NATIONAL NATIVE TITLE TRIBUNAL FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2011] NNTTA 107 (17 June 2011) Application No: WF10/19 IN THE MATTER of the Native Title Act 1993 (Cth) - and - IN THE MATTER of an inquiry into a future act determination application FMG Pilbara Pty Ltd (grantee party/applicant) - and - Ned Cheedy and Others on behalf of the Yindjibarndi People WC03/3 (Yindjibarndi native title party) -and- Maitland Parker and Others on behalf of the Martu Idja Banyjima People WC98/62 (Martu Idja Banyjima native title party) - and - The State of Western Australia (Government party) FUTURE ACT DETERMINATION Tribunal: Daniel O‟Dea, Member Place: Perth Date: 9 July 2011 2 CORRIGENDUM REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CODUCT AN INQUIRY Background [1] The determination of the Tribunal in this matter was made on 17 June 2011. At [114], the Tribunal determined that E47/1398 and E47/1399 may be granted subject to, inter alia, the extra conditions which had been proposed by the State (see paragraph 44). The third of those conditions read as follows: iii. Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental/productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes. [2] The Tribunal further determined that M47/1431 may be done subject to conditions proposed by the State including inter alia, the extra conditions, which had been proposed by the State. The third of those conditions read as follows: iii. Where, prior to commencing any development or productive mining or construction activity, the grantee party submits a plan of proposed operations and measures to safe guard the environment or any addendums thereafter to the Director of Environment at the Department of Mines and Petroleum for his assessment and written approval; the grantee party must at the same time give to the native title party a copy of the proposal or addendums, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes. [3] On 1 July 2011 a solicitor from the State Solicitor‟s Office wrote to the Tribunal indicating that there was a difficulty with the condition imposed in [114] in that the „State Mining Engineer‟ no longer existed. Consequently the condition imposed for the benefit of the native title party might not be able to take proper or full effect. The letter of the State Solicitor‟s Office accepted that the discrepancy in the wording between that contained in 114(iii) and 115(iii) arose as a result of an oversight by the Government party in providing the wording to the Tribunal. The State suggests the determination of the Tribunal be amended to delete the condition at 114(iii) and replace it with a condition identical to that at 115(iii). The State maintains that the change of wording would not affect the substance of that condition (4). On 1 July 2011, in response to the letter received from the State 3 Solicitor‟s Office, the Tribunal sought the views of the native title party and grantee party requesting them to provide their views on whether it was appropriate to amend the condition as proposed by the State by 4 July. On 7 July the grantee party wrote to the Tribunal indicated that it agreed to the proposed correction requested by the Government party. Despite repeated attempts to elicit a response from the native title party, no response has been received. In my opinion, the proposed correction does not alter the substance of the condition, remove any doubt that the condition will operate to the benefit of the native title party and can be simply achieved by substituting paragraph 115(iii) for 114(iii). Decision [4] The decision in application WF10/19 made by the Tribunal on 17 June 2011 and cited as FMG Pilbara Pty Ltd/Ned Cheedy and Ors on behalf of the Yindjibarndi People/Western Australia [2011] NNTTA 107 be amended so that the extra condition referred to in paragraph 114(iii) is deleted and replace with a condition identical to that at paragraph 115(iii) Daniel O‟Dea Member 11 July 2011 1 NATIONAL NATIVE TITLE TRIBUNAL FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2011] NNTTA 107 (17 June 2011) Application No: WF10/19 IN THE MATTER of the Native Title Act 1993 (Cth) - and - IN THE MATTER of an inquiry into a future act determination application FMG Pilbara Pty Ltd (grantee party/applicant) - and - Ned Cheedy and Others on behalf of the Yindjibarndi People WC03/3 (Yindjibarndi native title party) -and- Maitland Parker and Others on behalf of the Martu Idja Banyjima People WC98/62 (Martu Idja Banyjima native title party) - and - The State of Western Australia (Government party) FUTURE ACT DETERMINATION Tribunal: Daniel O‟Dea, Member Place: Perth Date: 17 June 2011 Catchwords: Native title – future acts – application for determination for the grant of a mining lease –applications for determination for the grant of exploration licences – negotiation in good faith – authorisation of the native title party – length of negotiation period – conduct subsequent to bringing of determination application – grantee party negotiated in good faith – s 39 criteria considered – effect on registered native title rights and interests – effect of acts on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of acts – public interest in doing of acts – any other matters the Tribunal considered relevant – determination that the acts may be done subject to conditions. 2 Legislation: Native Title Act 1993 (Cth) ss 29, 30, 31, 35, 36, 38, 39, 62, 66, 109, 238, 253 Mining Act 1978 (WA) ss 63, 82, 84, 85 Aboriginal Heritage Act 1972 (WA) s 18 Environmental Protection Act 1986 (WA) Wildlife Conservation Act 1950 (WA) Cases: Ankamuthi People v State of Queensland (2002) 121 FCR 68; [2002] FCA 897 Australian Manganese Pty Ltd v State of Western Australia (2008) 218 FLR 387; [2008] NNTTA 38 Butchulla People v State of Queensland (2006) 154 FCR 233; [2006] FCA 1063 Cheedy obh Yindjibarndi People v State of Western Australia [2010] FCA 690 Cheinmora v Striker Resources NL and Others (1996) 142 ALR 21; [1996] FCA 1147 Daniel v State of Western Australia [2003] FCA 666 Doxford, Re [2003] QLRT 58 FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia [2009] NNTTA 38 FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aboriginal Corporation/Western Australia [2009] NNTTA 69 FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia [2009] NNTTA 91 FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; (2009) 255 ALR 229; [2009] FCAFC 49 Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corp (2005) 196 FLR 52; [2005] NNTTA 88 Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation (NSW) [2003] FCA 981 Minister for Mines (WA) v Evans on behalf of the Koara People & Sons of Gwalia Ltd (1998) 163 FLR 274 Mt Gingee Munjie Resources Pty Ltd v State of Victoria (2003) 182 FLR 375; [2003] NNTTA 125 Ned Cheedy and Others on behalf of Yindjibarndi People 1/FMG Pilbara Pty Ltd/Western Australia [2011] NNTTA 30 3 Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87 Roe v Kimberley Land Council Aboriginal Corp [2010] FCA 809 Tigan v State of Western Australia (2010) 188 FCR 533; [2010] FCA 993 Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia [2003] NNTTA 82 Ward and Others v State of Western Australia and Another (1996) 69 FCR 208; (1996) 136 ALR 557; [196] FCA 1452 Western Australia v Taylor and Another (1996) 134 FLR 211; [1996] NNTTA 34 Western Australia v Daniel (2002) 172 FLR 168; [2002] NNTTA 230 Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 Western Australia v Ward (2000) 99 FCR 316; (2000) 170 ALR 159; [2000] FCA 191 Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; (2009) 2 ARLR 214; [2009] NNTTA 49 WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 372 Hearing dates: n/a Representatives for the Yindjibarndi Mr George Irving, John Toohey Chambers native title party: Mr Simon Millman/Ms Kate House, Slater and Gordon Representatives for Mr Ken Green, Green Legal Pty Ltd the grantee party: Mr Sukhpal Singh, FMG Pilbara Pty Ltd Representatives for Mr Matthew Pudovskis and Simon Taylor, State Solicitor‟s Office the Government party: Ms Paola O‟Neill, Department of Mines and Petroleum 4 REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CODUCT AN INQUIRY Background [5] On the following dates, the State of Western Australia („the Government party‟) gave notice under s 29 of the Native Title Act 1993 (Cth) („the Act‟/„NTA‟) of future acts, namely the grant of the following mining leases and exploration licences („the proposed tenements‟) under the Mining Act 1978 (WA) to FMG Pilbara Pty Ltd („the grantee party‟): 12 January 2005 – E47/1398 comprising 222.07 square kilometres located 63 kilometres south west of Marble Bar in the Shire of Ashburton; 18 January 2006 – E47/1399 comprising 215.65 square kilometres located 22 kilometres north west of Wittenoom in the Shire of Ashburton; and 26 August 2009 – M47/1431 comprising 2964.66 hectares located 45 kilometres west of Wittenoom in the Shire of Ashburton.