Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory
[2002] NNTTA 131
•5 July 2002
NATIONAL NATIVE TITLE TRIBUNAL
Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory, [2002] NNTTA 131
(5 July 2002)
APPLICATION NO: DO 01/100
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application
Allan Griffiths (Native Title Party)
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BHP Billiton Minerals Pty Ltd (Grantee Party)
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Northern Territory of Australia (Government Party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 5 July 2002
Hearing dates: 5 April 2002
Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory
Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council
Grantee Party: Mr Ian Wallace
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions and evidence – authority of native title deponents to speak for land and waters – Land Claim Reports – registered or recorded sites – previous exploration/mining activity – legal principles – whether act directly interferes with community or social activities – whether act interferes with areas and sites of particular significance – whether there is likelihood of major disturbance to land or waters – presumption of regularity – protection under existing legislation – an act which attracts the expedited procedure.
Legislation: Acts Interpretation Act 1901 (Cth) s 36
Mining Act (NT) s 24A
Native Title Act 1993 (Cth) ss 29, 32, 151, 237
Territory Parks and Wildlife Conservation Act (NT) s 122
Cases:Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116
Ben Ward & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO01 and 23, unreported, Member Sosso, 1 February 2002
Ben Ward & Ors/Swiftel Ltd/Northern Territory DO01/83, unreported, Member Sosso, 12 June 2002
Bruce Monadee & Ors/Western Australia/Auriferous Mining Pty Ltd & Anor WO01/164, unreported, Deputy President Franklyn, 26 June 2002
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Chubby Jones & Ors/Western Australia/Taipan Resources NL WO99/620-622, unreported, Deputy President Franklyn, 1 November 2000
Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002
Don Rory and Roy Dixon/North Mining Ltd/Northern Territory DO01/43, unreported, Member Stuckey-Clarke, 28 June 2002
Little v Western Australia [2001] FCA 1706
May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, Member Sosso, 25 June 2002
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported Member Sosso, 1 February 2002.
Peggy Mawson and Roy Dixon/Minorco Australia Limited/Northern Territory DO01/18, unreported, Member Stuckey-Clarke, 1 May 2002
Roy Dixon/Ashton Mining Limited/Northern Territory DO01/11, unreported, Member Stuckey-Clarke, 14 May 2002
Smith v Western Australia (2001) 108 FCR 442
Tucker/Western Australia/Gold Partners Ltd WO00/393, unreported, Member Sosso, 24 August 2001
Walley and Boddington/Western Australia/Giralia Resources NL WO01/179-180, unreported, Deputy President Sumner, 8 March 2002
Wandarang People v Northern Territory (2000) 104 FCR 380
REASONS FOR DETERMINATION
Background
[1] On 13 June 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 22724 (“the proposed tenement”) to BHP Billiton Minerals Pty Ltd (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] The proposed tenement covers an area of 498 blocks (approximately 1615 square kilometres) and is comprised of the following:
Crown Lease Perpetual 890, which is known as “Bullita”;
Perpetual Pastoral Lease 1081, which is known as “Auvergne”; andVacant Crown land – Northern Territory Portions 4353 and 5210.
The native title party points out (OSC at para 28) that the proposed tenement is comprised, partly, of the Auvergne Stock Route. No other party referred to this fact, nor made any submissions on the relevance of part of the proposed licence area being comprised of a stock route. In a different context in its Contentions (at para 27) the native title party referred me to the decision of Olney J in Wandarang People v Northern Territory (2000) 104 FCR 380. For the purposes of this inquiry I read His Honour’s judgment. Of interest was His Honour’s finding (at 434-435) that the declaration of a particular stock route as a route for the passage of travelling stock in the matter before him (which was a Northern Territory matter) had the effect of extinguishing native title in relation to that area of land. In this inquiry no party sought to either refer or rely on this finding of His Honour, and I have no application by any party that there is a jurisdictional issue of the type that arose in Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116. In the absence of a party raising a serious jurisdictional issue, the Tribunal is not obliged to delve into the matter unless it is manifestly and patently clear that there is a live issue – see Tucker/Western Australia/Gold Partners WO00/393, unreported, Member Sosso, 24 August 2001 at [5]. I have therefore proceeded on the basis in this inquiry, that the Tribunal has the necessary jurisdiction to conduct an expedited procedure objection inquiry into the whole area of the land and waters that comprise the proposed tenement.
[3] On 29 January 2001 a native title determination application was filed with the Federal Court (D6002/01). The name given to this application is “Auvergne”, and the Applicant is Mr Allan Griffiths. The application was entered on the Register of Native Title Claims on 26 February 2001. The Auvergne application wholly covers the area of the proposed tenement.
[4] A Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on 15 October 2001. Technically this was more than four months after the section 29(4) notification day of 13 June 2001 (section 32(3)), however 13 October 2001 was a Saturday, and in that event reliance can be placed on section 36(2) of the Acts Interpretation Act 1901 (Cth) which provides:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, Sunday or a public holiday or bank holiday in that place.”
The named Objector, Mr Allan Griffiths, is also the abovenamed Applicant.
[5] On 25 October 2001, Deputy President Sumner issued Directions for the conduct of the inquiry, and convened a preliminary conference of the parties on 20 November 2001. The various contentions made by the parties have been pursuant to those Directions. On 5 November 2001, Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry. Following my appointment a listings hearing was convened on 5 April 2002 and on that date I made further Directions for the supply of material in this inquiry.
[6] There was no application by any party that this matter required an “on country” hearing, and no party requested that the Tribunal hear oral evidence. Instead all parties submitted that this inquiry could be dealt with “on the papers” pursuant to section 151. The Tribunal is required, pursuant to section 151(2) to hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. Section 151 was considered by R D Nicholson J in Little v Western Australia [2001] FCA 1706. His Honour made these observations (at [55]):
“The patent intention of the power (under s 151(2)) is that the Tribunal can decide to proceed on the papers if it is satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of the parties. If the Tribunal was correct that it should not hear further evidence, there was no reason for it not be satisfied that the determination could be adequately dealt with in the absence of the parties. The clear legislative intent behind the power is that in those circumstances the Tribunal should be able to act on the papers.”
In this instance, having regard to the material before the Tribunal, I formed the view that it was not necessary to hold hearings and that the inquiry could be conducted “on the papers”.
[7] The parties have submitted to the Tribunal extensive written contentions, which, for ease of reference, are set out below:
Government Party Contentions
Statement of Contentions of Government Party (“GPSC’) dated 14 March 2002
Contentions in Reply (“GPCR”) dated 4 April 2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 19 March 2002
Objectors’ Reply to the Contentions of the Government Party (“OCR”) dated 3 April 2002
Grantee Party Contentions
Letter from BHP Billiton Minerals Pty Ltd (“Gr1”) dated 25 March 2002
Evidence
Affidavit of Laurie Roberts
[8] The native title party lodged the Affidavit of Mr Laurie Roberts which was affirmed before Frances Jessie Claffey, a Commissioner for Oaths, on 16 September 2001. The Affidavit is set out below:
“1. I am a Narinyman man. My country goes west to Sugarbag Bend Yard, to the West Baines River; this is my Jawiji country, my mother’s father’s country.
2. I have been told that a mining company wants to explore in the area of ELA 22724. I have seen a map of the area of the ELA. It is all in my mother’s mother’s country. Now produced and shown to me marked “LR-22724” is a map of the ELA and the surrounding area.
3. I speak with Ronnie Balwanyja for that country. It is my jaju’s country, my mother’s mother’s country, Jalaman (East Baines River) country.
4. My family and I stay at BarrakBarrak on BarrakBarrak Creek, which borders the ELA. I’ve got a block there. There are a lot of people there, family.
5. There is another camp at Bulla, near Auvergne Station; all the same family. My mum stops there with my cousins. My uncle was the owner for that country and got the land for the community.
6. People live at Timber Creek. Mulurn is a camp close to town where we stay. There is the same family mob there.
7. Munda-Yawung is BarrakBarrak Junction (Drover’s Rest). This is the junction with the East Baines River. It is a permanent waterhole. There is a special Dreaming for Flying Fox, Warrba. This is important in men’s business. I can’t say anything about it because women are here. The mining company can’t go there at all. My site is up there. It is not only for me. If they go there, they will damage that site which belongs to me and my children. If they go there that will make it a bit hard for us. There will be a bit of trouble from the old people because we are not looking after sites. That site is registered. I and Ronnie Balwanyja & my uncle talked to David Cooper at the Sites Authority.
8. Yangaji is a big hill near the junction, on the sunrise side, between BarrakBarrak Creek and the East Baines River. The site is the whole of the hill. I can’t tell you about that one for the same reason. It’s that same Flying Fox. The mining company can’t go there. It looks like a Flying Fox. That one’s registered too.
9. Jalyinganarni is the place for the Black Headed Python, Warlujabi. ‘Imin gumbo jeya’ (he urinated there). All along that place is for the same Dreaming. It is all very important country round that place. We’ve got to call them all the same. This goes all the way up to Murranji country near Top Springs, and further down to Mudburra and Jingili country, but I can only speak for Ngarinyman country. He came from Kulumburu through Bow River and Paddy Carlton’s country. After Jalyinganarni, he went to Mirrinmirrin and then Jurlgirr, Jubug (my house is there), Jurlurlmarri, and Gurrbiji. That’s as far as I go. From there he goes through Ngaliwurru to Bob’s yard.
10. On the other side of the Sandstone Range (Newcastle Range), past big Horse Creek, on the top of Sandy Creek, right on the road there is a waterhole called Balnaniyung. They got the Black Plum Dreaming. There’s another waterhole further up, Wawarla, for that Goanna Dreaming. The mining company can’t go there. Goanna Dreaming, Girrawa goes from Wawarla; to Baljaniyung; to Wombat Yard, Gawarla; to Yanyjarrgardan at Pelican Point; near Sandy Island. Also at Pelican Point there is another site on the Goanna Dreaming for goanna fat. I can’t talk about that place.
11. The mining company can’t go to any sites. I don’t like the mining company going down there; it’s very important country. If they change the ground, we won’t see him again for a long time now. The ground will change. If they make it look like new, I don’t want it that way.
12. The mining company can go on the sandstone up from the highway, not where we’ve got sites. That sandstone goes right up to Kildurk, and Stewart Yard, Miyaluni.
13. They can go up Sandy Creek, not Alpha Creek, Gardirriny. There is a Dingo Dreaming there; ‘imin gumbu’ (he urinated) on the sand. There are sites all the way to the top.
14. Auvergne Lagoon Creek, at Ginymurrga, is where Ronnie Balwanyja was born. The company can’t go there because of the Barn.gal, Bat Dreaming. This is important for men’s business; I can’t talk about it.
15. Yiwiny, King Billabong, is near Bulla; they can go around the flat country, but at Hector Hole Yard, Wurrmalarn, they have to stop. There are two waterholes there: Wurrmalarn at Hector Hole Yard, and Garn.gi further up the gorge. The mining company can’t go there either; those two places are for Warrba.
16. They can’t go to Balthurru, Bloodwood Swamp.
17. When I go hunting I go right up to Hector Hole Yard. I go with a motor car. I go fishing with a spear or a wire. We get water-goanna with a spear, or dig for bush yam. We also get bream, turtle, barramundi, catfish. We go to Brumby Hole on Snake Creek. I go once a year. I have not been yet this year. My mother tells me she goes fishing at Snake Creek, Brumby Hole.
18. From my block I go to Timber Creek, Brumby Hole, Hector Hole, Bloodwood Swamp, Bulla camp. We go across the country following fence lines; there are a lot of tracks everywhere from Auvergne Station. We go down East Baines to Yangaji and Munduyawung. I go there anytime we’re short of meat or fish, right through to Supplejack Yard. There’s a road that goes through there. All the family goes, my wife and kids and grandchildren. The mining company can go there but they want to see me first, or else they shouldn’t go in there.
19. From Hector Hole to East Baines River they have to stop, but they can go on the other side; on that top country.
20.
There’s Mordmord in ELA 22332. At that place, an old man ate all the sugarbag for two brolgas,
Gudarrg. He ran back for water but the brolgas took it away and so he just fell down and crippled himself. Later, the little NawurlaNawurla left-hand sand frog hit the coolamon and the water came back. Mum knows that story. Mordmord is right up in the gorge for Gipsy Creek in the middle of the sandstone. The mining company can go there and dig stuff up; it is just the story. It’s not as important as the Flying Fox, Dingo, Goanna, and Emu sites.
21. They’ve got to tell us what they are doing in that country. We might tell them to go away. After the(y’ve) finished, the country will not look the same. The hunting ground might be different. He wildlife might get poisoned from drinking at the waterhole, and nothing will be left. We won’t go there. Some animals might get short (sic).
22. Now, we are getting bush food. There are lots of wild animals. We get kangaroo and turkey with a gun. We don’t see emu and porcupine now; we don’t know what’s killing them. We’ve got to save the animals.”
[9] The government party (GPCR at para 76) questioned the reliability/weight that could be placed on this Affidavit because Mr Roberts did not depose to his authority to speak on behalf of the native title claim group. Additionally, it was said that there was no independent evidence before the Tribunal that Mr Roberts had been authorised to speak on behalf of the claim group or any sub-group thereof.
[10] The only assistance provided to the Tribunal by the native title party is the following assertion (OSC at para 33): “Laurie Roberts is a Ngarinyman man. The licence area is part of his mother’s mother’s country. He is a member of the native title claim group. He speaks with Ronnie Balwanji for that country [affidavit of Laurie Roberts [1] – [3].”
[11] The government party sought to rely upon the recent decision of R D Nicholson J in Little v Western Australia. In May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002 I explained and set out relevant extracts from His Honour’s judgment (at [11] –[12]). I adopt for the purpose of this inquiry those paragraphs.
[12] The first issue is whether Mr Roberts is a member of the native title claim group. The native title party in its Contentions asserts that he is. Mr Roberts does not make that assertion in his Affidavit. A reading of the Native Title Application is not of much assistance as Mr Laurie Roberts is not directly mentioned. The Application does refer to a Ms Eileen Roberts, who may or may not be related to Mr Roberts. Further the Application contains the following statement:
“The native title claim group (“the claimants”) is comprised by the Mankalamaya, Mangkalng/Parrak-Parrak and Mayalniwung People.”
It is not clear from that statement what is the relationship of the abovementioned People to Mr Robert’s assertion that he is a Narinyman man and further that with Ronnie Balwanyja he speaks for Jalaman (East Baines River) country. Clearly there are some difficulties with the material presented by the native title party in linking Mr Roberts to the claim group. The primary material does not make that linkage. However, this assertion is made by Mr Frith in the Contentions, and this was not directly challenged by the government party. In these circumstances, and subject to the above reservations, I accept for the purposes of this inquiry that Mr Roberts is a member of the native title claim group.
[13] Further, I also accept that Mr Roberts is capable of providing evidence to this inquiry of community and social activities of the native title party and of the physical, geological, environmental and other factors germane to the issue of major disturbance to land and waters.
[14] The issue that next must be faced is whether Mr Roberts has the requisite authority or qualifications to speak for sites of particular significance. Certainly he says that with Ronnie Balwanyja he speaks for Jalaman (East Baines) country. Further he speaks of a Flying Fox Dreaming site which he says is his site. From an evidentiary perspective in an expedited procedure inquiry, is an assertion in an Affidavit that a person can speak on behalf of country and sites, a sufficient basis for determining whether areas or sites are of particular significance?
[15] No generic answer can be given to such a question. In each inquiry the Tribunal must carefully weigh the evidence before it, and the weight given to assertions in an Affidavit will be dependent on numerous factors. Some of those factors are set out below, and they are by no means exhaustive:
(a) is the deponent an applicant/objector?
(b) is the deponent clearly identified in the Native Title Application as a member of the claim group?
(c) has the native title party lodged other Affidavits, Witness Statements or primary evidence which substantiates the assertions made by the deponent?
(d) is there any secondary evidence lodged which substantiates the qualifications of the deponent to speak on behalf of areas/sites. For example, is the deponent mentioned in a Land Claims Report, some government document, or independent research material?;
(e) is there any corroborating primary material in other Court or Tribunal proceedings which is lodged in a particular inquiry which would assist in determining the status of the deponent?;
(f) is there evidence that the deponent by his/her own actions has demonstrated his/her right to speak for sites e.g. assisted the AAPA, instituted court proceedings to protect sites etc?
(g) are the status and qualifications of a deponent to speak on behalf of areas or sites contested by any of the other parties?
(h) is the evidence of the deponent refuted or cast in doubt by any other material submitted to the Tribunal?
[16] Moreover it must be remembered that expedited procedure inquiries conducted “on the papers” are by their very nature short form inquiries. It would be unrealistic and unfair to impose on either a native title party or any other party a requirement to produce voluminous material as if these were court proceedings. Expedited procedure inquiries are designed to be conducted in an informal, quick and less costly manner for the parties. The Tribunal not only applies a commonsense approach to weighing evidence, but a commonsense approach to conducting inquiries and the capacities of the parties. Since 1 February 2002 this Tribunal has finalised and handed down determinations in approximately 30 separate inquiries in the Northern Territory. In many other cases the evidence has closed and Tribunal Members will be handing down determinations in the coming months. The workload on the government and native title parties in the Northern Territory over the past twelve months in preparing the relevant material for inquiries has been considerable. In this context, if the expedited procedure inquiry process is to work, some leeway has to be given to the parties, and a sensible approach adopted to the capacity the parties to prepare and collate material for the consideration of the Tribunal.
[17] The material submitted to this inquiry is to the following effect:
(a) Mr Laurie Roberts is neither an applicant nor objector;
(b) Mr Roberts is not directly identified in the Native Title Application;
(c) although the native title party indicated that it was going to lodge Affidavits of Josie and Jerry Jones in support of the Affidavit of Mr Roberts (letter of Mr Rumler to the Tribunal of 19 March 2002), no such Affidavits were lodged. Consequently there is no other primary evidence before the Tribunal substantiating the claims of Mr Roberts;
(d) the native title party has sought to rely on the findings in three Land Claim Reports, namely the Timber Creek Land Claim Report (No 21), the Stokes Range Land Claim Report (No 36) and the Ngaliwurru/Nungali (Fitzroy Pastoral Lease) Victoria River (Bed and Banks) Land Claim (No 47) (referred to hereafter as the “Victoria River Land Claim”). There are no references in any of these Reports to either Mr Roberts or Mr Balwanyja. However, Gray J in the Victoria River Land Claim Report does make reference to the Flying Fox Dreaming (at 4.5.3), and this is broadly consistent with the references Mr Roberts makes to Flying Fox Dreaming sites in his Affidavit;
(e) no primary material from other Court/Tribunal proceedings relevant to Mr Roberts’ authority to speak for sites, has been lodged in these proceedings;
(f) there is a reference in paragraph 7 of Mr Roberts Affidavit to his uncle (who was not named), Mr Balwanyja and himself “talking” to a Mr David Cooper of the AAPA about, it would seem, Flying Fox Dreaming sites. I infer from this reference that Mr Roberts has, in conjunction with the other persons, taken steps to ensure the protection of particular sites connected with that Dreaming. In Ben Ward & Ors/Swiftel Ltd/Northern Territory DO01/83, unreported, 12 June 2002 I considered evidence from a Mr Paddy Carlton who deposed, inter alia, that he had spoken to the AAPA about protecting sties of particular significance to members of the native title claim group. The fact that Mr Carlton had interacted with the AAPA about sites (in the context of a site rich area) was a factor that I took into account in finding that he had the requisite authority to speak on behalf of those. Likewise in this matter, I also think, on a beneficial interpretation, it is open to the Tribunal to infer that Mr Roberts’ interaction with the AAPA about the Flying Fox Dreaming sites is an indication that he has some traditional authority to speak on behalf of those sites; and
(g) the government party has contested the right of Mr Roberts to speak on behalf of the native title claim group for the sites he deposes to.
[18] In Little v Western Australia R D Nicholson J considered an Affidavit from a Mr Bynder who suggested that there was a sacred quality attached to the entirety of Lake Moore. His Honour found that Mr Bynder did not establish his qualifications to speak on behalf of the native title claim group, and, consequently, while Lake Moore may have been of particular significance to Mr Bynder there was no evidence to find that it was of particular significance for the native title claim group as a whole. R D Nicholson J found that his evidence had the weight of one member of the claim group.
[19] Unfortunately, the Affidavit of Mr Bynder was not set out in the judgment of His Honour and it is difficult to determine to what extent the type of evidence in that case mirrors the type of evidence in this inquiry. Certainly, however, this Tribunal is bound by this decision, and, apart from that obvious fact, the findings of R D Nicholson J are manifestly correct. Any body charged with undertaking a predictive assessment under section 237 must be guided by the evidence before it. It is the case, however, as French J pointed out in Smith v Western Australia (2001) 108 FCR 442 at 450: “The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed.”
[20] In this inquiry, the only primary evidence adduced on areas or sites alleged to be of particular significance is the Affidavit of Mr Roberts. It is important, therefore, to ascertain what weight should be ascribed to the assertions of Mr Roberts. When weighing up the material presented to the Tribunal in a section 237(b) inquiry, it should be noted that not much is expected of a native title party in demonstrating that a deponent has the right to speak for areas or sites. It is basically a matter of commonsense. When the Tribunal is presented with an Affidavit from only one person, and that person’s Affidavit in key respects is vague, then the Tribunal cannot be expected to automatically accept that the person in question is authorised by the claim group to speak on behalf of all (or any) of the sites referred to. While these types of inquiries are intended to direct, quick and relatively cheap outcomes for the parties, this does not mean that basic evidence is not required. It also does not mean that a Tribunal Member is expected to accept whatever is purported to be put into evidence by a party. I compare the type of Affidavit material in this inquiry with, for example, that considered by Deputy President Sumner in Walley and Boddington/Western Australia/Giralia Resources NL WO01/179-180, unreported, 8 March 2002. In that inquiry he had before him three Affidavits by persons who identified themselves as Elders of the relevant claim groups, and in one case the deponent was an applicant. Many other examples could be given.
[21] I am prepared to infer on the basis of Mr Roberts reference to his interaction with the AAPA about the Flying Fox Dreaming sites and the broadly consistent references to the existence of such sites in the Victoria River Land Claim Report that he has the requisite authority to speak on behalf of those sites. However, there is not sufficient material before me that would allow a finding that he has the requisite authority to speak on behalf of the other sites set out in his Affidavit. It is not suggested that Mr Roberts may not have the requisite authority and qualifications to speak for the native title claim group. It is just that the native title party has not dealt with this issue such that this conclusion can be safely and sensibly drawn. Accordingly I accept that Mr Roberts is a member of the native title claim group, I accept that he has the requisite authority to speak on behalf of the Flying Fox Dreaming sites, I am unable to find, on the basis of the scant material presented to the Tribunal, that he has the requisite authority to speak on behalf of the other sites mentioned, and with respect to those other sites I have given his evidence the weight of one member of the claim group so far as areas and sites of particular significance are concerned.
Aboriginal Communities
[22] There are no Aboriginal communities located on the proposed tenement. The native title party contends that there are three communities located near to the subject area which are occupied by members of the native title claim group (OSC at para 64) namely:
(a)Timber Creek, which is approximately 5 km north east of the proposed tenement;
(b)Bullo on Auvergne pastoral lease, which is 5 km west of the subject area; and
(c)Barrak Barrak which is located in the south east, near the outer boundary of the proposed tenement. This would appear to be within land held by the Mayamumbin Aboriginal Council.
Recorded or Registered Sites
[23] There are approximately 15 sites registered by the AAPA within the proposed tenement. Each of these sites has been given a status of 40 and are as follows : 4966-72 (Jululmarri), 4966-76 (Julkirr), 4966-88 (Mirrinmirrin), 4966-89A (Jalyinganarni), 4966-89B (Jalyinganarni), 4966-90 (Printijawung), 4966-91 (Yangaji), 4966-139 (Yaawitila), 4966-140 (Walari), 4966-141 (Walari), 4966-142 (Walari), 4966-157 (Mujpuru), 49, 66-169 (Karnki), 4966-172 (Kulunturruyarung).
[24] In addition there are also 16 recorded sites on the proposed tenement. Of these 13 have been given a status of 10 by the AAPA and 3 a status of 30 (4966-158, 4966-173, 4966-188).
[25] A site which has been ascribed a status of 10 by the AAPA is a site made known to the Authority, but the Authority has not been able to assess the accuracy of the information provided. A site ascribed a status of 40, is one that Aboriginal custodians have asked the Authority to protect and which has been evaluated by the Authority. Consequently a site ascribed a status of between 10 and 40, is one not yet registered, however some evaluative work has commenced.
[26] The geographic location of the various sites recorded/registered by the AAPA in close proximity to the proposed tenement is as follows:
Near north eastern border - 15 registered sites and approximately 20 recorded sites
Near northern borders - 2 large areas registered, and 10 recorded sites
Near north western border - 8 registered sites and 7 recorded sitesNear east and south east border - 7 recorded sites and several extended sites a little further distant
Previous Exploration Activity
[27] The area of the proposed tenement has been subject to a number of previous exploration and mining grants by the Northern Territory over the past 25 - 30 years. Outlined below are details of previous mining and exploration tenements as supplied by the government party:
Authority to Prospect – AP 2069, 2367, 2634, 3071
Exploration Licence – EL 341, 1587, 1695, 2304, 2395, 2396, 2553, 2579, 2702, 5441, 7847, 8259, 8260, 8261, 8674
[28] Existing mining tenements in the immediate vicinity of the proposed tenement are as follows:
EL8915, approximately 13-14 km south south-west
[29] Material produced by the government party discloses that the whole area of the proposed tenement has previously been the subject of either exploration licences or prospecting authorities. Further, mapping lodged with the Tribunal discloses that almost the entire area of the proposed tenement has been subject to stream sediment sampling between 1980 and 1995.
Nature of the Proposed Exploration Activity
[30] In its Application for the Grant of an Exploration Licence the grantee party supplied this information on its proposed work program for the first year of operations:
Open file research.
Digitising all available geochemistry and follow-up geochemical data analysis.
Interpretation of aeromagnetic data and geophysical processing.
Reconnaissance of geochemical sampling and prospecting, and follow-up analysis.
Airborne geophysics over selected areas.
Ground geophysics of selected targets.
If warranted, RAB drilling of selected areas to validate interpretation and test basement permissiveness.
Office costs.
[31] With respect to activities after the first year, the grantee party supplied this information: “Although an expanded drilling program is not budgeted in the first year, it is possible that drilling could take place if progress exceeds our expectations and results warrant. This would significantly increase the above total expenditure.”
[32] Unfortunately the only other information supplied by the grantee party was contained in a letter dated 25 March 2002 (Gr1) which is set out in full below:
“As the Grantee Party in the above matter, we have elected not to submit any detailed contentions. However, we wish the Deputy President to appreciate that we concur with the contentions submitted by the Northern Territory Government on 11 March 2002.
In addition to the Government’s contentions, we wish to advise that over the last twelve months we have reached access arrangements for eight Exploration Licences in the Northern Territory. All of these Exploration Licences fall on land subject to Native Title.
We would also point out that in the last two years we have reached agreement with the relevant Aboriginal Groups and their representatives for exploration access to seven discrete project areas that include some twenty-eight exploration licences. The project areas are located in the Mt Isa-Cloncurry region of northwest Queensland and the Kimberley, Central Desert and south to southwest regions of Western Australia. All the lands have been subject to Native Title or Aboriginal leasehold.
Exploration has been successfully undertaken on these lands under various access protocol arrangements that have been considered appropriate for the level of activity able to be undertaken on an Exploration Licence.”
[33] The Tribunal has no evidence before it of the grantee party’s actual intentions. Accordingly the issue of likelihood in this inquiry will be assessed by reference to the regulatory regime in force in the Northern Territory and assuming that whatever legal rights that would be given to the grantee party under the exploration licence will be exercised to the maximum legal extent.
Expert Evidence Adduced by the native title party
[34] In addition to the Affidavit of Mr Roberts the native title party submitted (inter alia) the standard Affidavits of Messrs Stead and Foy, the transcripts of evidence given by Messrs Stead and Foy to Member Stuckey-Clarke in December 2001 and the standard documents relating to rights conferred under exploration licences and the adequacy of legislation dealing with sacred sites.
[35] I have considered all of this material in a number of inquiries, and for the purposes of this inquiry I adopt my comments at paragraph 23 of Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, 3 May 2002. So far as is relevant, I also adopt the analysis and comments of Deputy President Franklyn in Don Rory and Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, 10 May 2002 at [12] – [14].
Land Claim Reports
[36] The native title party has sought to rely on the findings of Maurice, Olney and Gray JJ in their capacity as Aboriginal Land Commissioners in the previously mentioned Timber Creek Land Claim Report, Stokes Range Land Claim Report and the Victoria River Land Claim Report.
[37] In each instance the land and waters considered by the Aboriginal Land Claim Commissioners fell outside the area of the proposed tenement. In each instance the land under consideration was located to the east of the subject area, although in both the Timber Creek Land Claim and the Victoria River Land Claim the land and waters under claim adjoined various parts of the eastern boundary of the proposed tenement. In any event, I have found the contents of these Reports of some assistance to this inquiry. Accordingly, while it is not necessary (or appropriate) for me to adopt the findings of the Commissioners, I do place on record that I have read each Report, and have, where appropriate, taken into account the material in those Reports when determining issues in this Inquiry.
[38] Nevertheless, having regard to the lengthy nature of the native title party submissions on the relevance of the findings in these Reports, it is appropriate certain matters be set out. The native title party suggested that members of the native title claim group referred to in paragraph 3(a) of the Native Title Application were found to be members of subgroup A in the Timber Creek Land Claim Report (OSC at para 46). While this may be correct, Maurice J found that the country of this sub-group extended from Line Creek in the east to Little Horse Creek in the west to Victoria River in the north. Line Creek is more than 20 km from the eastern boundary of the tenement while Little Horse Creek straddles the extreme eastern boundary of the proposed tenement. Insofar as His Honour’s findings of the country of this sub-group are relevant to this inquiry, they only highlight that the traditional country of these persons falls almost entirely outside subject area of this inquiry. Further, the native title party highlighted that members of the native title claim group referred to in paragraph 3(c) of the Native Title Application were found to be members of subgroup E in the Timber Creek Land Claim Report, and that the focal point for this sub-group is Mayalaniwung (OSC at para 46). Mayalaniwung is not located on either, the maps supplied to this inquiry or the map attached to the Timber Creek Land Claim Report. However, Mayalaniwung is identified on the map attached to the Victoria River Land Claim Report. That map identifies Mayalaniwung (211) as being located south of the area under claim in that matter and near the Pulwark (210) and Mungkawalj (206) sites. It is in fact more than 20 km east of the south eastern boundary of the proposed tenement. Accordingly, insofar as the traditional country of both subgroups A and E were found by Maurice J to lie substantially or totally outside of the boundaries of the proposed tenement, and, in the absence of any other material produced by the native title party, I find that the particular findings of Maurice J referred to by the native title party, to be of little assistance to its contentions.
[39] Some of the findings of Gray J in the Victoria River Land Claim Report must also be viewed cautiously before being relied upon for the purposes of this inquiry.
[40] The native title party seeks to rely on findings by Gray J about the right to forage. However, it does not assist the native title party, when it refers in its Contentions (OSC at para 51b) to foraging activities that were centred at Yanturi (4.11). Yanturi is located more than 30 km east of the proposed tenement, and in the paragraph of the Report that deals with foraging activities there is no mention of any foraging taking place on the area of the proposed tenement. This, of course, is not to say that this did and does not occur, simply that the Tribunal cannot be expected to accept that the brief commentary by Gray J, of itself, advances the case of the native title party.
[41] In addition the native title party drew the Tribunal’s attention (OSC at para 52) to the finding of Gray J (at 4.2) that the Victoria River Land Claim area was a meeting point of seven different areas of country, each the subject of a claim to traditional ownership by one of the subgroups he identified. Importantly His Honour found that in many cases the country concerned was well beyond the boundaries of the land and waters he was considering. Nevertheless a close reading of His Honour’s observation of both Mayalaniwung country (4.5) and Makalamayi country (4.6) fails to disclose any reference to land and waters falling within ELA 22724. If in fact His Honour was dealing with evidence relating to land and waters falling within the proposed tenement, then the native title party did not refer this to the attention of the Tribunal, and a reading of the Report of Gray J fails to readily identify any such country. Accordingly Gray J’s finding at 4.2 does not have any automatic application to this inquiry.
Legal Principles
[42] I adopt, for the purposes of this inquiry, the legal principles set out at paragraphs 20-47, 49-62, 86-107 and 135-140 in Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.
[43] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
Section 237(a) – Interference with the carrying on of community or social activities
[44] Mr Roberts deposes that he and his family stay at Barrak Barrak which is located within the outer boundary of the proposed tenement. He says that there are a lot of people there. In addition there is another camp at Bulla, which is located a short distance from the western boundary of the subject area. Mr Roberts mentions that his mother stops there with his cousins. A third camp where family members reside is Mulurn a camp located near to Timber Creek. I accept that a number of persons from Mr Roberts immediate and extended family either permanently reside at or visit these three locations on a regular basis.
[45] Mr Roberts deposes that he goes hunting in the vicinity of Hector Hole Yard. This place is not located for the Tribunal, however I assume that it is Hector Waterhole which is located just outside the western boundary of the proposed tenement. Mr Roberts hunts (for goanna) with a spear or wire and digs for bush yams. He deposes that his mother tells him that she goes fishing at Snake Creek. Snake Creek is located approximately 25 km west of the subject area.
[46] Numerous other places are mentioned by Mr Roberts, unfortunately the mapping supplied by the native title party does not mark these places for the Tribunal. Suffice it to say, Mr Roberts deposes that he goes down the East Baines River which flows through the middle of ELA 22724, as far as Supplejack Yard, located in the extreme south eastern corner. The Tribunal has worked on the assumption that many of the places mentioned by Mr Roberts are located within the proposed tenement. Not only does Mr Roberts go on hunting and fishing trips, but also his wife, children and grandchildren accompany him. He says that we are getting bush food, and mention is made of using firearms to obtain kangaroo and turkey.
[47] There is a summary of the purport of Mr Roberts’ evidence at paragraph 67 of the Contentions of the native title party. In addition, the native title party seeks to rely on findings of foraging in the Timber Creek Land Claim Report and the Victoria River Land Claim Report.
[48] The Timber Creek Land Claim Report was presented by Maurice J in April 1985, with hearings being conducted in 1984. His Honour’s findings on an entitlement to forage are very brief (at para 104) and provide very little guidance to what extent foraging occurs on the subject area, the nature of the foraging, by whom, and the relationship between the members of the claim group in this matter, and the persons who gave evidence before that inquiry. Likewise, Gray J made a positive finding on the entitlement to forage in the Victoria River Land Claim Report, but that finding related to land and waters to the east of the proposed tenement. While it may be possible to infer from a reading of the whole of the Report that some of the proposed tenement falls within the lands over which certain groups, the subject of that land claim, have affiliations, the extent of the overlap is not clear. The relationship of the members of those groups (mainly, it would appear, the Mayalaniwung and Makalamayi groups) to the native title claim group is not addressed and consequently there is not enough material before the Tribunal for any sort of sensible conclusions in the context of this inquiry.
[49] Turning to the community and social activities outlined by Mr Roberts, it is clear that while he engages in hunting, fishing and food gathering on the area of the proposed tenement, these activities are not necessarily very frequent. Thus, when referring in paragraph 17 to various hunting and fishing activities he deposes that he goes “once a year. I have not been yet this year.” As Mr Roberts’ Affidavit was deposed in September 2001, it would appear that the last time he engaged in this activity was some time during 2000.
[50] With respect to his mother’s fishing at Snake Creek, his evidence is based on what his mother has told him. In other words, Mr Roberts does not go fishing with her, and, as such it is not clear who accompanies his mother, the frequency of the fishing or the last time it occurred. In any event, it would appear that fishing and other activities related to Snake Creek occur quite some distance from the proposed tenement, and are of marginal relevance to this inquiry.
[51] As for the hunting and fishing down the East Baines River to Supplejack Yard, Mr Roberts deposes that he goes anytime that he is short of meat and fish. How often this occurs, however, is left unsaid.
[52] Whilst a significant portion of the proposed tenement is located within the Gregory National Park, section 122 of the Territory Parks and Wildlife Conservation Act specifically provides that nothing in the legislation “limits the rights of Aboriginals who have traditionally used an area of land or water from continuing to use that area in accordance with Aboriginal tradition for hunting, food gathering (otherwise than for the purpose of sale) and for ceremonial and religious purposes.” In addition section 122(2) specifically provides that the operation of the legislation is subject to the Native Title Act 1993.
[53] The government party made these submissions on the evidence of Mr Roberts (GPCR at paras 58-59):
“58. As to Paragraph 67, the lack of particularity as to the claimed hunting and foraging activities on the proposed licence area makes it impossible for the Tribunal to attribute any evidentiary weight to the assertions. The specific locations at which these activities are said to occur are patchily identified, the number of relevant persons engaged in these activities, when they go, the seasonal variations in the game or item; all are unstated. The references in the affidavit of Mr Roberts are so unspecific and there are very few references to the proposed licence area that contain any useful information upon which to found a likelihood of interference. It is not sufficient to baldly assert, as the Objector’s Contentions do at Paragraph 67; that “[t}hese activities occur regularly and are carried on by more than isolated numbers of members of the native title claim group”.
59. As to the frequency of these claimed activities, it is difficult to infer from the statement of Mr Roberts in his affidavit of 16 September 2001, “I go once a year. I have not been yet this year” (in paragraph 17), that such excursions are regular or with other members of the claim group. He also states that “I go there anytime we’re short of meat and fish” (in paragraph 18), yet it is uncertain whether the ‘there’ he refers to is on the ELA area and it is unstated as to what regularity he is without meat and fish.”
[54] The proposed tenement is around 1615 square kilometres in area, and is more than 60 kilometres long and more than 40 kilometres wide. Whilst I have no doubt that members of the native title claim group do engage in community and social activities on the proposed tenement, the evidence presented in regard to the frequency of those activities, the number of persons engaged in them, and the specific areas of the proposed tenement where these activities occur is quite scant.
[55] While I am prepared to assume that members of the claim group regularly use the land and waters of the proposed tenement for community and social activities, I am satisfied that on the basis of:
(a) the large area of the proposed tenement;
(b) the limited evidence of community or social activities;
(c) the periodic and apparently short term nature of those activities; and
(d) the regulatory regime in force,
the grant of the proposed tenement would not be likely to cause interference within the meaning of section 237(a).
[56] In Smith v Western Australia (2001) 108 FCR 442, French J pointed out that the concept of interference in section 237(a) is to some degree evaluative. He said (at 451): “It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.” French J also found that the evaluation is contextual: “To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of the interference flowing from the proposed act.”
[57] In a number of inquiries I have drawn attention to the various conditions imposed on explorers pursuant to section 24A of the Mining Act. For the purposes of this inquiry I adopt my comments and analysis of these conditions in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002 at [69] – [71]. The cumulative effect of these various conditions is to require on site meetings between the explorer and members of the native title claim group prior to exploration commencing. An explorer is required to consider any representations made, and the relevant Minister is empowered to inquire into any complaints from a disaffected claim group. In addition, various other conditions are specifically designed to ensure that any exploration that occurs is carried out in such a way as to minimise impacts upon any extant native title rights and interests. The regulatory regime in force in the Northern Territory is comprehensive and would, on the evidence before me, ensure that there would not be a likelihood of interference pursuant to section 237(a) if the exploration licence is granted.
Section 237(b) – Areas or sites of particular significance
[58] As previously pointed out, the area of the proposed tenement contains numerous sites that have been registered or recorded by the AAPA. Nevertheless the fact that a site has either been recorded or registered by the AAPA does not necessarily mean that it is an area or site of particular significance within the meaning of section 237(b).
[59] The native title party made extensive submissions on section 237(b), and the following contentions deserve quotation at length (OSC at paras 76-79):
“76. There are areas or sites of particular significance that the grant of the exploration licence is likely to interfere with:
a.Munda-yawung, at BarrakBarrak Junction (Drovers” Rest) [affidavit of Laurie Roberts [7]];
b.Yangaji is a big hill on the eastern side of BarrakBarrak Junction [affidavit of Laurie Roberts [8]];
c.Ualyinganarni,
d.Mirrinmirrin,
e.Jurlgirr,
f.Jubug (at BarrakBarrak) [affidavit of Laurie Roberts [9]];
g.Balnaniyung, a waterhole at the top of Sandy Creek on the Victoria Highway;
h.Wawarla, another waterhole further up Sandy Creek from Balnaniyung;
i.Gawarla, Wombat yard;
j.Yanyjarrgardan at Pelican Point near Sandy island [affidavit of Laurie Roberts [10]];
k.A series of sites all the way to the top along Gardirrny, Alpha Creek [affidavit of Laurie Roberts [13]];
l.Ginymurrga, Auvergne Lagoon Creek [affidavit of Laurie Roberts [14]];
m.Wurrmalarn, at Hector Hole Yard;
n.Garn.gi, further up the gorge from Hector Hole Yard [affidavit of Laurie Roberts [15]];
o.Mordmord, outside the licence area [affidavit of Laurie Roberts [20]].
77. The particular significance of these sites identified by the evidence is:
a. Munda-yawung and Yangaji are Warrba (Flying Fox) Dreaming, which is important in men’s business. Nothing can be said about it if women are present. The grantee party cannot go there. If it does go there, the sites will be damaged. The sites are registered [affidavit of Laurie Roberts [7] & [8]; see also Ngaliwurru/Nungali Land Claim Report [4.5.3] & 4.78]];
b. Jalyinganarni, Mirrinmirrin, Jurlgirr, Jubug are Warlujabi (Black Headed Python) Dreaming. It is very important country around those places. They are part of a Dreaming track that extends from Kalumburu in Western Australia, at least to Top Springs [affidavit of Laurie Roberts [9]];
c. Wawarla, Balnaniyung, Gawarla, and Yanyjarrgardan are sites on a Goanna track that runs down Sandy Creek. The grantee party cannot go there. Laurie Roberts cannot talk about another site at Pelican Point on the Goanna Dreaming that is for Goanna fat [affidavit of Laurie Roberts[10]];
d. Balnaniyung is a Black Plum Dreaming site [affidavit of Laurie Roberts [10]];
e. The sites all the way along Gardirrny, Alpha Creek, are Dingo Dreaming. At one of them the Dingo urinated on the sand [affidavit of Laurie Roberts [13]];
f. Ginymurrga is where Ronnie Balwanyja was born. There is Barn.gal (Bat) Dreaming there, which is important for men’s business [affidavit of Laurie Roberts [14]];
g. Wurrmalarn, and Garn.gi are also Warrba sites [affidavit of Laurie Roberts [15]];
h. Mordmord, is a site where particular events occurred [affidavit of Laurie Roberts [20]].
78. At least forty sites appear on the AAPA Site Register in the licence area.
79. The area is site rich.”
[60] Mr Roberts refers in his Affidavit to various sites connected with the Flying Fox (Warrba/Warpa) Dreaming. The existence of Flying Fox Dreaming sites is also dealt with by Gray J in the Victoria River Land Claim Report. His Honour made these findings (at 4.5.3): “To the west of Timber Creek is an area known as Mintiwirri Mintiwirri, which is one of a handful of sites related to the Warpa and Jinimin dreaming. The Warpa were two flying foxes, which chased the Jinimin, which was a bat. That chase took place in the cave at Jalinpurrini.”
[61] The sites that Mr Roberts refers to connected with this Dreaming are Munda-Yawung and Yangaji, which he describes as being in the location of the junction of BarrakBarrak Creek and the East Baines River. Yangaji (4966-91) is a registered site, and I am prepared to accept on the basis of the material set out in paragraphs 7 and 8 of Mr Roberts’ Affidavit that the sites he refers to are of particular significance to members of the native title claim group in accordance with their traditions.
[62] Mr Roberts also deposes (at para 9) to various sites related to the Black Headed Python Dreaming track which, it would appear, extends from Western Australia to Top Springs. The particular sites mentioned by Mr Roberts appear to be located in the general vicinity of Barrak Barrak. Although the Black Headed Python dreaming track goes as far as Bobs Yard, which is about 25 km in a south-easterly direction from the eastern boundary of the proposed tenement, there is no mention of this dreaming track in the Victoria River Land Claim Report. Apart from Mr Roberts’ mention of the Dreaming Track in paragraph 9 of his Affidavit, there is no other reference to it in any other material before the Tribunal which assists in either establishing Mr Roberts’ credentials to speak for relevant sites or to appreciate the sacredness of the sites. I am prepared to accept, for the purposes of this exercise, that Mr Roberts has some authority to speak for these sites. However, in the context of section 237(b) a relevant area or site must be of particular significance. This was explained by Carr J in Cheinmora v Striker Resources NL (1996) 142 ALR 21 (at 34) in the following manner: “a relevant site is one which is of special or more than ordinary significance to native title holders. It is not enough that the site simply be of significance to native title holders.” Mr Roberts says that this is “all very important country” but provides no explanation as to why it is important for native title holders. The fact that a deponent says that a place is important does not necessarily mean that it is of special significance. As Deputy President Franklyn recently said: “That a site is said to be of a particular type does not of itself mean that it is likely to be of relevant particular significance.” Bruce Monadee & Ors/Western Australia/Auriferous Mining Pty Ltd & Anor WO01/164, unreported, 26 June 2002 at [16]. The evidence before the Tribunal discloses that the Black Headed Python dreaming track (and relevant dreaming sites) is of significance to native title holders, however, the scant nature of the evidence presented to the Tribunal does not establish that these sites are of particular significance.
[63] Reference is also made to both Sandy Creek and Alpha Creek (para 13). In the context of Alpha Creek (Gardirriny) it is suggested that there is a Dingo Dreaming there. While Mr Roberts says that the mining company can go up Sandy Creek he objects to the mining company going up Alpha Creek. Leaving aside for one moment Mr Roberts’ authority to speak on behalf of Dingo Dreaming sites, the statement about Alpha Creek is so vague that it is of not much assistance to the Tribunal. He only mentions one site (Gardirriny) along Alpha Creek, and does not speak of the particular sacredness of Alpha Creek, just that it is part of the Dingo Dreaming. In these circumstances, even if it were the case that Mr Roberts had the requisite authority to speak on behalf of these sites, the Tribunal has not been presented with sufficient material to make a finding that Gardirriny is a site of particular significance. Moreover, Mr Roberts does not name the other sites along Alpha Creek, he simply says that there “are sites all the way to the top.” As Deputy President Franklyn said in Chubby Jones & Ors/Western Australia/Taipan Resources NL WO99/620-622, unreported, 1 November 2000 (at [19]): “No question can arise as to the likelihood or otherwise of interference of such a site unless there is evidence of its existence.”
[64] Based on the mapping provided, many of the other sites and places mentioned by Mr Roberts are not capable of location, while others are clearly outside the subject area:
(a)Sandy Island/Pelican Point (para 10) is approximately 15 km north of the proposed tenement;
(b)Balnaniyung (para 10 – Black Plum Dreaming) would appear to be located a few kilometres north of the proposed tenement near the Victoria Highway;
(c)Wawarla (Goanna Dreaming) is not capable of location, although it would also appear to be located north of the proposed tenement;
(d)Wombat Yard (Goanna Dreaming) is another site not marked on any maps, but the description of Mr Roberts would seem to indicate that its location is north of the proposed tenement;
(e)Kildurk and Stewart Yard (para 12) are located many kilometres (more than 35km) south west of the proposed tenement;
(f)Auvergne Lagoon Creek (para 14 - Barn.gal Bat Dreaming) is located approximately 12 km north west of the proposed tenement;
(g)King Billabong and Hector Hole Yard (para 15) are also located off site, these are places to the immediate west of the proposed tenement, with Hector Waterhole being located about 10 km south of King Billabong;
(h)Bloodwood Swamp (para 16) is not marked on any mapping supplied to the Tribunal by the parties; and
(i)Mordmord (para 20) is described by Mr Roberts as be located in ELA 22332. In fact I considered identical evidence by Mr Roberts with respect to that site in Ben Ward & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/03 and 23, unreported, 1 February 2002. Mordmord is located some distance (more than 35 km) south west of the proposed tenement. In any event, I found in DO01/03 and 23 that the evidence of Mr Roberts disclosed that it was not a site of particular significance – at [55]. The native title party rightly concedes (OSC at para 80) that it is open to the Tribunal to find that Mordmord is not a site of particular significance.
When conducting a section 237(b) inquiry the Tribunal can consider areas and sites that are situated outside a proposed tenement. However, if an area or site is located outside a proposed tenement the native title party should demonstrate how that area or site would be directly and physically affected by the granting of the exploration licence. In this matter no such evidence has been forthcoming. Accordingly, even if it were assumed that Mr Roberts could speak for all of the places he mentions that are located off site, and further if it was conceded that these sites are of particular significance, there is still not sufficient evidence before the Tribunal to find that there is any likelihood that the granting of the exploration licence would result in any interference with those places.
[65] This inquiry again demonstrates the need for a native title party to produce to the Tribunal, clearly marked maps which highlight the location of areas/sites/places that are referred to in Affidavits of native title holders. In this matter I have expended a considerable amount of time perusing maps in an endeavour to fully appreciate the evidence given by Mr Roberts. While I appreciate the logistical problems that the lawyers for the native title party face in attempting to represent numerous Objectors in multiple expedited procedure objection inquires, it would be of assistance to Objectors if this sort of mapping was produced to the Tribunal.
[66] The government party made extensive submissions on the regulatory regime in force in the Northern Territory and the particular evidence submitted by the native title party. I found those submissions to be persuasive, and have taken them into account. The relevant portions are set out below (GPCR at paras 82-86):
“82. Paragraphs 4 and 12. Whilst Mr Roberts may find an expression of his speculative fears of damage to named sites, the Grantee must act lawfully and within the conditional restraints of the licence. The compulsory community consultation prior to exploration may provide a mechanism in which to dispel these fears and a means by which members of the native title claim group can bring any sites of concern to the attention of the grantee.
83. Mr Roberts” statements, such as;
“The mining mob can go on the sandstone up from the highway, not where we’ve got sites. (paragraph 12)
“They can go up Sandy Creek, not Alpha Creek, Gardirriny. (paragraph 13)
“The mining company can go there but they want to see me first, or else they shouldn’t go in there. (paragraph 18)
“From Hector Hole to East Baines River they have to stop, but they can go on the other side; on that top country” (paragraph 19)
strongly suggest not a blanket objection to exploration activities rather an assertion that it be conducted in a culturally respectful manner. The NT sites protection regime and the Second Schedule Conditions impose on this and every grantee of an exploration licence in the Northern Territory these obligations as to sites. His concerns are adequately addressed and the compulsory on-country meeting, the Register inspection, the complaint mechanism – if explained to this man – would certainly assuage them.
1 These may be sites of particular significance but the material posited by the Objector could not satisfy the Tribunal to that end, particularly if he refuses to talk about it.
2 Additionally, evidence of a likelihood of interference with these sites is absent on the materials. In particular no allegation is made that the substantial body of exploration which has occurred in and around this ELA has interfered with these or any sites; for example, see the maps in our Contentions where an extensive exploration history is outlined.
3 Mr Roberts, at paragraph 20 of his affidavit, refers to ELA 22332, and it is uncertain from that juncture whether he is speaking to this matter or another matter. He expresses worry about damage to sites, country and animals. However, there is no evidence that the substantial body of exploration which has occurred in and around this ELA area has interfered in any way with any of the named sites or claimed activities or that the exploration activities of this grantee is likely to so interfere.”
[67] Turning to the Flying Fox Dreaming sites, and accepting that they are sites of particular significance, I am not satisfied on the evidence before the Tribunal, that the grant of the proposed tenement would be likely to result in interference within the meaning of section 237(b) for the following reasons:
(a)there is no evidence that any previous exploration activity has resulted in any damage to sites on the area of the proposed tenement;
(b)there is an extensive regulatory regime in force designed to minimise the risk of interference to sites of significance. Apart from the protections contained in the Northern Territory Aboriginal Sacred Sites Act (which I explained in Moses Silver), there are also the Second Schedule Conditions (pursuant to section 24A of the Mining Act) which I have outlined in previous Northern Territory expedited procedure objection inquiries. Clause 4 of those Conditions specifically requires the Licensee, prior to carrying out any work on the subject area, to consult with the AAPA and inspect the Register of Sacred Sites. Clause 3 further imposes an obligation on all exploration personnel and their contractors to be instructed on the legal necessity to protect sacred sites and other significant archaeological sites and structures which may exist on an exploration licence. These requirements are in addition to the general requirement set out in Clause 1(b) for a Licensee to carry out its activities in such a way as to minimise (inter alia) interference with areas or sites of particular significance to native title holders. Moreover, there is the general requirement for pre-exploration on site consultation with native title holders, where issues of concern can be ventilated and an appropriate response formulated. The government party drew the Tribunal’s attention (e.g. GPCR at para 50) to these and other provisions, and the previously mentioned requirements imposed on explorers are indicative only of the comprehensive and integrated protective regime in force and is by no means an exhaustive overview of that regime. In the circumstances, I am satisfied that in most instances the regulatory regime in force in the Northern Territory is sufficiently extensive and sensitive to native title issues, that it would be effective in minimising the risk of any interference to sites of particular significance on a proposed tenement. In other inquiries in the Northern Territory it has been found that the regulatory regime for the protection of sites of significance is effective and is an important (but obviously not the only, or even, necessarily, a decisive) factor to be taken into account – see e.g. the findings of Member Stuckey-Clarke in Peggy Mawson and Roy Dixon/Minorco Australia Limited/Northern Territory DO01/18, unreported, 1 May 2002 at [28] – [29] and Roy Dixon/Ashton Mining Limited/Northern Territory DO01/11, unreported, 14 May 2002 at [27] – [28];
(c)the Tribunal is entitled to apply the presumption of regularity to the grantee party;
(d)while the grantee party has not supplied evidence of its intentions, it is the case that the grantee party is a long established, well known and very experienced mining company with extensive exploration experience throughout Australia and overseas. It is not the case that the Tribunal has before it a mining entity with no experience in this field and whose reputation and capacities were either questioned or open to question. In fact despite the very extensive exploration experience of the grantee party both in the Northern Territory and elsewhere in Australia, there was no suggestion that it had a history of breaching the law or engaging in activities considered by native title holders as being inappropriate. I have no reason to doubt that the grantee party would comply with its legal requirements and would attempt to negotiate issues of concern to the native title parties in good faith. If it did not, then not only would it run the risk of Ministerial intervention but such behaviour could be used in evidence against it in future inquiries.
[68] Finally, although the area of the proposed tenement contains many recorded and registered sites, only some of these were referred to by Mr Roberts in his Affidavit. In the absence of a native title holder deposing that a recorded or registered AAPA site is of particular significance, the fact of recording or registration is not necessarily germane to a section 237(b) inquiry – see Don Rory and Roy Dixon/North Mining Limited/Northern Territory DO01/43, unreported, Member Stuckey-Clarke, 28 June 2002 at [26]. An area is “site rich” for the purposes of a section 237(b) not just on the basis that there is objective evidence that numerous areas or sites have been recorded or registered by the AAPA. Evidence of a multiplicity of sites is the starting point, however the native title party must produce evidence that native title holders view an area as particularly sacred or important, and ensure that the person or persons so deposing has/have the requisite authority to inform the Tribunal. In this matter there is no doubt that the area of the proposed tenement contains many sites that have been recorded or registered by the AAPA, however the primary evidence adduced to demonstrate the particular sacredness of that area was limited to the Affidavit of Mr Roberts, and I have set out at some length the problems faced by the Tribunal in that regard. In short, reliance on recording/registration by the AAPA (even though the native title party casts doubt on the accuracy of material recorded/registered by that body) without the production of primary evidence from native title holders is not sufficient for the purposes of section 237(b) inquiry.
Section 237(c) – Major disturbance to land or waters
[69] The contentions of the native title party on section 237(c) were essentially directed towards two issues. The first concerned exploration on that portion of the subject area that forms part of the Gregory National Park. The national park comprises the southern and most of the eastern section of the proposed tenement, and constitutes more than 50% of the total area. The second issue was focused on the issue of whether exploration would be likely to disturb the activities of native title holders on the subject area.
[70] Dealing firstly with the issue of whether there is a likelihood of major disturbance to the activities of native title holders, I note that similar contentions were made by the native title party in May Rosas. I adopt for the purposes of this inquiry my findings at paragraphs [84] – [91]. Suffice it to say, having regard to:
(a)the relatively limited nature of the evidence presented to this inquiry on community or social activities that occur on the proposed tenement;
(b)the large area of the proposed tenement (1615 square kilometres);
(c)the essentially localised and intermittent nature of social and cultural activities;
(d)the fact that no evidence has been submitted that any previous exploration activity on the proposed tenement has resulted in disturbance to the social and community activities or general cultural life of native title holders; and
(e)the protective provisions contained in the Mining Act and the Mining Management Act 2001 which have been specifically designed to ensure that the risk of major disturbance is minimised,
I find that the specific cultural and other concerns expressed by Mr Roberts in his Affidavit can be accommodated without there being a real risk or chance of major disturbance within the meaning of section 237(c).
[71] Of greater concern to the Tribunal were the contentions focused on the fact that a substantial proportion of the proposed tenement forms part of a national park and that the land and waters that comprise the national park have certain special characteristics which make it more likely that exploration of the type proposed will result in major disturbance. The native title party made extensive and well considered submissions in this regard, and I set them out below (OSC at paras 118-122):
“118. There are special physical circumstances such that exploration activity of the type identified could result in major disturbance to land or waters, and that rehabilitation will not be adequate to remedy the major disturbance.
119. The bulk of the licence area is inside Gregory National Park. Mining, and exploration for minerals, can occur inside a national park in the Northern Territory [ss17(2) Territory Parks and Wildlife Act (“Parks Act”)]
120. However, the fact that the area has been proclaimed as a national park, in itself is evidence that the area is environmentally significant according to the standards of the general Australian community, as well as from the point of view of the native title holders.
121. Given the environmental significance of the area of the licence area inside the national park, and its relatively undisturbed nature, there is a greater likelihood that the exploration activities of the grantee party will involve major disturbance from the viewpoint of the community generally [see Dann].
122. The particular significance of parts of the licence area inside Gregory National Park includes:
a. The Park contains major ecosystems and has significant values including wilderness, threatened species and ecological communities [Draft Gregory Plan of Management, section 1.4, page 7].
b. The attributes that give the Park worth, and which are the basis for the Park’s reservation include Aboriginal cultural, European heritage, scientific, and tourism and recreational values [draft Gregory Plan of Management, section 1.5, page 7].
c. The Park occupies a transition zone between the environmental domains of the Top End and the Kimberley regions and the transition between the semi-arid and wet-dry climatic zones. The Park represents the edge of the known range of a number of species [draft Gregory Plan of Management, section 1.5, page 7].
d. Thirty eight plant species found in the Park are classified as rare [draft Gregory Plan of Management, section 1.5, page 7]. More detailed information about flora in the Park is provided in section 4.5, at pages 49-51.
e. There are currently 34 weed species listed for the Park. The majority of these species are either isolated records or low key species not considered environmentally threatening. Most of the Park’s weeds are confined to riverine habitats, spread by wet season floodwaters or are associated with water-holding black soil areas. Eradication of species over large areas is generally not feasible [section 4.6, at pages 52-55].
f. A number of rare and/or vulnerable fauna species of national significance inhabit Gregory National Park, including the Purple-Crowned Fairy Wren, Gouldian Finch, Spectacled Hare-Wallaby and Kimberley Pebble-Mound Mouse [draft Gregory Plan of Management, section 1.5, page 7]. More detailed information about fauna in the Park is provided in section 4.6, at pages 56-58.
g. There are currently ten introduced vertebrate species known to inhabit Gregory National Park; buffalo, feral cattle, donkey, feral dog, domestic mouse, feral horse, feral pig, feral cat, camel, black rat. Erosion of fragile soils, elimination of native animals and plants and the increased potential for the spread of exotic diseases are all legacies of feral animals [see section 4.8, at pages 59-62].
h. The Limestone Gorge area of the Park includes a karst field and cave system of national significance [draft Gregory Plan of Management, section 1.5, page 7; section 4.3, pages 44-46]. The Limestone Gorge area is within 4 kilometers to the east of the licence area.
i. The upper East Baines River, which is inside the licence area represents a near pristine aquatic environment, reflected in the high diversity of fish and benthic invertebrate fauna recorded in its waters [draft Gregory Plan of Management, section 1.5, page 7]
j. The draft Gregory Plan of Management proposes that some areas inside the Park, which possess locally important values, be designated Special Protection Areas to ensure their specific management attention [draft Gregory Plan of Management, section 2.4, pages 15-16]. The current list of Special Protection Areas includes;
i) The Limestone Gorge Cave System;
ii) Flying Fox Dreaming sites near Dingo Yards.”
[72] In May Rosas I set out at some length the various provisions in force in the Northern Territory that allow and govern exploration in national parks. For the purpose of this inquiry I adopt my findings at paragraphs [95] – [101] of May Rosas.
[73] It is necessary to place on record, nonetheless, my concern that while the grantee party has made no specific submissions to this inquiry, it is clear from its Application for the Grant of an Exploration Licence that there is a possibility in the first year of operations, and beyond, that RAB drilling will occur on the proposed tenement. The native title party made various submissions on the nature and potential impact of drilling (see e.g. OSC at para 115). It is clear that in certain circumstances exploration which takes the form of drilling will activate section 237(c), even taking into account the overall regulatory regime in force in the Northern Territory. This is particularly the case in those instances where the area of the proposed tenement is relatively small or where a tenement has specific geological or environmental features that render it more likely that drilling will result in major disturbance to land and waters.
[74] I have given very careful consideration to the issue of whether there is a likelihood of major disturbance having regard to:
a.the absence of an evidence of the intentions of the grantee party;
b.the large proportion of the subject area which falls within a national park; and
c.the nature of the proposed exploration activity, namely the possibility of drilling.
[75] I have reached the conclusion that although these factors are present, and they may well be decisive in certain circumstances, the following factors lead me to form the view that there is not a likelihood of major disturbance within the meaning of section 237(c):
(a)in the normal course of events, the regulatory regime for governing exploration in national parks renders it unlikely that geological or environmentally sensitive areas will be disturbed;
(b)the grantee party is a substantial entity with a long history of mining exploration in the Northern Territory and elsewhere;
(c)no evidence has been submitted that the regime in place for governing exploration activity in national parks in the Northern Territory is not operating satisfactorily;
(d)no evidence has been submitted of exploration resulting in disturbance to any national parks in the Northern Territory;
(e)no evidence has been submitted that would cast doubts on the grantee party complying with the regulatory regime; and
(f)no specific evidence has been introduced, other than generalised statements in the draft plan of management, about specific environmental, geological or other factors in the national park that have relevance to a section 237(c) inquiry.
[76] Nevertheless I place on record that this determination should not be perceived by either the government party or explorers as indicating that the regulatory regime for governing exploration in national parks obviates the need for a section 237(c) inquiry or that drilling in areas that raise special environmental or geological considerations will be found to be low impact activity. Rather, I have, albeit after quite considerable reflection and consideration of the evidence and contentions and the various statutory provisions, formed the view that there is not a real risk or chance of major disturbance within the meaning of section 237(c). If there had been more specific evidence adduced by the native title party about the land and waters in the park, in the form of Affidavits, it may well have been that the Tribunal would have come to a different predictive assessment. As it is, I have, somewhat reluctantly, come to the conclusion that there is not a likelihood of major disturbance.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 22724 to BHP Billiton Minerals Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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