NATIONAL NATIVE TITLE TRIBUNAL

FMG Pilbara Pty Ltd v Yindjibarndi Ngurra Aboriginal Corporation RNTBC and Another

[2018] NNTTA 64 (25 October 2018)

Application No: WF2017/0018

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination

FMG Pilbara Pty Ltd

(grantee party)

- and -

Yindjibarndi Ngurra Aboriginal Corporation RNTBC (WCD2017/010)

(native title party)

- and -

State of Western Australia

(Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO

CONDITIONS

Tribunal: Mr JR McNamara, Member

Place: Brisbane

Date: 25 October 2018

Catchwords: Native title – future act –– future act determination application ––

request for stay of proceedings – stay application dismissed – no

agreement with native title party – application for determination for the

grant of mining lease – trust condition considered – s 39 criteria

considered – effect of act on native title rights and interests – effect of

act on way of life, culture and traditions – effect of the act on freedom

of access – effect of act on sites or areas of particular significance –

2

interests, proposals, opinions or wishes of native title party – economic

or other significance of act – public interest in doing of act –

determination that the act may be done subject to conditions

Legislation: Native Title Act 1993 (Cth), ss 29, 38, 39, 41, 47B

Mining Act 1978 (WA), ss 82, 85

Aboriginal Heritage Act 1972 (WA), ss 18(2), 17

Cases: Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA

56 (‘Little v Lake Moore Gypsum’)

Cheinmora v Striker Resources NL; Dann v Western Australia

(1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker

Resources’)

Drake Coal Pty Ltd v Smallwood (2012) 257 FLR 276; [2012]

NNTTA 31 (‘Drake Coal v Smallwood’)

FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the

Yinjdibarndi People/Western Australia [2009] NNTTA 91 (‘FMG

Pilbara v Cheedy’)

FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the

Yinjdibarndi People/Western Australia [2011] NNTTA 107 (‘FMG

Pilbara v Cheedy 2011’)

FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the

Yinjdibarndi People/Western Australia [2012] NNTTA 142 (‘FMG

Pilbara v Yindjibarndi’)

FMG Pilbara/Yindjibarndi #1/Western Australia [2014] NNTTA 79

(‘FMG Pilbara v Yindjibarndi #1’)

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 (‘Forrest v

Wilson’)

Griffiths v Northern Territory of Australia [2014] FCA 256

(‘Griffiths v Northern Territory’)

Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 (‘Hogan v

Hinch’)

Osland v Secretary, Department of Justice (2008) 234 CLR 275;

[2008] HCA 37 (‘Osland v Secretary, Department of Justice’)

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

Koara People’)

TJ v State of Western Australia [2015] FCA 818 (‘TJ v Western

Australia’)

Warrie on behalf of the Yindjibarndi People v Western Australia

3

[2017] FCA 803 (‘Warrie v Western Australia’)

Warrie on behalf of the Yindjibarndi People v Western Australia

(No 2) [2017] FCA 1299 (‘Warrie v Western Australia No 2’)

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

30 (‘Western Australia v Thomas’)

Western Desert Lands Aboriginal Corporation v Western Australia

(2009) 232 FLR 169; [2009] NNTTA 49 (‘Western Desert Lands v

Western Australia’)

Representative of the

native title party:

Mr George Irving, Yindjibarndi Aboriginal Corporation RNTBC

Representative of the

grantee party:

Mr Ken Green, Green Legal

Representatives of the

Government party:

Mr Domhnall McCloskey, State Solicitor’s Office

Mr Dennis Jacobs, Department of Mines, Industry Regulation and

Safety

4

REASONS FOR DETERMINATION

Background

[1] This decision concerns an application made to the National Native Title Tribunal by

FMG Pilbara Pty Ltd (‘FMG Pilbara’) on 25 August 2017 seeking a determination

under s 38 of the Native Title Act 1993 (Cth) (‘the Act’) that mining lease M47/1513-I

(‘the lease’) may be granted by the State of Western Australia (‘the State’). I was

appointed by President Raelene Webb QC to constitute the Tribunal for the purposes

of conducting an inquiry into the application.

[2] The mining lease comprises 10.32 square kilometres located within the Ashburton

Shire, 60 kilometres north of Tom Price in the State of Western Australia. The lease

arises from two existing exploration licences currently held by FMG Pilbara, which

were granted in 2011, and is also subject to multiple existing or pending tenements.

The whole of the area is covered by a miscellaneous licence ‘L47/367’. If granted, the

lease will be one of the mining leases comprising FMG Pilbara’s ‘Solomon Project’.

Yindjibarndi Ngurra Aboriginal Corporation RNTBC (‘Yindjibarndi’) hold native title

rights and interests in the whole of the lease area on trust for the common law holders

identified in Warrie v Western Australia, and as such, have certain procedural rights in

relation to the lease, including the right to negotiate.

[3] Where parties are not able to reach agreement about an act which attracts the right to

negotiate, and at least six months have passed since the act was notified, any party

may apply for the Tribunal to make a determination. The Tribunal has the power to

determine whether or not the grant can be made, and if so, whether the grant can only

be made subject to conditions to be complied with by one or more of the parties. The

Tribunal cannot make a determination if one of the parties satisfies the Tribunal that

the grantee or the Government party have not negotiated in good faith.

[4] For ease of reference the following documents are annexed to these reasons:

Annexure A – Directions 4 October 2017;

Annexure B – Directions 26 October 2017;

Annexure C – Copy, letter NNTT to parties 2 March 2018;

5

Annexure D – Directions 9 August 2018; and

Annexure E – Amended directions 31 August 2018.

Validity issue and the good faith challenge

[5] On 26 September 2017, the State wrote to the Tribunal and other parties saying they

had issued a letter to FMG Pilbara advising them that the High Court’s decision in

Forrest v Wilson ‘appears to affect the validity of the application, in particular that the

application is not valid and that the Department intends to amend the mining register

to reflect the application is null and void effective 17 October 2017.’

[6] The Tribunal held a preliminary conference with parties on 4 October 2017.

Yindjibarndi emailed the Tribunal and other parties prior to this conference

contending there is a real question as to the Tribunal’s jurisdiction to make a

determination regarding WF2017/0018, and this should be dealt with prior to the

setting of directions for the hearing of FMG Pilbara’s application. At the preliminary

conference, FMG Pilbara contended the State may have erroneously formed their view

regarding the invalidity of the application, and proposed to provide additional relevant

material to the State prior to 17 October 2017. I made directions (at Annexure A) and

adjourned the preliminary conference to 25 October 2017.

[7] On 20 October 2017, the State emailed the Tribunal and other parties advising they

were now of the view that FMG Pilbara’s application for the lease was valid. On 25

October 2017, Yindjibarndi advised the Tribunal of their intention to challenge the

good faith of the State and FMG Pilbara. The adjourned preliminary conference was

held on 26 October 2017, where I made directions (see Annexure B) requiring all

parties to produce contentions and evidence for the conduct of the inquiry including

submissions on good faith.

[8] Yindjibarndi did not provide good faith submissions on or before 8 November 2017 as

required under Direction 1. On 9 November 2017, they wrote to the Tribunal and other

parties contending they were in receipt of documentation that supports a contention

that the application for the lease was, as a matter of law, null and void. Consequently,

Yindjibarndi asserted the s 29 notice in relation to the lease (‘s 29 Notice’) was invalid

and so the Tribunal did not have jurisdiction to hear and determine this application.

6

[9] Yindjibarndi lodged submissions in relation to good faith on 13 November 2017 and

amended submissions the following day. There were two grounds for its claim, only

one of which is presently relevant. That ground relied on the Tribunal’s assessment of

the validity of the application for the lease. The Tribunal reiterated to the parties by

email on 14 November 2017, stating:

In regards to the issue of jurisdiction, it is not the role of the Tribunal to determine the

validity of the tenement. As the State have advised that the tenement is valid, the Tribunal

has jurisdiction to make a determination regarding the FADA.1

[10] In accordance with Direction 2 (see Annexure B), FMG Pilbara and the State lodged

their contentions and evidence in relation to good faith negotiations on 22 November

2017.

[11] By letter dated 30 November 2017, Yindjibarndi advised the Tribunal and parties that

it accepts the Tribunal does not have jurisdiction to determine the validity of the lease

application. As this was the foundation of the good faith challenge, and having

considered the evidence and contentions of the other parties, Yindjibarndi conceded

there was insufficient evidence to support the allegation that the State and FMG

Pilbara did not negotiate in good faith. I subsequently vacated the remaining directions

for the good faith hearing.

The Stay Application

[12] In compliance with Direction 7, the State and FMG Pilbara submitted contentions and

evidence in relation to the s 39 criteria on 8 January 2018.

[13] Yindjibarndi was required to file its contentions and evidence in relation to the factors

described in s 39 on or before 29 January 2018, in accordance with Direction 8.

However, on 29 January 2018, Yindjibarndi advised the Tribunal and other parties that

it had instructions to file an application for judicial review in the Supreme Court of

Western Australia, seeking to “impeach the validity of the Mining Lease Application

made by the Grantee Party for the grant of M47/1513” (‘Judicial Review

Application’). On 30 January 2018, Yindjibarndi filed the Judicial Review

1 At the Oral Hearing, FMG Pilbara and the State raised concerns about what was asserted by the Tribunal in this

email, to which I acknowledge that the wording did not properly reflect what the Tribunal was intending to relay

to the parties at that time. I advised the parties at the Oral Hearing that the second sentence ought to have said

“[a]s the State have advised that the tenement application is valid, the Tribunal has the power to make a

determination regarding the FADA

7

Application, a copy of which was attached to a document titled “Native Title Party’s

Outline of Submissions” (‘Outline of Submissions’) which was lodged with the

Tribunal the same day. Yindjibarndi contended that if the application for the lease is

found invalid, then the Tribunal can have no jurisdiction to entertain a future act

determination application, nor have power to make a s 38 determination under the Act.

Paragraph [1] of this document states:

1. The Native Title Party, seeks a stay of the Grantee Party’s future act determination application

under s 35 of the Native Title Act 1993 (‘Act’), (‘FADA’), (‘Stay Application’), pending

resolution of the Native Title Party’s application for judicial review commenced in the

Supreme Court of Western Australia (CIV 1124 of 2018) on 30 January 2018 (‘Judicial

Review Application’). [emphasis per original]

[14] On 12 February 2018, pursuant to Direction 9, the State submitted the “Government

Party Reply to Native Title Party’s Outline of Submissions” (‘the State’s Submissions

in Reply’). It asserted if the Tribunal does not grant the stay application,

WF2017/0018 should proceed to determination. The State say because Yindjibarndi

did not provide contentions or supporting documents addressing the s 39 criteria, the

Tribunal should determine the act may be done.

[15] On 12 February 2018, FMG Pilbara submitted both a statement in reply in accordance

with Direction 9 and a separate response to Yindjibarndi’s Outline of Submissions in a

document called “Grantee Party’s Reply to Application by NTP to Stay Future Act

Determination Application” (‘FMG Pilbara’s Submission in Reply’). FMG Pilbara

states Yindjibarndi has not filed contentions or evidence addressing the s 39 criteria

and has been provided adequate opportunity to meaningfully participate in the inquiry

process. As such, it contends the Tribunal should proceed to determine the act may be

done.

[16] On 15 February 2018, Yindjibarndi submitted a document called the “Native Title

Party’s Submissions in Reply to the Government and Grantee Party’s Submissions”

(‘Submission in Reply’).

[17] The Tribunal considered Yindjibarndi’s Outline of Submissions and the subsequent

material lodged in relation to that document and reviewed authorities where

applications for the stay or adjournment of proceedings had been made to the Tribunal

under the right to negotiate regime. Based on those considerations, I accepted

8

Yindjibarndi’s Outline of Submissions as a request to stay the proceedings, hereafter

referred to as the ‘Stay Application’.

[18] On 2 March 2018, the Tribunal wrote to parties seeking submissions in relation to the

question of whether a stay is justified. See a copy of that letter at Annexure C.

[19] On 15 March 2018, Yindjibarndi provided submissions in response to the Tribunal’s

letter of in a document titled “Native Title Party’s Outline of Submissions filed in

response to the Direction of the Tribunal of 2 March 2018” (‘Further Outline of

Submissions’). The State and FMG Pilbara lodged their submissions on 16 March

2018 in documents respectively called “Government Party’s Submissions in relation to

Stay Application” and “Grantee Party’s Further Reply to Application by NTP to Stay

Future Act Determination Application” (respectively, ‘Stay Application

Submissions’). Oral submissions were given before me on 21 March 2018 (‘Oral

Submissions’).

[20] On 30 July 2018, the Supreme Court of Western Australia dismissed the Judicial

Review Application brought by Yindjibarndi. At the listing hearing on 9 August

2018, I formally dismissed the stay application.

The Substantive Inquiry

[21] As noted at [13], Yindjibarndi did not provide contentions and evidence concerning

the matters described in s 39 in accordance with Direction 8. The State and FMG

Pilbara contended the Tribunal should proceed to determine the matter.

[22] The dismissal of the Judicial Review Application and the Stay Application means

there is no obstacle to the determination of the application. Having heard from the

parties regarding the future conduct of the matter, I made directions on 9 August 2018

(Annexure D), subsequently amended on 21 August 2018 (Annexure E), requiring

Yindjibarndi to produce contentions and evidence for the conduct of the inquiry, and

for the State and FMG Pilbara to provide submissions in reply.

[23] The parties provided material in accordance with the amended directions, including an

agreed statement of issues and facts. The agreed statement at [13] said: ‘This FADA

(future act determination application) should be determined on the papers’. On 21

9

September 2018, I confirmed with parties that, having considered the material before

me, I was satisfied it was appropriate to determine the matter ‘on the papers’.

[24] I will now consider the matters set out in s 39 of the Act. The Act directs me to have

regard to a range of criteria, including the effect of the lease on the rights and interests

of native title holders, its economic or other significance, and the public interest in the

grant of the lease.

[25] Parties submitted an agreed statement of issues and facts. In this statement, FMG

Pilbara and the State advised they seek a determination that the act may be done.

Yindjibarndi stated it sought a determination that the act may be done subject to the

following two conditions:

Any heritage report relied upon by FMG Pilbara for the purposes of the

Aboriginal Heritage Act 1972 (WA) (‘the AHA’), or any similar Act, must be

approved by the registered native title party; and

A condition for an amount to be paid into trust on account of a future

determination of compensation.

[26] For the reasons below, I have decided the grant of the lease may be done subject to

conditions set out at [94]

Management of cultural heritage

[27] Yindjibarndi submitted evidence that, by letter dated 9 November 2016, FMG Pilbara

advised the native title party that the whole of the area affected by the lease had

already been the subject of ethnographic and archaeological surveys to determine

whether any Aboriginal sites, as defined by the AHA, might be on the land. A notice

under s 18(2) of the AHA had been given to the Aboriginal Cultural Material

Committee (‘the ACMC’) seeking Ministerial consent to use certain areas of the land

for purposes which without consent, would likely result in a breach of s 17 of the

AHA. A copy of the notice was provided to Yindjibarndi, along with copies of eight

heritage reports. A further archaeological report was provided to Yindjibarndi under

cover of a letter from FMG Pilbara dated 31 March 2017.

10

[28] The notice identified twelve potential Aboriginal sites in the land. In the letter dated

31 March 2017, FMG Pilbara advised the Minister had given conditional consent to

use the land subject of the notice for the purposes specified in that notice. The letter

stated ministerial consent had been given to impact four Aboriginal sites, subject to

conditions. I will deal with this further in my consideration of s 39(1)(a)(v).

[29] Yindjibarndi say they are dissatisfied with the process relied upon by FMG Pilbara to

obtain the heritage information in the notice. The notice states ‘All Aboriginal

Heritage Sites have been assessed by Independent Heritage Professionals and

Yinjibarndi Traditional Owners’. The notice further states:

Since 2010, Yindjibarndi People represented by both the Yindjibarndi Aboriginal Corporation

(“YAC”) and the Wirlu-murra Yindjibarndi Aboriginal Corporation (“WMYAC”) have

regularly been invited to participate in surveys on the Land; however the YAC has consistently

declined to nominate Traditional Owner participants…

Yindjibarndi People represented by the WMYAC confirmed their involvement in the proposed

heritage assessments and provided comment reflected in report extracts provided with the

Notice.

[30] Yindjibarndi concede that since 2010, YAC has refused to participate in heritage

surveys organised and conducted by WMYAC. They state that unlike YAC, which

was lawfully appointed agent of the registered native title claimant prior to the Warrie

v Western Australia determination, WMYAC was never authorised by all members of

the Yindjibarndi #1 claim group to deal with the native title claim and all related

matters. Yindjibarndi say their (YAC’s) refusal to participate in the heritage surveys

results from the ‘Heritage report review procedure’ as outlined in the Terra Rosa 2016

Archaeological Report (submitted as ‘NTP-023’):

Outcomes of the heritage research are reviewed by WMYAC on behalf of the Yindjibarndi

Traditional Owners, prior to dissemination of results to the Proponent. This includes brief,

preliminary information provided immediately following field work, as well as the full and

final heritage report that details the desktop and field work results. The review process ensures

that culturally sensitive information is appropriately indicated, the recommendations discussed

amongst the heritage team are assessed by a wider representative group and any amendments

are made in accordance with the Yindjibarndi Traditional Owners’ suggestions. The review

process allows for WMYAC, on behalf of the Yindjibarndi Traditional Owners, to provide

Terra Rosa with feedback on the report, which is subsequently taken into account during the

final editing of the report. Terra Rosa responds to feedback based on professional standards,

and reports impartially as an independent party on the research results of heritage assessment.

[31] Yindjibarndi contends, following WMYAC’s review processes, the legal

representative of WMYAC is instructed to write ‘letters of non-objection’ to support

any notice by FMG Pilbara under s 18 of the AHA. Yindjibarndi assert FMG Pilbara

11

has, to date, given in excess of 21 notices under s 18 of the AHA, and each notice has

been supported by a letter of non-objection from WMYAC. As stated above (at [30]),

Yindjibarndi assert WMYAC do not effectively represent the interests of the

Yindjibarndi people, and question the conduct of WMYAC and FMG Pilbara.

[32] Yindjibarndi state a claim group authorisation meeting was arranged by WMYAC in

early 2015, and an application to replace the Yindjibarndi #1 applicant was

subsequently filed and heard by the Federal Court (see TJ v Western Australia). The

application was dismissed by the Federal Court on 21 July 2015.

[33] In FMG Pilbara v Yindjibarndi #1, the native title party raised the issue that, in their

view, WMYAC does not hold the ‘requisite traditional and customary knowledge…’

to undertake heritage work in relation to the native title party claim area. In that

matter, Member Shurven noted that, under the AHA, there is no legislative

requirement as to who participates in cultural heritage surveys or who is a party to

enter into heritage agreements. At [46] Member Shurven stated:

The conduct of heritage survey’s and the entering into heritage agreements has evolved as part

of corporate due diligence in ensuring compliance with the provisions of the AHA, assisting in

the application for consent under s 18 of that Act, and as part of the building of relationships

with the relevant traditional owners, rather than being a product of statute.

I have had regard to Member Shurven’s findings in that matter and I consider it

appropriate to adopt them.

[34] I acknowledge and understand the reasons for the ‘passive resistance’ stance taken by

YAC in relation to heritage surveys organised and conducted by WMYAC. That

stance, however, has seemingly not been effective in influencing either FMG Pilbara

or the State, or WMYAC for that matter, to change their approach to heritage surveys

and s18 applications. With the primary concern being the recognition and protection of

cultural heritage, it might be time to reconsider that approach. I discuss further the

likely effect of the lease on any areas or sites on the land and waters concerned that are

of particular significance to Yindjibarndi in my consideration of s39(1)(a)(v) below,

and in relation to the condition proposed by Yindjibarndi concerning heritage reports

in my consideration of s39(1)(f) below.

12

Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)

[35] Section 39(1)(a)(i) directs me to consider the effect of the act on Yindjibarndi’s

enjoyment of their registered native title rights and interests. This requires an

evaluation of whether the grant of the lease will constrain or otherwise affect the

exercise of Yindjibarndi’s registered rights and interests. This is a matter of fact to be

determined on the evidence in each case (Western Australia v Thomas at [167]).

[36] Yindjibarndi states that to understand the true effect of the lease on its registered rights

and interests, it is necessary to consider the methodology proposed for the mining

operation. It contends FMG Pilbara’s mining statement and mineralisation report make

it clear that the methodology to be used includes removing the “overburden” to extract

the ore beneath which ‘effectively strips the country of its features and character’

(NTP contentions at [6]). Yindjibarndi asserts this will destroy the cultural heritage of

the country and disrupt the fundamentally spiritual relationship. I have addressed this

further under s 39(1)(f).

What are Yindjibarndi’s registered rights and interests?

[37] The following rights and interests are recorded on the National Native Title Register

for the Yindjibarndi determination:

(a) a right to access (including to enter, to travel over and remain);

(b) a right to engage in ritual and ceremony (including to carry out and

participate in initiation practices);

(c) a right to camp and to build shelters (including boughsheds, mias and

humpies) and to live temporarily thereon as part of camping or for the

purpose of building a shelter;

(d) a right to fish from the waters;

(e) a right to collect and forage for bush medicine;

(f) a right to hunt and forage for and take fauna;

(g) a right to forage for and take flora;

(h) a right to take and use resources;

13

(i) a right to take water for drinking and domestic use;

(j) a right to cook on the land including light a fire for this purpose; and

(k) a right to protect and care for sites and objects of significance in the

Determination Area (including a right to impart traditional knowledge

concerning the area, while on the area, and otherwise, to succeeding

generations and others).

[38] In addition to the rights and interests listed above, Yindjibarndi holds exclusive native

title rights over 36.2% of the lease. This confers the right of possession, occupation,

use and enjoyment of that area to the exclusion of all others.

How are the registered rights and interests currently enjoyed in the area?

[39] To demonstrate that the Yindjibarndi people have continuously exercised their rights

over the lease area, Yindjibarndi rely on the testimony given by witnesses in the

course of the native title hearing, held on country in September 2015, and the findings

made in Warrie v Western Australia. Mr Michael Woodley (one of the named

applicants in the claim proceedings) says in his 7 September 2015 witness statement

‘Yindjibarndi have always enjoyed our traditional rights in the Mount Florance

Pastoral Lease area’ (at [69]). He states Yindjibarndi go there to camp, hunt and fish,

collect bush tucker and bush medicines and perform religious ceremonies after making

arrangements so these activities do not clash with pastoral activities: ‘We do this every

year sometimes just camping, and other times to collect resources on our way out to

law ceremonies at Jigalong’. In contentions at [3] Yindjibarndi says that of the 700.07

hectares of the lease, 36.2% is vacant Crown land and the remaining 63.8% (or 446.36

hectares) forms part of the Mount Florance Pastoral Lease. The Mount Florance

Pastoral Lease covers a total area of 10,531,700 hectares. Accordingly, the tenement

application area represents approximately 0.0042% of the Mount Florance Pastoral

Lease. The determined native title rights and interests are exclusive in respect of the

vacant Crown land area, and non-exclusive in the area overlapped by the Mount

Florance Pastoral Lease.

[40] The registered native title rights and interests in the ‘non-exclusive area’ of the

determination area which includes the Mount Florance Pastoral Lease as described at

[37] above are to access, to engage in ritual and ceremony, to camp and build shelters

14

and to live temporarily, to fish, to collect and forage for bush medicine, to hunt and

take fauna and flora, to take and use resources, to take water for drinking and domestic

use, to cook on and light a fire for that purpose, and to protect and care for sites and

objects of significance. There is no evidence to describe specifically which of the

rights and interests are carried out on the 446.68 hectares of the lease covered by the

Mount Florance Pastoral Lease. However, based on Mr Woodley’s affidavit it is

possible that some are exercised in the tenement application area, including the

performance of the wutheroo (introduction) ritual. Mr Woodley says at [62] there are

countless water places in (our) country: rivers, wundu (creeks), jinbi (springs), and

yinda (permanent pools):

and whenever people approach one of these places, the ngurrara for the area are required to

perform the wutheroo (introduction) ritual…. The requirement under our law to perform the

wutheroo ritual applies to all Yindjibarndi people and also to manjangu (strangers), although

manjangu must be introduced by a Yindjibarndi person. In this ritual (also described in the

same terms by Kevin Guiness in his 2015 affidavit at [32]) we first talk to the country, in its

language, then we pick up a handful of water, from the pool, river or creek, take a sip and spray

it back into the water …. This keeps us all safe.

While the description of the ritual suggests that water must be present for it to be

performed, at [42] Mr Woodley talks about a particular wundu (seemingly not in the

tenement application area) which had ‘dried up and stayed dry for over 30 years until

my grandfather, Woodley King, went back in 1980 and started the Ngurrawaana

Community. Even then, it took 4 years before the water started running again and after

that it returned to being a permanent river’. This suggests that although temporarily

dry, the place remains a wundu. In contentions at [22], the Yindjibarndi contends

there is a wundu ‘that runs through the middle of the land the subject of the proposed

future act’, Tharndibirndinh Wurndu, a site that ‘is used as required for the wutheroo

ceremony’. Annexed to the Yindjibarndi contentions is NTP-021 which identifies

Tharndibirndi Wurndu as location 141 on the map NTP-020. Neither FMG nor the

government party dispute that Tharndibirndinh Wurndu is within the lease area.

What is the likely effect of the grant on Yindjibarndi’s enjoyment of their rights and interests?

[41] Yindjibarndi state it was advised by letter from FMG Pilbara on 31 March 2017 that

the whole area of the lease is already covered by miscellaneous licence ‘L47/367’,

which was granted to FMG Pilbara for various purposes. FMG Pilbara state in its letter

‘Accordingly, the grant of M47/1513 may need to be assessed in terms of incremental

15

impact on registered (or determined) native title rights and interests.’ Yindjibarndi

assert FMG Pilbara has not provided evidence to indicate whether, and if so, to what

extent land and waters covered by L47/367 have been used for such purposes. FMG

Pilbara contend it can be inferred Yindjibarndi does not enjoy registered native title

rights and interests over the lease if they do not know the extent L47/367 has, or has

not, been used for any purpose. Further, they say Yindjibarndi has not provided any

evidence as to how the native title party’s registered native title rights and interests are

enjoyed over the lease.

[42] According to the State’s tenement register, L47/367 was granted to FMG Pilbara in

2010 for a term of 21 years. The term of a mining lease is 21 years and may be

renewed for further terms. It is possible to infer L47/367 affects the right to control

access to the area. However, I do not give weight to FMG Pilbara’s contention that

Yindjibarndi must not exercise their rights in the area given they ‘do not know’ the

extent the licence has been used. FMG Pilbara state that, following the grant of the

lease, it is entitled to exercise the full suite of rights open to it as set out in s 85 of the

Mining Act. FMG Pilbara has indicated in its mining statement that mining will be

carried out using the open pit methods currently employed at its Firetail south mining

areas. It states the ore body will be mined by conventional truck and excavator

methods as used throughout the Pilbara.

[43] In my view the evidence suggests the wutheroo ritual is of great importance to

Yindjibarndi, and, if and when it is necessary to perform the wutheroo ritual to

introduce and keep safe Yindjibarndi people, Yindjibarndi people would necessarily

be present and able to conduct the ritual. Insofar as the ritual is necessary for the

protection of manjangu (strangers) and must be performed by Yindjibarndi, the

evidence is not sufficiently certain that the ritual would be performed while no

permanent water is present. The evidence of Kevin Guiness regarding the ritual’s

application to places of permanent water would seem to support this conclusion as

does the passage of Rares J in Warrie v Western Australia quoted at [52] below.

There is no other evidence specific to the lease area concerning Yindjibarndi’s

enjoyment of its registered native title rights and interests, subject to my comments

regarding activities that may be undertaken in the non-exclusive area. In the

circumstances I find that the effect on the enjoyment by the Yindjibarndi of their

16

registered native title rights and interests on its own does not give rise to a decision

that the act must not be done.

Effect on way of life, culture and traditions - s 39(1)(a)(ii)

[44] Section 39(1)(a)(ii) requires me to have regard to whether the lease will have a

tangible effect on Yindjibarndi’s contemporary way of life, culture and traditions (see

FMG Pilbara v Cheedy at [62]).

[45] FMG Pilbara asserts that Yindjibarndi has not provided evidence as to how the grant

of the lease might affect its way of life, culture and traditions. As such, the Tribunal

should conclude there will be little or no effect. The State contend any effects on the

way of life, culture or traditions of Yindjibarndi, in any event, will be minimised by

the State and Federal regulatory regimes.

[46] There is no material before me to conclude that the grant of the lease will have any

effect on the way of life, culture and traditions of Yindjibarndi. My findings and

conclusions above regarding the wutheroo ritual are similarly relevant to my

consideration of this criteria. In the absence of any evidence to the contrary, I am

satisfied the act will not affect the way of life, culture and traditions of Yindjibarndi

under s 39(1)(a)(ii).

Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)

[47] Section 39(1)(a)(iii) requires me to consider the effect of the lease on the development

of Yindjibarndi’s social, cultural and economic structures. The effects may be positive

or negative, having regard to adverse effects as well as effects that are likely to

promote the development of those structures (see Western Australia v Thomas at 170).

[48] FMG Pilbara considers the grant of the lease will have a beneficial effect upon the

development of any social cultural and economic structures of Yindjibarndi. It

contends such beneficial effect arises from the training, employment and business

opportunities through FMG Pilbara’s mining operations.

17

[49] In the absence of any evidence from Yindjibarndi, FMG Pilbara and the State contend

the Tribunal should conclude there will not be any relevant adverse effects on the

above. I accept that contention. There is no material before me to conclude that the

grant of the lease will have any adverse effect on the Yindjibarndi’s social, cultural or

economic structures.

Effect on freedom to access the land and freedom to carry on rites and ceremonies and

other activities of cultural significance: s 39(1)(a)(iv)

[50] There are two matters which must be considered in the context of s 39(1)(a)(iv). First,

I must consider the effect of the lease on Yindjibarndi’s access to the area affected.

Second, I must have regard to its effect on Yindjibarndi’s freedom to carry on rites,

ceremonies and other activities of cultural significance.

[51] Yindjibarndi assert every yarna-ngarli (ochre site) and wundu (water course) in

Yindjibarndi country is sacred and essential for ceremonial purposes as required. In

witness statements from the native title claim hearing, Yindjibarndi witnesses speak of

the necessity to perform the wutheroo ceremony when they approach a wundu because

it introduces them to the local spirits and keeps them safe. Mr Michael Woodley says

in his witness statement (at [61]) ‘manjangu (strangers) must be properly introduced

because if they aren’t and they go into the wrong place they could be seriously harmed

or killed.’ Yindjibarndi states there is a wundu, a tributary of the Fortescue river, that

runs through the middle of the land subject of the lease. This watercourse, known as

Tharndibirndinha Wurndu, is used as required for the wutheroo ceremony under

traditional laws, customs and religious beliefs. This was previously discussed at [40]

above.

[52] FMG Pilbara contends Yindjibarndi does not address how the grant of the lease might

affect the carrying out of rites, ceremonies or other activities of cultural significance in

accordance with the traditions of the Yindjibarndi people. Further, it asserts

Yindjibarndi mischaracterises the need for the wutheroo ceremony, as it is only

performed at a permanent waterhole. Rares J states in Warrie v Western Australia:

The wutheroo is a ceremony or ritual that the Yindjibarndi and manjangu must perform. It is

linked to informing the spirits present at, and giving a blessing to the spirit or thing that made,

a particular permanent waterhole.

18

FMG Pilbara contends the portion of the Fortescue river that lies within the lease is

not a permanent waterhole.

[53] FMG Pilbara states that even if the portion of the Fortescue river that lies within the

lease was a permanent pool or creek, if the need arose for any common law holder to

perform the wutheroo ceremony for the reason of being present at that portion of the

river, Yindjibarndi do not explain how the grant of the lease would prevent them from

doing so.

[54] The State contends given the size of the lease in relation to the determination area, any

effect on Yindjibarndi’s freedom of access to the area is unlikely to be significant

when weighed against criteria such as the economic significance or public interest in

the doing of the act.

[55] I accept the necessity for Yindjibarndi to perform the wutheroo ceremony when they

approach a wundu, including at the watercourse known as Tharndibirndinha Wurndu.

The question I am faced with here is whether the Tribunal should have regard to the

existence of the wutheroo ceremony and the watercourse over and above the question

of access. If the ceremony only needs to be performed when approaching the

watercourse, it appears there would be no need to perform the ritual if the grant of the

lease prevents access. Conversely, if Yindjibarndi are not prevented from accessing

the watercourse, then there is no apparent reason as to why the ceremony cannot be

performed. I note that restricting access to the watercourse could deprive the

Yindjibanrdi people of the opportunity to practice and teach culture by performing the

ritual. Further, Yindjibarndi contends Tharndibirndinha Wurndu is a site of particular

significance, under the traditional laws and customs of the Yindjibarndi People. Mr

Woodley says in his witness statement (at [62]) ‘The requirement under our Law to

perform the wutheroo riual applies to all Yindjinarndi people and also manjangu

(strangers), although manjangu must be introduced by a Yindjibarndi person.’ I

accept in this instance that if the grant of the lease prevents access to the watercourse,

there is a chance it will prevent Yindjibarndi’s freedom to perform the ritual if FMG

Pilbara were to approach the watercourse. This is subject to the conduct of the ritual in

circumstances where a wundu is not permanent, or currently not apparent, as discussed

at [43] above.

19

[56] Having considered the evidence, I am satisfied that the effect on the freedom of access

and freedom to carry out rites and ceremonies on its own does not give rise to a

decision that the act must not be done.

Effect on areas or sites of particular significance: s 39(1)(a)(v)

[57] Section 39(1)(a)(v) requires me to have regard to the likely effect of the lease on any

areas or sites on the land and waters concerned that are of particular significance to

Yindjibarndi in accordance with their traditions. An area or site is ‘of particular

significance’ if it is of special or more than ordinary significance to the native title

party in accordance with their traditions (Cheinmora v Striker Resources at 34-35).

[58] The State’s Register of Aboriginal sites shows no registered sites or other heritage

places in the lease area. It is well established that a site or area may be of particular

significance without being recorded on the Register (see Little v Lake Moore Gypsum

at [67]). The State contends that, should there be a prospect of interference, the AHA

regime will apply.

[59] FMG Pilbara states that the whole of the lease area has been the subject of

ethnographic survey, and parts of the area have been the subject of archaeological

survey. The reports of these surveys have been submitted as evidence for the purposes

of the inquiry. FMG Pilbara asserts it is unaware of any areas within the lease area

which are of particular significance to Yindjibarndi. It supports the State’s contention

that, should there be a prospect of interference with areas of particular significance to

Yindjibarndi, the AHA regime will apply.

[60] Yindjibarndi says Tharndibirndinha Wurndu is a site of particular significance under

traditional laws, customs and religious beliefs of the Yindjibarndi People and says it is

used as required for the wutheroo ceremony (see above at [40] and [54]). FMG

Pilbara contends the contentions do not address why this is of particular significance

to Yindjibarndi. They assert the evidence of Yindjibarndi is that all wundu are of equal

sacredness. Therefore, if there is an effect upon the portion of the Fortescue river lying

within the lease area, there are many other kilometres of the Fortescue of equal

sacredness available to the native title party.

20

[61] I found at [43] that the wutheroo ritual is of great importance to the Yindjibarndi, and

that the ritual is conducted when approaching a wundu. I accept that, based on the

assertion and acceptance that it lies within the tenement application area,

Tharndibirndinha Wurndu is such a wundu. However, there is no evidence to explain

why this particular site (as opposed to the ritual) is of special or more than ordinary

significance to Yindjibarndi, particularly in circumstances where the assertion remains

uncontested that the creek in that location is not permanent.

[62] I noted at [40] above the evidence of Mr Woodley, who said that there are countless

water places in (our) country: rivers, wundu (creeks), jinbi (springs), and yinda

(permanent pools), ‘and whenever people approach one of these places, the ngurrara

for the area are required to perform the wutheroo ritual’. It is unsurprising that water

sites are important and significant to the Yindjibarndi. The contention would seem to

suggest that all water places, rivers, creeks, springs, and permanent pools are of

particular and equal significance to the Yindjibarndi. I am not satisfied that there is

evidence to support a conclusion that all such places are sites of particular

significance. Apart from having a specific name, Tharndibirndinha Wurndu, there is

nothing in the evidence to explain its particular significance and accordingly I am

unable to conclude that it is a site of particular significance.

[63] As stated above at [27], Yindjibarndi says the notice given to the ACMC identified

twelve potential sites in the area of the lease. FMG Pilbara provided a copy of a letter

from the Minister which stated that consent to impact four of the sites had been given

subject to conditions. Yindjibarndi states the ACMC did not accept the remaining

eight places identified in the notice were in fact sites and the evidence from

Yindjibarndi does not address the significance of these sites. As Yindjibarndi appears

to accept the ACMC conclusion regarding the eight places I will not consider them

further. The conditions placed on the impact of the four sites are as follows:

That the consent holder:

1. Provides a written report to the Registrar of Aboriginal Sites within 60 days of the

completion of the Purpose, advising whether and to what extent the Purpose has impacted on

all or any Sites located on the Land. The final report should include a detailed description of:

a. what extent the Purpose has impacted any Aboriginal Site on the Land;

b. where any Aboriginal Site has been impacted, whether such Site has been partially

or wholly impacted by the Purpose, and the level, effect and type of any such impact

— preferably by the provision of photographs taken before and after the impact;

21

c. where any Aboriginal Site has been subject to archaeological or cultural salvage,

when and how such salvage took place, who was present at the salvage and where

the material was re-located, the results of the salvage and any subsequent analysis

conducted; and

d. the results and findings of any monitoring of ground disturbing works associated with

the Purpose.

[64] One of the four sites included in the notice is a white yarna-ngarli (ochre quarry) and

artefact scatter identified by the Department of Aboriginal Affairs as DAA30594.

Yindjibarndi contends this site is considered sacred because the ochre is used for

religious ceremonial purposes. The Heritage Information Submission filed with the

Registrar for this site says this site is ‘of importance and significance to the

Yindibarndi Traditional Owners’ and there is ‘a clear direct relationship between the

objects [the artefact scatter] and the place’. Yindjibarndi states ‘the place’ can be

considered part of a broad cultural landscape whereby the Yindjibarndi ancestors

would come to this place to gather ochre, taking the ochre elsewhere to be used in

ceremonies and corroborees. Given this direct relationship, it asserts salvage of the

artefacts will destroy the site. In reply, the State submitted a map from their

Aboriginal Heritage Inquiry System depicting this site being north of the lease area.

[65] Yindjibarndi states another site included in the notice is a rock shelter and artefact

scatter, identified as DAA30589. Yindjinarndi says it considers this a site of

significance because it is ‘an important part of the cultural record of the Yindjibarndi

People’. The State contends coordinates provided by the Yindjibarndi indicate the site

must be located north of the lease area.

[66] A rock shelter and artefact scatter, identified as DAA35773, is described as a rare and

important resource. The Heritage Information Submission filed for this site says the

site is ‘considered to be important and significant to all Yindjibarndi Traditional

Owners as it is a physical reminder of where and how their ancestors lived and used

the land’. The map submitted by the State also shows the location of this site to be

north of the lease area.

[67] The last site that was included in the notice was a rock shelter that contained a stone

arrangement. Yindjibarndi Traditional Owners say the stone arrangements were used

as markers to help their ancestors navigate through the landscape. Yindjibarndi knows

of at least four similar markers in the broader area which mark out the route to a

22

culturally significant site called ‘Bangkangarra’. The State replies that such identifying

material as is recorded for this site on the DAA website indicates that it is located

north of the lease area.

[68] I accept the State’s evidence depicting the sites identified by Yindjibarndi being

located outside of the lease area. Yindjibarndi has not identified how the grant of the

lease and the activities authorised by it will affect sites outside the lease area, nor have

they addressed why the conditions imposed by the Minister are unsatisfactory, save for

DAA30594 which I accept is to the north of the lease area.

Interests, proposals, opinions or wishes of Yindjibarndi in relation to the management,

use or control of land or waters: s 39(1)(b)

[69] Section 39(1)(b) directs me to consider the effect of the act on Yindjibarndi’s interests,

proposals, opinions or wishes in relation to the management, use or control of land or

waters to which there are native title rights and interests. Although I am obliged to

have regard to these matters, the fact that Yindjibarndi has not been able to negotiate a

satisfactory agreement is not on its own a sufficient justification for a determination

that a mining lease cannot be granted (see Western Desert Lands v Western Australia

at [162] - [163]).

[70] Yindjibarndi state they seek to manage and control the use of land and waters, subject

to the grant of the lease, to ensure as far as is reasonable practicable, its cultural values

are recorded using best practices and appropriately preserved. It submits this may be

achieved by a condition to the effect that any heritage report relied upon by FMG

Pilbara for the purposes of the AHA, or any similar Act, must be approved by the

registered native title party. I will address this, and a second condition sought by

Yindjibarndi, below under s 39(1)(f).

[71] FMG Pilbara contend neither of the two conditions sought by Yindjibarndi are

directed to the ‘management, use and control’ of the lease area. FMG Pilbara’s further

contentions regarding the conditions are addressed below under s 39(1)(f).

Economic and other significance of the act: s 39(1)(c)

[72] Section 39(1)(c) directs me to consider the economic or other significance of the act to

Australia, the State, the area on which the land or waters concerned are located, and

23

the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires

an evaluation of the economic or other significance of the lease rather than a

generalised inquiry into the importance of exploration or mining to the local or

national economy.

[73] The inquiry under s 39(1)(c) is not limited to the economic significance of the act and

I may have regard to other ways in which the grant of the lease may be of significance

to Australia, the State of Western Australia, the area concerned and the Aboriginal

peoples who live in the area. I must also have regard to the significance of the lease

not just to Yindjibarndi but to any Indigenous people who reside there (see Drake

Coal v Smallwood at [102]-[104]).

What economic benefits are likely to accrue from the proposed use?

[74] FMG Pilbara contends the grant of the lease will benefit the local economy by

allowing for the improved management and use or development of a local resource,

engaging local communities to provide services to the project, and through the

payment of rates to the local authority. It asserts benefits to the State will include

direct payment of royalties in accordance with the Mining Act, and to the nation by the

earning of foreign capital from the sale of iron ore and contribution to the national tax

base. In its contentions:

FMG Pilbara assert the Solomon project is of national significance. For the 2017 financial

year, FMG Pilbara’s total Australian tax contribution was approximately $2 billion and an

income tax expense of $874 million. In FMG Pilbara v Cheedy 2011 (at [111]), and again in

FMG Pilbara v Yindjibarndi (at [51]) the Tribunal found the Solomon Project:

is a project of economic significance, which will benefit the State and the Nation, and that

some positive economic effect may be experienced by the local economy including by local

Aboriginal people and in particular the Yindjibarndi.

I note in FMG Pilbara v Cheedy, Yindjibarndi contended, and the Tribunal accepted,

that the socio-economic conditions of the Yindjibarndi people residing in that part of

the state are poor notwithstanding the level on mining investment.

[75] The State contends the grant of the lease will be of economic significance to the

nation, the State and the local region through licence and rental fees (to the State) and

income (for the nation). It states that there is also likely to be benefit to the local

economy in and around the general area, although no specific information has been

provided to support this claim.

24

[76] I accept the contentions of FMG Pilbara and the State. The Tribunal has often found

the grant of mining leases will be of economic benefit to the State, as well as regional

or local areas and there is no reason why a similar finding should not be made in this

matter. While the lease is only a part of the Solomon Project, the grant is likely to

contribute to that project as well as creating specific benefits that will accrue to the

State through the payment of rental fees.

Public interest in the doing of the act: s 39(1)(e)

[77] Section 39(1)(e) directs me to consider the public interest in the grant of the lease. The

term ‘public interest’ derives its content from the subject matter, scope and purpose of

the legislation in which it appears (see Hogan v Hinch at [31]). The question of what is

‘in the public interest’ may require consideration of competing arguments about, or

features or facets of, the public interest (see Osland v Secretary, Department of Justice

at [137]).

[78] The State contends the public interest is served by the development of a significant

national industry due to the economic benefits that will accrue at a local, State and

national level.

[79] FMG Pilbara contends the mining industry is of considerable economic significance to

the State and the nation. Accordingly, the public interest will be served by the grant of

the lease. FMG Pilbara also refers to the philanthropic activities of Mr and Mrs Forrest

(Mr Forrest is the Founder and Chairman of Fortescue Metals Group Limited),

inclusive of activities through the ‘Minderoo Foundation’ and the ‘Bill and Melinda

Gates Giving Pledge’, however, I give this minimal weight when determining this

criterion. The criterion requires me to assess the public interest in the doing of the act,

not the activities of the proponent’s shareholders, no matter how benevolent.

[80] I adopt the findings of the Tribunal in Western Australia v Thomas (at [215]-[216]) on

matters relating to public interest to the effect that the Tribunal accepts that the mining

industry is of considerable economic significance to the State and Australia. I accept

there is a public interest in the grant of the lease for these reasons.

25

Any other matter the Tribunal considers relevant: s 39(1)(f)

[81] Section 39(1)(f) affords a wide discretion for the Tribunal to take into account other

matters that the Tribunal considers relevant, provided they fall within the scope,

subject matter and purpose of the Native Title Act (see Re Koara People).

Any other matters

[82] Yindjibarndi states, on 10 January 2018, it was informed by the Department of Prime

Minister and Cabinet of a ‘Referral of Proposed Action’ concerning the Solomon Ore

Project Expansion. A copy of the attached referral under the Environment Protection

and Biodiversity Conservation Act 1999 (the ‘EPBC Act’) was provided, which states:

The proposed action involves revision to the Original Project layout, resulting in an increase

in mining operations footprint of 11,322 ha (Table 1). Previously approved mining activities

and infrastructure will continue to be implemented across the expanded footprint, including,

but not limited to, ore processing facilities, waste dumps, tailings storage facilities,

workshops, water infrastructure, stockpile areas and roads. Additional tailings storage options

such as in-pit storage are also being considered for expanded footprint.

[83] Yindjibarndi asserts the referral makes it clear that the area of land to be expanded for

the Solomon Project is to be increased from the original estimate of 6,297 hectares to

18,795 hectares. The referral asked Yindjibarndi to advise ‘if there are any sensitivities

or issues that may have impacts on Indigenous stakeholders relating to this project.’

[84] FMG Pilbara says in the referral that they recognise the proposed action will have

impacts on the native title party, and note ‘Fortescue negotiates with the NTPs to

establish comprehensive Land Access Agreements (‘LAAs’) as the primary tool to

mitigate negative impacts’. Yindjibarndi contends FMG Pilbara has not concluded

LAAs with it, and refer to FMG Pilbara not seeking the assistance of YAC to

determine the location and significance of heritage sites.

[85] The implication this contention appears to raise is the incremental impact of the

Solomon Project on Yindjibarndi native title rights and interests. It is, however, my

task to consider the effect of the future act, that is, the proposed grant of M47/1513-I,

in the context of the s 39 criteria and the registered rights and interests of the

Yindjibarndi. To that extent, the overall context of the project is relevant, the fact that

26

comprehensive land access agreements were not successfully negotiated does not

support a determination that the act not be done.

Conditions

[86] Section 38 of the Native Title Act provides that I must make one of three

determinations:

(a) a determination that the act must not be done;

(b) a determination that the act may be done; or

(c) a determination that the act may be done subject to conditions to be complied

with by any of the parties.

[87] The Tribunal has a broad discretion to impose conditions, subject to certain statutory

limitations. That discretion must be exercised by reference to the s 39 criteria and is

controlled by the subject matter, scope and purpose of the Act (see Re Koara People at

[93]). Any conditions take effect as if they were the terms of a contract among the

negotiation parties (see s 41 of the Act).

[88] As stated at [25] above, Yindjibarndi seeks that the Tribunal impose a condition (‘first

condition’) to the effect that any heritage report relied upon by FMG Pilbara for the

purposes of the AHA, or any similar Act, must be approved by the registered native

title party. Yindjibarndi relies on its submissions regarding the management of cultural

heritage to justify imposing this condition.

[89] Yindjibarndi also contends the Tribunal should impose a condition (‘second

condition’) for an amount to be paid into trust on account of a future determination of

compensation. It submits the grant of the lease should be viewed as an integral

component of a ‘very large project…which is inseparable from the grantee party’s

other interests’. Accordingly, Yindjibarndi asserts the amount paid into trust on

account of a future determination of compensation should be substantial.

27

The first condition

[90] FMG Pilbara argues the imposition of such a condition should be rejected. Firstly, it

states the condition attempts to prevent WMYAC from undertaking cultural heritage

surveys under the AHA, when there is no evidence ‘they are acting illegally or

improperly or negligently or without honour or respect’. FMG Pilbara contend such a

condition amounts to an absolute power of veto, and will allow Yindjibarndi to ‘act

capriciously against the interests of FMG Pilbara and WMYAC.’ Further, FMG

Pilbara say it does not rely on the survey reports as contended by Yindjibarndi, but

simply provide them to the ACMC under the AHA. FMG Pilbara asserts this does not

prevent other persons providing cultural heritage reports to the ACMC.

[91] The State rejects the imposition of the first condition on the grant of the lease. It

contends to impose such a condition has the potential to render meaningless the

processes provided for under the AHA, specifically, under section 18 of the AHA

because it effectively provides Yindjibarndi with a veto over the making of an

application of that kind by FMG Pilbara. The State asserts this deprives the decision

makers under the AHA of jurisdiction to determine an application of that kind, which

would normally be within their power to deal with.

[92] The State proposes to grant the lease subject to a number of endorsements and

conditions. Under draft tenement endorsement number 1, the lessee’s attention is

drawn to the provisions of the AHA and any regulations thereunder. The State

contends the scheme provided for by the AHA should be accepted by the Tribunal as

providing an appropriate level of protection for the rights and interests of the native

title party. As such they argue the imposition of the first condition is not justified.

[93] I accept the State’s contention that the proposed first condition provides Yindjibarndi

with a veto. It is established that a native title party under the Act does not have a right

of veto (Western Desert Lands v Western Australia at [162]).

[94] Noting yet again the problematic history between the parties in this matter which has

been well documented in previous Tribunal determinations it would seem appropriate

to impose some conditions concerning cultural heritage. As Member Shurven noted in

FMG Pilbara v Yindjibarndi #1 at [200]: ‘in my view, I cannot impose a condition on

parties which will regulate 'who' must conduct cultural heritage activities. If current

28

legislation does not so provide for who must conduct such, then it is beyond the scope

of this Tribunal to so impose such a condition.’ In that matter three conditions were

imposed. In this matter for similar reasons I propose to impose two conditions drawn

from Re Koara as follows:

If the grantee party gives a notice to the Aboriginal Cultural Material

Committee under s18 of the Aboriginal Heritage Act 1972 (WA) it shall at

the same time serve a copy of that notice on the native title party.

Within 14 days of receipt of a copy of any notice given to the Aboriginal

Cultural Material Committee under s18 of the Aboriginal Heritage Act 1972

(WA), the native title party will inform the grantee party in writing if they

wish to engage in consultation concerning the proposed use of the land. If so

informed, the grantee party will promptly supply details of the proposed use

and meet with the native title party to explain it.

The second condition

[95] FMG Pilbara contends there is little to no evidence before the Tribunal by which it can

determine the nature of such a condition. It states such a condition is ‘tokenistic’ and

there is no quantification by Yindjibarndi of the amount to be paid. Further, it says

such a condition should only relate to the grant of the lease, and as it asserts this will

have ‘no incremental impact on the NTP’s native title rights and interests’, no such

condition is required.

[96] FMG Pilbara states the rights held by Yindjibarndi arise from s 47B of the Act, and so

are not compensable (see Griffiths v Northern Territory at [67] – [77]). It argues there

is nothing preventing Yindjibarndi from making an application to the Federal Court

for compensation, and there is no evidence FMG Pilbara will be unable to meet any

compensation that may be awarded by the Federal Court. As such, it states the

condition is of little utility.

[97] The State rejects the imposition of such a condition. It contends Yindjibarndi has not

provided evidence that the Tribunal has previously justified the imposition of such a

condition on the basis of the existence of exclusive possession rights and interests in

the land, and the significance of the grant to the interests of the FMG Pilbara. The

29

State argues it has not been shown that any compensation payable to Yinjibarndi will

be substantial, nor has any information by which the amount could be identified or

calculated been provided. The State asserts the argument that the condition should be

granted on the basis the lease is ‘an integral component of the very large project’

should be rejected as any amount to be paid into trust should only be calculated by

reference to the lease alone, and not by reference to the entire project.

[98] In my view ultimately an assessment of compensation could be more easily made by

reference to the project as a whole, rather than piecemeal. At this time, however, the

law on compensation in relation to native title is not settled, and the Yindjibarndi

determination of exclusive native title in relation to lands the subject of the Solomon

Project are the subject of appeal to the Full Federal Court. Additionally, I do not have

any material before me concerning the principles or quantum to enable me to make the

requested condition. In the circumstances I will not make a condition that an amount

be paid into trust on account of a future determination of compensation.

Determination

[99] The determination of the Tribunal is that the act, being the grant of M47/1513-I to

FMG Pilbara Pty Ltd, may be done subject to conditions set out at [94].

Mr JR McNamara

Member

25 October 2018

30

Annexure A – Directions of 4 October 2017

THE TRIBUNAL DIRECTS THAT:

1) On or before 20 October 2017, the Government Party inform the Tribunal and the parties:

a) of any final view it has formed as to the validity of the Grantee Party’s application for

M47/1513; alternatively;

b) when it anticipates forming a final view as to the validity of the Grantee Party’s

application for M47/1513.

2) The Preliminary Conference be adjourned to a date to be fixed in the week commencing

23 October 2017.

THE TRIBUNAL NOTES:

A. If the Government Party forms a final view that the Grantee Party’s application for

M47/1513 is invalid, the Grantee Party intends to apply for a replacement mining

lease having the same particulars as its application for M47/1513.

B. If the Grantee Party applies for a new mining lease in the manner described in

paragraph A above, a question will arise as to whether the Tribunal is entitled to deal

with the Grantee Party’s application to the Tribunal pursuant to s 35 and s 75 of the

Native Title Act 1993 (Cth).

31

Annexure B – Directions of 26 October 2017

Good faith hearing

1) On or before 8 November 2017 any negotiation party that does not agree that any other

negotiation party (other than a native title party) negotiated in good faith in relation to the

doing of the act, is to provide to the Tribunal and all other parties a statement of

contentions and supporting documentary evidence, specifying in detail the matters it relies

on as leading to the conclusion that there has been a lack of good faith negotiations.

2) On or before 22 November 2017 the party or parties who are alleged to have failed to

negotiate in good faith are to provide to the Tribunal and all other parties a statement of

contentions and supporting documentary evidence in relation to whether or not they have

negotiated in good faith in relation to the doing of the act.

3) On or before 29 November 2017 the negotiation party contesting good faith is to provide

to the Tribunal and all other parties any statement or documents in reply to the evidence

submitted pursuant to Direction 2.

4) By 11 December 2017 the parties will provide to the Tribunal an agreed statement of

issues and facts, identifying any material facts not agreed. The agreed statement must

address if the matter is to be heard on the papers.

5) A listing hearing (if necessary) is listed for 18 December 2017 not before 2.00pm

AWST.

6) A hearing in relation to good faith (if necessary) is listed for 29 January 2018.

Section 39 hearing

7) On or before 8 January 2018 the grantee party and the Government party are to provide

to the Tribunal and all other parties:

(a) a statement of contentions, in particular addressing the criteria relevant to them in

section 39 of the Native Title Act 1993 (Cth) including:

(i) the nature of the proposed mining lease, in as much detail as possible;

32

(ii) the economic or other significance of the grant to Australia, the State or

Territory concerned, the area in which the land or waters concerned are

located, and the Aboriginal or Torres Strait Islanders who live in that area;

and

(iii) any public interest in the granting of the mining lease;

(b) the documents or evidence intended to be relied upon. Documents should include:

(i) details of the current land tenure and mining, petroleum and geothermal

tenure in the vicinity of the land;

(ii) copies of the current land tenure and mining, petroleum and geothermal

tenure title documentation in the vicinity of the land;

(iii) copies of any relevant mining tenement documents, operational or other

reports in relation to the mining lease; and

(iv) where possible, a topographical map of the area of a scale 1:100,000

identifying the location of the proposed mining tenement and the mining

tenements in its vicinity marked on it.

(c) details of recorded sites kept on the Register under the provisions of the

Aboriginal Heritage Act 1972 (WA);

(d) a statement of the evidence to be given by any witness for the party, verified

where possible by affidavit, and the details of where the party proposes that the

evidence be heard if the matter is not to be heard on the papers.

8) On or before 29 January 2018 the native title party is to provide to the Tribunal and all

other parties:

(a) a statement of contentions, including information relating to:

(i) the effect (if any) of the grant of the proposed mining lease upon the

following matters (referred to in section 39(1)(a) of the Native Title Act 1993

(Cth)):

A. the enjoyment by the native title party of their registered native title

rights and interests;

B. the way of life, culture and traditions of the native title party;

33

C. the development of the social, cultural and economic structures of the

native title party;

D. the freedom of access by the native title party to the land or waters

concerned and their freedom to carry out rites, ceremonies or other

activities of cultural significance conducted on the land or waters in

accordance with their traditions; and

E. any area or site, on the land or waters concerned, of particular

significance to the native title party in accordance with their traditions.

(ii) the interests, proposals, opinions or wishes of the native title party in relation

to the management, use or control of the land or waters in relation to which

there are registered native title rights and interests of the native title party that

will be affected (section 39(1)(b));

(iii) whether the native title party contends that any of the matters referred to in

subsections 39(1)(c) to (f) are relevant to the inquiry and, if so, an outline of

the native title party’s contentions in relation to each of those matters; and

(iv) whether the native title party contends that the Tribunal should impose a

condition for an amount to be paid into trust on account of a future

determination of compensation;

(b) a list of all documents or evidence intended to be produced, with copies of such

documents provided where practicable;

(c) a statement of the evidence to be given by any witness for the native title party,

verified where possible by affidavit, and the details of where the native title party

proposes that the evidence be heard if the matter is not to be heard on the papers;

and

(d) where there is an issue relating to the confidentiality of documents or evidence

and where evidence will need to be given in restricted circumstances, a statement

of the nature of such documents and evidence and the proposed arrangements for

the hearing of the evidence.

9) On or before 12 February 2018 the grantee party and Government party are to provide to

the Tribunal and all other parties any statement or documents in reply.

10) On or before 19 February 2018 all parties are to:

34

(a) where copies have not been provided, inspect any documents before the Tribunal

(other than confidential documents);

(b) provide to the Tribunal an agreed statement of issues and facts, identifying any

material facts not agreed. The agreed statement must address if the matter is to be

heard on the papers; and

(c) if a hearing is required, agree on a list of exhibits to be tendered.

11) A listing hearing (if necessary) is listed for the week commencing 26 February 2018.

12) If the matter is to be determined on the papers, on or before 5 March 2018 the parties will

provide to the Tribunal and all other parties any final submissions they wish to make

concerning facts or issues which are not agreed between the parties.

13) The hearing (if required) is listed for 12 March 2018.

35

Annexure C – Copy of Letter of 2 March 2018

36

Annexure D – Directions 9 August 2018

Section 39 hearing

1) On or before 23 August 2018 the native title party is to provide to the Tribunal and all

other parties:

(a) a statement of contentions, including information relating to:

(i) the effect (if any) of the grant of the proposed mining lease upon the following

matters (referred to in section 39(1)(a) of the Native Title Act 1993 (Cth)):

A. the enjoyment by the native title party of their registered native title rights

and interests;

B. the way of life, culture and traditions of the native title party;

C. the development of the social, cultural and economic structures of the native

title party;

D. the freedom of access by the native title party to the land or waters concerned

and their freedom to carry out rites, ceremonies or other activities of cultural

significance conducted on the land or waters in accordance with their

traditions; and

E. any area or site, on the land or waters concerned, of particular significance to

the native title party in accordance with their traditions.

(ii) the interests, proposals, opinions or wishes of the native title party in relation to

the management, use or control of the land or waters in relation to which there

are registered native title rights and interests of the native title party that will be

affected (section 39(1)(b));

(iii) whether the native title party contends that any of the matters referred to in

subsections 39(1)(c) to (f) are relevant to the inquiry and, if so, an outline of the

native title party’s contentions in relation to each of those matters; and

(iv) whether the native title party contends that the Tribunal should impose a

condition for an amount to be paid into trust on account of a future

determination of compensation;

37

(b) a list of all documents or evidence intended to be produced, with copies of such

documents provided where practicable;

38

Annexure E – Amended directions 31 August 2018

Section 39 hearing

1) On or before 30 August 2018 the native title party is to provide to the Tribunal and all

other parties:

(a) a statement of contentions, including information relating to:

(i) the effect (if any) of the grant of the proposed mining lease upon the

following matters (referred to in section 39(1)(a) of the Native Title Act 1993

(Cth)):

A. the enjoyment by the native title party of their registered native title

rights and interests;

B. the way of life, culture and traditions of the native title party;

C. the development of the social, cultural and economic structures of the

native title party;

D. the freedom of access by the native title party to the land or waters

concerned and their freedom to carry out rites, ceremonies or other

activities of cultural significance conducted on the land or waters in

accordance with their traditions; and

E. any area or site, on the land or waters concerned, of particular

significance to the native title party in accordance with their traditions.

(ii) the interests, proposals, opinions or wishes of the native title party in relation

to the management, use or control of the land or waters in relation to which

there are registered native title rights and interests of the native title party that

will be affected (section 39(1)(b));

(iii) whether the native title party contends that any of the matters referred to in

subsections 39(1)(c) to (f) are relevant to the inquiry and, if so, an outline of

the native title party’s contentions in relation to each of those matters; and

(iv) whether the native title party contends that the Tribunal should impose a

condition for an amount to be paid into trust on account of a future

determination of compensation;

39

(b) a list of all documents or evidence intended to be produced, with copies of such

documents provided where practicable;

(c) a statement of the evidence to be given by any witness for the native title party,

verified where possible by affidavit, and the details of where the native title party

proposes that the evidence be heard if the matter is not to be heard on the papers;

and

(d) where there is an issue relating to the confidentiality of documents or evidence

and where evidence will need to be given in restricted circumstances, a statement

of the nature of such documents and evidence and the proposed arrangements for

the hearing of the evidence.

2) On or before 13 September 2018 the grantee party and Government party are to

provide to the Tribunal and all other parties any statement or documents in reply.

3) On or before 20 September 2018 all parties are to:

(d) where copies have not been provided, inspect any documents before the Tribunal

(other than confidential documents);

(e) provide to the Tribunal an agreed statement of issues and facts, identifying any

material facts not agreed. The agreed statement must address if the matter is to be

heard on the papers; and

(f) if a hearing is required, agree on a list of exhibits to be tendered.

4) A listing hearing (if necessary) is listed for the week commencing 24 September

2018.

5) The hearing (if required) is listed for 2 October 2018.