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1 NATIONAL NATIVE TITLE TRIBUNAL FMG Pilbara Pty Ltd And NATIONAL NATIVE TITLE TRIBUNAL FMG Pilbara Pty Ltd and Another v Yindjibarndi #1 [2014] NNTTA 79 (31 July 2014) Application Nos: WF2013/0015-WF2013/0016 IN THE MATTER of the Native Title Act 1993 (Cth) - and - IN THE MATTER of an inquiry into future act determination applications FMG Pilbara Pty Ltd (grantee party) - and - Thomas Jacob, Stanley Warrie, Allum Cheedy, Kevin Guiness, Angus Mack, Michael Woodley, Joyce Hubert, Pansy Sambo, Jean Norman, Esther Pat, Judith Coppin and Masie Ingie on behalf of Yindjibarndi #1 (WC2003/003) (native title party) - and - The State of Western Australia (Government party) FUTURE ACT DETERMINATION Tribunal: Member Helen Shurven Place: Perth Date of decision: 31 July 2014 Hearing date: 25 March 2014 Grantee party Mr Kenneth Green, Green Legal Pty Ltd representatives: Ms Nerolie Nikolic, Fortescue Metals Group Ltd Native title party Mr George Irving, Yindjibarndi Aboriginal Corporation RNTBC representative: Government party Ms Rosanna Hill, State Solicitor’s Office representatives: Mr David Crabtree, Department of Mines and Petroleum Mr Jason Diss, Department of Mines and Petroleum Mr Dennis Jacobs, Department of Mines and Petroleum 1 Catchwords: Native title – future acts – no agreement with native title party – application for determination for the grant of mining leases – s 39 criteria considered – whether the future acts must not be done – whether the future acts may be done – whether the future acts can be done subject to conditions – determination that the acts may be done subject to conditions Legislation: Native Title Act 1993 (Cth), ss 3, 23F, 26, 28, 29, 30, 31, 35, 36, 36A, 38, 39, 41, 66B, 76, 77, 109, 150, 151, 238 Aboriginal and Torres Strait Islanders Heritage Protection Act 1984 (Cth) Aboriginal Heritage Act 1972 (WA) Acts Interpretation Act 1901 (Cth), s 36 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) Environmental Protection Act 1986 (WA) Mining Act 1978 (WA), ss 82, 84, 85 Mining Regulations 1981 (WA) Rights in Water and Irrigation Act 1914 (WA) Wildlife Conservation Act 1950 (WA) Cases: Australian Manganese Pty Ltd v State of Western Australia and Others (2008) 218 FLR 387; [2008] NNTTA 38 (‘Australian Manganese v Stock’) Australian Manganese Pty Ltd/Western Australia/David Stock and Ors on behalf of the Nyiyaparli People [2010] NNTTA 101 (‘Australian Manganese v Stock 2’) Cheinmora v Striker Resources NL & Ors; Dann v State of Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21 ('Cheinmora v Striker Resources NL') Evans v Western Australia (1997) 77 FCR 193 (‘Evans v Western Australia’) FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 91 (‘FMG Pilbara v Cheedy’) FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2011] NNTTA 107 (‘FMG Pilbara v Yindjibarndi 1’) FMG Pilbara Pty Ltd/NC (Deceased) and Others on behalf of the Yindjibarndi People/Western Australia [2012] NNTTA 142 (‘FMG Pilbara v Yindjibarndi 2’) FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of Yindjibarndi People/Western Australia [2012] NNTTA 11 (‘FMG Pilbara v Yindjibarndi 3’) 2 FMG Pilbara Pty Ltd/Wintari Guruma Aboriginal Corporation/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 99 (‘FMG Pilbara v Wintari’) Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia, [2011] NNTTA 80 (‘Magnesium Resources v Slater’) Minister for Lands, State of Western Australia/Marjorie May Strickland and Anne Joyce Nudding on behalf of the Maduwongga People; Brian and Dave Champion, Cadley and Dennis Sambo, George Wilson and Clem Donaldson for their respective (Gubrun) families; Dorothy Dimer, Ollan Dimer and Henry Richard Dimer on behalf of Mingarwee (Maduwonjga) People [1998] NNTTA 2 (‘Minister for Lands v Strickland’) Minister for Mines (WA) v Evans and Others (1998) 163 FLR 274; [1998] NNTTA 5 (‘Minister for Mines v Evans’) Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (‘Re Koara’) Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 ('Silver v Northern Territory') Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji, [2011] NNTTA 172; (2011) 258 FLR 9 (‘Weld Range v Simpson’) Western Australia v Thomas and Others (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’) Western Australia v Thomas (1999) 164 FLR 120; [1999] NNTTA 99 (‘Western Australia v Thomas 2’) Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; [2009] NNTTA 49; (2009) 2 ARLR 214 (‘Western Desert Lands v Holocene’) WMC Resources Ltd/Western Australia/Richard Evans on behalf of the Koara people [1999] NNTTA 372 (‘WMC Resources v Koara’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) 3 REASONS FOR DECISION Background [1] This decision has been made in the context of a vast amount of material consisting of many thousands of pages from the grantee party and native title party, inclusive of sworn affidavits, signed statements, reports, photographs, maps and other materials, as well as documentation from the Government party. The leases which are the subject of the inquiry form part of the larger project of the Solomon Iron Ore Mine in northwest Western Australia, as outlined in more detail throughout this decision. The careful assessment of these materials, in the context of the requirements of the Native Title Act 1993 (Cth) (‘the Act’), has taken time, and the decision that the acts can be done with conditions has been weighed in the context of relevant criteria under the Act. This is detailed further throughout this decision. Overall, I have been guided by the main objects of the Act relevant to this matter, being ‘to provide for the recognition and protection of native title’ (s 3(a)), and ‘to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings’ (s 3(b)). [2] The Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Act of its intention to grant the tenements as mining leases 47/1475 (‘the first proposed lease’) and 47/1473 (‘the second proposed lease’) to FMG Pilbara Pty Ltd (‘the grantee party’). The notice for the first proposed lease specified the notification day as 11 July 2012, and the notice for the second proposed lease specified the notification day as 19 September 2012 (see s 29(5) of the Act). [3] Each notice provides that any person who, four months after the notification day, is a registered native title claimant in relation to any of the land or waters that will be affected by the future act, has a procedural right to negotiate in relation to the future act (see ss 30(1)(a) and 31 of the Act). The notification period ended on 11 November 2012 for the first proposed lease, and 19 January 2013 for the second proposed lease (the four month date for each lease was moved to the next working day of 12 November 2012 and 21 January 2013 respectively, due to s 36(2) of the Acts Interpretation Act 1901 (Cth)). At the end of each notification period, the Yindjibarndi #1 claim (WC2003/003) wholly overlapped each proposed lease. As there were no other claims or determinations overlapping the proposed leases on those dates, Yindjibarndi #1 (‘the native title party’) are the only native title party for the purpose of this determination (see s 29(2)(b)(i) and s 30(1) of the Act). The native title 4 party are represented by the Yindjibarndi Aboriginal Corporation (‘YAC’). My consideration of the effect of the acts on factors relevant to the native title party is inclusive of consideration of the wider claim group which the native title party represents. I shall have regard to any evidence submitted by those who can speak for the relevant area of Yindjibarndi country. [4] According to the s 29 notices, the grant of each proposed lease would authorise the grantee party to mine for minerals for a term of 21 years from the date of grant, with the right of renewal for 21 years. The notices also specify the size of the first proposed lease to be approximately 8.1 square kilometres (809.76 hectares) and the size of the second proposed lease to be approximately 4.85 square kilometres (485.13 hectares). A portion of the first proposed lease (approximately 2.85 square kilometres) is to be excised on grant, as outlined in detail at [13] and [26]-[28] of this decision. To avoid doubt and in consideration of the evidence presented, the Tribunal will impose a condition on the grant of the first proposed lease that this area is to be excised. The proposed leases are located in the Ashburton Shire, approximately 65 and 66 kilometres north of Tom Price respectively. [5] The proposed leases are future acts covered by s 26(1)(c)(i) of the Act and so, unless there is compliance with s 28 of the Act, the future acts will be invalid to the extent that they affect native title. In this case, s 28(1)(g) of the Act is the relevant requirement, that is, invalidity of the future acts can be avoided if ‘a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with’. The section 35 future act determination application [6] Following the notification of the proposed leases, the Government party commenced negotiations with parties by letter dated 7 November 2012.
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