Yinhawangka Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd
[2025] NNTTA 10
•2 May 2025
NATIONAL NATIVE TITLE TRIBUNAL
Yinhawangka Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2025] NNTTA 10 (2 May 2025)
Application No: | WO2022/0590; WO2022/1019 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Yinhawangka Aboriginal Corporation RNTBC (WCD2017/003)
(native title party)
- and -
FMG Pilbara Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 2 May 2025 |
Catchwords: | Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts are likely to interfere with the carrying on of community and social activities – whether acts are likely to interfere with areas or sites of particular significance – consideration of areas or sites including Barngunha (also spelled Bangarnu and Barngarnu) or German Rockhole, Karlkathara, Pirradee Well, Nyirrimpa (or Neerambah), Gathangurra and Nanjilgardy as areas or sites of particular significance outside of the licence areas – whether acts are likely to involve major disturbance to lands and waters – acts are acts attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) s 5 Mining Act 1978 (WA) s 57 Native Title Act 1993 (Cth) ss 31, 32, 109, 151, 237 |
Cases: | Dann v Western Australia and Another [1997] FCA 332; (1997) 74 FCR 391 (‘Dann 1997’) Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 (‘Yinhawangka Determination’) Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (‘Little v Oriole Resources’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Yinhawangka v Glenn Douglas Archer and Another [2017] NNTTA 54 (‘Yinhawangka v Archer’) |
| Representatives of the native title party: | Clare Duncanson and Alex Ihanimo, Yamatji Marlpa Aboriginal Corporation |
| Representatives of the grantee party: | Richard Anthonisz, Ashurst; Colin Johnston, Fortescue Metals Group Ltd |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office; Paola O’Neill, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This decision concerns the proposed grant of two exploration licences (E 47/4499 and E 47/4589) in the Pilbara region of Western Australia to FMG Pilbara Pty Ltd. The scope of this inquiry initially included a third tenement, which FMG has since withdrawn. In addition, as explained in more detail below, the area over which each of the licences may be granted is substantially constrained by the existence of current mining leases, which has a bearing on the likely consequences of each grant.
The State of Western Australia considers the grant of each licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth), which would mean each licence may be granted without first requiring the parties to negotiate in good faith in accordance with s 31(1)(b) of the Native Title Act.
Yinhawangka Aboriginal Corporation RNTBC holds non-exclusive native title in relation to the whole of the area of each licence in trust on behalf of the Yinhawangka People (see Yinhawangka Determination). Yinhawangka objects to the application of the expedited procedure on the basis that the grant of each licence is likely to interfere with areas or sites of particular significance to the Yinhawangka People, directly interfere with their community and social activities, and is likely to cause major disturbance.
In light of Yinhawangka’s objection, the Tribunal must determine whether or not the expedited procedure applies in each case: s 32(4) Native Title Act. I am satisfied that question can be adequately determined without a hearing (s 151(2) Native Title Act) and, for the reasons outlined below, I have determined that the grant of each licence is an act attracting the expedited procedure.
When does the expedited procedure apply?
Under the Native Title Act, the expedited procedure will only apply if the grant of the licence is not likely to:
(a)interfere directly with the carrying on of the native title holders’ community or social activities: s 237(a);
(b)interfere with areas or sites of particular significance to the native title holders, in accordance with their traditions: s 237(b); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters located in the licence area: s 237(c).
To determine whether the expedited procedure applies, I must undertake a predictive assessment by considering the likely consequences of the grant of each licence (in the sense of a real, not remote, chance). Each of the parties provided contentions and evidence in the inquiry, but I have disregarded those parts of the parties’ materials relevant only to the area of the withdrawn tenement.
Yinhawangka provided statements from several Yinhawangka people, namely, Mr David Cox, Mr Marlon Cooke, Mr Cecil Parker, Ms Gail Cox and Mr Nicholas Cooke. The statements of Ms Cox and Mr Nicholas Cooke were provided after the other materials and, at the time of lodgement, Mr Nicholas Cooke’s statement was not signed. Yinhawangka indicated it was arranging for the statement to be signed “as a matter of priority” but evidently that did not occur.
FMG took issue with the statements provided by Yinhawangka, noting that one is not signed and questioning the form of the statements, which it says goes to their probative value. Yinhawangka says that only the statement of Mr Nicholas Cooke is not signed due to his “remote location and other matters”, which are not further explained. It also points out that, in accordance with s 109(3) of the Native Title Act, the Tribunal is not bound by legal forms, technicalities or rules of evidence. The State has not weighed in on this issue.
The Tribunal regularly accepts evidence in a variety of forms and to various standards. Apart from the lack of any timely or detailed explanation regarding the circumstances concerning the execution of Mr Nicholas Cooke’s statement, there is no particular issue with the statements. Mr Nicholas Cooke’s statement is also broadly consistent with the evidence of the other witnesses. Accordingly, I have accepted each of the statements provided by Yinhawangka for the purposes of this inquiry.
Information about the licences and the areas of the licences
E 47/4499
E 47/4499 is located 35.4 kilometres westerly of Tom Price. According to the State’s Quick Appraisal document the licence area is approximately 631 hectares in size and is comprised of unallocated Crown land. However, as contended by FMG, and agreed by the State, any grant of the licence will exclude the area of existing mining lease ML 4SA granted to Hammersley Iron Pty Limited which covers 94.27% of the licence area: ss 57(2c) to (2ea) of the Mining Act 1978 (WA). The licence application also noted the area of ML 4SA as an exclusion.
FMG provided mapping, included as Annexure A, identifying the two relatively small triangular areas which remain once ML 4SA is excluded.
The searches of the Aboriginal Cultural Heritage Inquiry System provided by the State identify one Aboriginal site (ID 38254) registered under the Aboriginal Heritage Act 1972 (WA) in the licence area. This site is described as “Artefacts / Scatter; Modified Tree”. The searches also identify one historic place (ID 22064) described as “Artefacts / Scatter; Camp; Water Source” assessed as not meeting the requirements of s 5 of the Aboriginal Heritage Act. Both of these places appear to be located in the east of the licence and, based on the mapping provided by FMG, do not fall within the two triangular areas identified. Yinhawangka has not made any contentions in relation to either of these places relevant to the application of the expedited procedure.
E 47/4589
E 47/4589 is about 314 hectares in size and located 35.2 kilometres south easterly of Paraburdoo. The underlying tenure is a mix of unallocated Crown land and pastoral lease.
Unlike E 47/4499, FMG did not make any submissions about the area of E 47/4589 in its initial contentions. That is notwithstanding that the application for E 47/4589 also lists an exclusion, being the area of existing mining lease ML 252SA (held by Mount Bruce Mining Pty Limited).
Upon enquiry by the Tribunal to clarify the area in issue, FMG confirmed on 21 January 2025, that E 47/4589 overlaps ML 252SA by approximately 98.54%, meaning the lease area cannot be included in any grant of the licence. The maximum extent to which E 47/4589 may be granted, being a small triangular area in the north-west corner of the licence, is shown on the map provided by FMG included as Annexure B. The other parties did not provide any specific comments on this additional information.
According to the searches of the ACHIS provided by the State, there is no cultural heritage on the Register maintained under the Aboriginal Heritage Act in the area of E 47/4589 and no other information regarding lodged or historic cultural heritage in the licence area.
FMG’s proposed activities
The material accompanying each of the licence applications states that FMG intends to target iron deposits and/or base and precious metal mineralisation.
FMG also relies on the affidavit of Ms Amy Le Ray, then Principal, Native Title for Fortescue Metals Group Ltd. Based on information provided by FMG’s Superintendent of Geology, Ms Le Ray believes that FMG’s proposed early stage exploration work will involve:
(a)literature review and compilation of all open file data;
(b)review and interpretation of historic data; and
(c)reconnaissance trips to determine access and geological mapping accompanied by rock chip sampling.
Ms Le Ray also notes that any ground disturbing activities will only be considered if significant targets warranting further work are identified during the initial non-ground disturbing activities discussed above.
Is the grant of either licence likely to directly interfere with Yinhawangka People’s community or social activities?
In Smith v Western Australia at [26], the Federal Court of Australia explained that direct interference involves an evaluative judgment that the act, in this case the grant of each licence, “is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts are outside the scope of interference contemplated by the section.
E 47/4499
Mr Marlon Cooke, Mr Cox and Mr Parker each give evidence about community or social activities in relation to the area of E 47/4499.
Much of the evidence of Mr Cooke and Mr Cox centres on an area called Barngunha (also spelt Bangarnu and Barngarnu in parts of the evidence) or German Rockhole, a known camping area which is used for hunting and fishing. Mr Cooke also refers to hunting in the area south of German Rockhole “near the windmill which has water (Pirradee Well)”.
The map attached to Mr Cooke’s affidavit shows Barngunha about five kilometres south-westerly of E 47/4499. The Tribunal has previously found Barngunha to be an area or site of particular significance to Yinhawangka People: Yinhawangka v Archer at [35]. According to Native Title Vision, and consistent with the mapping provided in this case, the tenement area considered in Yinhawangka v Archer (Archer Area), which included Barngunha, was located south-westerly of E 47/4499. Pirradee Well is shown on the mapping in these matters a similar distance south-easterly of the licence near a burial site.
Mr Cooke also refers to a white ochre increase site nearby to Barngunha, where ceremonies take place. After identifying Barngunha as a known camping area, he says at paragraph 39 of his statement:
There is a white ochre place nearby and it’s a known increase site where ceremony take place. The paint keeps on coming out of the ground, from the soak. White ochre place is different to German Rockhole, but it is connected to this whole area. The two creeks that run close to the north eastern part of E47/4499 connect German Rockhole and the whole area beneath it including Mithigundi. The white ochre soaks and sites are found near those creeks.
(As per original)
Further, at paragraph 40 of his statement, Mr Cooke says within the licence area itself there are:
trees which are good for collecting wood to make throwing spears. I use the mulga wood from the tenement area near the German Rockhole to make spears. I also use boomerangs from snake wood found within the tenement area. I cut the wood and make the boomerangs out there in the bush.
This evidence is virtually identical to the evidence given by Mr Cooke in Yinhawangka v Archer (quoted in that decision at [14]–[15]) which raises questions about the locations mentioned in the context of the licence. While Barngunha was located within the Archer Area, it is about five kilometres south-westerly of the licence. Mithigundi is shown on the mapping as being further to the south-west again. Additionally, the identity and location of the creeks to which Mr Cooke refers in relation to the licence are not clear to me from the mapping.
Mr Cooke’s description of the white ochre place as being nearby but connected to Barngunha makes sense in the context of the Archer Area, but less so here. Regardless, I do not understand there to be any suggestion that the white ochre place mentioned is located within the licence area.
Similarly, Mr Cooke’s description of the place where mulga wood is found makes considerably more sense being in the licence area near Barngunha when considered in the context of the Archer Area, because Barngunha was located within that area. While I accept it is possible that mulga wood may be found in each location, it is difficult to have confidence in these locations as they relate to the licence because of the way they are described by Mr Cooke.
Most of Mr Cox’s evidence also focusses on Barngunha but he does mention the use of white ochre sites in the licence area for “men[’]s and ladies[’] corroborees and ceremonies”, as well as saying there is “also red ochre here”. This differs from Mr Cooke’s evidence regarding a white ochre site “nearby” Barngunha. Mr Cox does not give any additional detail in relation to the location of these sites and I am not sufficiently satisfied that they are located in the licence area.
Mr Parker also mentions the gravesite near Pirradee, as well as other gravesites “further towards Tom Price”, which I understand to be easterly of the licence. Following his reference to these gravesites, Mr Parker makes a number of general statements regarding camping, hunting in “the area” and fishing in the waterways around the licence. This evidence is very general in nature and insufficiently clear regarding the conduct of any community or social activities in the licence area and the extent of any such activities.
FMG does not accept that Yinhawangka People undertake community or social activities on or relevantly proximate to E 47/4499 due to the location of Barngunha and Pirradee Well outside of the licence area. The State agrees.
The evidence regarding activities undertaken in the licence area is extremely limited and very general in nature. Moreover, most of the evidence is directed to the area around Barngunha which is some distance to the south-west of the licence, and there is uncertainty regarding the other locations mentioned in the context of the licence. Overall, the evidence is insufficient for me to make any findings in relation to the conduct of community or social activities in the licence area.
E 47/4589
The area shown on the map at Annexure B over which the licence may be granted is less than 2% of the licence area. As with E 47/4499, none of the evidence specifically focusses on that area, although FMG only clarified the land available for exploration and provided the mapping after Yinhawangka’s evidence was submitted.
Yinhawangka’s contentions regarding community or social activities in the area of E 47/4589 rely on the evidence of Mr Nicholas Cooke and Ms Cox and focusses on two areas outside of the licence area.
Mr Cooke identifies a lawground called Karlkathara which, based on the mapping provided, appears to be located about 20 kilometres north easterly of the licence. Mr Cooke refers to various activities undertaken with his family in the area south-west of Karlkathara, where the licence is. Most of these references are to activities undertaken when Mr Cooke was a child, although he does mention taking his son to the area to get bush tucker. None of this evidence is sufficient for me to find that community or social activities are undertaken in the licence area.
Ms Cox speaks of the special significance of a permanent water hole called Nyirrimpa which, based on the map attached to her statement, appears to be over 15 kilometres easterly of the licence. Yinhawangka says that Nyirrimpa is also called Neerambah, which is one of the three connected springs mentioned by Mr Cox (discussed further below at [44]).
Ms Cox says Nyirrimpa is an area where hunting, fishing and camping activities used to occur, but which is now subject to mining tenements. Ms Cox expresses her anger at the impacts of mining and her concerns regarding the possible grant of additional tenements. She also mentions Turee Creek which flows through to Nyirrimpa. However, as shown on Annexure B, Turee Creek appears to be outside the licence and some distance from the area available for exploration. Yinhawangka also contends that the grant of the licence will further limit opportunities for these types of activities at the three springs but there is no evidence to support that contention.
While I appreciate the concerns and sentiment expressed by Ms Cox, the impacts of existing tenements are not within the scope of this inquiry. More specifically though, I am unable to make any findings regarding community or social activities undertaken in the licence area because the evidence provided does not relate to that area.
Is the grant of either licence likely to interfere with areas or sites of particular significance to Yinhawangka People, in accordance with their traditions?
E 47/4499
Yinhawangka identifies Barngunha, which it says is “close to” the licence area, as an area or site of particular significance, referring again to the evidence of activities undertaken in that area. I note that in Yinhawangka v Archer (at [35]), the Tribunal found Barngunha to be a site or area of particular significance on the basis of “a substantial amount of further evidence relating to Barngunha’s mythological, spiritual and cultural importance” but did not disclose the nature of that evidence due to its sensitivity, save to say that it is associated with “dreaming and the black goanna”. I do not have the benefit of that evidence and the evidence in this matter does not detail the mythological, spiritual and cultural significance of this area. Rather, the material refers to Barngunha’s historical significance (due to an association with German people who had a good relationship with Yinhawangka People) and use for community and social activities.
Further, while Yinhawangka expresses concern about impacts on Barngunha, there is nothing on the facts of this matter to suggest the grant of the licence poses any risk to Barngunha, given its distance from the licence.
The other sites raised by Yinhawangka in relation to s 237(b) are the ochre sites discussed above, as well as the gravesites (near Pirradee) and two pools of water (where the serpent spirit lives) mentioned by Mr Parker. Pirradee and the nearby burial site are shown on the mapping outside the licence area. There is a lack of clarity regarding the location of the two pools of water both in relation to the licence area and particularly the areas shown on the map at Annexure A. I am unable to make any finding that they are located within the licence area.
Yinhawangka makes a number of general contentions about the likelihood of interference arising from the grant of this licence. None of those contentions specifically relate to the sites identified and are largely speculative. Yinhawangka speaks generally of a need to “protect the area” and concerns regarding amenity.
I have not made any findings in relation to areas or sites of particular significance in the licence area. There is also no basis on which to conclude the grant of the licence is likely to interfere with areas or sites beyond its boundary. Accordingly, I need not further consider the question of likely interference from the grant of the licence.
E 47/4589
Yinhawangka relies on the evidence of Mr Cox in relation to areas or sites of particular significance for this licence. In particular, Mr Cox gives evidence in relation to three connected springs (Neerambah, Gathangurra and Nanjilgardy) and Karlkathara and mentions songs and stories associated with these places. Yinhawangka makes a number of speculative assertions about the risk of impact on these springs and the river system.
However, as explained, none of these areas or sites are located within the licence area. The evidence regarding these sites is also insufficient for me to make any findings regarding their particular significance in accordance with Yinhawangka traditions.
Accordingly, there is no basis on which to consider the question of interference for s 237(b).
Is the grant of either licence likely to cause major disturbance?
In the context of s 237(c), major disturbance is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people (see Littlev Oriole Resources at [52]–[54]). I can also have regard to the context of the relevant grant, including the history of mining and the characteristics of the land and waters to determine whether major disturbance is likely.
In Dann 1997 at page 395 the word “major” is described as an adjective of degree in respect of which the Tribunal must make a value judgement.
FMG’s proposed activities are outlined at [18]–[19] above, although that description does not necessarily encompass all activities which may be undertaken during the life of either licence. Each licence will be subject to a number of conditions and endorsements provided by the State, as well as regulatory controls, such as those under the Mining Act and Aboriginal Heritage Act. FMG’s approach to heritage management, which is explained in Ms Le Ray’s affidavit, is also relevant.
Yinhawangka argues the grant of each licence is likely to result in major disturbance to native vegetation and archaeological surface and sub-surface material not yet identified, as well as waterways which it says “criss-cross” the licences. It also asserts likely dewatering of waterholes and springs, changes to land contours, damage to natural habitats, increased risk to native fauna, visual damage and impacts to ambience.
FMG disputes the likelihood of these impacts, noting the range of regulatory controls as mentioned above and its processes and measures designed to avoid interference with Aboriginal sites as outlined by Ms Le Ray. In addition, Ms Le Ray’s evidence is that she is informed by FMG’s Senior Manager for Water Planning and believes that FMG has never undertaken dewatering on an exploration licence and does not intend to do so on these licences.
The sweeping concerns raised by Yinhawangka in relation to the likely risk of major disturbance are largely speculative impacts. There is nothing on the evidence in these matters to suggest any such impacts are likely. I have taken account of the regulatory regime to which each licence will be subject and Ms Le Ray’s evidence of the manner in which FMG proposes to conduct its activities. I have also taken account of the relatively small areas available for grant, with the majority of each licence area already subject to the grant of mining leases.
In my view, there is no basis on which to conclude that the grant of either licence is likely to cause major disturbance within the scope of s 237(c).
Determination
I determine that the grant of each of E 47/4499 and E 47/4589 is an act attracting the expedited procedure.
Ms Nerida Cooley
Member
2 May 2025
ANNEXURE A
ANNEXURE B
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