAL

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA [2014] NNTTA 14 (10 February 2014)

Application Nos: WO2013/0261, WO2013/0262, WO2013/0263, WO2013/0264, WO2013/0265, WO2013/0266

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Yindjibarndi Aboriginal Corporation RNTBC (as Trustee for, and on behalf of, the Yindjibarndi People) (native title party)

- and -

The State of Western Australia (Government party)

- and -

FMG Pilbara Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Member Helen Shurven

Place: Perth
Date: 10 February 2014

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted - expedited procedure not attracted

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 237

Aboriginal Heritage Act 1972 (WA) ss 4, 5, 18
Mining Act 1978 (WA), s 66

Cases:Cheedy v WA (2011) 194 FCR 562 (‘Cheedy v Western Australia’)
Cyril Barnes and Others on behalf of the Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (‘Barnes v AngloGold Ashanti Australia’)
Daniel v Western Australia [2005] FCA 536 (‘Daniel v Western Australia’)
Harvey Murray on behalf of the Yilka Native Title Claimants/WA/ Drew Griffin Money [2001] NNTTA 91 (‘Harvey Murray v Western Australia’)
Les Tullock & Ors on behalf of the Tarlpa Native Title Claimants/State of Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tullock v Bushwin’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little v Oriole’)
Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)
Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd [2001] NNTTA 42 (‘Young v South Coast Metals’)
Moses v State of Western Australia (2007) 160 FCR 148; FCAFC 78 (‘Moses v Western Australia’)
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation)/Western Australia/Zenith Minerals Ltd [2012] NNTTA 77 ('Mungarlu Ngurrarankatja Rirraunkaja v Western Australia')
NC (deceased) v WA [2012] FCA 773 (‘NC (Deceased) v WA’)
NC (deceased) v State of Western Australia (No 2) [2013] FCA 70 (‘NC (deceased) v Western Australia (No 2)’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Uunguu/WA/Geotech International Pty Ltd and Tatterson [2009] NNTTA 72 (‘Uunguu v Western Australia’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’)
Ward v Western Australia (1996) 69 FCR 208 (‘Ward v Western Australia’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Winnie McHenry v Western Australia’)
WF (deceased) and Others on behalf of the Wiluna Native Title Claimants/WA/Emergent Resources Limited [2012] NNTTA 17 (‘WF (Deceased) v Western Australia’)
Wanparta Aboriginal Corporation/WA/Young [2013] NNTTA 77 (2 July 2013) (‘Wanparta v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)

Representatives of the    Mr George Irving, Yindjibarndi Aboriginal Corporation
native title party     Ms Christina Araujo, Yindjibarndi Aboriginal Corporation
Representatives of the    Ms Caitlin Martin, State Solicitor’s Office
Government party           Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the Mr Ken Green, Green Legal
grantee party Ms Nerolie Nikolic, Fortescue Metals Group Limited

REASONS FOR DETERMINATION

On 30 November 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant the following exploration licences (‘the proposed licences’) to FMG Pilbara Pty Ltd (‘the grantee party’):

*Proposed licence*	*Overlap between proposed licence and native title party determination*	*Approximate size of proposed licence (km²)*	*Proportion that native title does exist in proposed licence*
E47/1667	100%	50.89	100%
E47/1666	100%	222.74	98.51%
E47/1435	100%	197.08	99.66%
E47/1433	100%	149.52	23.31%
E47/1404	100%	222.64	99.29%
E47/1383	100%	222.90	4.69%

The Government party included in the notice a statement that it considered the grants attracted the expedited procedure (that is, the grants could be done without the normal negotiations required by s 31 of the Act). All proposed licences are adjacent to each other and approximately 100 kilometres north of Tom Price (with one licence described as being approximately 98 kilometres south of Roebourne, which is the same approximate location).

On 27 February 2013, an objection application against each proposed licence was lodged with the Tribunal by the Yindjibarndi Aboriginal Corporation (‘YAC’) (WCD2005/001) on behalf of the Yindjibarndi People (‘the native title party’). All objections were within time and accepted by the Tribunal. The native title party is a registered body corporate under the Act, and holds determined native title rights and interests in trust for the Yindjibarndi People. The Ngarluma Yindjibarndi native title claim area was the subject of a determination of native title by the Federal Court in Daniel v Western Australia on 2 May 2005, as varied by the Full Federal Court in Moses v Western Australia on 27 August 2007. The determined rights overlap the proposed licences by 100 per cent, as outlined in the table above. I note, however, that the decision in Daniel v Western Australia had the effect of extinguishing native title in parts of each of these proposed licences, leaving the proportions remaining as outlined in the table above.
Directions were set following a request from the grantee party for the matters to proceed to inquiry. Directions were amended twice at the request of parties. Once all submissions had been made, parties confirmed they had no objection to the matter proceeding to be determined on the papers.
On 18 October 2013, I was appointed as the Member for the purpose of conducting the inquiry.
The following information and evidence provided in relation to each of the proposed licences can be summarised as:

materials from DMP on 13 May 2013, including: reports and plans from the Department of Aboriginal Affairs (DAA) Sites Register (formerly the Department of Indigenous Affairs (DIA)); copies of the tenement applications; copies of the proposed endorsements and conditions of grant, instruments of licence and first schedule listings; and Tengraph quick appraisals
contentions and evidence of the native title party dated 18 July 2013, including: reports; correspondence; maps and tenement register information and a number of affidavits including annexures (as outlined in more detail at [71] – [104] below)
statement of contentions from the grantee party dated 12 August 2013 and an affidavit of Mr Thomas James Weaver including annexures
statement of contentions of the Government party dated 16 August 2013, including annexures

Maps which were said to be annexed to Mr Woodley's affidavit, for the native title party, were not provided to the Tribunal until 28 October 2013. These maps were provided to all parties on 20 November 2013, and I requested parties make any submissions on the native title party mapping by Tuesday 3 December 2013. No party objected to the late provision of this information, or provided any comment, and I accept those maps as part of the native title party evidence.
Two maps were also generated by Tribunal Geospatial Services for use in these proceedings and circulated to parties on 16 October 2013 and 20 November 2013 respectively for comment. No criticisms of this approach were received and I rely on those maps for the purposes of this decision.

Legal principles

Section 237 of the Act provides:
A future act is an act attracting the expedited procedure if:
(a)      the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In relation to the legal principles to be applied in this matter, I adopt the principles outlined by President Webb in Yindjibarndi v FMG at [15]-[21].

Evidence in Relation to the Proposed Acts

Government Party

Government party documentation establishes underlying land tenure, services affected and DAA sites as outlined at Attachment 1 to this decision. Existing underlying tenements on the proposed licence (both live and dead) are outlined at Attachment 2.
The draft tenement endorsements and conditions extract provided by DMP indicates the grant of each of the proposed licences will be subject to conditions, as well as endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence). These are outlined in Attachment 3 to this decision.
Government party contentions point to the fact that crown reserves 31429, 40091 and 30071, which overlap some of the proposed licences, wholly extinguish native title (as held in Moses v Western Australia). The proportion that native title does exist on the proposed licences is outlined in the table above at [1].

Government Party Contentions

There are some minor differences between the size of the proposed licences as noted in the Government party contentions and as originally noted in the s 29 notices, however, the differences are not significant for the purposes of this decision.
The Government party outlines that the inquiry is only over the portion of the area of the proposed licences where native title exists (as indicated in the table in this decision in paragraph [1]).
The Government party contentions go into detail for each proposed licence regarding the sites registered under the Aboriginal Heritage Act (‘AHA’) and confirm the following:

E47/1383 has 13 registered sites including one which is an ochre source (ID18795) and three which are closed access for males only (ID 18798, 18799 and 18800). They also note there are three other heritage places within that proposed licence;
E47/1404 shows one registered site and six other heritage places;
E47/1433 and E47/1435 show no DAA registered sites and no other heritage places;
E47/1666 shows eight registered sites, all open access and three other heritage places;
E47/1667 shows one registered site and no other heritage places.

The Government party asserts that being listed as an ‘other heritage place’ is not the same as being registered under the AHA, and that little weight can be given to the fact these sites are listed as other heritage places. However, I prefer to think of it in terms of the AHA protecting ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. Regardless of whether or not an ‘other heritage place’ is administratively assessed as meeting s 5 of the AHA (for example, I note that ‘stored data’ sites have been administratively assessed as not meeting s 5), it would still be possible for the native title party to establish that one or more of those sites constitute ‘areas or sites of particular significance’ to the NTP ‘in accordance with their traditions’ (as per s 237(b) of the Act) by providing sufficient evidence. As President Webb made clear in Yindjibarndi v FMG, it is the quality and focus of the evidence which is crucial in establishing factors under the limbs of s 237 of the Act.
The Government party argue that the grantee party ‘will not exercise the full suite of rights conferred by s 66 of the Mining Act’ and that this is ‘apparent’ from the grantee party’s evidence (at 53). However, I note that in the grantee party’s evidence (as annexed to Mr Weaver’s affidavit and provided by Mr Weaver), there is no statement indicating that they will not exercise the full suite of rights. Rather, the grantee party provides the proposed method of exploration for the first phase and then what may occur following that phase. The grantee party has not indicated that its activities will be limited only to those contained in Mr Weaver’s affidavit. As such, I am entitled to assume that the grantee party may exercise the full suite of rights entitled to it. However, I can also conclude, based on Mr Weaver’s affidavit, that even if they exercised such rights, they would do so within the context of their own internal processes and procedures and the State’s regulatory regime, all of which has the effect of aiming to reduce the likelihood of interference to the native title party’s rights and interests in relation to the limbs of s 237 of the Act. The Government party also (at 56) quite rightly outlines that the future act regime of the Act does not provide a native title party with the right of veto over a future act.
In relation to the affidavit evidence, the Government party remains unconvinced by the affidavits of Mr Woodley, Dr Rijavec and Mr Davies, which the native title party provided in support of their contentions (as outlined in more detail below). In addition, the Government party states that the affidavits of Mr Worrie, Mr Mack, Mr Savas and Ms Cheedy (also provided by the native title party) relate wholly to the Yindjibarndi #1 area and are not relevant to this inquiry. Again, I deal with this in more detail below. The Government party then go on to outline specific contentions in relation to each limb of s 237 of the Act.

Section 237(a)

The Government party confirms that interference in relation to this limb of s 237 may have a spiritual dimension, but interference must be directly linked with the physical aspects of the relevant activity to lead to a conclusion of interference. Spiritual activities are within the scope of s 237(a) of the Act only when the activities are rooted in physical activities (as per Silver v Northern Territory). The Government party dismisses the native title party’s argument, which relies on Ward v Western Australia, as being outdated (at 69), which subject has been dealt with in many previous Tribunal decisions, confirming that, in this respect, Ward v Western Australia does not apply.
In addition, the Government Party point to previous interference needing to be considered (for example, previous pastoral leases or previous exploration), as well as the native title party’s activities needing to be based on their native title rights and interests. The Government party points to the fact that there are no geographical localised communities of Aboriginal people in the relevant area.
They also note that the grantee party has indicated it is willing to enter into a Regional Standard Heritage Agreement (‘RSHA’). The Government party (at 75) outline a number of aspects of the RSHA which they say provide protections to a native title party.
The Government party state that activities of the Juluwarlu Aboriginal Corporation in collecting, recording etc the culture of Yindjibarndi are community or social activities, but that it is not clear whether they are conducted over the determined and non-extinguished portions of the proposed licences.
In relation to 'looking after country', the Government party contend it is not a community or social activity as contemplated by s 237(a). The Government party also states the native title party have not identified any physical activity associated with this obligation (at 79).
The Government party accepts there is some evidence that Mr Woodley and others visit, camp, hunt, fish and gather resources in or around the proposed licences but it is not clear whether that is in the ‘relevant portions’ (presumably they are referring to the non-extinguished areas).
The Government party states there is not likely to be direct interference to social and community activities in any event because:

The grantee party is willing to enter into an RSHA with the native title party
Some Yindjibarndi people do carry out heritage surveys for the grantee party and the grantee party intends to undertake such surveys in the area of the proposed licences prior to conducting ground disturbing works
There are no Aboriginal communities within the proposed licences
There has been prior mineral exploration activity
E47/1667 is wholly overlapped by a pastoral lease
E47/1666 is overlapped by two pastoral leases covering nearly 90 per cent of the area
E47/1435 is overlapped by a pastoral lease covering nearly 100 per cent of the area
E47/1383 is 'wholly overlapped' by a pastoral lease. [However, I do note this is not the case - this proposed licence is overlapped only 3.7 per cent by a pastoral lease. This reference may be a typographical error, and the Government party may have been referring to E47/1404, which is entirely overlapped by pastoral lease, but which is not mentioned by the Government party in this respect.]
Exploration activities of the grantee party are planned to be low scale and infrequent, and it is unlikely the native title party will be disrupted to any significant extent.

Section 237(b)

The Government party points to the case of Little v Western Australia (at [77]), which states that interference with sites or areas of particular significance is unlikely given the protective effect of the AHA. Sites must be different from the ordinary or special and the particularity of the significance must also be capable of identification (they cite Winnie McHenry v Western Australia at [14]). In respect of these arguments, I adopt the principles outlined by President Webb in Yindjibarndi v FMG (at [15(a)] and [17(a)] - [17(b)]).

They also point out that the evidence of the particular significance of a site is within the knowledge of the native title party (at 89). In relation to this argument, I adopt the principles outlined by President Webb in Yindjibarndi v FMG (at [17(b)], [77] and [120]).
The Government party refers to the grantee party’s attitude, together with other evidence of the grantee party in relation to Aboriginal heritage, as being relevant to the predictive assessment required.
In relation to the native title party’s criticisms of the State’s regulatory regime, the Government party refers to previous decisions of the Tribunal which dealt with some of these issues (at 92). For example, they cite the case of Harvey Murray v Western Australia. The Government party states there is no evidence to suggest the Government party or the Minister has acted in contravention of the AHA, and contends that Aboriginal sites are protected under the AHA (at 95). In relation to criticisms of the State’s regulatory regime, the presumption of regularity, and the interaction of the AHA with the Native Title Act, I adopt the reasoning of President Webb in Yindjibarndi v FMG at [102] – [121].
In relation to the differences between s 5 of the AHA and s 237(b) of the Native Title Act, the Government party state, in summary (at 109), that ‘it is reading too much into the legislation to latch on to minor differences in terminology and thereby suggest that the AHA cannot be relied upon to protect sites or areas of particular significance within the terms of s 237(b)’.
The Government party states that for the grant of a proposed licence to be contrary to s 237(b), it must interfere with an area or site which is of particular significance to the persons who are the holders of native title in accordance with their traditions (at 110). They also correctly point out that registration under the AHA is not determinative of whether a site is of particular significance and that is a matter for the evidence. They say that, therefore, the area must be one ‘which clearly stands out in some way from the general background of other sites and the country as a whole’ (at 116). They state that the threshold can’t be so low as to encompass most if not all areas or sites in any native title area (and they cite the case of WF (Deceased) v Western Australia at [39]). I agree with this approach.
The Government party then go through each of the proposed licences, addressing issues relating to s 237(b) as outlined in paragraphs [33] – [41] below:
E47/1383

The Government party states none of the sites described in Mr Woodley’s affidavit (paragraph 97) fall within the relevant portion of the proposed licence. I note that annexure seven to Mr Woodley’s affidavit and annexure six to the grantee party’s contentions also confirms this.

E47/1404

The Government party refers to Mr Woodley’s affidavit (paragraph 98) and his annexure eight, as well as annexure five to the grantee party’s contentions. The Government party notes that Mr Woodley’s affidavit describes the Fortescue River being of ‘great significance’ to the Yindjibarndi people and as being created by the Rainbow Serpent. They note Mr Woodley identifies the whole of the Fortescue River and all other water places in Yindjibarndi country as being sites of particular significance to the native title party. The Government party argues the Tribunal ‘should not find that sufficient evidence of specific sites has been provided by the native title party to establish that [the Fortescue River] is a ‘site of particular significance’’ (at 120). Similarly, the Government party refers to Mr Woodley’s description of Balyinha Wundu and Thumia Wundu as important places for hunting, gathering and camping, and to the Mangudunha Wundu as having two sacred songs associated with it and being a good water source, hunting ground and camping site for the Yindjibarndi people. The Government party also notes Mr Woodley mentions there are artefacts along the Wundu where the old people camp out, but the Government party concludes this is not sufficient to find these Wundu are sites of particular significance. In relation to Mr Woodley's reference to the Marningarli, the Government party states that there is insufficient evidence to show that they are sites of particular significance.

E47/1433

The Government party refers to Mr Woodley’s affidavit (paragraph 101) and his annexed map 11, and the grantee party’s map at annexure four. The Government party argue only two of the sites described by Mr Woodley fall within the relevant portion of the proposed licence. They are Waluna Wundu and Mathanha Wundu - camping, fishing and hunting areas still in use which contain artefacts. However, the Government party argue insufficient evidence has been provided to indicate these are sites of particular significance.

E47/1435

The Government party refer to Mr Woodley’s affidavit (paragraph 99) and his annexed map nine, as well as the grantee party’s map at annexure four. They note Mr Woodley’s description of Garinha as a camping site and an important source of water and for fishing and collecting water chestnut, but the Government party state this is not sufficient to establish the Garinha is a site of particular significance. Similarly, the Government party states that insufficient evidence is provided in relation to Wirlumarranha Wundu, Warduwarranha Wundu, and Malinha Wundu to show they are sites of particular significance.

E47/1666

The Government party refers to Mr Woodley’s affidavit (at 102) and his annexed map 12, as well as the grantee party’s contentions and their annexed map one. The Government party refers to Gambunburnha Wundu, the Buwarranha Wundu and the Thamba Thamba Wundu but state there is insufficient evidence about the sites along these rivers to establish the whole of these wundu’s are of particular significance. In relation to Biyamanha Marnda being a very sacred hill with special powers, the Government party states this is not sufficient to show this is a site of particular significance. Similarly, in relation to Balyinha Wundu which is said to contain many marningarli, some of which are likely to be those registered under the AHA, the Government party state there is insufficient evidence to show that Balyinha Wundu is a site of particular significance.

E47/1667

The Government party refers to Mr Woodley’s affidavit (paragraph 100) and his annexed map ten, as well as the grantee party’s map at annexure two. The native title party refer to the Gambarrangunha Marnda as a sacred hill associated with the Marbarn and located close to an ochre site, as well as a source of food and materials. While the Government party state the Tribunal should not find sufficient evidence has been provided to establish it is a site of particular significance, I do note that is associated with ochre which is traditionally a very special place. The Government party also refers to neither Jinyin-nha Wundu nor Jinyinha Marnda as having sufficient evidence put forward to conclude they are sites of particular significance.

In summing up, the Government party state the native title party’s assertion that there are many other such wundu and marnda sites suggest that none of these sites are of particular significance (at 139).
The Government party concludes by saying that if there were any sites of particular significance in the relevant areas, interference is not likely because:

There has been prior exploration activity
E47/1667, E47/1666, E47/1435 and E47/1383 are all substantially overlapped by pastoral leases (however, as noted at [25], E47/1383 is not substantially overlapped by pastoral leases)
The grantee party’s proposed exploration methods indicate their activities will be low impact and non obtrusive
The grantee party has agreed to sign an RSHA
The grantee party has processes and procedures to avoid interference with Aboriginal sites
The AHA and the regulatory regime are likely to prevent interference with any sites of particular significance to the Yindjibarndi people

The Government party also state that the native title party’s concerns relate to 'mining activity' carried on by the grantee party and what is proposed in the current matter is exploration, which is low impact in nature. The grantee party would not obtain control over the management of Yindjibarndi country or cultural heritage. They also state Mr Woodley’s concerns focus on the need for an agreement rather than the destruction of sites as such (at 144). The Government party conclude by saying ‘there is no evidence before the Tribunal, in Mr Woodley’s affidavit or elsewhere, that the activities proposed by the grantee party will interfere with areas or sites of particular significance to the native title party. Interference with the Yindjibarndi people’s desire for control over access to sites is not the same thing’ (at 144). In addressing this point, I adopt President Webb's reasoning in Yindjibarndi v FMG where she states (at [124]):
The native title party seems to adopt an approach predicated upon ‘consent’ of the native title party to an activity being a precondition to a finding that an act is unlikely to interfere with an area or site of significance. The same theme of necessary ‘agreement’ runs through the contentions and evidence in respect of the ss 237(a) and (c) criteria. However, I agree with Deputy President Sumner’s reasoning in Tullock v Western Australia at [120], that it was not Parliament’s intention that the native title party have ‘a virtual veto over whether the expedited procedure would ever be attracted to exploration activity’.

Section 237(c)

The Government party refers to the native title party’s suggestion that the Tribunal should take into account international instruments in the construction of this limb of s 237, and suggests this contention is not sustainable as outlined in Cheedy v Western Australia (at [105]-[109]). The Government party asserts that the manifesting of the native title party’s religious beliefs do not constitute a major disturbance to land or waters in terms of those beliefs being likely to be interfered with by the grantee party. The Government party also states the native title party do not provide evidence about disturbance to land or waters being likely but rather they direct their attention to control over the management of the country which is not relevant (as noted at [41] above).
The Government party outlines that in any event, disturbance is unlikely because:

The State’s regulatory regime will apply
There are proposed conditions which may mitigate any disturbance to land or waters (I note some specific conditions have been included to protect waterways and water sources on proposed licences)
The proposed licences have been subject to prior mineral exploration
E47/1667, E47/1666, E47/1435 and E47/1383 are all significantly overlapped by pastoral leases which would have already disturbed the area and the grantee party’s activities would be no greater than these (However, as noted earlier, E47/1383 is not significantly overlapped by pastoral lease holding)
There are no particular characteristics of the relevant areas of the proposed licences that suggest major disturbance is likely to land and waters from the grantee party’s activities

The Government party also address the native title party’s contentions regarding permission for access to land being required to avoid major disturbance to land or waters. The Government party state (at 159) that the native title party cannot exercise a veto over the grant of a proposed licence or whether the expedited procedure can be attracted to exploration activity (as outlined in Tullock v Western Australia at [120]). This has already been dealt with in this decision (at [41] above).

Grantee Party

Grantee party affidavit evidence

The sworn affidavit of Mr Weaver states that he is the Native Title Manager of the grantee party. He also outlines:
·FMG is aware of its obligations under the AHA' (at 7);
·The Aboriginal Heritage Department of the grantee party has various responsibilities in relation to Aboriginal Heritage (at 8);
·The grantee party has adopted a Ground Disturbance Procedure which he has annexed to his affidavit, and notes that this procedure prohibits grantee party personnel and contractors from disturbing any area unless a Ground Disturbance Permit has been issued for the area by the grantee party. Mr Weaver states a number of matters must be satisfied before a permit is issued, and he outlines those matters in his affidavit by reference to that attached procedure (at 9);
·The grantee party has adopted a Guideline for the Management of Aboriginal Cultural Heritage which all grantee party personnel and contractors are required to comply with (at 10), and these heritage guidelines are attached to the affidavit;
·Various statistics regarding surveys commissioned by the grantee party and sites held on its database - though it is not clear how that information specifically relates to the proposed licences in this matter;
·The grantee party ‘would welcome the opportunity to enter into the Regional Standard Heritage Agreement with the Native Title Party’ (at 15);
·The grantee party endorses the Guidelines for Consultation with Indigenous Peoples by Mineral Explorers (a DMP publication) (at 16);
·The grantee party has a policy not to undertake ground disturbing activities without first undertaking a heritage survey (at 17); and
·The grantee party regularly undertakes heritage surveys with the participation of Yindjibarndi People (at 20) - although these are not, apparently, YAC people, but rather are Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC) people, according to native title party evidence.
Mr Weaver has also attached to his affidavit the proposed programme of works in relation to each of the proposed licences. While the programme is undated, a footer to the document refers to 2004-2006 and a 2003 Annual Report for the company is attached. As such, the programme is now some 10 years old. However, this has not been challenged by the native title party, and there is nothing in grantee party documents which suggests it may deviate from that programme, which indicates that the grantee party intends to perform:
·Literature research and analysis;
·Aerial photography;
·Geological mapping and rock chip sampling;
·Interpretation of historical, geophysical and geochemical data sets and target selection; and
·Aboriginal heritage clearance.
All of these activities will occur in the first year to identify and locate targets ready for further testing by drilling. The second year of works may include:
·Reverse circulation and diamond drilling;
·Interpretation, resource estimation and technical reporting;
·Metallurgical testing.
There is nothing in relation to the likely programme for future years.

Grantee party contentions

The grantee party contentions respond to native title party concerns about the identity of the grantee party. They state that the grantee party is only the person who has requested or applied for the doing of the relevant future act as per s 29(ii)(c) of the Act. They cite the case of NC (deceased) v WA (at 6.3) and state the grantee party agrees that ‘entities having the same management structures might be expected to be managed in the same manner’ is ‘not unreasonable’. They conclude (at 6.4) by saying ‘each circumstance will need to be assessed on the evidence’. In relation to this point, I adopt President Webb’s reasoning in Yindjibarndi v FMG (at [48]-[52]).
The grantee party contentions outline (at 4.4 and 4.5) various tenure which they say has extinguished native title and provide maps in support of that extinguishment. It appears from this information that proposed licence E47/1383 is largely extinguished of native title and so the Tribunal has jurisdiction in 4.69 per cent of that proposed licence. Similarly, in relation to E47/1433, the Tribunal has jurisdiction in 23.31 per cent of the proposed licence. In relation to the other four proposed licences, the Tribunal has jurisdiction in between 96.6 - 100 per cent of each licence – as outlined in the table at [1] of this decision. The grantee party correctly point out that areas where native title has been extinguished are not within the jurisdiction of the Tribunal (at 7.1-7.4).
They do agree with the native title party that areas outside of a proposed licence and outside of a determination of native title can be considered by the Tribunal in such arbitral decisions. However, they quite rightly point out that a clear nexus must exist and they assert that such a nexus is not established by the native title party in this matter. As always, that is a matter for the evidence.
The grantee party summarise the native title party’s contentions about the presumption of regularity by saying that the native title party asserts such presumption is displaced because of: ‘an inability of the relevant Government departments to properly monitor compliance with the regulatory regimes imposed on exploration activities’, and ‘the refusal of the DAA to take substantive action against the grantee party’, with the 'grantee party having a history of non-compliance with the regulatory regime’ and ‘encouraged division within the Yindjibarndi community' (at 8.2).
The grantee party denies non-compliance with the regulatory regime and denies that they disregard the protection of sites of particular significance to the Yindjibarndi people. They state (at 8.6) the only direct evidence relevant on this point is contained in paragraphs (11) and (112)-(135) of Mr Woodley’s affidavit. The grantee party then go on (at 8.7-8.9) to specifically counter those paragraphs of Mr Woodley’s affidavit.
I do note the grantee party’s concluding remarks in relation to these allegations (at 8.11) where they state ‘in relative terms, the complaints of the native title party are immaterial’. I think this is an unfortunate use of terminology and do not believe the native title party concerns are immaterial, but rather, that certain evidence is needed in relation to weighing up such allegations and the question is whether that evidence has been provided in this matter. As the Tribunal has stated in many decisions, it is the evidence provided which is crucial in drawing conclusions in relation to s 237 of the Act.
In relation to the issues raised regarding the regulatory regime, the evidence in this current matter is similar to that in Yindjibarndi v FMG and I adopt President Webb’s reasoning at [115] – [116] for the purposes of this decision.

Section 237(a)

In relation to s 237(a) the grantee party (at 9.1-9.11) outline their response to the community activities the native title party have raised. The grantee party divides up the activities as follows:

‘Collecting, recording, documenting, publishing and broadcasting the language, history, and culture of Yindjibarndi’
Looking after and managing Yindjibarndi country
Looking after and managing sites and areas in Yindjibarndi country
‘Activities which manifest the religion and beliefs of the Yindjibarndi people’

The grantee party states that the grant of the proposed licences will not affect the first dot pointed activity because (at 9.3):

Heritage surveys are carried out by the Yindjibarndi people and ‘that there is no reason to suspect they will not continue to occur in the future’ including the proposed licences. [I note in spite of the fact that YAC state they do not wish to carry out the heritage surveys for the grantee party, there is evidence from the native title party and the grantee party that Yindjibarndi people (although not YAC members) carry out such surveys.]
'some Yindjibarndi People do not wish to carry out heritage surveys for the Grantee Party. That is even though the Grantee Party intends to invite them to participate in activities for the purpose of collecting, recording, documenting cultural heritage, they have foreshadowed they do not wish to do so’.

The grantee party states the native title party appears to have already collected information about sites, stories and songs from the affected area (and cites Mr Woodley’s affidavit (at 66)) and note that the native title party plans to complete their collection of information in the next ten years or longer (native title party contentions (at 50) and Mr Rijavec’s affidavit (at 123(a)). The grantee party states ‘given the unknown frequency and unknown intensity of [these activities, it] cannot be said that any interference will arise from the grant’ of the proposed licences.

As to the second and third dot points in [55] above, the grantee party state that ‘it is difficult to determine how these activities manifest themselves in relation to [the proposed licences]’ (at 9.4). The grantee party states the absence of the maps to the affidavit is problematic. I have noted already that these maps have now been provided and no party indicated they wished to provide further submissions in relation to those maps. I agree, however, that it is not clear from the affidavit where many of the activities occur in relation to the proposed licences, even now with the benefit of the maps which have been provided. The grantee party states that it is not indicated how frequently the Yindjibarndi people go to the places Mr Woodley says are visited, or when they were last visited (apart from saying they are done ‘frequently’).
The grantee party state that even if these are activities contemplated by s 237(a) and are conducted on the proposed licences, there is unlikely to be direct interference because:

Heritage surveys are intended to be undertaken with Yindjibarndi people prior to ground disturbing exploration and that such surveys ‘will also facilitate [these activities] to the extent Yindjibarndi people wish to participate in those surveys’
The proposed licences cover an area of 106,505.25 hectares and so it is unlikely that the activities of the grantee party will ‘have anything other than a nominal impact (if any) on the physical aspects of [these activities]’.

In relation to the last dot pointed activity in [55] above, the grantee party states ‘there is nothing in the evidence of the native title party to suggest that [these activities] actually occur on the [proposed licences] or a place having a relevant nexus with the [proposed licences]’ (at 9.11).

Section 237(b)

In relation to s 237(b), the grantee party addresses each of the proposed licences in turn and I summarise their contentions below at [61] – [67]. They also make some references to social and community activities which are applicable to the consideration of s 237(a) of the Act.
E47/1383

The grantee party states that ‘it is doubtful’ the areas referred to in paragraph 95 of Mr Woodley’s affidavit lie within the native title area, or that any DAA registered sites within the proposed licence are within an area where the native title party holds native title. The grantee party states a sufficient nexus has not been established (as referred to, for example, by Member O’Dea in Wanparta v Western Australia (at [43])).

E47/1404

The grantee party notes the whole of the Fortescue River has been called ‘of great significance’ and ‘important for hunting and camping’. They also note the location of rock paintings or engravings is not identified and the register of sites shows one artefact/scatter site.

E47/1667

The grantee party notes that a ‘tabletop hill’ is a sacred hill and is partly on this proposed licence. Also they note the native title party says a section of the river here is a source of food for travellers, ‘though the frequency of travellers is left unstated’. They refer to the native title party’s ‘navigation point’ which ‘is important to travellers for navigation purposes as well as good viewing point’, and they note the DAA register shows one Aboriginal site being a modified tree, artefacts/scatter site.

E47/1433

The grantee party state it is doubtful any of the areas referred to in paragraph 99 of Mr Woodley’s affidavit are in an area where native title is held by the native title party other than Waluna Wundu and Muthanha Wundu, which are said to be campsites and fishing and hunting places. There are no DAA registered sites.

E47/1666

The grantee party refers to the native title party’s statements about portions of rivers being an important source of water, camping and food gathering, but note that no indication about the frequency of those activities is provided. They also refer to engravings, seven of which are registered with DAA and also refer to a sacred hill. The grantee party contends they cannot be assessed by the Tribunal without further details as to their location - they quote Member O’Dea in WF (Deceased) v Western Australia (at 10.19) and also refer to Barnes v AngloGold Ashanti Australia (at 10.20). The grantee party says in their view, the native title party evidence is lacking in terms of who utilises the areas or sites, for how long they are used on each occasion and how frequently those occasions are, as well as the ‘non-availability of similar areas or sites’. The grantee party also states that even should there be areas of particular significance, the limited rights of exploration are unlikely to cause interference.

The grantee party says engraving sites may be areas or sites of particular significance, but refers to Mr Weaver’s affidavit and suggests interference is unlikely because:

The grantee party understands its obligations under the AHA;
They have adopted processes to avoid interference with sites;
They follow the Guidelines for Consultation with Indigenous People by Mineral Explorers published by DMP; and
The grantee party does not undertake ground disturbing activities without a heritage survey first being undertaken.

E47/1435

The grantee party does not appear to have provided any contentions or evidence in relation to E47/1435.

Section 237(c)

In relation to s 237(c), the grantee party says the native title party do not address the direct significant physical disturbance to the land or waters as required by s 237(c). The grantee party states no physical disturbance has been identified by the native title party in the grantee party’s view (and they cite the case of Uunguu v Western Australia at [4]).
In any event, the grantee party states the grant of the proposed licences is not likely to involve major disturbance because:

The grantee party’s rights will be regulated by the State’s regime;
The presumption of regularity is not displaced and it must be assumed the grantee party will comply;
The grants will be subject to endorsements and conditions;
The area of the proposed licences are wholly covered by pastoral leases and so has been and will continue to be subject to disturbance (and they quote Mr Woodley’s affidavit (at 143), which they say refers to disturbance to flora, fauna and water sources); and
There are no sensitive topographical, geological or environmental factors relevant to the proposed licences, which they say suggests a view by the general community that exploration activities would not lead to disturbance to land or waters.

Native Title Party

In relation to the native title party rights and interests, I adopt [22] of Yindjibarndi v FMG.

Native title party affidavits

Mr Woodley

Mr Michael Woodley outlines he is authorised to make his affidavit in support of the statement of contentions filed on behalf of the native title party in relation to these proposed licences, and that he has authority to speak for the native title party. That authority is supported by the other affidavits submitted in this matter, and I accept Mr Woodley has that authority. I note Mr Woodley provided an amended affidavit, which was not sworn, unlike the original affidavit which was sworn. No party has objected to me accepting this unsworn affidavit, and on that basis, and considering the amendments appeared to ensure the affidavit did refer to all of the relevant licences, I accept the unsworn affidavit.
In this affidavit, Mr Woodley shares the history of issues between FMG and YAC, as well as the breakdown of negotiations between these parties from approximately 2007, and the formation of WMYAC in 2010/2011. He states that WMYAC have allowed FMG to ‘destroy’ in excess of 350 sites (at 20 and at annexure 5 to Mr Woodley's affidavit).
He provides a general objection to the State of Western Australia using the expedited procedure process over determined lands (at 24), and refers to one tenement that is not covered in this current decision (E47/2574), which I take to be a typographical error.
Mr Woodley states that he and his people were 'forced off' the Millstream Pastoral lease in the 1950’s and were unable to look after that part of their country (at 34). I note that DMP tengraphs show Millstream Chichester National Park R30071 covers approximately 13 per cent of E47/1383. He outlines the structure of the Yindjibarndi community and the descendents and how ‘the cultural and intellectual property about Yindjibarndi belongs to the Yindjibarndi people as [a] nation’ (at 58).
In regard to s 237(a) Mr Woodley outlines:

some of the history and culture of Yindjibarndi country in general (at 27-44).
that ‘Yindjibarndi country is divided up into 13 home areas or Ngurras...these divisions are important for our ceremonial activities’ (at 45), and outlines those Ngurras (at 49).
that seven of these home areas (or Ngurra) ‘will be affected by the proposed tenements’ (at 49).
those seven Ngurra are: ‘a) Jinabinha Ngurra, which overlaps E47/1383; b) Gurdawurrunha Ngurra, which overlaps E47/1383 and E47/1433; c) Yardiyarranha Ngurra, which overlaps E47/1433; d) Garliwinyjinha Ngurra, and Buthurnha Ngurra which both overlap E47/1435; Thunggawarnha Ngurra, which overlaps E47/1404 and E47/1666; and Gamburrunhunha Ngurra, which overlaps E47/1666 and E47/1667. Mr Woodley refers to a map in support of the seven Ngurra (however, I note this map, annexed to his affidavit, does not appear to list all of those Ngurra specifically using that terminology).
the significance of the Ngurra (at 51-63).
the Yindjibarndi people ‘continues to occupy, use and enjoy the Yindjibarndi native title area, including those parts where FMG wants the tenements’ (at 64) and outlines that members of the Yindjibarndi People continue to exercise native title rights and interests in these areas.
the Yindjibarndi people: ‘go to these places on weekends and holidays as part of our ongoing commitment to look after our country and let it know we still care’; also to camp, hunt, fish, collect of artefacts and ochre; and to perform various rituals and ceremonies (at 65).
that he and other members of the Yindjibarndi people ‘frequent the places shown on the map’ [I assume he is referring to one of the maps later provided in support of this affidavit, but he does not refer to any one of those maps in particular in support of his assertion].
the Yindjibarndi people perform various rituals and ceremonies at those sites as required by the Birdarra Law which he has explained in detail in his affidavit as being the native title party culture.
the role of Juluwarlu in recording, preserving and maintaining Yindjibarndi language and culture (at 67-70).
the importance of conducting surveys to assist with ‘community and social activity of collecting information about the precise location of sites,...songs and stories’ (at 72).
as a result of the Federal Court decisions in Daniel v Western Australia and Moses v Western Australia that native title was be extinguished in more than 80 percent of the Yindjibarndi native title claim area, the remaining area is considered to be ‘a very precious part of our cultural inheritance’ (at 73).
the obligation of Yindjibarndi people to manage and look after country under the Birdarra Law and associated Galharra (relationship) system (at 74-86). For example, he refers to the publications of the Juluwarlu that were provided to the Tribunal on 11 July 2013 for use in another matter, and states that they rely on them as evidence in this matter and that the production of these books relating to Yindjibarndi history and culture is an important communal and social activity. However, while he refers in broad terms to the collection of such materials, he does not refer to how these proposed licences in particular are relevant, apart from referring to an overlap with E47/1383 and the Millstream National Park.
He refers to the Wundu (at 74) which are water courses and also Jinbi (springs). He does not, however, identify any areas within the proposed licences at this part of his affidavit, although he does expand on the Wundu in his detailing of each proposed licence.
He talks about the rules regulating strangers onto country (at 78-88). He states this in broad terms in relation to Yindjibarndi country in general but (at 84) he states that ‘if mining companies are allowed to come into the precious areas where our rights have not been extinguished, without an agreement that reflects the Birdarra law, the suffering will continue; we will drown in that tide [of the white fellas history] and there will be nothing left of our culture’. By this I take Mr Woodley to mean the precious areas are the areas which have not been extinguished in the Daniel v Western Australia and Moses v Western Australia decisions (as he had previously referred to at paragraph 73 of his affidavit) and that the non-extinguished areas are ‘a very precious part of our cultural heritage’. However, he has not then gone further to say what it is about these particular licences that would mean the grantee party exploration activities would interfere directly with the community or social activities of the native title party. It is not sustainable for the purposes of s 237(a) for all of the non-extinguished area of the Yindjibarndi determination to be an area where social and community activities would be directly interfered with by the activities of a grantee party. He states (at 89) that ‘the most important community activity... is looking after sites and areas that are significant to us in accordance with our religious beliefs and law’. I deal with this in consideration of s 237(b) below.

In regard to s 237(b), Mr Woodley’s affidavit states:

‘there are many sites, objects and places [within the proposed licences]’ (at 92) which include all wundu (watercourses), yirrgarn (birthplaces), thungari (burial sites), yamararra (caves and rock shelters), thalu (increase sites and healing sites), maringarli (rock paintings and engravings), budbungarli (artefacts), yarna-ngarli (ochre quarries) and wurrungarli (special hunting hides).
some of the sites within the proposed licences are men only sites (which he outlines in more detail for each proposed licence) and have been registered with the DAA (at 93) - he says they are sites of particular significance and are outlined on maps at annexures 7-12 to his affidavit (these maps were provided later, as outlined at [6] of this decision). [I do note that for E47/1383, DAA site ID 18798, ID18799 and ID 18800 are listed as: closed / male only / ceremonial/quarry. No sites are listed on the DAA register as being related to ochre, but this does not mean that such does not exist in the area - that will turn on the evidence. I note the Government party accepts there is an ochre related site on this proposed licence. The native title party also suggests ochre is to be found on E47/1667, although no other party appears to have commented on this.]
‘I know that there are many significant sites, places and objects in the area of the Proposed Tenements because we sing about them in our ceremonies’ (at 94). He states that the hills are very important in E 47/1383 in the area of George River (at 95).
that E47/1667 has many hills (marnda) including Buwarranha Marnda and Biyamana Marnda. He says there is a special dance for these marnda and he also points to the marnda associated with Mount Florance station where nearby there is also an old law ground. He states the marnda on the maps ‘are all of particular significance...because located within them are yamararra (rock shelters and caves)’ (at 95). He states that yamararra are ‘extremely important’ ‘because some of them hold the physical remains of our old people and others, their sacred gear’. I note that for marnda, he states they are all of particular significance. In relation to the yamararra, some of them are said to hold remains. I accept this can make them of particular significance compared with those that do not hold remains.
that some of these marnda are also the source of ochre (yarna) that are used in ceremonies and when working with increase sites. He states ‘it is Yindjibarndi law that each ngurrara has to collect ochre from their own ngurra to perform ceremonies otherwise we are not respecting the ngurra we were given by minkala’ (at 95).
the Fortescue river is ‘highly significant’ (at 96) and he spends some time talking about the water serpent (at 96).

Mr Woodley also outlines some further information on each part of the proposed licences that he has visited, and provides some information on why they are of particular significance or what social and community activities are done there. A snapshot of his evidence is outlined briefly in the table below, and crosses over consideration of s 237(a) and s 237(b) - I draw the distinction between the evidence for each of those sub-sections as needed throughout this decision. In addition, where the location has not been specified in the written affidavit, it is often shown in the native title party mapping, and many of the sites left blank below are shown in that mapping as being on the relevant proposed licence.

Place	Location (where provided)	Importance
E47/1383	Binajinha Wundu (Dawson Creek)	‘from Millstream right down to Ngarlawungganha Binajinha Wundu’	‘important meeting ground on its banks’ ‘(birthplace) of my aunty Rosemary Woodley’
	Thurnggawaana Wundu (important river)	‘Many Yindjibarndi people and families have been born along this wundu’
	Jindinha Wundu	‘on the Kanjenjie station’	Birthplace of Susie Woodley (Mother, deceased) and Bruce Woodley (Uncle)
	Birrinha marnda (range) and Wundu	‘there is a sacred and secret law song for this marnda’
	Ngarlawungga Wundu	‘where I used to go when I was a boy with my grandfather Woodley King ... contain a history of where Yindjibarndi people used to live and they are a place where we can continue to practice our culture’
	Ngardangarli Ngurra (men’s sites)	8 located on E47/1383	Yindjibarndi men obtain ochre (Yarni) for ceremonies
	Ngarntart (birthplace)	Birthplace of Harold Ned; important food source
	Muliyanha (well)	Water source; location of a campsite of our old people and there are artefacts found there which demonstrate occupation and use by old people
	Birdiyarranha Marnda (significant hill)	Source of white ochre; only senior law men allowed; artefacts
	Garliyanha Marnda and Yardiyarranha Marnda	Buminji ration camp	Artefacts; sites where young boys go through Birdarra Law
	Yardiyarranha/Buminji (campsite)	‘where old Yindjibarndi People used to live in a controlled environment by the government as they tried to remove the Yindjibarndi off our lands’; Birdarra law ceremony ground
	Waliyinha (water source)	Important water source
E47/1404	Yanarnyirra Wundu	Fortescue River	‘centre of Yindjibarndi Law and creation and is a holy site ... Law that comes from Yandarnyirra Wundu travels through the country of five tribes’
E47/1404	Mangudunha Wundu	Fortescue River (section)	‘collect and hunt and gather kangaroo’s, emu, turkey, goanna, echidna, ducks, swans, wild honey, wild photo’s, bush onions, wild berries, bush coconut, freshwater trout, catfish, flat-shelled tortoise ... important water sources’; artefacts
E47/1435	Garinha (Quarrina Well)	‘important source of water and Yindjibarndi people fish here and collect water chestnut’; campsite; artefacts
	Yandarnyirra Wundu	Fortescue River	‘centre of Yindjibarndi Law and creation and is a holy site ... Law that comes from Yandarnyirra Wundu travels through the country of five tribes’
	Wirlumarranha Wundu	‘important water sources ... old Birdarra law camp in this creek where Birdarra was performed ... used to live along this creek when law was happening it is a camping place, with a lot fishing with good hunting and gathering for bush food’; artefacts
	Warduwarranha Wundu	Hamersley Range	‘comes from the gorge and has Gandi (sacred stone) and Yarna (ochre)’
	Malinha Wundu	Travelling trail connecting Ngurra campsites and hunting, gathering and fishing places
E47/1667	Gambarrangunha Marnda (tabletop hill)	North of the Mt Florence station	Sacred hill and is also associated with Marbarn (power to heal); sacred stones
	Jinyin-nha Wundu	Section of river up to Mt Florence station	Main Ngurra of the Ngurrarangarli of this part of the country; rich source of food and water
	Jinyinha Marnda	Navigation point for travellers; Yindjibarndi use this point for keeping an eye on the movement of people and animals
E47/1433	Barnbi	Good for hunting kangaroo, emu and turkey; wood for making boomerangs, hunting spears and punishment spears
	Juliwarranha	Important campsite; artefacts
	Binjimuna wundu	Walking trail
	Waluna wundu, Muthanha wundu	Campsites and fishing and hunting places; artefacts
	Thunggawarna wundu	Travelling path
E47/1666	Gambunburnha wundu	Important water source; artefacts
Balyinha wundu	Many Marningarli (engravings) found the area of this tenement, depicting the Marrga (powerful spiritual beings)
Thamba Thamba wundu	Camping, gathering food and materials for spears and hunting tools; still used today; artefacts
Biyamanha marnda	Very sacred hill with special powers given by the spirits
Buwarranha wundu	Water source; good for hunting kangaroos, emu, echidna, goannas; quarry place

He states some of the sites he refers to are outside of the proposed licences ‘but are interconnected to areas of significance within the proposed tenements’ (at 109). He refers to the s 18 process, the Auditor General’s report entitled Ensuring Compliance with Conditions on Mining (published in September 2011), the DAA’s report (at 110-112) as all supporting his assertion that Yindjibarndi sites have failed to be protected. I deal with these arguments in more detail throughout this decision.
He provides much detail (at 114-137) about a DAA s 18 process which the native title party were not satisfied with, and the associated State Administrative Tribunal appeal process. He then states (at 138-139) specific instances where he says the AHA failed to protect Yindjibarndi sites of particular significance. He concludes (at 140) that ‘the Yindjibarndi people cannot rely on the AHA to protect our sites’. A letter annexed to Mr Woodley’s affidavit dated 6 June 2013 from FMG says ‘Fortescue invites, and will continue to invite, YAC to nominate such persons to participate in Fortescue commissioned heritage surveys’. The letter also states ‘Fortescue remains open to executing a heritage protection agreement which contemplates the involvement of YAC and Wirlu-Murra Yindjibarndi Aboriginal Corporation over Fortescue’s granted and pending tenements on Yindjibarndi traditional lands and would welcome YAC’s participation in the heritage process on this basis. I would encourage YAC to further consider its position on this matter’. President Webb considered much of this similar evidence in Yindjibarndi v FMG, and I adopt her reasoning from [102] – [121] in relation to these matters.
In regard to s 237(c), there is little evidence in Mr Woodley's affidavit, apart from stating that FMG will obtain control over the management of Yindjibarndi country (at 145). Mr Woodley argues the grantee party will not be able to ensure that exploration activities won’t have a major disturbance on the flora, fauna and water sources on the proposed licences which will impact on Yindjibarndi and non Yindjibarndi people. He does not, however, provide any particular evidence regarding these allegations or any special features on the proposed licence.

Further affidavit evidence from the native title party

Mr Jacobs

Provided two affidavits - one which had been provided in another matter, and which appears to be referred to in other native title party affidavits in this matter (and which is annexed to Mr Davies affidavit and refers to destruction of s 18 AHA sites), and one for the purposes of this matter, in which he refers to:
·Pebble Mound Mouse sites (at 10) and Bidarra Law
·Pebble Mouse site DIA 28952, 28950 (at 3.1-3.8), which appears to not be on or near these tenements
I adopt President Webb’s reasoning in Yindjibarndi v FMG (at [130(c)] on the difficulties of drawing conclusions from such evidence.

Mr Savas

Was a solicitor for the WMYAC. This evidence outlines the issues relating to an August 2010 meeting which resulted in setting up of WMYAC, and which he states FMG paid for that meeting. He refers to a meeting about another matter, and the only comment I make in relation to those references are that if there were any concerns about the decision in that matter, or the basis upon which it was made, then the proper channel was an appeal.
He refers to the authorization meeting of 16 March 2011, which has been dealt with and resolved by the Federal Court's recent decision of NC (deceased) v Western Australia (No2), and refers to the conduct of a number of people, some of whom appear to be solicitors. Once again, there are other jurisdictions and professional associations and boards where such concerns can be raised, rather than through an expedited procedure objection process. In addition, it is not clear how these issues relate to this objection matter as there is no clear statement about that in the affidavit, rather the issues are said to be raised to ‘support NTP contentions’. One of the annexures is blurry and not readable, and the native title party was unable to provide a readable copy.

Mr Davies

He outlines some of the history of YAC and Juluwarlu. He also outlines the history of the WMYAC group. He refers to the applications made by FMG under s 18 of the Aboriginal Heritage Act which were defended by YAC and he refers to ‘aggressive strategies’ (at 5.5) used by FMG. He draws comparisons between agreements with other native title groups and agreements with the WMYAC, the various steps that led up to the lodgement of the Federal Court s 66(b) application, and the outcome of that application. I do not propose to restate the contents of the affidavit in this regard, save to draw attention to the conclusion to that s 66(b) Federal Court application which was that YAC was the authorised representative of the Yindjibarndi people for the determined area.
Mr Davies concerns (for example, at 8.6 and 10) focus on ‘the consequences of FMG’s ‘partnership’ with WMYAC and WMTH’ (with WMTH apparently referring to the Wirlu-Murra Tableland Heritage Pty Ltd) (at 8.11).
Overall, this affidavit provided little or no information about the proposed licences in this matter.

The native title party contentions

Several documents are attached to the native title party contentions, including submissions by the Department of Indigenous Affairs (DIA, now the DAA) to the functional review committee established to review the DIA, as well as the affidavits of: Mr Stanley Worrie, Mr Angus Mack, Ms Rosie Cheedy and Dr Frank Rijavec. These affidavits were provided to the Tribunal for the purposes of another matter and so contain very little information of relevance to the consideration of this decision.
The contentions assert issues the native title party has with the State's regulatory regime (at 15-21) and they argue the presumption of regularity should not be applied. They also assert the prior conduct of the grantee party means the expedited procedure should not be applied to these proposed licences (at 5, 22-33). I have already commented on these issues earlier in this decision. The native title party also suggest the grantee party should not be separated from any wholly owned subsidiary or related party of the grantee party. In relation to the identity of the grantee party, I adopt President Webb’s reasoning in Yindjibarndi v FMG (at [46] – [52]) and accordingly agree with the native title party submission that the conduct and actions of the grantee party’s controlling entity, and its other wholly owned subsidiaries, are relevant to the Tribunal’s consideration in this matter.
Information specific to s 237(a) of the Act is outlined in the native title party contentions (at 34-51). I accept the contention that the Yindjibarndi people are the relevant Aboriginal community for this inquiry. I also accept their contention (at 38) that Walley v Western Australia applies. They state (at 41) that Mr Woodley’s affidavit (and they cite particular paragraphs) provides evidence of community activities associated with sites of particular significance.
They also say Mr Woodley, Dr Rijavec and Mr Davies provide evidence that community activities, through YAC and the Juluwarlu Aboriginal Corporation, will be affected (in detail at 42). They focus on looking after and managing country, collecting, recording history and manifesting religion and beliefs. The contentions state that the affidavits provide specific reference to sites found on these proposed licences. For convenience, I have summarised these paragraphs in the table below:

Mr Woodley	Dr Rijavec	Mr Davies
Collecting, recording, documenting, publishing and broadcasting the language, history, and culture of Yindjibarndi	7-9, 65-70, 106	36-84, 123	2.2, 4.1, 8.3-8.5
Looking after and managing Yindjibarndi country, including the land and waters of the Proposed Tenements, in accordance with the traditional laws, customs and religious beliefs of the Yindjibarndi People	6-9, 37-38, 57-61, 65-86	36-117, 123	2.2, 4.1, 8.3-8.5
Looking after and managing sites and areas in Yindjibarndi country	7-9, 31-32, 87-90, also part B of Mr Woodley’s affidavit	87-117, 123	2.2, 4.1, 8.3-8.5
Community activities carried on by Yindjibarndi people that manifest the religion and beliefs of Yindjibarndi people	6-9, 25-61, 63, 65-70, 72-89, 93-94, also part B of Mr Woodley’s affidavit	NA	NA
Interference as a result of grantee party conduct (at 44)	15, 17-18, 21, 66-68, 103-106	118-126	5.5-5.6, 5.10, 5.13, 8.10

In relation to s 237(b), the native title party contentions state the following registered sites exist:
o13 sites on E47/1383
o1 site on E47/1404
o0 sites on E47/1433
o0 sites on E47/1435
o8 sites on E47/1666
o2 sites on E47/1667 [However, DAA lists only one site]
The native title party state there are ‘many other areas and sites of particular significance to the native title party’ (at 56) on the proposed licences. They also state (at 57-58) there are some not on the proposed licence that would be affected (and refer to Mr Woodley’s affidavit at paragraphs 90-101).
The contentions state ‘findings concerning the significance of water courses and Thalu in Yindjibarndi country is contained in the judgement of Nicholson J in Daniel v Western Australia (at 59)’ – this type of broad statement is not sufficient for me to make any conclusions about sites of particular significance in relation to water courses on these proposed licences. I have been given no guidance as to which part of the judgement applies, or why it may apply. Once again, it is the evidence which is important when drawing conclusions in such an arbitral process - the decision maker cannot guess at what point a party is attempting to make, or the evidence which they say supports that point - the point must be made plainly, clearly, and with sufficient support.
Contentions state Mr Woodley is concerned about sharing information ‘in this forum given the conduct of the grantee party in fostering and supporting WMYAC, and, the proven record of WMYAC in ignoring or devaluing the ethnographic significance of sites’. However, appropriate non-disclosure orders can be made where there are issues of particular sensitivity, rather than not providing the evidence at all.
The contentions spend some time (at 61-69 and at 91) outlining defects in the regulatory regime and that the definition of places or sites in the AHA is narrower than the terms of s 237(b). The native title party contends the AHA is unlikely to provide protection from relevant interference and refer to previous decision's of the Tribunal including Young v South Coast Metals and Deputy President Sosso’s conclusions (at [57]). In relation to the interaction of the AHA and the Native Title Act, I adopt the reasoning of President Webb in Yindjibarndi v FMG at [117] – [121].
The native title party contentions refer (at 72) to the RSHA condition the Government party intends to impose and note that it is the WMYAC Regional Standard Heritage Agreement. I agree that broad statements made by the Government party (or indeed by any party) about RSHAs are not particularly helpful in these matters. The native title party state ‘it is anticipated that the Government party will not produce any evidence as to which provisions of the RSHA it considers to have the requisite protective effect. As such, the native title party submits the anticipated contention by the Government party about the protective effect of the RSHA should be given little weight’ (at 72). I agree with this contention, and adopt the reasoning of President Webb in Yindjibarndi v FMG at [31] – [33].
The native title party (at 76) states the conduct of heritage surveys under the RSHA does not protect sites, and that ‘sites will only be protected where the grantee party does not make an application under s 18 of the AHA’. Actually, I note that making an application under s 18 is a right which grantee parties have and it is not the purpose of these or similar proceedings to put a veto on such applications. The native title party also state that under the RSHA, the native title party has no ability to object to low impact exploration being conducted without a heritage survey but can merely raise heritage related concerns. In part, this is in effect related to the imposition by the State of Western Australia of the expedited procedure on mining tenements, where the State is asserting that such low impact activities will not be likely to disturb certain activities or sites of particular significance of a native title party. Again, it is not the purpose of these proceedings, or of provisions of the Native Title Act itself, to provide an automatic mechanism for the native title party to consent to activities of a grantee party in all circumstances.
The native title party (at 79) state that the RSHA ‘fails to deal with interference caused by inappropriate...dealings with sites or areas of significance as a result of gender’, and they go on to say there are a number of men only sites in the area of the proposed licences. However, it does not appear the location, or even the approximate area, is identified in the contentions. They may be referring to the men’s sites in E47/1383 but that is not clear.
The native title party contentions (at 81-95) cast doubt on the State’s regulatory regime and to some extent reiterate arguments they raised earlier (at 23-32) in their contentions. They state ‘given the grantee party’s history of non-compliance with the AHA and its disregard for areas and sites of significance to the Yindjibarndi people and its support for the WMYAC...it is incorrect to assume that such an endorsement will render it unlikely that there will be interference of the kind contemplated by s 237(b)' (at 82). That relates to a proposed endorsement which draws the grantee party’s attention to the AHA. The native title party state the DIA (now the DAA) failed to protect Gurrwaying Yinda, that it was a site of particular significance, and that the DIA failed to prosecute the company in 2009. Error! Hyperlink reference not valid. Webb has dealt with this and similar evidence in Yindjibarndi v FMG and I adopt her reasoning from [112]–[113] to apply in this present matter.
The native title party (at 88) makes some claims in relation to s 18 AHA applications and the number of sites that have been destroyed or are under imminent threat of destruction. They go on to consider (at 89) the process behind s 18(3) of the AHA and what the general interests of the community might be. The native title party refer to the new DAA digital information management system related to the s 18 processes and note that that the first key strategic benefit of such implementation is ‘increased industry confidence’, while ‘protecting Aboriginal heritage’ is fourth on the list. I do not think any adverse conclusions can be drawn from this and clearly protecting Aboriginal heritage is a key strategic benefit, wherever it appears on the list.
The native title party also (at 93) make two very specific contentions. In relation to the first, I agree that the Auditor General’s report (as referred to above at [78]) is relevant in that no system is ideal to ensure protection from interference to sites of particular significance (as the Government party has conceded in previous matters). In relation to the second detailed contention, this has been dealt with in a number of previous decisions. The second contention states (at 94) there is ‘no evidence demonstrating that improvements have been made to the regulatory regime since the report data collection period ended’, and the native title party refer broadly to the decision Mungarlu Ngurrarankatja Rirraunkaja v Western Australia. I am not sure why this decision was referred to as suggesting a lack of improvement, as it does appear to support the argument that DAA have undertaken training and recruitment of staff, as well as implementing a memorandum of understanding with DIA in relation to the regulation of sites. As such, this decision would seem to support the improvement of such regulatory systems. Once again, specific guidance from a party as to the point which is being made by referring to specific parts of a decision, or evidence, is needed.
The native title party refer (at 98) to Mr Woodley’s affidavit (at paragraphs 29 and 90-101) where they say he outlines sites of particular significance ‘including sites which contain engravings and paintings of the marrga which are evidence that the marrga are still present’. They state (at 101) ‘it is highly likely that...any activity conducted pursuant to the proposed tenements once granted will impact negatively on the sites of particular significance as well as...the home areas from which the spiritual essence ngurra emanate, to which they are always spiritually connected to and to which their spiritual essence returns after death. Consultation, discussion and agreement between the native title party and the grantee party is necessary to ensure the sites are not likely to be interfered with’.
In relation to s 237(c), the contentions are quite broad and they raise the international instruments argument which has been dealt with in previous Tribunal matters and neatly summarised by President Webb in Yindjibarndi v FMG at [140], whose reasoning I adopt for the purposes of this matter.

Considering the Evidence in context of s 237 of the Act

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver v Northern Territory (at [29]-[30]), Deputy President Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
I have outlined in detail at [75] and [90]-[91] above the native title party’s evidence and contentions in relation to s 237(a).
The grantee party’s evidence and contentions in relation to s 237(a) of the Act are outlined at [55]-[59] above.
The Government party evidence and contentions in relation to s 237(a) are outlined at [19]-[25] above.
I turn to President Webb’s observation at [59] of Yindjibarndi v FMG, where she states:
There needs to be quantifiable evidence before the Tribunal of ongoing community and social activities on, or having a nexus with, the relevant area in order to assess whether there is a real risk of those activities being adversely affected by the exploration activities if the grant is made.

ATTACHMENT ONE: UNDERLYING TENURE, SERVICES AFFECTED, REGISTERED SITES AND OTHER HERITAGE PLACE

All of the proposed licences are designated as Surface Water Areas and Groundwater Areas under the Rights in Water and Irrigation Act 1914 (WA), managed by Department of Water.

Services Affected	E47/1667	E47/1666	E47/1435	E45/1433	E47/1404	E47/1383
Services Affected	Five tracks One fence line One spring/soak/ rockhole/waterhole Two cliff/breakaway/rockridges 49 minor non-perennial watercourses	15 minor roads 42 tracks Two airfield runways Two buildings Five fence lines Nine yards One windmill Five well/bores with windmill Three spring/soak/ rockhole/waterhole 14 cliff/breakaway/rockridges 147 minor non-perennial watercourses	Eight minor roads 57 tracks Six single/multi railways One aircraft landing ground Four airfield runways One building Three fence lines Three yards One tank Five well/bores Five well/bores with windmill One levee bank Three spring/soak/ rockhole/waterhole Two transmission lines Three cliff/breakaway/rockridges 51 minor non-perennial watercourses	36 tracks Three fence lines Two yards Eight well/bores Three well/bores with windmill Three major non-perennial watercourses 38 minor non-perennial watercourses 12 spring/soak/ rockhole/waterhole Two transmission lines	43 minor roads 46 tracks Eight single/multi railways One railway siding 19 bridges One aircraft landing ground Five airfield runways Four buildings Three fence lines Five yards One tank Seven well/bores Five well/bores with windmill One levee bank One quarry/mullock 19 spring/soak/ rockhole/waterhole Three transmission lines One tower/mast 98 minor non-perennial watercourses One non-perennial lake Four cliff/breakaway/rockridges	42 minor roads 60 tracks 15 single/multi railways 51 bridge/causeways Four buildings One minor manmade feature Seven fence lines Eight yards Three tanks Two well/bores Two well/bores with windmill One spring/soak/ rockhole/waterhole 21 transmission lines One tower/mast
DAA Sites[1]	Registered site 10676 (Modified Tree, Artefact /Scatter) is on the southern border of the proposed licence.	Eight registered sites are recorded as being within this proposed licence: Nunyerry 07 (10647) on the eastern side of the proposed licence; Nunyerry Creek Road (10698) on the eastern side of the proposed licence; Nunyerry Creek (11369); Nunyerry 09 (10649); Nunyerry 11 (10651); Nunyerry 12 (10652); Nunyerry 14 (10654); Nunyerry Blade Quarry (10695); all on the northern border of the proposed licence.	No registered sites - site 20815 is near the western border but it is not noted as being within the proposed licence.	No registered sites.	Registered site 21057 (RTC-03-10 Artefact Scatter) is near the northwest corner of the proposed licence.	13 registered sites are recorded as being within the proposed licence/determined area overlap, but not where native title exists.
DAA Other Heritage Places[2]	No other heritage places.	3 other heritage places are recorded as being within the proposed licence/determined area overlap.	No other heritage places.	No other heritage places.	6 other heritage places are recorded as being within the proposed licence/determined area overlap.	3 other heritage places are recorded as being within the proposed licence/determined area overlap.

[1] Information obtained from the extract of the Aboriginal Heritage Inquiry System, Aboriginal Sites database maintained by the DAA pursuant to the Aboriginal Heritage Act 1972 (WA)

[2] As above

ATTACHMENT TWO: LIVE AND DEAD TENEMENTS

Live tenement affected

E47/1667

E47/1666

E47/1435

E45/1433

E47/1404

E47/1383

n/a

L47/47 at 3.4%
L47/88 at 0.2%

n/a

L47/47 at 7.5%
L47/85 at 0.3%

L47/47 at 19.9%

L47/80 at 0.7%

L47/81 at 1%

L47/87 at 0.8%

Dead tenement affected

n/a

E47/1109 at 27.1%
TR70/5151 at 1.2%

E47/501 at 8.5%
E47/502 at 7%
E47/678 at 6.1%
E47/679 at 14.4%
E47/692 at 16.1%
E47/700 at 0.1%
E47/1109 at 1.6%
TR70/6461 at 25.3%

E47/678 at 0.2%

E47/678 at 0.2%
E47/679 at 0.3%
E47/692 at 0.2%
E47/1109 at 51.4%

n/a

ATTACHMENT THREE: DRAFT CONDITIONS TO BE IMPOSED ON PROPOSED LICENCES BY GOVERNMENT PARTY

E47/1667

E47/1666

E47/1435

E45/1433

E47/1404

E47/1383

Conditions:

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

2. 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.

3. 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.

4. 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 operations and separately stockpiled for replacement after backfilling and/or completion of operations.

5. 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.

6. 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 transfer introducing a new Licensee; advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

7. No interference with Geodetic Survey Station HRE 51 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

8. No mining within 30 metres of either side and to a depth of 15 metres of the Rail Corridor Land (RCL or FNA No. 7279) as shown in TENGRAPH without the prior written approval of the Minister responsible for the Mining Act 1978.

9. No surface excavation approaching closer to the boundary of the Safety Zone established by Condition (8) hereof than a distance equal to three times the depth of the excavation without the prior written approval of the State Mining Engineer, DoCEP.

10. Mining below 15 metres from the natural surface of the land in the Safety Zone established in Condition (8) hereof being approved by the State Mining Engineer, DoCEP in consultation with the operator of the railway on corridor land.

11. No interference with drainage pattern, and no parking, storage or movement of equipment or vehicles used in the course of mining within the Safety Zone established by Condition (8) hereof without the prior approval of the operator of the railway on corridor land.

12. The Licensee not excavating, drilling, installing, erecting, depositing or permitting to be excavated, drilled, installed, erected or deposited within the Safety Zone established in Condition (8) hereof, any pit, well, pavement, foundation, building, or other structure or installation, or material of any nature whatsoever without the prior written consent of the State Mining Engineer, DoCEP.

13. No explosives being used or stored within one hundred and fifty (150) metres of the rail corridor without the prior written consent of the Director, Dangerous Goods Safety Branch, DoCEP.

14. The rights of ingress to and egress from the rail corridor land being at all times preserved to the employees, contractors and agents of the operator of the railway on corridor land, and the Public Transit Authority of WA.

15. Such further conditions as may from time to time be imposed by the Minister responsible for the Mining Act 1978 for the purpose of protecting the rail corridor land.

Conditions 1-6 of E47/1667, and the following:

7. No interference with Geodetic Survey Station PYRAMID 11 and mining within 15 metres thereof being confined to below a depth of 15 metres form the natural surface.

EPA/8 (designated area)
8. Prior to accessing the licence area, the licensee shall consult with the Environmental Officer, DoIR, and ensure that where required all vehicles and equipment entering the designated area are washed down to remove soil and plant propagules and adhering to such conditions specified for the prevention of the spread of soil-borne diseases.

9. Prior to any activity involving disturbance to vegetation and soils including:- exploration access; and/or exploration sampling; the licensee preparing a detailed program for each phase of proposed exploration for written approval of the Director, Environment DoIR. The Director Environment, DoIR to consult with Regional /District Manager, Department of Environment and Conservation or other government agency (as relevant) prior to approval. This program to describe the environmental impacts and programs for their management and is to include:- maps and/or aerial photographs showing the proposed locations of all ground activities and disturbance; the purpose, specifications and extent of each activity and disturbance; descriptions of all vegetation types (in general terms) land forms, and unusual features likely to be disturbed by such proposed disturbances; details on proposals that may disturb sensitive terrestrial habitats including and declared flora and fauna if applicable; procedures to protect the integrity of special ecosystems such as wetland systems, mangal communities and rainforests areas (and/or associated rainforest monitoring sites) if applicable; techniques, prescriptions, and timetable for rehabilitation of all proposed disturbances; undertaking for corrective measures for failed rehabilitation; details of water requirements from within the designated area; details of refuse disposal; and proposals for instruction and supervision of personnel and contractors in respect to environmental conditions.

10. Access to and from and the movement of vehicles within the licence area being restricted to ground or seasonal conditions and routes approved under the program or otherwise agreed by the Environmental Office, DoIR.

11. At agreed intervals, not greater than 12 monthly, the licensee providing a brief report to the Director, Environment, DoIR outlining the progress of the operation and rehabilitation program and the proposed operations and rehabilitation programs for the next 21 months.

12. Prior to the cessation of the exploration/ prospecting activity in the designated area, the licensee notifying the Environmental Office, DoIR and arranging an inspection as required.

Conditions for consent to mine on Water Reserve 9:
13. 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.

14. 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.

15. The rights of ingress to and egress from the Licence being at all reasonable times preserved to officers of the Department of Water for inspection and investigation purposes.

16. 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.

17. All proposed exploration activities within Public Drinking Water Source Areas complying with the Department of Water’s Water Quality Protection Note Land Use Compatibility in Public Drinking Water Source Areas.

18. All Mining Act tenement activities within Public Drinking Water Source Areas being prohibited unless the prior written approval has been obtained from the Department of Water.

19. All Mining Act tenement activities are prohibited within 2 kilometres of the maximum storage level of a reservoir including the reservoir itself, unless the prior written approval of the Department of Water is first obtained.

20. Storage and use of hydrocarbons and potentially hazardous substances requiring the prior written approval or appropriate permits from the Department of Water.

21. All hydrocarbon or other pollutant spillage being reported to the Department of Water. Remediation being carried out to the satisfaction of the Department of Water.

22. All Mining Act tenement activities are prohibited within a 300-metre radius of any observation well in a Public Drinking Water Source Priority P1, P2 & P3 Areas unless the written approval of the Department of Water is first obtained.

23. All Mining Act tenement activities are prohibited within a 500-metre radius in a P1 area or a 300-metre radius in a P2 or P3 area of any Public Drinking Water Source production well or dam, unless the written approval of the Department of Water is first obtained.

Conditions 1-6 of E47/1667, and the following:

7. No interference with Geodetic Survey Station SSM-HRE188, 188-1, 189, SSM-PYR30 and mining within 30 metres thereof to be confined to below a depth of 15 metres from the natural surface.

8. No interference with the use of Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.

9. The rights of ingress to and egress from Miscellaneous Licence 47/47, 47/88 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.

Conditions for consent to mine on Water Reserve 9:
10. Written notification, where practicable, of the time frame, type and extent of proposed ground disturbing activities being forwarded to the Water and Rivers Commission Karratha seven days prior to commencement of those activities.

11. 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 Water and Rivers Commission.

12. The rights of ingress to and egress from the Licence being at all reasonable times preserved to officers of Water and Rivers Commission for inspection and investigation purposes.

13. The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the Water and Rivers Commission’s Guidelines and Water Quality Protection Notes.

14. All proposed exploration activities within Public Drinking Water Source Areas complying with the Water and Rivers Commission’s Water Quality Protection Note Land Use Compatibility in Public Drinking Water Source Areas.
15. All Mining Act tenement activities within Public Drinking Water Source Areas being prohibited unless the prior written approval has been obtained from Water and Rivers Commission.

16. All Mining Act tenement activities are prohibited within 2 kilometres of the maximum storage level of a reservoir including the reservoir itself, unless the prior written approval of the Water and Rivers Commission is first obtained.

17. Storage and use of hydrocarbons and potentially hazardous substances requiring the prior written approval or appropriate permits from Water and Rivers Commission.

18. All hydrocarbon or other pollutant spillage being reported to the Water and Rivers Commission. Remediation being carried out to the satisfaction of Water and Rivers Commission.

19. All Mining Act tenement activities are prohibited within a 300-metre radius of any observation well in a Public Drinking Water Source Priority P1, P2 & P3 Areas unless the written approval of the Water and Rivers Commission is first obtained.

20. All Mining Act tenement activities are prohibited within a 500-metre radius in a P1 area or a 300-metre radius in a P2 or P3 area of any Public Drinking Water Source production well or dam, unless the written approval of the Water and Rivers Commission is first obtained.

21. No interference with the transmission line or the installations in connection therewith, and the rights of ingress to and egress from form the facility being at all tines preserved to the owners thereof.

Conditions 1-6 of E47/1667 (listed as conditions 1-4 and 6-7 for E45/1433) and the following:

5. The prior written consent of the Minister for State Development being obtained before commencing mining on Watering Place for Travellers and Stock Reserve CR 363.

8. No interference with the transmission line or the installations in connection therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.

Conditions for consent to mine on Water Reserve 9:

Conditions 10-20 of E47/1435 (listed as conditions 9-21 for E45/1433).

Conditions for consent to mine on Water Supply Reserve 38991:
20. A clearance work permit must be obtained from the Water Corporation (West Pilbara Office) a minimum of two days prior to any proposed entry onto Water Supply Reserve 38991.

21. No activities are to be carried out that will in any manner affect or compromise the physical integrity, access, operation, or maintenance of any of the Water Corporations infrastructure, assets or operations.

22. No exploration or mining activities are to be carried out within 10 metres of any part of the Water Corporation’s infrastructure, assets, or operations, without the written consent of the Water Corporation.

Conditions 1-6 of E47/1667, and the following:

7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Repeater Station Site Reserve 40743.

8. No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres form the natural surface.

9. No interference with Geodetic Survey Station W40, HRE 183 to 187, 183T, 185T and 186T and mining within 15 metres thereof to be confined to below a depth of 15 metres from the natural surface.

10. The rights of ingress to and egress from Miscellaneous Licence 47/47 and 47/85 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.

11. No mining on a strip of land 60 metres wide with the Mt Tom Price Railway Line as the centreline and no materials being deposited or machinery or buildings being erected on such strip if land.

12. Blasting operations being controlled so that do damage or injury can be caused by fly rock, concussion, vibration or other means.

13. No interference with the transmission line or the installations in connection therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.

Conditions 1-6 of E47/1667, and the following:

7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Water Supply Reserve 38991, Repeater Station Site Reserve 40091, National Park Reserve 30071, Watering Place for Travellers and Stock Reserve 363 and Maintenance of Aboriginal Lore and Culture Reserve 3305.

8. No activities being carried out within the proposed railway corridor (designated FNA 9589) that interfere with or restrict any rail route investigation activities being undertaken by the rail line proponent.

9. The rights of ingress to and egress from Miscellaneous Licences 47/47, 47/80, 47/81 and 47/87 being at all times preserve to the licensee and no interference with the purpose or installations connected to the licence.

10. No interference with Geodetic Survey Stations HRE 168 to 182, PYR 24 to 29, PYR 32 and 33, W19, W35, HRE 174T and HRT 181T and mining with 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

11. No interference with the transmission line or the installations in connection therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.

12. No mining on a strip of land 60 metres wide with the Mt Tom Price Railway Line as the centreline and no materials being deposited or machinery or buildings being erected on such strip if land.

13. Blasting operations being controlled so that do damage or injury can be caused by fly rock, concussion, vibration or other means.

ATTACHMENT FOUR: DRAFT ENDORSEMENTS TO BE IMPOSED ON PROPOSED LICENCES BY GOVERNMENT PARTY

E47/1667

E47/1666

E47/1435

E45/1433

E47/1404

E47/1383

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

2. 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.

3. 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.

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
4. The Licensee attention is drawn to the provisions of the:
Waterways Conservation Act, 1976
Rights in Water and Irrigation Act, 1914

Endorsements applying to E47/1667 also apply to E47/1666.

Endorsements applying to E47/1667 also apply to E47/1435.

Endorsements applying to E47/1667 also apply to E47/1433.

Endorsements applying to E47/1667 also apply to E47/1404 and the following:

4. The grant of this licence does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 metres from the natural surface of the land.

Endorsements applying to E47/1404 also apply to E47/1383.