Andrews v Northern Territory
[2002] NNTTA 170
•19 August 2002
NATIONAL NATIVE TITLE TRIBUNAL
Andy Andrews, Jeffrey Waller & Anita Camfoo (on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu, Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal groups); Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto (on behalf of the Ngalakan group); Peter Woods, Tex Camfoo and Sammy Bulabul (on behalf of the Ngalakan and Rembarrnga Groups)/Exploration & Resource Development Pty Ltd/Northern Territory, [2002] NNTTA 170 (19 August 2002)
APPLICATION NOS:DO01/123, DO01/124 & DO01/125
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application
Andy Andrews, Jeffrey Waller & Anita Camfoo (on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu, Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal groups) (DO01/123)
and
Tex Camfoo, Peter Woods, David Daniels & Doreen Ponto (on behalf of the Ngalakan group) (DO01/124)
and
Peter Woods, Tex Camfoo and Sammy Bulabul (on behalf of the Ngalakan and Rembarrnga Groups) (DO01/125) (Native Title Parties)
- and -
Exploration & Resource Development Pty Ltd (Grantee Party)
- and -
()Government PartyNorthern Territory of Australia
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 19 August, 2002
Hearing dates: 8, 27 May 2002
Government Party: Mr Matthew Storey, 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 Geoff Fanning
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions – jurisdictional challenge – Form 4 – whether objection is frivolous or vexatious – Land Claim Reports – Aboriginal communities – recorded or registered sites – previous exploration/mining activity – expert evidence – legal principles – whether act directly interferes with community life – whether act interferes with areas and sites of particular significance – likelihood of major disturbance to land or waters – presumption of regularity – protection under existing legislation - grantee party’s intentions – an act which attracts the expedited procedure.
Legislation: Acts Interpretation Act 1901 (Cth) s 36
Mining Act (NT) ss 24, 24A
Mining Management Act (NT) ss 35, 36, 37, 166
Native Title Act 1993 (Cth) ss 28, 29, 30, 32, 38, 39, 44H, 75, 76, 81, 139, 140, 147, 148, 151, 190A, 237
Cases:Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116
Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory DO01/47, unreported, Professor D Williamson QC, 5 August 2002
Cheinmora v Striker Resources (1996) 142 ALR 21
Ejai v Commonwealth 1744/1993, unreported, Supreme Court of Western Australia, Owen J
Holt v Manzie (2001) 114 FCR 282
Lardil Peoples v Queensland (2001) 108 FCR 453
Little v Western Australia [2001] FCA 1706
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002
Ngalakan People v Northern Territory (2001) 112 FCR 148
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Northern Territory/Ben Ward & Ors/Ashton Exploration Australia Pty Ltd & Ors DO01/03, 13 and 19-23, unreported, Member Sosso, 21 December 2001
Re Martin’s Application (2001) 180 ALR 453
Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People & Ors/Northern Territory/Ashton Mining Ltd & Anor DO01/140, 02/16, 17, 20 and 27, unreported, Member Sosso, 15 April 2002
Smith v Western Australia (2001) 108 FCR 442
Strickland v Native Title Registrar (1999) 168 ALR 242
Wandarang People v Northern Territory (2000) 104 FCR 380
Western Australia v Smith (2000) 163 FLR 32
Western Australia v Ward (2000) 99 FCR 316
Western Australia v Ward [2002] HCA 28
REASONS FOR DETERMINATION
Background
[1] On 25 July 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 23046 (“the proposed tenement”) to Exploration & Resource Development 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 500 blocks (1664 sq km) and is comprised of Pastoral Lease (PL) 1080 (commonly known as Mountain Valley); PL 1099 (commonly known as Urapunga); PL 1153 (commonly known as Flying Fox); PL1159 (commonly known as Lonesome Dove); PL 1160 (commonly known as Big River); PL 1162 (commonly known as Mount McMinn); PL 1167 (commonly known as Mainoru); and PL 1168 (commonly known as Wongalara).
[3] The following native title determination applications which cover the area of the proposed tenement, have been filed with the Federal Court:
(a) Application D6063/01, DC01/63 (“Mountain Valley-Mainoru”) was lodged on 25 October 2001 and entered on the Register of Native Title Claims on 23 November 2001. The Applicants are Mr Jeffery Waller, Ms Anita Camfoo, Andy Andrews on behalf of the Jurrangluk (Ngarralak), Garl?mayn, Girrimbilba, Bullu Bunno (Yurr?tmayn) & Mernemerne, Benno (Warriba), and Dakal Groups;
(b) Application D6065/2001, DC01/65 (“Big River Urapunga”) was lodged on 25 October, 2001 and entered on the Register of Native Title Claims on 24 November 2001. The Applicants are Mr Tex Camfoo, Mr Peter Woods, Mr David Daniels, Ms Doreen Ponto, on behalf of the Ngalakan Group; and
(c) Application D6067/2001, DC01/67 (“Wongalara”) was lodged on 25 October, 2001 and entered on the Register of Native Title Claims on 23 November, 2001. The Applicants are Mr Peter Woods, Mr Tex Camfoo, Mr Sammy Bulabul, on behalf of the Ngalakan and Rembarrnga Groups.
[4] On 26 November 2001, a Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the Tribunal on behalf of each of the above named applications. Technically the Form was lodged more than four months after the section 29(4) notification day of 25 November, 2001 (section 32(3)). However 25 November 2001 was a Sunday, 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.”
In each case, the named Objectors are also the applicants named above.
[5] On 4 December, 2001 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of the expedited procedure objection inquiries for DO/01/123,124 and 125. On 5 December 2001 I issued Directions for the conduct of each inquiry and the various contentions made by the parties have been pursuant to those Directions.
[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. In this instance, having regard to the material before the Tribunal, and the requirements of section 151(2), 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 written contentions in each objection which (with one exception) were basically uniform. Rather than differentiate the contentions for each of the three objections they are set out below generically. When reference is made to contentions for a specific inquiry, the generic reference below will be supplemented by the designation of the relevant inquiry (e.g. OSC DO01/125):
Government Party Contentions
Statement of Contentions of Government Party (“GPSC”) dated 9 April 2002
Contentions in Reply (“GPCR”) dated 3 May 2002
Native Title Party Contentions
Statement of Contentions of Objectors (“OSC”) dated 23 April 2002
Objectors’ Reply to Contentions of Government Party (“OCR”) 7 May 2002
Grantee Party Contentions
Statement of Contentions of Grantee Party (“Gr1”) dated 29 April 2002
Affidavit Evidence of Mr Daniels and Ms Brown
[8] In addition to the abovementioned written contentions, each of the native title parties relied on the Affidavits of Dawson Daniels and Nell Brown. Mr Daniels deposed that he is a member of the native title claim group in the Big River Urapunga native title determination application. The expedited procedure objection application in DO01/124 was lodged on behalf of that claim group. Ms Brown deposes that she is a member of the native title claim group in the Mountain Valley-Mainoru native title determination application. The expedited procedure objection application in DO01/123 was lodged on behalf of that claim group. However, no member of the claim group in the Wongalara native title determination application (DO01/125) submitted an Affidavit in support of the expedited procedure objection application lodged on behalf of that native title claim group.
[9] Mr Daniel’s Affidavit was affirmed on 13 April 2002 before Benedict John Scambari, a Commissioner for Oaths. This Affidavit is set out below.
I am a member of the native title claim group in the Big River – Urapunga native title determination application (DC01/65).
I am a senior Junggayi for country belonging to the Burdal country in the southwest part of Urapunga Station. Junggayi means I look after this land, make sure nothing goes wrong. I have to be there, with Mingirringgi, if anyone wants to come in and talk about this land. I look after it for the Mingirringgi, they are the traditional owners. I am senior Junggayi for Samson Ponto and Peter Woods, they are the senior mingirringgi for this country.
The area of the Big River – Urapunga application includes part of ELA 23046. I have seen a map of the area of the ELA. Now produced and shown to me marked “DD23046” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
We want the mining company to come and meet with Mingirringgi and Junggayi first, before they start exploration.
There are sacred areas there. As long as you got Mingirringgi and Junggayi there, that will guard them from going too close to sacred areas.
One Burdal place there for Kangaroo, Jardugal dreaming. We call that place Burrmala.
Another one for that same Kangaroo at the waterfall we call Jarrmunu, it’s on the Roper River on the southern boundary of ELA 23046 on Urapunga Station.
We are also worried about exploration blocking us from going hunting and fishing in this area.
We get our bush tucker and bush medicine from this land. If they start grading and knocking down tree, well might be Sugarbag in that tree, or black berries or white currants, or Billy-Goat Plum trees. We don’t want them to knock down or damage the trees. That’s why we want to talk to them first.
We don’t want any mineral leaving poison in the water, or too much soil washing into the Roper River, or any of the creeks. We get all our fish there, we want it to stay good, so there’s enough fish and turtle to feed our families, and keep it like that for the next generation.
We are always going fishing through this country – we get bream, barramundi, nailfish, turtle, and we hunt for kangaroo, turkey, emu.
We are worried that they might grade new roads for trucks and Toyotas, then when next big floodwater comes up, the ground there will wash away, leave soil erosion.
The mining company needs to tell us when they will be working, and which places they will be going to, otherwise people might be out hunting, in case someone have an accident or kids go too close to where they been digging holes.
We are not trying to stop mining, but we are traditional owners and custodians, and we respect the land, and we just need to know what they are going to do, so we don’t have to worry about damage to that country.”
[10] The government party made the following submission about the Affidavit filed by Mr Daniels (GPCR DO01/124 at para 101):
“101. At the outset it should be noted that the only people revealed in the application and accompanying affidavit as authorised by the claim group in DC01/65, D 6065/01 are Mr Tex Camfoo, Mr Peter Woods, Mr David Daniels, and Ms Doreen Ponto. Mr Dawson Daniels is not suggested in the application as so authorised and thus a question is raised about the reliability/weight of his evidence in this matter. This is a relevant and live issue which the Federal Court has underscored recently in Little v Western Australia [2001] FCA 1706 RD Nicholson J, 6 December 2001). There is no independent evidence before the Tribunal (e.g. from Messrs Camfoo, Woods or David Daniels or Ms Ponto) that Mr Dawson Daniels has been ‘authorised’ to speak on behalf of the claim group or any sub-group thereof.”
[11] The native title parties submitted (OSC DO01/124 at para 31) that Mr Daniels is a member of the Big River Urapunga claim group and is senior Junggayi for Burdal country in the south western portion of Urapunga station, including part of the proposed tenement. Mr Daniels says at paragraph 2 of his Affidavit that “Junggayi” means a person who looks after the land for the Mingirringgi, and makes sure that nothing goes wrong. A “Mingirringgi” is a person who talks for, and is the traditional owner of the land. Mr Samson Ponto and Mr Peter Woods are the senior Mingirringgi for Mr Daniel’s country.
[12] Mr Daniels, in my opinion, does establish his “qualifications” to speak for the country outlined in his Affidavit. He outlines what position he holds as well as his relationship to other named native title holders as well as their qualifications. In Little v Western Australia, R D Nicholson J had before him an Affidavit from a Mr Bynder that showed him to be a “Badimia man”. Yet, it would appear, Mr Bynder did not establish what qualifications he had to speak on behalf of an alleged site of particular significance (Lake Moore). In those circumstances His Honour ascribed to his evidence the weight of one Badimia person.
[13] In contradistinction, Mr Daniels specifically addresses his qualifications and their relevance to the laws and customs of the native title claim group. There is no need for other evidence to be led. It is clear from the material lodged that Mr Daniels is a member of the claim group, and there is no reason to doubt the veracity of the facts he has deposed to. I therefore, accept that Mr Daniels has the requisite status and authority to depose to the matters contained in his Affidavit.
[14] Finally, reference can be made to two recent Federal Court decisions. In Wandarang People v Northern Territory (2000) 104 FCR 380, Olney J considered a native title determination application by members of 12 claimant groups for land and waters in the Roper River region (most of which formerly comprised the St Vidgeon Pastoral Lease). Olney J described Claimant Group 9 as follows (at 403-404):
“Group 9
Means of Identification: Milwarapara-Yutpundji (after main Dreaming and main site)
Semi-Moiety Affiliation: Burdal
Geographic Focus: Extreme north-western corner of claim area
Main Dreaming Affiliations: Djadukul (plains kanagroo), native cats (Nyuluk)
Senior Spokespeople: Samson Ponto (Mingirringgi)
Doreen Ponto (Mingirringgi)
Dawson Daniels (Junggayi)
Barney Farrer Ilaga (Darlnyin).”
His Honour also described, at some length the social structures of the various claim groups, with particular emphasis being given to the rights and responsibility of the Mingirringgi, Junggayi and Darlnynin (see 399-401). The particular relevance of this decision for present purposes is that His Honour did find a relationship between Mr Dawson Daniels and Mr Samson Ponto, and that relationship was of the type deposed to by Mr Daniels in his Affidavit in this inquiry. Unfortunately no party drew to the Tribunal’s attention various comments that were made by O’Loughlin J in Ngalakan People v Northern Territory (2001) 112 FCR 148. That case concerned a native title determination application by the Ngalakan People over a small area of land within the gazetted boundaries of the Township of Urapunga, which is also in this general region of the Northern Territory. It will be noted that the native title claim group in objection DO01/124 is the “Ngalakan Group”. His Honour, in the course of his judgment, made the following comments (at 155):
“The claimant group was said to include three different sets of identities whose groupings are based on their relationship to their ancestors. In the first place there are the Mingirringgi; they are the persons who claim their rights to land through their father’s father. The rights and responsibilities of Mingirringgi are, for the most part, acquired at birth and may not be removed except in extreme circumstances. Next are the Junggayi; they claim their rights either through their mother’s father or their father’s father. Rights that have been acquired from the mother’s father can be passed on but only to the next generation; rights that have come from the father’s mother cannot be passed on. Finally, there are the Darlnyin who claim their rights through their mother’s mother. Mingirringgi who gave evidence include Tex Camfoo, Doreen Ponto, Peter Woods and Mildred and Samson Ponto. Roy Golokurndu and Dawson Daniels gave their evidence as Junggayi whilst Barney Farrer and James Woods were those who gave evidence in their capacity as Darlnyin.”
[15] As the above quote highlights, Mr Dawson Daniels was identified by O’Loughlin J as a Junggayi and Messrs Ponto and Woods as Mingirringgi. Whilst such identification for the particular purpose of the application before His Honour is no way determinative of the issue of whether Mr Daniels is a Junggayi for the land and waters, the subject of this inquiry, it does at least demonstrate that Mr Daniels is a member of the Ngalakan People and is a Junggayi. Also the relationship of Mr Daniels to Messrs Ponto and Woods in the trial before O’Loughlin J is consistent with the relationship deposed to by Mr Daniels in this matter.
[16] Nell Brown’s Affidavit was affirmed on 15th April 2002 before Edward James Lowe, a Commissioner for Oaths. This Affidavit is set out below.
1.I am a member of the native title claim group in the Mountain Valley – Mainoru native title determination application (DC 01/63). I am a traditional owner for country belonging to the Bulla group within Mainoru Pastoral Lease. That’s my father’s country, Old Billy Dup Dup. He was boss for Bullu country. All his kids and grandkids, we all belong to that Bullu mowurrwurr, all the family.
2.The area of the Mountain Valley – Mainoru application includes part of ELA 23046. I have seen a map of the area of the ELA. Now produced and shown to me marked NB 23046” is a map of the ELA and the surrounding area. Marked on it are some of the places referred to in this affidavit.
3.My father had his name from Dup Dup Spring. It is Long-necked Turtle dreaming. We had Dup Dup Spring registered as a sacred site (5770-36) by Aboriginal Areas Protection Authority. My aunty was born at Dup Dup Spring.
4.That one, and Gunu.urra, Lindsay Spring, both are Long-necked Turtle dreaming. Gunu.urra was registered as a sacred site (5770-16) by Aboriginal Areas Protection Authority.
5.Dup Dup Spring and Lindsay Spring are both north of the boundary shown to me for ELA23046.
6.My country includes both of those places and Horse Creek, and it goes a bit further north, and comes back south towards Mainoru Station. It comes into the northern part of ELA 23046.
7.I want the mining company to come and talk to us first, before they start exploring work. I want them to tell us more about what they are going to do to the land. They should let us know where they will go, and how long they will be there.
8.On behalf of my brothers and sister and our family, I want to say that I am worried there will be damage done there. Mainoru is pretty flat land, there’s a lot of little creeks everywhere. I am worried that the mining exploration work might wash minerals into the Mainoru River, and next time there is flood water, it will wash over into all the creeks and poison the water.
9.My family, and lots of families from Barunga, Bewsick and Bulman, are always going hunting and fishing through this country.
10.We catch barramundi, bream, turtle, and we go hunting for kangaroo, turkey, emu, goanna and blanket lizard.
11.If a mining exploration crew is there working, that might stop us from going there camping out and fishing. Or might be we don’t know they are there, and one of the kids might run into them, and get a fright, or get hurt.
12.It is better if they tell us first. Tell us where they are going to work, and more about what they want to do.
13.We don’t want the land to be damaged.
14.I want us to have a meeting together with the mining company, my family and Ronnie Martin too. He lives at Mainoru and looks after it.
[17] The government party also raised concerns about the Affidavit of Ms Brown. Two distinct issues were raised (GPCR DO01/123 at paras 102 and 103):
“102. At the outset it should be noted that the only people revealed in the application and accompanying affidavit as authorised by the claim group in DCO1/63, D6063/01 are Mr Jeffrey Waller, Ms Anita Camfoo and Mr Andy Andrews. Ms Brown is not suggested in the application as so authorised and thus a question is raised about the reliability/weight of his (sic) evidence in this matter…There is no independent evidence before the Tribunal (e.g. from Messrs Waller and Andrews or Ms Camfoo) that Ms Brown has been ‘authorised’ to speak on behalf of the claim group or any sub-group thereof.
103. Ms Brown at paragraph 2 of the affidavit deposes that ‘..[she has] seen a map of the area of the ELA and surrounding area. Now produced and shown to me marked ‘NB 23046’ is a map of the ELA and surrounding area. Marked on it are some of the places referred to in the affidavit.’ No map whatsoever was attached to Ms Brown’s affidavit in the materials provided to the Government party. This omission must cast serious doubt on the reliability that can be attributed to Ms Brown’s affidavit evidence. The omission may also raise a question of procedural fairness afforded to the Government party to the extent any reliance is placed by the Tribunal on Ms Brown’s affidavit evidence.”
[18] Ms Brown deposes that she is a member of the native title claim group in the Mountain Valley Mainoru native title determination application. There is no evidence before the Tribunal that would cast any doubt on this, and I am prepared to assume that Ms Brown is a native title holder and a member of the Mountain Valley Mainoru claim group. The weight that can be given to her evidence about sites of alleged particular significance, however, is a different matter and will be dealt with later.
[19] The second issue was the absence of any map attached to Ms Brown’s affidavit despite the fact that she deposed to viewing a particular map which alleged had marked on it some of the places referred to in her affidavit. While the failure to annex the map to her affidavit, in the context of the facts she deposed to, I do not believe that any issues of procedural fairness arise. It may be that in some circumstances when a deponent refers to and relies upon a map, and that map is not attached, that serious questions will arise about the weight that can be ascribed to the Affidavit. In other circumstances the failure to produce a map which discloses places deposed to, and which are otherwise not marked on maps produced to the Tribunal, may result in a deponent’s evidence being rendered worthless. Each matter, however, must be evaluated on the circumstances before the Tribunal. In this particular matter, the failure to annex the map referred to produces no serious issues of fairness or of relevance.
Jurisdictional Challenge
1 Outline of the ‘Jurisdictional’ Challenge
1.1 Introduction
[20] The government party formally made application on 7 May 2002 for the dismissal of DO01/125 pursuant to section 147 on the ground that the objection was frivolous or vexatious. Section 147 provides as follows:
“The Tribunal may dismiss an application if, at any stage of an inquiry relating to the application, the Tribunal is satisfied that the application is frivolous or vexatious.”
[21] Subsequently the government party made submissions on two distinct matters, only one of which involved section 147.
[22] The first concerned the validity of the Form 4 which was lodged by the native title parties. The native title parties together lodged a single Form 4 rather than three separate objection applications. The issue here was whether there were in fact any valid objections before the Tribunal at all. If there were no valid objection applications, then the contention about section 147 would be otiose because there would be no objection to dismiss (GPSDA at para 22).
[23] The second strand of submissions were that, even if the Tribunal had objections that complied with the Form 4 requirements, nonetheless, for reasons outlined below, there was no evidence of a future act in the instance of DO01/125, and hence dismissal pursuant to section 147 was the appropriate course of action.
[24] A Listings Hearing was convened on 8 May 2002 where the parties addressed the Tribunal on the application. Subsequently the government and native title parties lodged the following contentions:
(a) Written Contentions in Support of Summary Dismissal Application (“GPSDA”) dated 9 May 2002;
(b) Summary Dismissal Application Government Party Contentions in Reply (“GPSDACR”) dated 20 May 2002; and
(c) Contentions of Objectors Opposing the Summary Dismissal Application of the Government Party (“OSDAC”) dated 14 May 2002.
[25] Following receipt of the written contentions, a further Listings Hearing was convened in Darwin on 27 May 2002 when counsel for the government and native title parties addressed and made submissions to the Tribunal.
1.2 Form 4 Contentions
[26] The government party drew the Tribunal’s attention to the multi-party Form 4 that was lodged on behalf of each of the native title parties. Paragraph 1 of the Form 4 lodged with the Tribunal reads as follows:
“We,
Andy Andrews, Jeffrey Waller & Anita Camfoo, on behalf of the native title claim group referred to in Schedule A of an application for determination of native title filed in the Federal Court on 25 October 2001 (D6063 of 2001)
Ted Camfoo, Peter Woods, David Daniels & Doreen Ponto, on behalf of the native title claim group referred to in Schedule A of an application for determination of native title filed in the Federal Court on 25 October 2001 (D6065 of 2001)
Peter Woods, Ted Camfoo & Sammy Bulabul, on behalf of the native title claim group referred to in Schedule A of an application for determination of native title filed in the Federal Court on 25 October 2001 (D6067 of 2001)
(together, ‘the application’)
object to the inclusion in a notice under section 29 of the Act (dated 25 July 2001) in relation to an application for an exploration licence under the Mining Act (NT), numbered 23046 (‘the ELA’), of a statement that the act attracts the expedited procedure…”
[27] It was not disputed that the native title determination applications in combination cover the whole of the area of the proposed tenement. Moreover, it was also not disputed that each of these applications has been considered by the Registrar pursuant to section 190A and accepted for registration.
[28] The government party drew my attention to the purported acceptance of the Form 4 by an “authorised officer” of the Tribunal (Mr Ian Williams) on 4 December 2001. It was submitted that on the basis of my determination in Northern Territory/Ben Ward & Ors/Ashton Exploration Australia Pty Ltd & Ors/Northern Territory DO01/3, 13 and 19-23, unreported, 21 December 2001 (“Ben Ward”), the acceptance of a Form 4 must be by the presiding Member. Conversely, the native title parties contended (OSDAC at paras 20-26) that section 77 confers a power on the Tribunal, exercisable by a staff member authorised by the President, to determine whether an expedited procedure objection application complies with section 76, and, if it does, to accept it. I dealt with this issue extensively in the Ben Ward determination, and adopt for the purposes of this inquiry my analysis of the relevant law. Suffice it to say, the Registrar and his staff have the administrative task of receiving and dealing with applications and the prescribed documents and fees. The presiding Member has the task of determining if there has been compliance with the Act and therefore either accepting the application or rejecting it. Accordingly, the purported acceptance of the Form 4 by Mr Williams is not conclusive and does not estop the Tribunal from considering the contentions of the government party on whether the Tribunal has before it a valid Form 4 which complies with the requirements of section 76.
1.3 DO01/125 Contentions
[29] The government party pointed out (GPSDA at para 70) that in relation to objection DO01/125 the native title party had submitted the following material:
a. Statement of Contentions;
b. Affidavit of Dawson Daniels;
c. Affidavit of Nell Brown;
d. Roper Valley Land Claim Report;
e. Mataranka Area Land Claim Report;
f. Document entitled “Rights Conferred under an Exploration Licence”;
g. Document entitled “Analysis of legislation dealing with significant areas/sites”;
h. Affidavit of Mark Frederick Foy and Annexure MFF1;
i. Exploration Activities annexed to Affidavit of Mr Foy;
j. Transcript of evidence of Mr Foy;
k. Affidavit of Jeffrey John Wilson Stead;
l. Transcript of evidence of Mr Stead; and
m. Extract from transcript of proceedings in DO01/19.
[30] The government party contended (GPSDA at paras 71-74) that these documents were either in the nature of contentions (a, f and g), generalised views on mining operations and sacred site protection (h – l), affidavits from persons who are not members of the native title determination claim group in DC01/67 (b and c), evidence of activities occurring on land not comprising the proposed tenement (m) or Land Claim Reports which it was suggested could not be considered contemporary evidence of native title rights and interests by members of the claim group within the proposed tenement. The essence of the government party’s submission was summed up as follows (GPSDA at para 75):
“the Tribunal has before it no evidence of the existence of native title rights and interests in respect of the objection in DO01/125. In the absence of any such evidence there can be no future act. This conclusion stands irrespective of any view that may be formed regarding the satisfaction or not of the several criteria in s 237 of the NTA. If there is no future act, the objection is ‘futile and bound to fail’ and must be considered frivolous or vexatious.”
2. Form 4 Issue
2.1 Introduction
[31] The Tribunal processed the combined Form 4 on the basis that there were three separate expedited procedure objection applications. The government party contended that it is a mandatory requirement that a Form 4 disclose a single objector. A “multi party” objection, it was contended, could not be considered an objection within the terms of the Act. Conversely, the native title parties contended that there was no legislative authority for the Tribunal to split a combined Form 4 objection into component objections. It was said that there was only one future act involved and only one expedited procedure statement and that the objections should be considered together and not separately.
[32] After some ventilation of the contentions at the Darwin Listings Hearing, both the government and native title parties determined not to proceed with their contentions on the Form 4 issue.
2.2 A Form 4 may contain more than one expedited procedure objection
[33] For the record it was my view that there is no bar in the Act for the Tribunal accepting a Form 4 which contains an objection by more than one native title party, provided, of course, that each native title party is objecting to the same proposed future act. Specifically, there is no basis for a contrary conclusion in the wording of sections 32, 75 or 76 or, for that matter, in the wording of Form 4.
[34] The native title party contended that the government party’s submissions on the Form 4 issue were matters of form and not substance and did not go to the jurisdiction of the Tribunal – OSDAC at para 8. It was suggested that the Tribunal should disregard these contentions on this basis alone. In fact, if the contentions of the government were sustainable, they did go to a fundamental jurisdictional issue: namely whether there was a proper expedited procedure objection before the Tribunal. The acceptance of an expedited procedure objection application (section 76) is by the presiding Member. Consequently, if a party contends that the Tribunal does not have before it an expedited procedure objection application that complies with the requirements of section 76, it is an issue of substance and jurisdiction and not one of form. It is a matter that requires immediate attention by the presiding Member as it directly raises the issue of whether the objection is a nullity.
2.3 Each objection application may be processed and evaluated separately
[35] Further, there is no legislative impediment to the Tribunal then processing each native title party’s objection separately and the Member charged with the responsibility of conducting an expedited procedure objection inquiry considering the material lodged by each native title party on its merits.
[36] While there can only be one determination on whether a proposed future act (in this case the grant of an exploration licence) satisfies the criteria enumerated in section 237, this does not lead to the conclusion that the Member conducting the inquiry is precluded from discretely assessing the merits of the evidence and contentions lodged on behalf of each native title party. Section 32 contemplates only one inquiry for each future act, and only one determination, but, at the same time potentially a multiplicity of native title parties – see s.32(2) and (4). However, it would not be a sensible reading of section 32 to infer that, while more than one native title party can object, the recognition of multiplicity of parties relieves either those parties or the Tribunal from discretely considering the material lodged by each party as against the criteria outlined in section 237. In these circumstances section 32 does not relieve an individual native title party from articulating its case and enable it to simply rely on the contentions of other native title parties without any evidence or contentions to support its objection.
[37] It is open, as the government party suggests, for the Tribunal to uphold an objection on the basis of the evidence put forward by one native title party even though that put forward by another or others would not sustain such a finding. Nonetheless there is only one determination and only one inquiry, albeit an inquiry with a multiplicity of objectors. I am not suggesting that a native title party is precluded from relying on evidence adduced by another native title party. In some circumstances evidence lodged by one party may be of direct relevance to the objection lodged by another party, and, as a matter of common sense, a party is entitled to use that evidence to support its contentions. However, a distinction must be drawn between strategic and constructive reliance, and one where the reliance is almost total and the relevance of the primary evidence to the party so relying is, at best, marginal.
2.4 Application of sections 147 and 148 when there are multiple objections
[38] Another issue flowing from this line of argument that requires brief comment, is whether it is open to the Tribunal to apply either section 147 or 148 (“Power of Tribunal where no jurisdiction”) to an objection application when that objection forms part (as in this instance) of a wider expedited procedure objection inquiry. Both sections 147 and 148 empower the Tribunal to dismiss “an application”. Section 75 provides that one kind of application is an expedited procedure objection application, and that the persons who may make such an application are “A native title party”. Section 32(3) further provides that a “native title party may….lodge an objection”. The term “native title party” is explained in section 30, and so far as is relevant to this inquiry, by reference to a registered native title claimant. Consequently, the Act contemplates that with respect to a proposed future act, each registered native title claim group affected by the act may lodge an objection application. The Tribunal must individually assess the merits of each objection application and is empowered to dismiss certain applications when the provisions of either section 147 or 148 are enlivened. In the context of this inquiry, the Tribunal has the relevant legislative authority to consider whether these provisions apply separately to DO01/125, as it constitutes a separate and unique expedited procedure objection application.
2.5 Relevance of section 140
[39] The native title parties in the course of their contentions referred to section 140 which provides: “An inquiry may cover more than one matter, issue or application.” This section, however, must be read in conjunction with section 139, which requires the Tribunal to hold an inquiry into various specified matters, issues or applications. The relevant part of section 139 for expedited procedure objection applications is section 139(b) which requires the holding of an inquiry into “(b) an application covered by section 75 (a right to negotiate application).” Section 140 enables the Tribunal to hold a single inquiry into multiple objection applications involving, potentially, numerous tenements. The section does not, as the government party correctly contends, result in a merger of applications. Rather, it is a facilitative provision aimed at streamlining the objection process with the legislature giving clear statutory recognition to the reality of an administrative tribunal dealing at any one time in any one jurisdiction with bulk objections involving numerous proposed future acts.
3. Jurisdictional challenge – DO01/125
3.1 Initial submissions
[40] The government party contented (GPSDA at para 47) that DO01/125 should be dismissed pursuant to section 147 and referred to a number of court decisions on the meaning of the phrase “frivolous or vexatious” including that of Kirby J in Re Martin’s Application (2001) 180 ALR 453. It was submitted that dismissal should occur if the Tribunal was satisfied as to one of two matters, namely (GPSDA at paras 56-57):
“A. That the objection cannot succeed because on the material before the Tribunal the grant of the proposed Exploration Licence cannot be considered a ‘future act’ in accordance with the definition of that term at s 233 of the NTA; or,
B. That the objection cannot succeed because on the material before the Tribunal the objection cannot be supported as arguable having regard to the current state of the law.
57. It is accepted that if the Tribunal were satisfied as to A. above, dismissal of the application could be construed as a dismissal pursuant to s 148(a) for want of jurisdiction rather than pursuant to s. 147. However there is no practical distinction (although there is a significant theoretical one) between establishing a want of jurisdiction and establishing that an objection cannot succeed and is accordingly frivolous.”
[41] There is a substantial difference at both a theoretical and practical level between a contention that an objection application is frivolous or vexatious and a contention that the Tribunal, for whatever reason, does not have jurisdiction to determine the matter. The difference was dealt with by the Tribunal in Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116 (“Anaconda”) as the following extract illustrates (at 139-140):
“The Government party pointed out that pursuant to s 148(a), the Tribunal may dismiss an application at any stage of an inquiry if it is satisfied that it is not entitled to deal with the application. This power, it should be noted, is separate from the power to dismiss an application when the Tribunal forms the view that it is frivolous or vexatious (s 147). The power given to the Tribunal under s148(a) is one that goes to jurisdiction not as to merit.”
[42] When a party initiates a jurisdictional challenge, the Tribunal cannot automatically assume that it has jurisdiction and determine an expedited procedure objection application on its merits. A properly made challenge to jurisdiction must be dealt with at the outset. It is not open to the Tribunal to ignore the challenge. The Tribunal is required in such circumstances to hear the parties and determine whether it has jurisdiction before it can proceed. Carr J considered this principle in Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 (“Mineralogy”). His Honour made the following comments (at 478): “I do not think that it is open to the tribunal, where its jurisdiction or authority is under challenge, to take the course of assuming that it has jurisdiction and authority on the basis that having to decide the question would involve consideration of complex matters of fact and law. The High Court, in the case which I have cited above, referred to ‘sufficient inquiry’ and where the jurisdiction is disputed, to ‘adequate and careful inquiry, as being the duty of such a tribunal before accepting jurisdiction.” Carr J went on to note that there are potentially “very serious consequences to the parties which turn on the tribunal’s determination that an act is one which attracts the expedited procedure.”
[43] His Honour reached this conclusion even though it required the Tribunal to determine (at 477) “a very complicated question of mixed fact and law concerning whether the proposed extension was a ‘future act’ which in turn “would have involved the tribunal in deciding whether the proposed extension did not or will not ‘affect’ any native title rights or interests that may still be in existence or whether it (the proposed extension) is actually a ‘past act’”.
[44] Whilst the Tribunal cannot ignore a properly founded jurisdictional challenge, no matter how difficult and time consuming it may be, the party challenging jurisdiction is not entitled by default to, in effect, place a legal onus on the other parties to demonstrate that the Tribunal has jurisdiction. A party raising a jurisdictional challenge must support and substantiate it. As the Tribunal pointed out in Anaconda (at 185): “a mere assertion of lack of jurisdiction is not enough.”
[45] A challenge in an expedited procedure objection inquiry that the grant of an exploration licence could not be considered a “future act” within the meaning of that term in section 233, has potentially serious consequences. If there is no future act then there is no valid application in the first place. The Tribunal usually dismisses such applications pursuant to section 148(a) - see Anaconda at 204. However, as Mr Frith pointed out at the Darwin Listings Hearing, section 28 provides that a future act to which Subdivision P of Division 3 applies is invalid to the extent that it affects native title unless, before it is done, the requirements of Subdivision P (in particular sections 29 and 32) are satisfied. Consequently if an expedited procedure objection application is dismissed on the basis that the Tribunal has no jurisdiction, and subsequently there is a determination of native title in favour of the relevant registered native title claim group, potentially serious legal ramifications could follow. A jurisdictional challenge therefore, not only requires immediate inquiry, it also has different legal ramifications both in the short, and potentially, also in the longer term.
3.2 Lardil Peoples v Queensland
[46] The government party sought to rely on the decision of the Full Federal Court in Lardil Peoples v Queensland (2001) 108 FCR 453. The Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples were registered native title claimants who were seeking final injunctive relief against the granting by the Acting Regional Harbour Master of an authority to establish a buoy mooring to Pasminco Century Mine Ltd (“Pasminco”) pursuant to the Transport Operations (Marine Safety) Regulation (Qld). The basis of the challenges was that the authority had been issued without the applicants being notified, and therefore, it was contended, in contravention of the future act provisions of the Native Title Act 1993. The Court, unanimously, refused to grant the relief sought by the applicants.
[47] Merkel J (at 476) summed up the basis upon which relief was refused:
“for the purposes of the NTA, a future act is an act that affects native title and not an act that might affect native title. Thus, the grant of the Restricted Buoy Mooring Authority (the Authority) is only capable of being a future act if the appellants establish that it affects native title. The appellant’s claim in their motion before the primary judge was presented solely on the basis that they are registered claimants of the native title rights and interests specified in their claim for a determination of native title. It was therefore inevitable that the motion would fail as the appellants did not seek to establish the existence of any such rights or interests. In those circumstances, the consequences that might follow from the fact that the procedural requirements laid down in subdivs H-M or N of Div 3 of Pt 2 of the NTA were not met in respect of the Authority do not arise for consideration.”
[48] The government party contended (GPSDA at paras 62 - 67) that this decision was of relevance to expedited procedure inquiries and submitted that prior to an evaluative assessment pursuant to section 237 there must be reasonably probative evidence before the Tribunal of two matters:
i.the existence of native title rights and interests held by the relevant registered claim group being more than the assertion of such rights in the native title determination application; and
ii.evidence that the future act will either extinguish the native title rights and interests or being inconsistent, either wholly or partly, with the continued existence of those rights and interests.
[49] As previously noted, the government party contended that on the basis of the material lodged in objection DO01/125, the Tribunal has no evidence of native title rights and interests, and in the absence of such evidence there can be no future act.
[50] The native title parties, in contradistinction, submitted (OSDAC at paras 43 - 45) that Lardil had no application to right to negotiate inquiries. It was contended that because Lardil was concerned with an application for a final injunction, the thrust of the Federal Court’s decision was directed towards the sufficiency of evidence to support such an application.
3.3 Reliance on fact of registration
[51] The native title parties’ submission focused on the fact of registration. It was suggested that, provided the Registrar enters a claim on the Register of Native Title Claims within four months of a section 29 notification, the “only barrier to gaining the right to negotiate for native title parties, where there is an expedited procedure statement in the s29 notice, is consideration of the s237 criteria [ss 31(1)].” – OSDAC at para 49.
[52] The suggestion that the Tribunal is prevented from looking beyond the fact of registration when a challenge is made to its jurisdiction was considered and rejected by the Tribunal in Anaconda. In that determination it was said (at 142):
“To suggest that as soon as an application is registered that the Tribunal is bound by the act of registration would produce curious results and results in the registrar’s action impliedly preventing the Tribunal from exercising, for example, its powers under ss147 and 148…There is nothing in the Native Title Act which would give to the registrar any power to limit the type of matters which the Tribunal can consider when determining jurisdictional issues simply by the fact of registering an application. Such an argument fails to take into consideration the broad powers given to arbitral bodies to take evidence and dismiss applications. It would also have the effect of ‘freezing’ the register despite the fact that in the interim the law may have changed, as the Government party contends it has in this case with the handing down of Ward on 3 March 2000.”
[53] In short, the registration of a native title determination application does not prevent a party raising a jurisdictional challenge, and the Tribunal is entitled to look beyond the Register of Native Title Claims. However, it would be a mistake to assume that the reasoning adopted in Lardil to the issue of final injunctive relief in the context of Division 2B can be adopted to the issue of a jurisdictional challenge in a right to negotiate matter. It should be noted that in Lardil the special and distinct position of the right to negotiate provisions (Subdivision P) was highlighted in the judgments – see French J at 472-473. While the act of registration does not preclude the Tribunal from determining if in fact there is a valid objection, and thus, whether an act can be characterised as a “future act”, there are quite considerable differences between the procedural rights accorded to native title parties in Subdivision P of Division 3 to those accorded in Division 2B. The legislative history of the provisions set out in Division 2B and the procedural rights granted to native title claimants was comprehensively explained by Dowsett J (at 484-486). It is clear from His Honour’s analysis that there is a substantial difference in kind between the so called “right to mine” (Subdivision P) provisions and those set out in Division 2B. The right to negotiate provisions give to native title parties a much fuller and more secure procedural base. In no small part this may flow from the potentially intrusive nature of mining and exploration and the fact that, unlike some of the other future act provisions, such activity is driven by private capital.
[54] Registration of a claimant application gives to a claim group substantial and valuable rights when a Government asserts a right to mine. A presiding Member in an expedited procedure objection inquiry would not, unless clear and compelling contentions were advanced, substitute his or her view of the sufficiency of native title rights and interests to that of the Registrar who is specifically empowered to make such a determination pursuant to section 190A. Moreover, it is not open to the Tribunal to engage in an exercise of “second guessing” the Federal Court which has exclusive jurisdiction (with the exception of the High Court) to determine native title determination applications filed pursuant to the Act – see s.81. To do otherwise, would to engage in a proleptic exercise of the Federal Court’s jurisdiction and be in breach of the principles clearly enunciated by the High Court in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595.
[55] Nonetheless when a proper challenge is made, the key issue is not substituting the Registrar’s decision (see Strickland v Native Title Registrar (1999) 168 ALR 242 at 261 per French J) or pre-empting the authority of the Federal Court, but rather determining if the Tribunal has any jurisdiction to make an expedited procedure determination. So, whilst the act of registration cannot alone be a complete answer to bona fide jurisdictional challenges, care must be exercised to ensure that the Tribunal does not, in dealing with such jurisdictional challenges, trespass on to the sole statutory authority of statutory officers or the Federal Court.
3.4 Substance of government party’s jurisdictional challenge
[56] The substance of the government party’s jurisdictional challenge was that in any expedited procedure inquiry the Tribunal must have before it evidence to establish the so called “jurisdictional fact”, i.e. some probative evidence of a future act. It was submitted that the evidence must go both to the existence of native title rights and interests and the effect on those rights and interests of the proposed future act. - GPSDACR at para 25.
[57] With due respect to the government party, I think that this proposition goes well beyond what was determined by Carr J in Mineralogy or by the Full Federal Court in Lardil.
[58] The first issue that needs to be kept in mind is that this is an expedited procedure inquiry. It is not a section 38 determination where the statutory criteria (section 39) require a wide ranging inquiry. Nor is the proposed future act one of the type dealt with in Lardil, nor, for that matter, is the relief being sought by the objectors in any way similar to that being considered in Lardil.
[59] Prima facie, the Tribunal is entitled to proceed to an assessment pursuant to section 237 once it is clear that the Registrar has entered a native title determination application on the Register and the relevant Form 4 is accepted. If during the course of the inquiry an objection is not prosecuted or there is a failure to comply with directions, then consideration can be given to applying either section 147 or 148. However, simply because an objection is perceived to lack substance by another party, this does not provide a proper basis for that party to make a jurisdictional challenge.
[60] While the Tribunal is not estopped from dealing with a jurisdictional challenge because a native title determination application is registered, the party making the challenge must clearly raise an issue that goes to the capacity of the Tribunal to make a determination. In both Mineralogy and Anaconda the issue before the Tribunal was whether the act in question was a future act. In Mineralogy the question turned on whether the extension of an exploration licence was a future act or a past act, and the Tribunal’s authority to make a determination was conditional on the act being characterised as a future act. In Anaconda the issue turned on whether the Tribunal had jurisdiction because of the effect of the Full Federal Court decision in Western Australia v Ward (2000) 99 FCR 316 on the issue of extinguishment. In the event that native title had been extinguished, there was no basis for the Tribunal making a determination, as there were no future acts.
[61] The facts presented in this inquiry are starkly different. There is nothing on the face of the material before the Tribunal that could lead a person to the conclusion that either there is not a proposed future act which is being objected to, or that the native title party in question does not have the requisite legal standing to make the objection.
[62] The government party raises the novel argument, based on the quite dissimilar circumstances of Lardil, that in each expedited procedure inquiry the Tribunal is subject to the particular “jurisdictional fact” doctrine previously outlined.
[63] The facts presented in Lardil were unusual. To obtain the final injunction that was sought there had to be evidence of native title rights and interests that would be affected by the grant of the Restricted Buoy Mooring Authority. Absent such evidence, there was no future act. Accordingly the “jurisdictional fact” doctrine outlined by the government party is not a jurisdictional pre-condition for all future act inquiries. Rather, it was a threshold issue in Lardil because the peculiar and final nature of the relief sought required the production of such evidence. A quite different result may have resulted if interlocutory rather than final relief was at issue.
[64] Reference can be made to parts of the judgments of both French and Merkel JJ which highlight this point. Firstly French J said (at 473):
“It is important to bear in mind that this is not a claim for interlocutory relief. In such a case it may be said that the fact of registration could support the contention of an arguable case for the existence of native title rights and interests in land or waters concerned which might be affected by the proposed future act.”
Similarly Merkel J pointed out (at 476):
“Of course, rather than proceed as they did, it was open to the appellants to challenge the validity of the Authority in their proceeding for a determination of native title and to apply for interlocutory relief to maintain the status quo in respect of the Authority pending that determination. It was also open to the appellants to challenge the validity of the Authority in a discrete proceeding under the NTA, but they would have to establish the existence of native title, or of native title rights and interests that are affected by the Authority, in order to establish that the grant of the Authority was a future act.”
[65] The right to negotiate provisions (which the expedited procedure forms part) are designed, inter alia, to maintain the status quo until (as in this instance) a final determination of native title. Thus Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ pointed out in North Ganalanja Corporation v Queensland (1996) 185 CLR 595 at 616:
“It is erroneous to regard the registered native title claimant’s right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application. If the claim is well founded, the claimant would be entitled to protection of the claimed native title against those powers and interests which are claimed or sought by persons with whom negotiations might take place under the Act. Equally, it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by Government to confer mining rights and other rights to which Sub-div B applies. If the claim of native title is well founded, the power was not available to be exercised to defeat without compensation the claimant’s native title. The Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to. The mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interests.”
[66] Lardil is not authority for the proposition that a Member charged with conducting an expedited procedure objection inquiry is required to determine purported jurisdictional challenges involving an evaluation of whether native title rights and interests actually exist and that the future act in question will either extinguish them or be inconsistent with their future existence. If a native title party presents evidence, which either the government or grantee parties consider inadequate or misconceived, then the proper means of addressing this matter is pursuant to an evaluation of the section 237 criteria. It is a fundamental misconception to characterise matters of merit with matters of jurisdiction.
[67] The “jurisdictional facts” referred to by the government party are in reality not jurisdictional issues in an expedited procedure inquiry. If the government party’s contentions were correct, it would involve the Tribunal considering, whenever a jurisdictional challenge was mounted, whether particular native title applications could be sustained. For example, the government party suggests there is an obligation placed on the Tribunal to look beyond the Register of Native Title Claims and assess if the native title rights and interests asserted by a claim group have a foundation in fact. If the Tribunal undertook such an exercise it would require not just the consideration of complex and difficult issues (which alone, as Mineralogy highlights, is not a sufficient reason for not dealing with a challenge) which would effectively derail the expedited procedure inquiry process, but, more critically, would pose a risk of trespassing onto the jurisdiction of the Federal Court. In some instances it could be “tantamount to a proleptic exercise of the jurisdiction of the Federal Court” – per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ in North Ganalanja at 623. The Tribunal would have to consider evidence and issues relating to connection to country and then undertake some type of weighing exercise to evaluate whether the evidence put forward substantiated the native title rights and interests that were registered. Not only is the Tribunal not the proper body to do this, such an exercise could in some instances adversely affect the conduct of the substantive Federal Court proceedings. Such a scenario is not only undesirable from a legal and policy perspective but has no basis from the wording of the Act.
[68] Nevertheless properly founded jurisdictional challenges can be made as Mineralogy (which involved an expedited procedure objection inquiry) and Anaconda illustrate: but such challenges must go to jurisdiction and not either the merits of an objection or to fundamental issues relating to the factual determination of native title which lie within the sole jurisdiction of the Federal Court. In addition, such challenges must be supported by contentions and evidence by the party raising the issue. The Tribunal is not obliged to deviate from its statutory duty to carry out inquiries in an expeditious fashion simply on the basis of a party raising, and then not properly supporting, a jurisdictional challenge.
[69] The potentially serious legal ramification of a jurisdictional challenge also must be kept firmly in perspective. In this context consideration must be had to the effect of section 28. French J pointed out in Lardil (472-473):
“Subdivisions M, N and O have been referred to in the statutory framework set out earlier in these reasons. Subdivision P relates specificallly to the right to negotiate and sets up a special regime for the acts to which it applies, which need not be considered further here. It is to be noted however that it specifically treats as invalid future acts done otherwise than in compliance with its requirements (s28).”
[70] French J highlights two issues:
(a)firstly, that the right to negotiate provisions of the Act constitute a “special regime”, and, accordingly, care has to be taken in not attempting to unilaterally apply to this Subdivision principles applicable to other future act provisions; and
(b)secondly, if the procedure prescribed for the right to negotiate is not followed, there is the possibility that such an act will be invalid with all of the consequences that flow there from.
[71] Challenges self-described as “jurisdictional” must, especially in the context of the right to negotiate provisions, be treated with some caution. Such caution is necessary not only because a jurisdictional challenge is a serious matter that diverts attention away from the substance of an objection, but also because the upholding of such a challenge not only deprives a native title party of the valuable right to negotiate, but also has the potential, at some time in the future, of exposing the other parties to consequences that may flow from the operation of section 28. Reference should also be made to the following observations of Olney J in Holt v Manzie (2001) 114 FCR 282 where His Honour observed (at 284): “But when there has been no determination as to the existence, or the nature and extent of native title in relation to a particular area, except in the most unambiguous of cases of extinguishment, the spectre of invalidity will inevitably be present unless certain statutory procedures are observed.” Jurisdictional challenges should then be launched only when there are clear and fundamental threshold principles at stake and should be approached in a careful manner by the Tribunal having regard to the potentially serious ramifications that can flow from a successful challenge. The “spectre of invalidity” as highlighted by Olney J is a serious issue which a party launching a jurisdictional challenge needs to keep in mind.
[72] In conclusion, I am not satisfied in this matter that the issues raised by the government party go to the jurisdiction of the Tribunal to conduct an inquiry. The issues raised are not relevant or apposite to a Tribunal Member conducting an expedited procedure objection inquiry and instead go to the merits of an objection.
[73] If a native title party produces to an inquiry such a fundamentally inadequate case that it is manifestly clear that it must fail, then it is open to another party to seek to have it dismissed on the basis that it is frivolous or vexatious. When the Tribunal is presented, in effect, with a paper objection that obviously lacks merit, the Tribunal is not required to proceed to a formal assessment pursuant to section 237. An objection which discloses no prima facie case is an objection that can be disposed of without further cost, inconvenience and delays to the other parties. This option, however, is not in the nature of a jurisdictional challenge. Even if the immediate result is the same (i.e. dismissal of the objection) the manner in which that result is achieved is quite difference and the basis of the dismissal has potentially different consequences.
[74] Finally, while noting that the material lodged in objection DO01/125 is less than satisfactory, not only is there no basis for a jurisdictional challenge to this objection, there is also no proper basis for dismissing it as either frivolous or vexatious. It is a mistake to confuse a weak objection for a frivolous or vexatious one. The strength or weakness of a submission is often in the eyes of the beholder. However, a frivolous or vexatious submission is not just a weak one, but one that lacks merit and one which requires no exercise of cognitive vigour in assessing its prospects. In order to characterise an expedited procedure objection application as being frivolous or vexatious, it must be manifestly obvious that such an application is unsustainable and doomed to fail – see Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People & Ors/ Northern Territory/Ashton Mining Ltd & Anor DO01/140, 02/16, 17, 20 and 27, unreported, Member Sosso 15 April 2002 at [14]. It certainly would not be fair or appropriate to be so dismissive of the materials lodged on behalf of DO01/125. While, I am not satisfied that they have much weight in a section 237 assessment, nonetheless they require careful consideration and not a precipitative exercise of the discretion vested in a Member under section 147.
Other Evidence lodged with the Tribunal
Aboriginal Communities
[75] There are no Aboriginal communities within the boundaries of the proposed tenement; however the native title party (OSC at para 68) referred to the following communities in the general area:
(a) Bulman community, which is said to be 33 km north of ELA 23046;
(b) Beswick and Barunga communities, which are an unspecified distance west of ELA 23046;
(c)Kewulyi, Ngukurr and Roper Bar which are to the south of the proposed tenement. The government party estimated that each of these is more than 30 km distant (GPSC at para 8); and
(d)Buddawarrka, which the native title party estimates to be about 17 km south east of ELA 23046.
Recorded or Registered Sites
[76] There are no areas or sites recorded or registered by the Aboriginal Areas Protection Authority within the area of the proposed tenement. There are a number of sites, both recorded and registered, in the general vicinity of ELA 23046. The sites relied on by the native title parties (OSC at para 80) are as follows:
(a)Dup Dup Spring (5770-36), which is a AAPA registered site located north of the proposed tenement;
(b)Gunu.urra, Lindsay Springs (5770-16), an AAPA registered site located north of the proposed tenement;
(c)Burrmala, a dreaming site located within the Big River Urapunga native title determination application, but whose physical relationship with the proposed tenement is unclear; and
(d)Jurrmunu, a waterfall on the Roper River, which is said to be on the southern boundary of the licence area on Urapunga Station.
Previous and Proposed Mining/ Exploration Activity
[77] The area comprising the proposed tenement has, over the last 31 years, been the subject of fairly extensive mining and exploration tenement grants by the Northern Territory. The government party supplied the following details of prior mining tenements granted over the subject area:
Authority to Prospect – AP 1979, 2022, 2332, 2583, 2612, 3133;
Exploration Licence – EL 1711, 1903, 2439, 2440, 2620, 2900, 2901, 3351, 3352, 3353, 3367, 3368, 4481, 4485, 4486, 4487, 4488, 4489, 6287, 6288, 6289, 6290, 6294, 6295, 8938, 8940,8943, 8944
[78] In the Application for the Grant of an Exploration Licence the grantee party made the following comments about the proposed work program for the first year:
“The Exploration Licence Application targets insitu (sic) and transported heavy industrial minerals associated with extensive erosion of dolerite sills which have intruded at various stratigraphic intervals into the Upper Proterozoic Roper Group.
Work programs in tenure one will incorporation combinations of the following activities designed to further refine target area selection in preparation for intense year two exploration activities:
·Historic literature and analytical data review/compilation;
·Available Thematic Mapper digital data and open-file geophysical surveys; target area definition/refinement and data interpretation;
·Reconnaissance and follow-up pick and auger-based soil sampling with helicopter support as necessary;
NB Surrounding tenement in the name of Geoffrey Fanning will be transferred into Exploration and Resource Development’s name upon grant and this EL application will become part of a larger project area.”
In addition the grantee party indicated that the exploration program for subsequent years would be as follows:
”Year two activities will be largely dependent on positive results from the initial tenure’s exploration. Combinations of the following are likely to be undertaken:
· Extensive gridding, geological mapping and soil/auger/drill sampling;
· Comprehensive laboratory analysis of 2,000 samples;
· Trial low-impact extraction of target commodities;
· Resource estimation exercises in combination with existing hard rock resources held by the company;
· Marketing and preliminary feasibility studies.”
[80] Mapping produced by the government party indicates that ELA 20346 is adjoined in all but its north-eastern boundary by granted mining tenements, namely: EL22478, EL22479 and EL22480. In addition in the immediate vicinity of the proposed tenements are a number of other granted exploration licences, namely: EL 22339, EL 5954 and EL 5953.
[81] The government party has lodged documents and maps which indicate that the licence area and its immediate surrounds has been the subject of quite extensive exploration activity. All geographic portions of ELA 23046 have been subjected in recent years to stream sediment sampling activities, with some localised auger drilling.
Expert Evidence Adduced by the native title party
[82] In addition to the Affidavits of Mr Daniels and Ms Brown, the native title parties also submitted (inter alia) the standard Affidavits of Messrs Stead and Foy as well as their transcripts of evidence before 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.
[83] This material has been considered by various Tribunal Members in numerous Northern Territory expedited procedure objection inquiries. Most recently the utility of much of this generic material for the purposes of specific inquiries was discussed by Member Williamson in Anges Limmerick on behalf of the Wakaya People/Pilbara Chemical Corporation NL and Rare Earths & Minerals Pty Ltd/Northern Territory DO01/47, unreported, 5 August 2002 (“Anges Limmerick”). I respectfully adopt, for the purposes of this inquiry, Member Williamson’s comments and analysis at [23] – [29].
Land Claim Reports
[84] The native title parties have sought to rely on the findings of Maurice and Olney JJ in their capacity as Aboriginal Land Commissioners in the Mataranka Area Land Claim Report and the Roper Valley (Kewulyi) Land Claim Report.
[85] The land and waters, the subject of inquiry by the Aboriginal Land Commissioners, fell outside the area of the proposed tenement. In the instance of the Roper Valley (Kewulyi) Land Claim Report the closest point, according to the native title parties, from the licence area to the land under consideration by Olney J was between 42 and 50 kilometres (OSC DO01/123 at para 43). The Mataranka Area Land Claim Report deals, inter alia, with parts of the Urapunga stock route. The proposed tenement is about 5 km north of the easternmost point of the area that was considered by Maurice J (OSC DO01/123 at para 51).
[86] The government party made these submissions:
“As to the Reports of the Aboriginal Land Commissioners the Government Party notes in relation to the Roper Valley Land Claim Report that issues pertinent to the current inquiry were not evidentially tested. With regard to the Mataranka Land Claim Report the Government Party notes that the Report is dated December 1988 and that much of the anthropological and other evidence upon which the Report is based is dated 1986.”
[87] Having read both Reports, it would be fair to say that they are of assistance to the Tribunal in a contextual sense only. They do provide very useful information about the Aboriginal society, traditions and beliefs in this part of the Northern Territory and assist in putting in a better and more correct context the original evidence presented by the native title parties to the inquiry. Nonetheless while the Reports are useful in a broad and general sense, they do not provide much assistance specifically with respect to the nature of the land and waters that comprise the proposed tenement or social and cultural activities on that area. Moreover, as the government party correctly highlights, the comments of Maurice J with respect to foraging are now many years old. The Aboriginal evidence heard by Maurice J was given in December 1986, and is very dated. In addition, the attention given by Olney J to foraging activities in his Report which could be said to relate to the proposed tenement is virtually non-existent. While His Honour’s useful analysis was of a broader dimension than the land under specific claim, attempting to use this Report as a basis for demonstrating social and community activities on the licence area would be futile.
[88] Curiously the native title parties did not refer to, or rely upon, the findings of Olney J in the Urapunga Land Claim No. 159 Report which was presented in June 2001. It would appear that the land and waters considered by His Honour actually comprised a small portion of the south eastern section of the proposed tenement. Dawson Daniels, in fact, was one of the witnesses who gave evidence (p.27). I have not considered this Report for the purposes of this inquiry, as it has not been relied upon by the native title parties. Nonetheless presumably a relatively contemporaneous Report involving land and waters actually overlapping the licence area may have been of greater utility and relevance than Reports of much older vintage and dealing with country more distant from the area under consideration. I draw this matter to the attention of the native title parties, because if the Tribunal is required to read and consider various Land Claim Reports, it would be helpful if the Tribunal was alerted to the Reports of most recent vintage and of closest proximity to the area being considered.
Legal Principles
[89] 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 (“Moses Silver”).
[90] 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
[91] The native title parties generic submission on what community and social activities are carried on by native title holders on the proposed tenement was as follows (OSC DO01/124 at para 71):
“a. Foraging [Kewulyi Land Claim Report [55], [62]]; Mataranka Land Claim Report [7.1.1]]. The manner in which foraging occurs, together with the importance of this activity is set out at [7.1.1]-[7.2.6] of the Mataranka Land Claim Report;
b. Hunting, fishing and gathering of bush tucker [affidavit of Dawson Daniels [9], [11]; affidavit of Nell Brown [9], [10]]. Nell Brown’s family and lots of families from Barunga, Beswick and Bulman carry out these activities [affidavit of Nell Brown [9]]. Children go [affidavit of Nell Brown [11]; affidavit of Dawson Daniels [13]]. Bush tucker including sugarbag, black berries, white currants and Billy-Goat Plums, and fish and turtles [affidavit of Dawson Daniels [9]]. The Mataranka Land Claim Report provides some assistance in defining the context in which foraging (which includes hunting, fishing and gathering of bush tucker) takes place [see [7.1.1]-[7.2.6]].
c. Collection of bush medicines [affidavit of Dawson Daniels [9]].
d. Camping [affidavit of Nell Brown [11]].
e. Teaching children about traditional laws and customs, the techniques of conducting hunting, fishing, gathering and other activities, and the significance of areas or sites [Mataranka Land Claim Report [7.2.3], [7.2.5]]; affidavit of Nell Brown [11]; affidavit of Dawson Daniels [13]]. Children are taken hunting and on visits to the licence area.
f. The community of native title holders actively look after country, by visiting and maintaining sites. This activity is conducted by individuals with specific responsibility for that area or those sites.
i.Ronnie Martin lives at Mainoru and looks after that part of the licence area on Mainoru [affidavit of Nell Brown[14]].
ii.Mingirringgi and Junggayi guard people from going too close to sacred areas if they are there [affidavit of Dawson Daniels [5]].
These activities occur over some or all of the licence area, and in its vicinity. They occur regularly and area carried on by more than isolated members of the native title claim group:
g. Dawson Daniels, his family, and members of his community carry out community or social activities on that part of the licence area covered by the Big River – Urapunga native title application [affidavit of Dawson Daniels, particularly [9], [11].
h. Nell Brown, her family, and lots of families from Barunga, Beswick and Bulman carry out community or social activities on that part of the licence area covered by the Mountain Valley – Mainoru native title application [affidavit of Nell Brown, particularly [9]].”
[92] The first matter that requires attention is the suggestion that the two Land Claim Report demonstrate that foraging occurs on the proposed tenement by native title holders. A reading of both Reports does not provide any such assistance. The more recent of the two Reports, that presented by Olney J in 1999, makes only two fleeting references to foraging. Thus at paragraph 55 of the Roper Valley (Kewulyi) Land Claim Report His Honour says:
“Members of the Kewulyi group asserted in evidence the right in accordance with Aboriginal tradition, of members of the group to hunt and forage over Kewuyli country. There is no reason to doubt the validity of such a claim which was not challenged and which is entirely consistent with well known Aboriginal traditional rights throughout the Northern Territory.”
[93] This paragraph (which is referred to by the native title parties) is so general that it could not be said with any confidence that His Honour’s attention was even directed at the specific land and waters that comprise the proposed tenement. Moreover, there is a significant difference between the assertion of the right to forage, and evidence of exercising that right. It may well be that native title holders assert with their traditional country, their right to forage, but in an expedited procedure objection inquiry, there must be evidence of contemporary social or community activities. This paragraph provides no assistance in such an exercise.
[94] The native title parties also relied on His Honour’s findings in paragraph 62 which reads as follows: “Members of the Gunduburun local descent group assert in accordance with Aboriginal tradition, the right to hunt and forage over Gunduburun country. Those claims have not been challenged and there is no reason to doubt their validity.” Two comments can be made about this paragraph. The first is that His Honour made an uncontested finding of an assertion of a right to forage. Again he made no findings on whether such a right is exercised, and if so in what manner, by whom and with what frequency. The specific finding he made is not of assistance in making a section 237(a) of actual community or social activities. The second matter is that His Honour at paragraph 41 says: “The estate of the Gunduburun group covers parts of Moroak and Elsey pastoral leases and extends to the site Jerdierdga on the north-west corner of what was formerly Hodgkin Downs pastoral lease.” It should be noted that the country described by His Honour is considerably to the west of the proposed tenement, and even if members of the Gunduburun group assert foraging rights in this country, it is not relevant to this inquiry.
[95] The discussion by Maurice J in the Mataranka Area Land Claim Report on foraging is quite extensive, and as the native title parties correctly point out, provides an excellent explanation of the nature of foraging and the importance of it to native title holders. However, His Honour’s analysis does not focus on actual foraging on the land and waters that comprise the proposed tenement, or help to substantiate the evidence given by either Mr Daniels or Ms Brown. As previously mentioned, His Honour received evidence on these matters in December 1986, or more than 15 years ago. The focus of an expedited procedure inquiry into community or social activities is toward activities currently engaged in that may be interfered with by the grant of the exploration licence. In short there must be evidence of activities that will be interfered with, not with activities that may have occurred in the past which in the interim may have ceased or changed. Accordingly, great care must be taken in accepting historical evidence as being of assistance in a section 237(a) assessment as the focus of the assessment is not on traditional entitlements or what traditionally was the situation.
[96] Turning first to the Affidavit of Mr Daniels, is it clear that he is not opposed to exploration per se. As he says at paragraph 14 of his Affidavit: “We are not trying to stop mining…we just need to know what they are going to do.” The focus of his Affidavit is towards ensuring that prior to exploration starting that representatives of the grantee party meet with the Mingirringgi and Junggayi first. In fact condition 18 of the conditions imposed on grantees pursuant to section 24A of the Mining Act specifically deals with this situation. Condition 18 provides as follows:
“(a) The Licensee shall, prior to the commencement of exploration activities other than reconnaissance, convene a meeting on the licence area (or the nearest convenient locality) with registered native title claimants or holders to explain the exploration activities. The Licensee may also invite the relevant pastoral lessess(s) or landholders to this meeting.
(b)Notice of the meeting shall be by letter and shall be posted to the registered native title claimants or holders and the representative body not less than 17 days before the meeting and shall nominate the date, time and place of the meeting.
(c)The Licensee must have regard to representations made to it at the meeting regarding any aspect of the exploration activities which raises concerns. These representations may deal with the avoidance access procedures of particular areas of land within the licence area.”
[97] The on site consultation mandated by this condition will ensure that there is an appropriate forum for Mr Daniels and other native title holders to ventilate their aspirations and concerns.
[98] Mr Daniels outlines in a general sense various concerns that he holds about exploration activities, including destruction of trees, pollution of watercourses, making roads and the danger posed to native title holders from holes etc. Specifically he says that: “We are always going fishing through this country – we get bream, barramundi, nailfish, turtle and we hunt for kangaroo, turkey, emu.”
[99] It is not clear if Mr Daniels is referring generally to the area of the Big River Urapunga native title determination area, or just the proposed tenement. In any event, assuming that he is referring to the licence area, there is no particularity in his Affidavit as to exactly who goes hunting and fishing, how often and in what part or parts of the subject area. In short, the Tribunal has before it evidence of an extremely general and vague nature. I agree with the following contentions of the government party (GPCR DO01/124 at para 114):
“There is a lack of specificity as to location, frequency and participants with respect to the hunting and fishing activity deposed to at paragraphs 9, 10 and 11. It is not clear whether this activity takes place on the proposed licence area, how often this activity occurs and whether the participants (or all of them) are alleged native title holders.”
[100] While the concerns articulated by Mr Daniels are understandable, apart from the extensive regulatory regime in force in the Northern Territory which is aimed at minimising the risk of environmental damage and disruption to native title holders carrying out traditional activities, there is no evidence whatsoever that any of the previous extensive exploration activities resulted in similar impacts.
[101] The regulatory regime in force in the Northern Territory contains numerous protections designed to minimise the risk of exploration having a substantial impact on community or social activities. In previous inquiries I have set out the conditions imposed by section 24A. For present purposes reference can be made to the first two conditions:
“1.The Licensee shall carry out is activities in such a way as to minimise any impact to any extant native title rights and interests in the licence area, in particular, by ameliorating:
(a) any interference directly with the carrying on of community or social activities of registered native title claimants or holders; or
(b) any interference with areas or sites of particular significance, in accordance with the traditions of registered native title claimants or holders.
The Licensee shall carry out its activities in such a way as to minimise disturbance to the environment of the licence area, in particular by minimising:
(a) interference with the use of the land by other persons;
(b) the disturbance of flora, fauna and other natural resources;
(c) pollution, including soil, water and atmospheric pollution;
(d) the incidence and effects of soil erosion.”
[102] The Tribunal will apply the presumption of regularity to a grantee party, unless there is material before an inquiry which displaces that presumption. This principle was explained by Deputy President Franklyn in Western Australia v Smith (2000) 163 FLR 32 as follows (51-52):
“in the absence of evidence to the contrary, it would be improper to assume that, in exercising the rights created by the grant, the grantee would act in breach of the conditions imposed on the licence or in defiance of the various statutes and regulations which apply in respect of and would restrict the exercise of such rights. Nor should it be assumed that those empowered by any such statute or regulation to exercise a discretion as to the manner or extent of the exercise of all or any such rights would not act properly within the boundaries of the discretion. The presumption of regularity must prevail in the absence of evidence to the contrary.”
[103] Having regard to the limited evidence provided by Mr Daniels of community or social activities, and taking into account the extensive, focused and proactive regulatory regime in force in the Northern Territory which is specifically aimed at minimising the risk of interference to community or social activities, the Tribunal is satisfied that so far as the DO01/124 objection, there is not a likelihood of interference within the meaning of section 237(a). Obviously, as Mr Daniel’s evidence was limited to activities on the area of the Big River Urapunga native title determination application, it has no relevance to community or social activities with respect to objections DO01/123 and 125 which relate to different land and waters, albeit concerning the same proposed tenement.
[104] Turning next to the Affidavit of Nell Brown, the first point to note is that her evidence relates to community and social activities on the area of the proposed tenement that overlaps the Mountain Valley – Mainoru native title determination application.
[105] It is clear that Ms Brown, like Mr Daniels, is not opposed to mining exploration per se. She also wants “the mining company to come and talk to us first, before they start exploring work. I want them to tell us more about what they are going to do to the land. They should let us know where they will go, and how long they will be there.” The requirement, pursuant to Condition 18 of the Conditions made pursuant to section 24A of the Mining Act for an on-site meeting prior to the commencement of exploration should provide the appropriate forum for an exchange of information and allow the ventilation of issues and concerns held by native title holders.
[106] The geographic extent of community and social activities on the proposed tenement engaged in by Ms Brown and members of her family is unclear. She deposes (para 1) that she is a traditional owner for country belonging to the Bullu group within the Mainoru Pastoral Lease and refers (para 6) to places which are outside the northern boundary of the licence area. Ms Brown says that her country “comes into the northern part of ELA 23046.” Consequently when she later deposes that members of her family go hunting and fishing in this country, it would appear that she is discussing activities that occur predominantly within the Mainoru Pastoral Lease and very little of which occur on the subject area.
[107] Moreover Ms Brown’s descriptions of community and social activities are brief and vague. She does not specify exactly who goes fishing and hunting except to say that it includes her family and “lots of families from Barunga, Beswick and Bulman”. I assume, though there is nothing before the Tribunal to substantiate the assumption, that the other families include relevant native title holders. Moreover, there is no detail of where hunting and fishing occur, except to say that it is “through this country”. Insofar as only a small portion of Bullu country lies within the proposed tenement, it is not clear to what extent the area of overlap with the proposed tenement is used for hunting and fishing. Also, apart from the statement that hunting and fishing take place on a frequent basis (people are “always going”), there is no indication whether this is limited to any particular time of the week, year or season.
[108] Again, while Ms Brown outlines her concerns about exploration activities, she does not depose that any of the previous exploration activities on or around the proposed tenement has interfered with hunting or fishing. Indeed, if the hunting and fishing is as frequent and important, as it would appear, it is open to infer that exploration and mining in this region has not resulted in any significant deleterious impacts.
[109] It also needs to be borne in mind both with respect to the evidence provided by Mr Daniels and Ms Brown, that the proposed tenement is located wholly within pastoral lease land. In fact the proposed tenement falls within eight pastoral leases. The licensees of those various leases, together with their employees and agents, have a right, pursuant to the terms of the leases and the relevant laws, to carry out lawful activities. To the extent that a pastoral licensee (or person authorised by the licensee) exercise rights properly granted, such activity prevails over any native title rights and interests – section 44H. Toohey J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 (at 133): “If inconsistency is held to exist between the rights and interests conferred by native title and rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.”
[110] More recently the High Court considered, inter alia, Northern Territory pastoral leases in Western Australia v Ward [2002] HCA 28. Gleeson CJ, Gaudron, Gummow and Hayne JJ said (at 424): “To the extent that the grants of the pastoral leases involved the grants of rights and interests not inconsistent with native title rights and interests in relation to the land or waters covered by the respective pastoral leases, the rights and interests granted, and the doing of any activity in giving effect to them prevailed over the native title rights and interests but did not extinguish them.”
[111] French J pointed out in Smith v Western Australia (2001) 108 FCR 442 (at 451) that the risk assessment undertaken by the Tribunal when considering section 237(a) involves an evaluation that is contextual. The extent of the interference and the proximity of its causal connection to the proposed future act are not considered in isolation but having regard to such other factors which so affect community or social activities that the impact of the proposed future act is insubstantial. In particular His Honour held that it was permissible to have regard to constraints already imposed on community and social activities by third parties and external regulation.
[112] In this inquiry the Tribunal has had regard to the fact that community and social activities by native title holders on the proposed tenement is already subject to the lawful activities of the lessees of Pastoral Leases 1080, 1099, 1153, 1159, 1160, 1162, 1167 and 1168.
[113] As was previously highlighted, there are also no Aboriginal communities located on or in very close proximity to the proposed tenement. The only “community” referred to by the native title parties which is immediately adjacent to the subject area is the Arnhem Land Aboriginal Land Trust. As will be noted, the Trust is not a community; rather it is the designation of a particular area of land. The native title parties produced no specific evidence that the Trust contains a specific community of native title holders living near to the borders of the licence area. It is not apposite to a section 237(a) to contend that a Land Trust Area is a “community”. A community is, quite obviously, a group of persons living together and it is not to be confused with a form of indigenous land tenure.
[114] Having regard to the above matters, the evidence of community and social activities provided in objection DO01/124 does not raise a likelihood of interference within the meaning of section 237(a).
[115] Finally, no primary evidence was produced in objection DO01/125 on the issue of interference with community or social activities. Instead the objectors relied on the affidavit evidence produced by Mr Daniels and Ms Brown. Having regard to my previous findings, I likewise find that there is no likelihood of interference within the meaning of section 237(a) so far as objection DO01/125 is concerned.
Section 237(b) – Areas or sites of particular significance
[116] As previously noted, the native title parties contended that there were four sites of particular significance that the grant of ELA 23046 was likely to interfere with.
[117] Two of the named sites, Dup Dup Spring and Gunu.urra are located outside of the northern boundary of the proposed tenement. I have previously determined that it is not necessary that a site said to be of particular significance must be located within the boundaries of the proposed tenement. However in Moses Silver I explained the situation as follows (at [89]):
“The native title party also contended that the areas or sites do not have to be in the proposed tenement area. This contention is soundly based, however, as the government party highlights, if an area or site of particular significance is not located on the proposed tenement, then if paragraph (b) is being relied upon by an objector, that objector should demonstrate how that area or site will be directly and physically affected by exploration activities. Those exploration activities could be either on or off site, but obviously if they are off site then the objector would need to demonstrate that those activities are in fact an integral part of the activities on site (e.g. construction of roads, truck movements to and from the proposed tenement etc).”
[118] Both of these sites were outlined by Ms Brown in her Affidavit.
[119] There are a number of issues about these sites. The first issue is whether they are sites of particular significance. The only primary evidence of the significance of these sites is the brief discussion by Ms Brown. Ms Brown does not disclose in her Affidavit what authority she has to speak for these sites, or, indeed, her particular traditional knowledge of them. While Ms Brown says that she is a traditional owner of Bullu country, it is clear from the very detailed discussion of traditional laws and customs set out in the various Land Claim Reports mentioned earlier, and the two Federal Court decisions of Olney and O’Loughlin JJ, that there is a hierarchy of knowledge and authority for particular sites and country. In this context, and on the basis of Little v Western Australia, it is not manifest from the documents lodged by the native title parties with the Tribunal, exactly what “status” Ms Brown has to speak for the sites outlined in her Affidavit.
[120] Assuming, nonetheless, that Ms Brown does have the authority to speak for these sites, there is also a distinct lack of information about the particular sacredness of the sites. In other words, there is a paucity of material on why these sites are of particular significance. Even if one is prepared to accept that both sites are significant to native title holders (they are dreaming sites), there is no material explaining why or if they are of particular significance.
[121] Carr J explained in Cheinmora v Striker Resources NL (1996) 142 ALR 21 (at 34) that for the purposes of section 237(b) “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.”
[122] The Statement of Contentions lodged by the native title parties in DO01/123 suggested (at para 81) that Dup Dup Spring was a particularly significant site because: “It is a Long Necked Turtle Dreaming. Nell Brown’s father had his name from there. Her auntie was born there.” None of these factors of themselves would lead in the circumstances to a finding of particular significance. The fact that a named place is a Dreaming Site would normally mean that it is a site of significance. The issue, though, is whether it is a site of particular significance to native title holders. There is nothing in Ms Brown’s Affidavit that leads me to the conclusion that Dup Dup Springs is of more than ordinary significance as explained by Carr J. Also with respect to Gunu.urra, the native title parties contend its particular sacredness is because “It is a Long Necked Turtle Dreaming”. This statement alone cannot justify a finding that it is a site of more than ordinary significance.
[123] The government party (GPCR DO01/123 at para 80) contended that simply because a location is associated with a Dreaming, does not automatically mean that the location is significant within the meaning of section 237(b). In support of this view, which, as indicated, the Tribunal accepts, the government party relied on certain comments of Olney J in the Roper Valley (Kewulyi) Land Claim Report. Insofar as the native title parties have relied on this Report, I am of the view that His Honour’s comments have some relevance to this inquiry. As the quote below highlights, Olney J found that not all Dreamings are of equal significance (at para 31):
“The countryside and all on and in it are the result of activity of certain powerful ancestral beings. These are now generally known to Europeans as Dreamings and the era of creation, the Dreamtime. Although the entire universe is said to have been created by them myth and song are usually restricted to specific features of the landscape which they both created and visited. Many of these Dreamings created these by emerging from the earth (or the sea). Following this the beings travelled across the country visiting/creating many other places. The being continued in this manner until, deciding to journey no further, a final site was created where they re-entered the earth, or sea, or sky. The resultant ‘string’ of sites constitute what is often described to Europeans as a ‘Dreaming[s] Track’.
Not all Dreamings, however had long journeys. Some stayed within a short distance of the site from where they emerged. There are, therefore, both ‘local’ and ‘travelling’ Dreamings. The latter can be very significant across a wide area. In considering a limited area, however, the local Dreamings can often be paramount.”
[124] In short while Dreaming Tracks are significant, not all Dreamings are of equal importance, and not all places along a Track are of equal significance, at least to particular native title holders. In each and every case a person speaking on behalf of native title holders should explain why a particular Dreaming site is of particular importance. The Tribunal will readily accept that evidence by a person having traditional authority of a place as a Dreaming site is a matter of great relevance to a section 237(b) assessment. However the identification of a place as a Dreaming site does not automatically result in a finding of significance. The particular sacredness of the site in the scheme of things needs to be explained before a finding of significance can be made. There are some circumstances where the very nature of the country, as evidenced by the number of recorded/registered or identified sites may lead to a finding that the locality is “site rich”. In such circumstances the Tribunal is entitled to make certain inferences. However, this is not such a case as there is no evidence that the land and waters comprising the proposed tenement are site rich.
[125] However, going further, even if one assumes that both sites are of particular significance, there is still a further problem. Both sites are located quite some distance from the licence area. There is no suggestion, let alone any serious evidence, that the proposed exploration activities of the grantee party would be likely to have any direct impact whatsoever on these sites. In short there is no evidentiary basis for assessing any risk of interference to those sites by the grant of the exploration licence.
[126] Mr Daniels refers to two sites in his Affidavit: Burrmala and Jarrmunu. Having regard to the material before the Tribunal, no serious question arises as to the status or authority of Mr Daniels to speak on behalf of the Big River – Urapunga native title claim group, and I accept that Mr Daniels can speak with authority and with the requisite knowledge of the matters he deposed to that relate to section 237(b).
[127] The first site identified by Mr Brown is Burrmala which is said to be a Jardugal (kangaroo) dreaming site. Burrmala is, ostensibly, located within the proposed tenement, although it does not appear to have been either recorded or registered by the AAPA.
[128] The Tribunal encountered some problems in making an assessment of this site pursuant to section 237(b).
[129] One problem is that its exact location is unclear. It is, apparently, not marked on maps provided to the Tribunal and it is only a matter of conjecture that it is located within the boundaries of ELA 23046. In addition to locational ambiguities, there is also a total absence of any information about the site itself, other than it is a dreaming site.
[130] The reference to Burrmala by Mr Daniels is cursory. The Tribunal has been provided with no information of its importance or even its physical manifestation. It is not clear if this site is a mountain, a river, a waterfall, a tree, rocks or is simply a particular location. This information is potentially critical in some inquiries having regard to the type of exploration that is proposed e.g. stream sediment sampling.
[131] The Tribunal does not question the authority of Mr Daniels to identify and speak for sacred sites, at least in his capacity as senior Junggayi for particular country in the south-western portion of Urapunga Station (see para 2 of his Affidavit). In particular I accept that Burrmala is a sacred place on the basis of the evidence of Mr Daniels. However, simply saying that a site or place has a sacred quality because it is a dreaming place is not determinative of the issue of whether that site or place can be categorised as a site of particular significance. The mere fact of singling out a site by referring to it in an Affidavit does not bestow upon the named place the uniqueness or importance that would allow a finding of “particular significance”. The Tribunal must be provided with some information from the person or persons giving evidence about the site as to its significance or importance. It is not open to the Tribunal to speculate about the significance of a site, it is incumbent on the relevant native title party to bring to an inquiry pertinent information that will provide a platform for a sensible evaluation of whether a named site in fact is of “particular significance” within the meaning of that term in section 237(b).
[132] The Tribunal approaches evidentiary issues with due recognition of the difficulties that can arise in dealing with sensitive matters, particularly sacred sites. In this regard it is appropriate to refer to the following observations of Owen J in Ejai v Commonwealth of Australia 1744/1993, unreported, Supreme Court of Western Australia, 18 March 1994:
“The courts must also recognise that there are elements of Aboriginal culture and spirituality about which there is much sensitivity. It is not always easy for law men and law women to disclose details of sensitive matters in an open forum where the information is available to persons to whom disclosure would otherwise be prohibited.
In claims touching on native title the best evidence lies in the hearts and minds of the people most intimately connected to Aboriginal culture, namely the Aboriginal people themselves. Expert evidence from anthropologists and others is of significance and due regard must, and will, be afforded to it. However, it seems to me that the full story lies in the hearts and minds of the people. It is from there that it must be extracted.”
[133] I respectfully agree with His Honour’s observation that in native title proceedings (including expedited procedure objection inquiries) the best evidence is that which comes from the hearts and minds of native title holders. This is particularly the case when the subject matter of the inquiry relates to sacred sites and traditional laws and customs. The custodians of those laws, those persons who have the traditional authority to speak, and the duty to protect, are the primary and best sources of evidence. Accordingly, in this matter, while there is an impressive body of secondary material before the Tribunal, the primary evidence of the significance of Burrmala lies in two short sentences in Mr Daniels Affidavit. Those sentences do not provide sufficient information for any sensible finding that Burrmala is a site of particular significance.
[134] Although it is not necessary to go any further on the issue of Burrmala, I note for the record, that I would have been satisfied, even if it were established that it was a site of particular significance, that the regulatory regime in force renders it unlikely that there is a real risk or chance of interference within the meaning of section 237(b). I have considered and agree with the contentions of the government party on this matter – see GPCR DO01/124 at paras 81-85. Without setting them out, I have taken into account the operation of section 33-37 of the Northern Territory Sacred Sites Act, section 24(k) of the Mining Act as well as the following Conditions (Second Schedule) made pursuant to section 24A – Conditions 1(b), 3, 4 and 18
[135] The second site mentioned by Mr Daniels is Jarrmunu, which is another Jardugal dreaming site. It is, apparently, a waterfall on the Roper River, located on the southern boundary of ELA 23046 on Urapunga Station.
[136] It would appear from the mapping supplied by both the government and native title parties, that this site has neither been recorded nor registered by the AAPA. Even though some effort has been made to describe its location, it is not clear whether it is located inside or just outside the proposed tenement. In any event it is located in such close proximity to the proposed licence area, that this does not raise any serious issues.
[137] Again, Mr Daniels does not explain the significance of Jarrmunu, other than it is a dreaming site. The findings that I made above with respect to Burrmala apply equally to this site. In the circumstances there is insufficient material before the Tribunal to allow any sensible finding that it is a site of particular significance. Nevertheless even if such a finding were made, I agree with the government party that the regulatory regime in force ensures that there is not a real risk or chance that this site would be interfered with by the granting of the exploration licence.
Section 237(c) – Major disturbance to land or waters
[138] The native title parties made extensive submissions on the issue of major disturbance, however most of the material presented to the Tribunal were not directed to the particular circumstances of the proposed tenement, but were of a generic type received in most expedited procedure objection inquiries.
[139] Nonetheless, both Mr Daniels and Ms Brown expressed concern about the possible effect that exploration could have on the subject area. Mr Brown outlined a range of issues in his Affidavit including:
(a) possible destruction of trees (para 9);
(b) destruction of bush tucker (para 9):
(c) pollution of rivers and watercourses (para 10);
(d) damage to fish habitats and consequent impact on fishing (paras 10 and 11); and
(e) soil erosion (para 12)
[140] Ms Brown also expressed a number of understandable concerns:
(a) pollution of watercourses by the inflow of poison during the wet season (para 8);
(b) consequent impact on fish habitats and fishing (para 9); and
(c) creation of physical risks to native title holders (falling into holes etc) – (para 11).
[141] The only evidence of any suggested unique environmental or geological circumstances pertinent to the proposed tenement such that exploration activity could result in major disturbance and that rehabilitation would not be adequate to remedy were the suggestions that Mainoru is flat land with a plethora of small creeks which flood readily and that the Roper River is a major watercourse for this region – OSC D001/124 at para 121.
[142] In Moses Silver I set out the key provisions of the existing regulatory regime governing exploration activities in the Northern Territory. More recently I considered the impact of the Mining Management Act in May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/98, unreported, 25 June 2002. I adopt, for the purposes of this inquiry, the analysis of the regulatory regime set out in the above determinations. In particular I have considered the following provisions of the Mining Act in this inquiry: sections 24(j), 24A (in particular Conditions 2, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19 and 20), 166(1A), (1B), and (2). I have also considered Parts 3 and 4 of the Mining Management Act.
[143] The evidence submitted in this inquiry about the regulatory regime is consistent with previous findings of the Tribunal (see e.g. Anges Limmerick at [74] – [83]) that it goes a considerable distance towards ensuring that the grant of an exploration licence will not be likely to result in major disturbance to land and waters within the meaning of section 237(c). The exploration and mining legislative and regulatory regime in the Northern Territory has been drafted with native title issues in mind. The various provisions are designed to ensure that impacts to the environment and to native title rights and interests are minimised as far as practicable in the circumstances. Nevertheless, despite the advance and proactive nature of this regime, it is never a complete response to a predictive assessment of the Tribunal pursuant to section 237(c). The Tribunal has to consider a range of issues, some of which include the environmental and geological landscape of the subject area, the proposed exploration activities, the impact of previous exploration, the track record of the grantee party (when that is available, relevant and has been raised), and such other issues as may be pertinent.
[144] In making an assessment pursuant to section 237(c) I have taken into account the following factors:
(a)there are no Aboriginal communities situated on or immediately adjacent to the proposed tenement;
(b)despite being subject to extensive exploration activity over many years, no evidence has been produced that such activity resulted in major disturbance to the relevant land and waters;
(c)the evidence of both Mr Daniels and Ms Brown that the subject area is used regularly for hunting, fishing and food gathering would also be consistent with the inference that previous exploration and mining activity on and immediately surrounding the proposed licence area, has not had a serious and deleterious impact on native title holders engaging in traditional activities;
(d)neither Mr Daniels nor Ms Brown express opposition to exploration taking place. Instead both deponents express a desire that before such activity takes place that proper consultations occur;
(e)there is no evidence that the subject area has any peculiar geological or environmental features that would render it more likely that the proposed exploration activity would result in major disturbance. The fact that parts of the subject area are flat and subject to flooding and that the Roper River flows through part of it, are not of themselves factors that render it more likely that exploration will result in major disturbance; and
(f)the regulatory regime operating in the Northern Territory, in particular:
the requirement imposed on grantees to have on site meeting with native title holders to discuss proposed exploration activities – Condition 18, section 24A;
(ii) the requirement imposed on a grantee not to construct new vehicle tracks unless unavoidable, and if tracks are built, to ensure that construction causes minimum damage – Condition 8
(iii) clearing and/or disturbance of vegetation is to be kept to a minimum – Condition 9;
(iv) minimise disturbance to creeks and watercourses – Condition 12
(v) take precautions to prevent contamination of underground and surface waters – Condition 15; and
(vi) the requirements of sections 35 to 37 of the Mining Management Act that exploration involving substantial disturbance must not be carried out unless an Authorisation is first obtained, and that conditions may be imposed requiring the grantee to minimise disturbance;
(g)the abovementioned provisions address the legitimate concerns raised by both Mr Daniels and Ms Brown, and it is likely that they will operate to ensure that the type of disturbances both deponents have discussed, will not come to pass;
(h)prima face, the presumption of regularity can be applied to the grantee party in carrying out the proposed exploration program.
[145] In these circumstances I have concluded that the grant of Exploration Licence 23046 will not 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.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 23046 to Exploration & Resource Development Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
13
0
0